CCBC relating to 5 year old ticket

Redx

iad77 said:

Redx said:

But the case continues until it is discontinued by the claimant , so carry on and submit the final defence by email before 4pm tomorrow

Look up frustration of contract , a fact that is beyond your control , it was a matter between the employer and the hotel , to sort out those details , including parking , as you say , so beyond your control !  So from your point of view it's frustration of contract , because you were frustrated in entering the contract and had no control over the booking ( the contract )

Thank you Redx 🙏🏼

Read my extra comments too , I made extra additions

Le_Kirk

iad77 said:

Also is there anywhere I can see the date that the defense needs to be submitted.

One of our regulars @KeithP gave you this info here 1 December at 11:56PM There is STILL no "S" in defence!

iad77

Spell checker, sorry 😄

Coupon-mad

I'd add an extra two paragraphs (ALL need numbering):

There was no breach by the Defendant of any 'relevant contract or relevant obligation' (POFA 2012 Schedule 4 pre-requisites) because the error was caused by the Hotel.  The numberplate was within the booking but the Hotel staff had failed to add it to the parking 'white list'; an omission which was rectified as soon as the Hotel realised.  It was never an obligation that fell upon the driver to take any action whatsoever.  The keypad was used only by Hotel staff so there can have been no breach by the driver.  Thus, it is denied that there is any cause of action against this Defendant and the Claimant is put to strict proof of their allegations as well as the purported 'legitimate interest' that would be needed for the case to meet the same 'unique' facts that the Supreme Court decided saved the parking charge n ParkingEye v Beavis from being struck out as a penalty.

This Claimant could see at a very early stage that this vehicle had been added by the Hotel to the 'white list' (the Claimant's own system) and by aggressively pursuing this charge instead of cancelling it, they are flogging a dead horse.  This is an unrecoverable charge based purely on a wrong presumption that a parking operator can raise a £100 charge purely to punish a driver for not inputting their numberplate into a system to which Hotel guests had no access.

Redx

Agreed , nice one

I suggest that the final Numbered draft of all the new paragraphs is reproduced below for a final check , before slotting back into the template defence , then renumber from 2 to the end , then post the complete defence draft , minus your personal details , so from 1 onwards , before emailing tomorrow afternoon before 15:30

iad77

IN THE COUNTY COURT

Claim No.: 

Between

UK PARKING CONTROL LIMITED

(Claimant)

- and -  

            

 (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 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.

(2) The facts as known to the Defendant: It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied.  

(3) From the dates of 02/12/2016 to the 09/12/2016 the defendant was staying as a guest at the travel lodge in Camberley, Upon returning after work around 11pm the defendant discovered a ticket placed on the windscreen of their vehicle. This was disputed with the hotel reception and the defendant was informed that the registered vehicle had not been subsequently entered into the hotel records but this was amended immediately with the vehicle registration being entered onto the hotel system. ( The defendant had no control over this process so avers frustration of contract. ) Promissory estoppel applies because the hotel gave permission to park when the defendant was registered at the very beginning.

(4) Any charge issued to the defendant implies that the defendant was not registered when in fact the defendant was a registered guest at the hotel where the vehicle was parked and so no charge should have been applied to stated vehicle due to the application of promissory estoppel. The defendant avers that the poor signage cannot be applied to the defendant due to the prior permission given by the landowner ( the hotel ). The hotel have promised to send a cancellation to UKPC due to a repeat complaint by the defendant on 28 December 2021.

(5) There was no breach by the Defendant of any 'relevant contract or relevant obligation' (POFA 2012 Schedule 4 pre-requisites) because the error was caused by the Hotel. The numberplate was within the booking but the Hotel staff had failed to add it to the parking 'white list'; an omission which was rectified as soon as the Hotel realised. It was never an obligation that fell upon the driver to take any action whatsoever. The keypad was used only by Hotel staff so there can have been no breach by the driver.  

(6) Thus, it is denied that there is any cause of action against this Defendant and the Claimant is put to strict proof of their allegations as well as the purported 'legitimate interest' that would be needed for the case to meet the same 'unique' facts that the Supreme Court decided saved the parking charge n ParkingEye v Beavis from being struck out as a penalty.

(7) This Claimant could see at a very early stage that this vehicle had been added by the Hotel to the 'white list' (the Claimant's own system) and by aggressively pursuing this charge instead of cancelling it, they are flogging a dead horse. This is an unrecoverable charge based purely on a wrong presumption that a parking operator can raise a £100 charge purely to punish a driver for not inputting their numberplate into a system to which Hotel guests had no access.

(8) 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.

(9) 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.

(10) 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.  

(11) 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').

(12) 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

(13) 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.  

(14) 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.

(15) 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.  

(16) 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.

(17) 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.

(18) 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.

(19) 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.

(20) 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:

(21) (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.

(22) 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: 29/12/2021

Redx

In 11 , Change this from 5 to 9

He was not taken by either party to Somerfield in point #5 above

Adding the extra paragraphs changed it from 5 to 9

Other than that , it looks ok to me

iad77

Changed in my draft to #9 
I can't print out to sign, I have a touch screen laptop so I think I can add a digital signature.

Also emailed the hotel again this morning asking them to follow up with the cancellation of ticket and court order through UKPC and to let me know any progress made asap.

Thank you again for all the help 🙏🏼

Redx

iad77 said:

Changed in my draft to #9 
I can't print out to sign, I have a touch screen laptop so I think I can add a digital signature.

Also emailed the hotel again this morning asking them to follow up with the cancellation of ticket and court order through UKPC and to let me know any progress made asap.

Thank you again for all the help 🙏🏼

Great

Adding a digital signature is fine and I recommend that you do , no need to faff about printing it just in order to sign it

Add a digital signature to your pdf and email it to the ccbcaq email address before 4pm , checking your inbox folder or spam folder for the email auto receipt ( apparently Hotmail works better than Gmail )

Coupon-mad

Looks good.  Without a breach of obligation or contract there is no case!