DCBL Legal Letter for PCN from Aug 2017

PurpleMystique

KeithP said:

PurpleMystique said:

Hello

I'm filing my AOS tomorrow, I plan to send it by post (first class to avoid delays in post due to bank holidays etc) and to email a copy too. I'm assuming this is acceptable? I'm not filing the financial details as stated in the newbies thread. Am I missing anything? 

Thanks in advance

Sorry, I don't understand.

On 18th December I wrote on your thread...

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

On Boxing Day you responded...

Thank you sooo much @KeithP I cant tellyou how helpful this break down is for me. I will get onto writing out my defence 

Yet today you have decided to ignore that.
Good luck with whatever you decide to do. I'll leave you to it.

Please don't get upset. I made a mistake I obviously didn't read it properly, I'm sorry. Please don't accuse me of ignoring your advice because I'm not. I get confused easily and it's extremely challenging for me to navigate through the newbie thread as there is just so much information to process. Im sorry you're having to be so specific with me, I'm trying really hard here but it is difficult for me. 

I will follow the mcol advice as per the link on the second newbies post. 

I hope you will be kind enough to point me in the right direction. 

PurpleMystique

Redx said:

Just fill it in on MCOL , no need to post the paperwork at all

Thank you I'll do that 

PurpleMystique

Hi All, 

The context of my situation surrounding this ticket is this: 

I parked in a blue badge bay but did not display my actual blue badge until 10 minutes after I arrived as I left it in my bag. I did go back and display it. The day in question I was driving and I am the registered keeper. 

I have completed my draft defence. Please could I kindly ask for someone to read over it at provide me with some feedback?
Do I need to attach appendices? I need to submit on the 17th Jan, a week from today. 

I know the defence is not perfect, but any guidance is very uch appreciated. 

Thank you very much 

 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 registered keeper of the vehicle in question but liability is denied.  

3. The defendant does not recall seeing or identifying any signage which would have allowed the defendant to automatically enter into a ‘contract’ and proceed to ‘breach’ an apparent ‘contract’ as stated in the particulars of claim on form xxxxx . As the defendant has no recollection of seeing a sign relating to parking. It can be assumed the signage was too small or conveniently placed out of sight.

 

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

2 should say keeper and driver

Only post the numbered paragraphs that you have altered , not the rest of the template , it's your homework being checked not coupon mads 👍👍

Coupon-mad

You need to put your facts about the blue badge and what happened, into the defence.  You told us but then failed to tell the Judge what this is about in para 3 and didn't even add 'and driver' to para2.

Le_Kirk

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied.  
3. The defendant does not recall seeing or identifying any signage which would have allowed the defendant to automatically enter into a ‘contract’ and proceed to ‘breach’ an apparent ‘contract’ as stated in the particulars of claim on form xxxxx . As the defendant has no recollection of seeing a sign relating to parking., It it can be assumed is averred that the signage was too small or conveniently placed out of sight.

Couple of suggestions above.

D_P_Dance

From what you have told us, they would  be daft imo to take this to court,   if they do read about unreasonable behavioutr costs under CPR27.14(2)(g.  Have you complained to to your MP?

PurpleMystique

Thank you for these suggestions. I have made the minor one but I'm struggling with telling the judge what actually happened, in the sense that how do I say it or write it? If anyone has examples I'd be grateful and I can then adjust to my situation. I'm just unsure as to how the language should be. 

Thank you all very much, much appreciated 

Coupon-mad

Use the words you told us.

PurpleMystique

Ok, here is my paragraph in my own words. Do I need to add anything or take anything away or clarify anything?

The defendant displayed their valid blud badge on the vehicle dashboard 10 minutes after arrival. The blue badge was mistakenly left in the defendants possession however when this was discovered, the defendant returned to the vehicle and displayed the blue badge.