Private Parking PCN County court claim

Pr0D1Gy

Good afternoon,

I had a ticket from a private parking company (Link Parking) a while ago and unfortunately due to it being a company leased vehicle i was identified as the driver. I have however ignored the debt collectors (BW legal) threats and demands to pay and haven’t given them any further information.

I have read the Newbies section here and have also received some advise on another forum however I’m not getting any further response on there.

As a bit of background the parking was within a residents and permit holders car park attached to a block of flats where i was dealing with an emergency leak as instructed by the owner of the flat. Unfortunately for me the tenant present on the day didn’t have any permits and there was nowhere else to park other than the visitors parking spaces of which there were plenty. Within under 10 minutes of parking up I received a ticket and i then took photos of all of the signage and parking etc as evidence as well as images of the ticket that was issued.

I have received a letter from the county court whilst i was away with work and have today done the ‘acknowledgement of service’ online and stated that I intend on defending all of the claim. On the previous forum I was told the following.

” The signage is forbidding, 

The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

To offer parking when they are expessly forbidding it is perverse.”


I’m now required to put forward my defence to the court and am wondering if the above is what i go with and how i go about that?

I have seen a template for claiming when additional charges have been added but i do not know if this applies to me or not. The original parking charge was for £100 to be paid within 28 days or reduced to £60 if paid within 14 days. The court claim is for £100 plus £7ish interest and £60 recovery costs. In addition there is a Court fee of £35 and legal representative costs of £50 bringing the total to just over £252 which I’m assuming they are allowed to charge?

Any help with filing a defence would be much appreciated. I have issued the parking company with a SAR and informed BW legal that i have done this. The issue date was 18/11/21 and the day of service was 23/11/21 and i sent the Acknowledgment of service online today 2/12/21.

Best regards

Pr0D1Gy

D_P_Dance

Have you read the newbies, they are a fouunt of information on how to deal with these tickets 

 The court claim is for £100 plus £7ish interest and £60 recovery costs.

They have added what appears to be an extra unlawful amount for debt collection. This amounts to double recovery and some Judges have dismissed an entire claim because of this. Read this and complain to your MP.

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V%20Excel%20v%20Wilkinson.pdf?dl=0

However, a VCS appealed this so it may not apply in all cases, read this

https://www.dropbox.com/s/ntksx9g7177ahyg/VCS v Percy v1 Amendments (2).pdf?dl=0Also read this

https://forums.moneysavingexpert.com/discussion/6279348/witness-statements-2-transcripts-re-parking-firms-false-costs-recorder-cohen-qc-judgment-2021/p1

Also consider complaining to The SRA about the solicitor if there is one. They are full aware of the unlawful nature of this addition yet persist in adding it.

https://www.sra.org.uk/consumers/problems/

KeithP

Pr0D1Gy said:

I had a ticket from a private parking company (Link Parking) a while ago and unfortunately due to it being a company leased vehicle i was identified as the driver.

Presumably the leasing company gave your name and address as the lessee of the vehicle at the time. They cannot possibly have give the parking company the name of the driver - how would they know who was driving if they were not present?

Did Link Parking send you a Notice to Hirer? Did they include with that NTH the documentation mentioned in paras 13 and 14 of Sch4 of POFA?
If not, it is unlikely that the keeper, i.e. you, can be held liable for the actions of the driver at the time.
Unless of course, you have already told Link Parking that you were driving.

Pr0D1Gy said:

I have received a letter from the county court whilst i was away with work and have today done the ‘acknowledgement of service’ online and stated that I intend on defending all of the claim.
The issue date was 18/11/21 and the day of service was 23/11/21 and i sent the Acknowledgment of service online today 2/12/21.

With a Claim Issue Date of 18th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 21st December 2021 to file your Defence.

That's over two weeks 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

Your reasons why not to have a case heard 'on the papers' (as you asked on the Template Defence thread) are summarised in the Telephone Hearings thread.

Pretty sure that thread is still linked in the 2nd post of the NEWBIES thread.

Don't miss your WS and evidence deadline when it comes through.

Pr0D1Gy

Hi everyone,

I’ve been on this forum and another one online for a while now whilst trying to contest a private parking charge.

I have done all of the necessary things in the newbie thread and am now at the stage where I have a court date and have been asked to submit evidence to the court and claimant which I intend to use as my defence.

The claimant has already sent me a copy of the evidence they propose to use as part of their defence.

I could really do with some advise and assistance with what I now need to supply them with. I have contested the ticket on 2 grounds so far but do have a few other possible issues that could help to defend this.

Currently I am defending it firstly on the grounds that they have added false charges (£60 original fine went up to £100 after so many day and then added another ‘admin’ fee). Secondly due to the fact that they denied me parking so a contract cannot exist as the space was for residents and permit holders only.

I’m also confident that their are also issues with the way the ticket was issued as they gave me a ticket before I had a chance to get a permit from where I was working and they didn’t provide a period of parking as per the rules that I’m sure I read somewhere. The only time on the ticket was one time when the ticket was issued.

This is all new to me but I intend to try and successfully defend it if I can.

Thank you in advance.

Best regards

Pr0d1Gy

Coupon-mad

It's new to everyone which is why the NEWBIES thread resource has all the stages covered, including what sort of evidence to provide at WS stage.

As i already said in my last reply to you, look at the bundle by the username I mentioned there.

And also the one by @ricky_balboa which includes a costs assessment.

Pr0D1Gy

KeithP said:

Pr0D1Gy said:

I had a ticket from a private parking company (Link Parking) a while ago and unfortunately due to it being a company leased vehicle i was identified as the driver.

Presumably the leasing company gave your name and address as the lessee of the vehicle at the time. They cannot possibly have give the parking company the name of the driver - how would they know who was driving if they were not present?

Did Link Parking send you a Notice to Hirer? Did they include with that NTH the documentation mentioned in paras 13 and 14 of Sch4 of POFA?
If not, it is unlikely that the keeper, i.e. you, can be held liable for the actions of the driver at the time.
Unless of course, you have already told Link Parking that you were driving.

Pr0D1Gy said:

I have received a letter from the county court whilst i was away with work and have today done the ‘acknowledgement of service’ online and stated that I intend on defending all of the claim.
The issue date was 18/11/21 and the day of service was 23/11/21 and i sent the Acknowledgment of service online today 2/12/21.

With a Claim Issue Date of 18th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 21st December 2021 to file your Defence.

That's over two weeks 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'.

Apologies for not relying sooner, I struggle to navigate this forum on my phone and lost this thread unfortunately.

I response to your questions, the lease company didn’t give my name as the driver but the company I worked for at the time did once they got the details from the lease company. I then (stupidly as I wasn’t aware of the process) appealed the ticket using the claimants website so they then had my details for that too and I assume this also acts as an admission that I was the driver.

 Best regards

Pr0d1Gy

Coupon-mad

Sure.

And presumably you defended that way too, which is an 'honest witness' position that Judges like.

Anyway you now have plenty of pointers on what to read to come up with a good WS and evidence bundle.

Pr0D1Gy

Hi,

This is what i sent as my original defence which was an adapted version of the template mentioned on here.

I don’t really know what they want further to this as my pre hearing documentation.

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. 

3.  On the day in question the defendant arrived at the car park in question at around 8:05 and gathered together his equipment for carrying out emergency works at the property. He noticed a sign regarding parking and tried to read this however it wasn’t clear and was very confusing as there was also a rather contradictory ‘visitors’ sign next to it.

The defendant left the vehicle at around 8:15 and spoke with the resident who unfortunately didn’t have a permit to give him so he went down to the vehicle at around 8:25 to find he had been issued with a parking charge notice.

As well as the defence of the claimant attempting to claim ‘costs/damages’ on an indemnity basis set out below, the defendant also wishes to put forward the following in his defence.

The signage is forbidding,

The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

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.

Pr0d1Gy 

KeithP

Pr0D1Gy said:Hi,

I don’t really know what they want further to this as my pre hearing documentation.

Yes you do.

Just re-read @Coupon-mad's three posts on this thread.

To repeat, your Witness Statement and evidence need to be filed with the Court and served on the Claimant by the deadline you have already been given.

What is the date of your hearing?
What is your deadline to supply 'all documents you intend to rely on' to the Court and Claimant?