CP Plus CC Claim Form Received, AOS complete, now developing Defence

yugman

Hi, looking for guidance, using Newbies Private Parking Ticket process, big thank you for this, completed AOS, so now need to develop Defence using the new 2020 template and specifically THE 'FACTS' PARAGRAPH #3 to submit prior to defence deadline of 27th Dec.

My draft is based on looking through other defences, and also areas I feel evidence can be developed:

a) Poor signage
(areas to develop evidence and argument for next step:)
(1. Department of Transport Motorway Services and ‘Take a Break’ signage vs. Private ‘Restricted’ Parking signage)
(2. Maintenance and upkeep of Private Parking signage not governed or records provided)
(3. other)

b) Poor and aggressive notifications
(areas to develop evidence and argument for next step:)
(1. Intended to look like Scam letters to manipulate vehicle owners into an ‘Ignore’ response)
(2. Overstay charges disproportionate to amount of overstay time reported)
(3. Very aggressive letter with legal & debt collection referencing: ‘such charges act as a necessary deterrent for breach of contract’)
(4 separate companies corresponding on the same charge over 4 years)
(5. Each company using ‘threatening’ legal action with deadline dates that come and go, and re-offer with same/new dates and processes)
(6. Why wait 4 years before CC Claim made?)
(7. other)

c) Private land owner ‘Client’ focused business plan to make money out of over stay parking processing
(areas to develop evidence and argument for next step:)
(1. Over stay parking income vs. rest area retail rental)
(2. No development of signage or services to reduce charges of out of contract vehicle parking)
(3. Targeted ‘Professional’ and ‘med. to high Income' drivers using AI technologies to pursue, with a single aim to create high income from this demographic)
(4. Other)

Le_Kirk

Show us your draft based on the style of the defence template (you only need to post paragraphs 2 & 3 plus any that you add or edit) we don't need to check the rest of the template.  Keep it short, punchy, technical/legal arguments and save the rest for your witness statement later in the process.

D_P_Dance

Have they added on an unlawful £60 for debt collection?  Have you complained to your MP?

Coupon-mad

The template already covers poor signage and lack of landowner authority.

The facts should be far simpler, telling the Judge what business the car had there, what sort of car park it is, what happened and why the D thinks there was no contract to pay £100 (because no signs were seen, not prominent enough).

KeithP

Being a Bank Holiday, your Defence filing deadline is not 27th December.

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

yugman

Thx for the feed back....Issue Date 26 Nov 2021...AOS 8 Dec

yugman

No £60 for Dept. collection fee...just Claim 227.16 + Court Fee £35 + Legal Rep. £50

D_P_Dance

That is about  £25 more than normal, how is that accounted for?  When they are claiming unlawful amounts they are placing the whole claimm in jeopardy with some judges.  t

yugman

This is the 2020 template I am using, with the modified paragraphs #2 & #3.....

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (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.

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 Defendant also admitting to being the driver.

3.      As the driver of the vehicle deciding to stop at the designated M1 rest area as part of my working day, I did not see the parking restriction signage on entering or in the parking areas, and any exaggerated signage to check the time of stay vs. time within the rest areas was not observed.

         The first time the defendant was made aware of this parking charge was by post and the way it was presented was very aggressive, threatening with a very high penalty charge for the alleged short over stay period, which lead the defendant to believe it was part of a parking charge scam. This was also confirmed by the level of harassment by the bombardment of ‘debt recovery’ letters, and how the 'debt recovery' representation names, deadline dates and the penalty charges changed every 6 months.     

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.

yugman

Based on feedback, just changed Para #3 to read...

3.     The Defendant deciding to stop at the designated M1 rest area as part of my working day for a short work break, respond to business telephone messages and customer problems, and the time period at the services was not noted.

This car park is a designated M1 rest area indicated and directed from the motorway. As per all motorway rest areas entrance and exit are complex with narrow feed roads to optional rest area parking, Cars, HGV’s, Caravan’s etc. and the different petrol station options.

The Defendant did not agree to a parking contract as this Motorway rest area was a designated ‘Motorway Services’ with specific signs on the M1 with no restrictions advertised at that stage. No parking check point barriers or ticketing at the entrance or exit, and no restricted parking signs were seen, or prominent enough on entrance, parking or exiting to indicate any restrictions.

KeithP

yugman said:

Issue Date 26 Nov 2021...AOS 8 Dec

With a Claim Issue Date of 26th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 29th 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'.