Defence against National Parking Enforcement Ltd/BW Legal

Rae_Newbie

Great, cheers for the info @Umkomaas

Rae_Newbie

@Coupon-mad
ahhh just saw the thread from the other NPE poster yesterday - different carpark, different town, different pictures and different signage I'm afraid - so there's nothing I'll be able to do to support/help 

Umkomaas

Rae_Newbie said:

@Coupon-mad
ahhh just saw the thread from the other NPE poster yesterday - different carpark, different town, different pictures and different signage I'm afraid - so there's nothing I'll be able to do to support/help 

I'd still bookmark it to check what NPE are up to on that. Individual PPC patterns rarely change, so you might be able to glean some advance intel on what next moves NPE are taking. Forewarned ........ and all that!

Rae_Newbie

Umkomaas said:

Rae_Newbie said:

@Coupon-mad
ahhh just saw the thread from the other NPE poster yesterday - different carpark, different town, different pictures and different signage I'm afraid - so there's nothing I'll be able to do to support/help 

I'd still bookmark it to check what NPE are up to on that. Individual PPC patterns rarely change, so you might be able to glean some advance intel on what next moves NPE are taking. Forewarned ........ and all that!

Yep, have bookmarked, thank you for that  

Rae_Newbie

OK, so final draft - can anyone see anything blatantly wrong or that I've missed anything vital, before I hit send (won't be doing to until tomorrow/Friday just in case!)

Also, I've added the claim number to every page, hence why it keeps appearing mid-text - on the pdf version it will appear at the top of each page. Do I need to do this, does it not matter either way ? 

ccbcaq@justice.gov.uk

IN THE COUNTY COURT

Claim No.: xxxxxxxxxxxx

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.         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 and has done since January 2015, 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.

IN THE COUNTY COURT

Claim No.: xxxxxxxx

 

 

6.         Upon exiting the car, the Defendant asked a member of PoundStretcher staff who was standing at the shop entrance if he was OK to park in that space without having to get a child out of the car because he urgently needed a glucose drink to treat his diabetic daughter, who was also unable to exit the vehicle due to her hypoglycaemic condition. As a representative of the PoundStretcher store, the member of PoundStretcher staff gave the Defendant permission to park in the space and to do so without anyone else exiting the vehicle.

 

7.         Considering the Defendant’s state of mind at that time, 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. 

 

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 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.

 

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 

IN THE COUNTY COURT

Claim No.: xxxxxxx

 

 

letter costs' twice.  He was not taken by either party to Somerfield in point #9 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

IN THE COUNTY COURT

Claim No.: xxxxxxx

 

 

(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.

 

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:

1505grandad

"1  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."

It is usual to deny liability so for the above suggest:-

1  It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time but liability is denied

Rae_Newbie

1505grandad said:

"1  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."

It is usual to deny liability so for the above suggest:-

1  It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time but liability is denied

great, have amended - thank you! 

Coupon-mad

How about adding:

7.         Considering the Defendant’s state of mind at that time, 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 with the Claimant at that time, knowingly or otherwise. 

8.  In fact, because the shop staff had expressly offered parking there to assist with the predicament, the Defendant relies on that alternative verbal agreement.  The Defendant's position is supported by both the doctrine of promissory estoppel and the statutory duty upon service providers.  The express verbal agreement was a 'reasonable adjustment' under the Equality Act 2010, which takes precedence over any alleged contract/predatory ticketing by a CCTV operator who would have seen the situation.  The Defendant expects to see a witness statement from the CCTV operator who decided to issue a parking charge, if the Claimant disagrees.

Rae_Newbie

awesome, thank you @Coupon-mad

Emailing defence to the court now  

Redx

Rae_Newbie said:

awesome, thank you @Coupon-mad

Emailing defence to the court now  

You mean emailing the Business Centre now ! No court has been allocated yet , that comes after the N180 DQ stage , the hearing date is likely to be next spring or summer , at the court that you choose

Email to the ccbcaq email address and copy in the claimants lawyers as well , so one email , 2 destinations
Check for an email auto receipt from the CCBC in Northampton ( Business Centre )

Then keep checking your MCOL claim history , checking on progress , as mentioned in the 12 numbered steps by coupon mad in the defence template post