PPL/DCBL Claim Court - Defence check - can you please assist

MGaj

I hope you can help me to correct my defence for the court claim raised by DCBL - Claimant Premier Parking Logistica (PPL). 

It's PPL and DCBL - the initial amount was £100, DCBL claims more than that (hidden admin cost). In their claim, PPL has been mentioned as the owner and manager of the land (parking area) what I believe is untrue (I don't know how to check that). Also, there is no information on what was the contract breach and what damages this caused. (Photo attached) I didn't agree to pay in 28 days as they claim.

Notice to keeper - the reason PPL issued the PCN is - Not Parked Wholly Within Bay. I paid for a parking ticket. I ignored all letters because I thought it was a scam. Now I received a claim form, so I need to defend my case.

Claim Form - Issue date - 11 Oct 2021
Acknowledged - 19 Oct 2021 (I didn't put anything in Defence). Confirmed as received on 20th Oct 2021.
SAR - I have requested all PPL photos to see what they consider not parking wholly within a bay, however, they rejected to share pay&display records dated 7th March 2020.
DCBL - Yasmin Mia - she seems to be registered.
Keeper and driver - I was the keeper and driver on that day - I sold my car last year.
There was no board on the parking entrance with the T&C and information it's a pay and display parking (photo attached). 
Parking address - Deritend Service Station, High Street, Digbeth, Birmingham, B12 0LD.
It happened on 7th March 2020 so I can't really say where the T&C was located, however, my friend paid for a ticket, I placed the ticket in my car to make sure it's visible.



I wrote a defence based on the template, can you please check it and advise if any amendments should be done, I believe I need to send it over via email by 4pm 12th November 2021. Thanks a lot for your help.

____________________

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 pay a ‘parking charge’ 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 as the parking charge was paid in full for 24hrs on 7th March 2020 using the pay and display service.

3.  The Defendant was a one-off user of the car park at Digbeth Court, Deritend Service Station, High Street Birmingham B12 0LD, because it rented an apartment overnight 7/8th March 2020 near by. The defendant’s vehicle details, and payment details were saved on the Pay and Display database which included Vehicle Registration KP67JXY. The terms and conditions upon entering private land were not displayed at the entrance to the parking. The defendant didn’t agree to pay within 28 days as per claim details.

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 moneyclaim 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.

Defendant’s signature:

Date:

Redx

We see that tired argument about agreeing to pay within 28 days , so remove it and remove it from your mind too

The t & c s usually mention that the driver agrees to that contract when parking on the land , they all do , so you did agree as the driver , because your act of parking agreed to the contractual rules , by implication , by deed

It's the same in a council bay on a road , the driver agrees to the signage when they park up !

It's been debunked hundreds of times on here , it's like groundhog Day !  , look it up , check the signs !

Which paragraphs have you altered ? Just 2 & 3 ? Or more ?

MGaj

Thank you Redx for coming back to me. I have amended only paragraphs 2 and 3. English is not my first language, hence I am seeking some help with my defence before submitting it. They claim I didn't park wholly within the bay, which is true, checking all the photos they sent me. The reason - I parked best I could by considering a car on my right side was already there parked really bad hence I couldn't park the better way. On the left side - I didn't obstruct any way in and out in/from the parking. I didn't block the way through to parking in the front, and I didn't take any extra space in the back of my car. I didn't put them at any loss because of how I parked, and I don't accept the fact they abuse the process and ask for more money than the original PCN of max £100. I will remove the phrase for about 28 days. Is there anything else I should consider?

Redx

The spurious additional charges are objected to in the defence template already

Adapt paragraphs 2 and 3 and repost below

KeithP

MGaj said:

Claim Form - Issue date - 11 Oct 2021
Acknowledged - 19 Oct 2021 (I didn't put anything in Defence). Confirmed as received on 20th Oct 2021.

With a Claim Issue Date of 11th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 14th November 2021 to file your Defence.

That's nearly a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

Remove this because you didn't pay the £100 parking charge, you paid the fee to park, which is not the same thing:

as the parking charge was paid in full for 24hrs on 7th March 2020 using the pay and display service.

In 3 you should be talking about the allegation of not parking straight in a bay and why the Defendant did that.

MGaj

Thank you guys for all your help so far, I am not only sure what exactly should I add to phrases 2 and 3. I don't deny my car in normal circumstances would be parked fully within the bay, only if the other car next to me would be parked better. There were 3 people with me at that time who can witness that I had to repark my car to let them get out of a car and let us take all bags from a car boot. Should I include that statement in my defence or leave it for a witness statement later in the process? 

2. It is admitted that Defendant was the driver of the vehicle in question, but liability is denied as the parking charge was paid in full on 7th March 2020 using the pay and display service. The defendant had parked in the best possible way considering a car on the right side was already parked very close to the bay line. The defendant didn't put the Claimant at any loss because of how the car has been parked. On the left side - the car didn't obstruct any way in/out or in/from the parking. The car didn't block the way through to parking in the front, and the car didn't take any extra space in the back of the car. 

3. Defendant was a one-off user of the car park at Digbeth Court, Deritend Service Station, High Street Birmingham B12 0LD, because it rented an apartment where stayed overnight on 7/8th March 2020 nearby the parking. The terms and conditions upon entering private land were not displayed at the entrance to the parking. The defendant’s vehicle details and payment details were saved on the Pay and Display database which included Vehicle Registration KP67JXY and the parking ticket was clearly displayed.

MGaj

Coupon-mad said:

Remove this because you didn't pay the £100 parking charge, you paid the fee to park, which is not the same thing:

as the parking charge was paid in full for 24hrs on 7th March 2020 using the pay and display service.

In 3 you should be talking about the allegation of not parking straight in a bay and why the Defendant did that.

I have corrected phrases 2 and 3.

2. It is admitted that Defendant was the driver of the vehicle in question, but liability is denied. The Defendant was a one-off user of the car park at Digbeth Court, Deritend Service Station, High Street Birmingham B12 0LD, because it rented an apartment overnight on 7/8th March 2020 near the parking. The terms and conditions upon entering private land were not displayed at the entrance to the parking. The Defendant's vehicle details and payment details were saved on the Pay and Display database which included Vehicle Registration KP67JXY and the parking ticket was clearly displayed.

3.  The Defendant didn't put the Claimant at any loss because of how the car has been parked. The defendant had parked in the best possible way considering the other vehicle on the right side was parked very close to the bay line. On the left side - the car didn't obstruct any way in/out the parking. The car didn't block the way through to parking in the front, and the car didn't take any extra parking space behind the car. 

Coupon-mad

Never put 'no loss'.

And you are not 'it' (change to he or she).

MGaj

Coupon-mad said:

Never put 'no loss'.

And you are not 'it' (change to he or she).

Following your advice, I made other corrections to both phrases:

2. It is admitted that Defendant was the keeper and driver of the vehicle in question, but liability is denied. The Defendant was a one-off user of the car park at Digbeth Court, Deritend Service Station, High Street Birmingham B12 0LD, because she rented an apartment overnight on 7/8th March 2020 near the parking. The terms and conditions upon entering private land were not displayed at the entrance to the parking. The Defendant's vehicle details and payment details were saved on the Pay and Display database which included Vehicle Registration KP67JXY and the parking ticket was clearly displayed.

3.  The Defendant feels that the claimant is attempting to extort the Defendant for an extra car parking fee unless the Claimant can prove the parking offence made them lose this much money. The Defendant had parked in the best possible way considering the other vehicle on the right side was parked very close to the bay line. On the left side - the Defendant's car didn't obstruct any way in/out the parking. The Defendant's car didn't block the way through to the parking in the front, and in the back - no extra parking space was taken by the Defendant's car.

Coupon-mad

No, this is mot a valid argument and you are still thinking they have to show loss, which they don't:

The Defendant feels that the claimant is attempting to extort the Defendant for an extra car parking fee unless the Claimant can prove the parking offence made them lose this much money.