Minster Baywatch / ANPR claim form received

w12ee3e

D_P_Dance said:

ANPR is pants, read this

https://metro.co.uk/2021/10/18/surrey-writing-on-womans-jumper-landed-couple-with-fine-when-she-walked-in-bus-lane-15439916/

Interesting....I'm not sure how to invoke this. WS stage perhaps? I suppose I could drag a whiteboard behind a car with the registration of someone I hate? Not getting any ideas here

Here's my defence now in full.

[quote]

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 registered keeper of the vehicle in question but liability is denied. The identity of the driver at the material time is unknown to the Defendant. The Defendant was not the only insured driver of the vehicle in question and is unable to recall who was or was not driving on that unremarkable day many months ago

3     The Defendant received a Claim Form on the xxth November 2021 from the Court which named Gladstones Solicitors Limited acting on behalf of the Claimant Minster Baywatch Ltd claiming for a Total amount of £242.65 (inclusive of £35 Court Fee & £50 Legal representative's costs). Through research the Defendant has come to understand a PCN(s) was issued against the Defendant’s vehicle XXXXXXX on XXXXXX at Crickley Hill, GL4 8JY

4.         The Defendant has received numerous threatening letters from the Claimaint and their legal representative, Gladstones Solicitors which was unclear as to what they were demanding and crucially the grounds or basis of the demands. This caused significant distress and harassment. Furthermore, the Defendant understands he cannot be held liable due to the Claimant not complying with the ‘Keeper liability’ requirements set out in the Protect of Freedoms Act 2012, Schedule 4.  

4.1  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. 

Just for reference, here's the defence for Highview back in May

https://forums.moneysavingexpert.com/discussion/6266358/highview-parking-court-claim-advice/p3
Too bad they didn't give an update on what happened, curious to know.

w12ee3e

Might need to hold fire before I file the defence, can I get a check on the Particulars of Claim please?

The driver of vehicle with registration XXX (The 'Vehicle') parking in breach of the terms of parking stipulated on the signage (the 'Contract') at Gloucestershire Crickley Hill, on X, thus incurring the parking charge (the 'PCN'). The PCN was not paid within 28 days of issue. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £100 for the PCN, £55 contractual costs pursuant to the Contract and the PCN terms and conditions, together with the statutory interest of £2.65 pursuant to s69 of the County Courts Act 1984 at 8% per annum, continuing at 0.3p per day.

w12ee3e

In addition to the above I've done some research on the forum and I noticed some other defence points. Any thoughts?

4.         A subsequent site visit showed that

a)         The signage situated at the entrance of the site did not clearly and legibly state the terms and conditions thus the defendant was denied the ability informed decision with regards to the site and or charges levied within

b)         Where signs were found within the site, these were in a poor state of repair some partially obstructed by foliage and situated above eye level (5’2-6’0 ft high)

c)         The writing on the signs were too small that even by leaving the car and getting close up they cannot be easily read, and being unable to do so denies that the Claimant’s signage is capable of creating a legally binding contract.

d)         Even if the signs were readable its vagueness 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.

e)         In addition to the above, the Defendant was unable to establish from the signage in situ as to the length of stay which would require a payment to the Claimant   (I'm not sure if I've worded this right but what I'm trying to say is there wasn't any indiciation on the signage how long I could enter the site without triggering the ANPR automatic ticket)

Le_Kirk

Your defence is bespoke to you and your situation.  If what you have found is true for the car park where you were, then you can use it.  You only need to introduce the signage issue in your defence and you can expand upon it later at WS stage.  If you look further in the template defence that you have used, the signage issue is already there, make sure you do not duplicate or confuse the issue.  When posting your edited defence for critique you only need to post those paragraphs that you have edited (usually paragraphs 2 & 3); we don't need to check the rest of the template.

w12ee3e

So my AOS is done, Defence is now in. Waiting for me DQ and I'll then submit my WS.

Do board members here review WS's or is that a bit much to expect?

Redx

w12ee3e said:

So my AOS is done, Defence is now in. Waiting for me DQ and I'll then submit my WS.

Do board members here review WS's or is that a bit much to expect?

Your WS wont be submitted for several months , to your local court ( not the CCBC ) and to the claimant or their lawyers

You cannot even submit it until your court give you both a deadline etc

Some people do post their WS on here for critique , but I would advise you to study previous examples like ones by jrhys & nosy etc. These are constantly referred to in other court claim threads 

w12ee3e

Just had a new letter from GS on behalf of MB. Any thoughts on this?

KeithP

w12ee3e said:

Just had a new letter from GS on behalf of MB. Any thoughts on this?

No, none at all.

Redx

w12ee3e said:

Just had a new letter from GS on behalf of MB. Any thoughts on this?

Probably the usual drivel and advice is given in the newbies FAQ sticky thread near the top of the forum in announcements , second post , plus in the 12 steps by coupon mad in her defence template post , again in announcements

w12ee3e

Redx said:

w12ee3e said:

Just had a new letter from GS on behalf of MB. Any thoughts on this?

Probably the usual drivel and advice is given in the newbies FAQ sticky thread near the top of the forum in announcements , second post , plus in the 12 steps by coupon mad in her defence template post , again in announcements

KeithP said:

w12ee3e said:

Just had a new letter from GS on behalf of MB. Any thoughts on this?

No, none at all.

Didnt attach from my mobile for some reason