Defence against National Parking Enforcement Ltd/BW Legal

Rae_Newbie

Hi, 

Just about to submit my defence for a parking charge given in February 2015 (they've taken over 3.5 years to pursue!)

Long story short, my 10-year-old stepdaughter suffered a hypoglycaemic diabetic emergency while in the car. We had no glucose to give her as she'd used it all, so needed to find a shop and buy her a sugary drink asap.

It was 3.55pm on a Sunday,  so not ideal as most shops about to shut.

My partner pulled into a carpark with a Co-Op and PoundStretcher in it, both of which were about to close. No parking outside the Co-Op, so he pulled into the space immediately next to the PoundStretcher entrance, which had a sign on a post next to it showing the disabled parking graphic on it, as well as the parent and child graphic. So looked to be a space for both/either. Either way, it was a medical emergency, so we were parking in it. 

Couldn't get step-daughter out of the car due to said medical emergency, so technically would breach the standard rules of parent and child spaces but my partner asked a member of the store staff standing by the door if he could park there without getting a child out as it was a medical emergency. Staff member gave permission to do so.

Partner ran in, grabbed sugary drinks, ran back out, gave daughter drink, and we drove off. In the parking space a total of 5 minutes. 

Received parking charge in the post a couple of weeks later, stating that we were parked in a disabled space. We appealed, it got denied. At the time, thought we could just ignore it, which we did, but obviously BW Legal decided to send a bath of automated letters out, including one for us. 

Appealed in July this year to PoundStretcher, who said they completely agreed the charge was unfair, but that they were. tenants and the car park was owned by Co-Op. Co-Op said the charge was unfair, and that if they'd been informed before it reached BW Legal, they would have had their parking management company cancel the ticket, but now it was too late. 

Appealed to BW Legal, under Without Prejudice headings, and they said they would only consider it if we showed proof of step-daughter being admitted to hospital. Which obviously she wasn't as the whole reason we parked there in the fist place was to prevent her from seizing and needing to go to hospital. 

So now we're being taken to court. 

Have a letter from her diabetes consultant saying that she's unable to confirm her blood sugar readings from that time as they only keep records of those for a year, but confirming her diabetes status, confirming hypoglycaemia is a medical emergency and that in that situation, my partner would have not had the time or presence of mind to stand reading terms and conditions on a board etc etc. Also she'll provide confirmation that step-daughter had been hospitalised 3 months previous due to her diabetes while on a school trip where a teacher had to perform CPR. Confirming the level of emergency we were considering at the time of the parking.
Asked Poundstretcher for CCTV footage showing my partner speaking to their staff, running in, running out again with drinks etc, but they only keep footage for 4-6 weeks. 

Have pictures of the space showing the signpost with both parent and child and disabled graphics. 

Have the emails from PoundStretcher and Co-Op saying they would have classed it as exceptional circumstances and had the charge cancelled.

Have pics of the notice on display with  their terms and conditions in tiny font etc, as well as stating that it was nearly 4pm in February and so lighting was also diminished except for the parking sign on a pole showing parent and child/disabled, which was right under the store frontage lighting.

Will post my defence in my next email - just wanted to see if anyone had any opinion on it, or can see any glaring errors/holes? I need to send it off on/by next Monday..... 

Rae_Newbie

ccbcaq@justice.gov.uk

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

National Parking Enforcement Ltd

(Claimant) 

 

- and -  

 

Jason John Reid

 (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 and that the Defendant was also the driver of the vehicle in question at the time.  

3.         On the date and time in question, Defendant was driving with his partner and three children when the Defendant’s then 10-year-old daughter, who is a Type 1 Diabetic, suffered a hypoglycaemic event, which is classed as a diabetic emergency. The Defendant needed to administer glucose to his daughter by mouth, but Miss Reid’s supply of glucose had run out, so the Defendant pulled into the carpark of the nearest shops he could see, which were Co-Op and PoundStretcher – entering the car park at around 3.55pm. The shops were about to shut and in light of the diabetic emergency, timing was critical. 

4.         With no parking directly outside the Co-Op, the Defendant pulled the vehicle into the space nearest the door of PoundStretcher. There was a signpost next to the entrance to the parking space, underneath the store lights, with a single sign on it showing brightly coloured graphics for both ‘Disabled’ and ‘Parent and Child’, therefore as far as the Defendant was aware, this was a space allocated for parents with children as well as for those with disabilities. 

 

5.         After the Defendant exited the car, he asked a member of PoundStretcher staff who was standing at the shop entrance if he was OK to leave the car in that space while he went into the shop, and if he was OK to do so without having to get a child out of the car because he urgently needed a glucose drink to treat his diabetic daughter. As a representative of the PoundStretcher store, the member of PoundStretcher staff gave the Defendant permission to park in the space.

 

6.         Considering the Defendant’s state of mind and the time restraints due to medical emergency, failing light due to the time of year and time of day, and also with the signage for the Claimant’s ‘contract’ being in various different font types and sizes, with the ‘contract’ terms and conditions being in a font size too small to easily read, no ‘contract’ was entered into at that time, knowingly or otherwise. 

 

7.  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.

 

8.       It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this money claim 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.

 

9.       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. 

 

10.  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 #8 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').

 

11.  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

12.       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.  

 

13.       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. 

 

14.   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.  

 

15.   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.

16.       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.

 

17.   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

(iii)                 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.

 

18.   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.

 

19.  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:

20.   (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.

 

21.   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:

Rae_Newbie

sorry meant the parking charge was issued in Feb 2018 not Feb 2015. We received the first letter from BW Legal in July 2021 so 3.5 years later 

Coupon-mad

Have a look at the other case from yesterday about the same place.

The OP has photos of the sign so you should bookmark their thread and send them a pm to morally support each other.  You are probably local and can help each other and stay in touch.

Rae_Newbie

great, thank you - also, I've just been reading up on what constitutes a disability, and wondering if I should add the following to be defence, then renumber the following points? 

5.         Under the 2010 Equality Act, Type 1 Diabetes is defined as a disability, in that it may have a ‘substantial, long-term, negative impact on a person’s ability to carry out normal, day-to-day activities’. The Defendant’s daughter has Type 1 diabetes, therefore this condition qualifies regardless of whether she possesses a blue badge. The Equality Act does not require the driver to display any sort of badge or permit – as long as the driver or a passenger fits the lawful definition of disability, they are entitled to make use of the ‘reasonable adjustments’ provided by a private car park. What the Claimant is doing by insisting a blue badge be displayed is adding arbitrary rules to the lawful right of someone to use a ‘reasonable adjustment’ which could be considered to be a breach of the Equality Act.

Rae_Newbie

@Coupon-mad
I can't find their thread, any chance you could direct me? 

Also found this on the ParkingCowboys site:

Most car parks provide disabled bays to meet the requirement in the Equality Act 2010 to provide ‘reasonable adjustments’ to those who fit the lawful definition of disability. That means the person has the lawful right to park there if they have a long-term disability and they have the need for a disabled bay (e.g. because it is wider, nearer the shops). For council-owned car parks and public roads, the blue badge scheme is run to enable holders to show that they have certain parking rights. However, the blue badge scheme does not apply on private land.

Rae_Newbie

@Coupon-mad
do you know if the above is true re: blue badges not applying on private land? 

Rae_Newbie

This is a stock pic of the parking space, with the blue sign on a pole next to the space....

Coupon-mad

Yes that is true and your added paragraph is a good idea.  And you had permission to park there, so were relying on the 'reasonable adjustment' offered by store staff.

I can't find the other NPE thread any quicker than you can and I deliberately avoid giving new posters links.  It is my aim to make newbies read threads more and look back.  I encourage you to skim read thread titles from yesterday and find it, get confident with using the forum and not search. Just look back to yesterday's threads.

Rae_Newbie

Great, thank you @Coupon-mad
I'll have a look through as see if I can track them down. 

One last question - I assume I don't have to add the appendices relating to the previous court cases, referenced within your original template? I saw a few replies on your sticky thread saying to no longer add attachments, but just wanted to double check it was the appendices that you were referring to as attachments 

Umkomaas

Evidence such as court transcripts and the like (including photos and extracts from pieces of legislation) are added at the Witness Statement stage, likely to be some months down the line (Spring 2022), so no need to be overly exercised about it at present.