URGENT - Last Day to submit DEFENCE - County Court

chigger1

Hi, Apologies for leaving it to the last minute.

Need help to review Defense Paragraph 3. before submission. I read not to include any evidence in this defense, such as photographs, google maps etc. Not sure too vague  defense or should put more detail here.

First the basics :

1. County Court Claim letter Dated : 5th October
2. AoS submitted with request for defense extension (email) - 19th October
3. CC accepted 28 days for defense submission 
4. Deadline for Defence submission - 8th November, 4pm ( 7th November is a sunday) - verified via calls to the County Court telephone advisor

Second:
Claimant: ARDPARK LTD
Lawyer: BW Legal

Third:
Situation:- Overstayed 2hour car park limit as I had vertigo episode after a medical appointment. Did not operate car to exit car park due to vertigo episode (safety - for others and to operate vehicle). PCN letter arrived during 2nd Lockdown, was not able to receive letter as I was elsewhere from registered address or pay reduced fine. Appeal ARDPARK unsuccessful and not allowed to appeal to IPA due to time elapsed. Sent Debt collector letters - ignored. Sent letters from BW Legal - ignored. Then BW Legal Letter for Claim not received in time as I was out of the country. County court Claim issued 5th October.

My Defence - Paragraph 3.

The Defendant did not see any clear visible signage entering into car park at XXX from the drivers position on XX/XX/XXXX. The Defendant could not clearly identify ‘paid for’ parking infrastructure within the vicinity of the car parking. As the defendant was at the location for a planned appointment, there were no signage notifying the Defendant of the process to register the vehicle (VRM) with site business at the car park site.

The Claimant has also not handled the case as per International Parking Association (IPA) guidelines pertaining to process & due consideration and other breaches of code. The Claimant has also not given due consideration to Government Regulations in relation to this case.

Do I need to go into more detailed than mentioned above??

I have evidence but read not to include? Please advice if this defense is satisfactory.

Rest of defense is per template.

Thank you in Advance for your help and guidance.

Redx

Defence contains no S , you have used both , only Defence is correct 😋😋

The trade body name is incorrect , it's definitely not Association !  IPC are the correct initials

Which government regulations ?  There no regulations ! It's an unregulated industry at the moment

Details and stories are for the witness statement stage in several months time ! Not the defence !

The defence lays the foundations ,with lots of doors to open later on

No evidence ( exhibits ) are attached to the defence , it's a text only document , in pdf

Post your paragraph 2 and an amended paragraph 3 below ASAP

Number every paragraph too

D_P_Dance

Have you read the newbies and complained to your MP?

chigger1

Please find below the reply. I am not sure what edit to add for 2 and 3. government regulations were lockdown restrictions during that period meant I could not travel back without just reason to do so. 

IN THE COUNTY COURT

Claim No.: XXXXXXX

Between

X

(Claimant) 

- and -  

Mr X

 (Defendant)

____________________

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to a ‘parking terms’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the driver of the vehicle in question, but liability is denied. 

3.       The Defendant did not see any clear visible signage entering car park X from the drivers position on XX/XX/XXXX. The Defendant could not clearly identify ‘paid for’ parking infrastructure within the vicinity of the car parking. As the defendant was at the location for a planned appointment, there were no signage notifying the Defendant of the process to register the vehicle (VRM) with site business at the car park site.

The Claimant has also not handled the case as per International Parking Community (IPC) guidelines pertaining to process & due consideration and other breaches of code. The Claimant has also not given due consideration to Mitigating Circumstances & Government Lockdown Regulations in relation to this case.

4.     The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5.       It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this money claim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

15.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

17.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

18.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

 

 

Mr X

Date: XX/XX/XXXX

 

 

Appendix

Do I need to include any of the mentioned cases here???

chigger1

D_P_Dance said:

Have you read the newbies and complained to your MP?

I have complain to local councilors but they say the company has previous and many others have been caught out.

tboo

chigger1 said:

Situation:- Overstayed 2hour car park limit as I had vertigo episode after a medical appointment. 

was not able to receive letter as I was elsewhere from registered address or pay reduced fine.

The Defendant did not see any clear visible signage entering into car park at XXX from the drivers position on XX/XX/XXXX. The Defendant could not clearly identify ‘paid for’ parking infrastructure within the vicinity of the car parking. As the defendant was at the location for a planned appointment, there were no signage notifying the Defendant of the process to register the vehicle (VRM) with site business at the car park site.

Where is this car park?

How long are they saying the overstay is?

Do you have any photos of the signs? If not can you go get some.

Redx

You were specifically asked to post only paragraphs 2 and 3 , not the whole Defence !! It's your homework being checked , not coupon mads !

chigger1

tboo said:

chigger1 said:

Situation:- Overstayed 2hour car park limit as I had vertigo episode after a medical appointment. 

was not able to receive letter as I was elsewhere from registered address or pay reduced fine.

The Defendant did not see any clear visible signage entering into car park at XXX from the drivers position on XX/XX/XXXX. The Defendant could not clearly identify ‘paid for’ parking infrastructure within the vicinity of the car parking. As the defendant was at the location for a planned appointment, there were no signage notifying the Defendant of the process to register the vehicle (VRM) with site business at the car park site.

Where is this car park?

How long are they saying the overstay is?

Do you have any photos of the signs? If not can you go get some.

Car park at Tower Court, Clifton Moor, York. I overstayed by 39 min as I felt vertigo. Previously the car park limit was 4 then reduced to 3 but always there was a clear white signage (See google map https://www.google.com/maps/@53.9852175,-1.1004707,3a,75y,291.87h,79.52t/data=!3m6!1e1!3m4!1sAgRUcS6u_Q0WZ4oTpv52sA!2e0!7i13312!8i6656  ). The site is located next to a primary school with children passing through the area.

The government lockdown meant i was unable to get back to my address in time to respond to the letters sent by the claimant.

What else should I add in paragraph 2 / 3?

tboo

chigger1 said:

PCN letter arrived during 2nd Lockdown, was not able to receive letter as I was elsewhere from registered address or pay reduced fine.

chigger1 said:

Please find below the reply. I am not sure what edit to add for 2 and 3. government regulations were lockdown restrictions during that period meant I could not travel back without just reason to do so.

Just to clarify were you aware of the letter that arrived?

As I'm sure mentioning that you knew about the PCN but did not appeal straight away is irrelevant now.

You could have, and definitely should have appealed at the 1st opportunity, either to the landowner or Ardpark, but that ship has sailed.

chigger1

tboo said:

chigger1 said:

PCN letter arrived during 2nd Lockdown, was not able to receive letter as I was elsewhere from registered address or pay reduced fine.

chigger1 said:

Please find below the reply. I am not sure what edit to add for 2 and 3. government regulations were lockdown restrictions during that period meant I could not travel back without just reason to do so.

Just to clarify were you aware of the letter that arrived?

As I'm sure mentioning that you knew about the PCN but did not appeal straight away is irrelevant now.

You could have, and definitely should have appealed at the 1st opportunity, either to the landowner or Ardpark, but that ship has sailed.

So I was at the property till the 12th i believe but the letter was dated for the 5th dec 2020. that is 5 full working days when the letter had not arrived but only was aware of the letter after I came back post x-mas.

Appealed to ARDPARK but they declined because appeal not lodged within 21 days of the letter. 

tboo

For later stage

If you were at an appointment, do they require you to input a reg number etc when there?

Are there signs in the surgery to state this or do they tell you to do this?

You may need to get evidence of the appointment and if you have a diagnosis, evidence you have vertigo.