Please Help County Court Claim - NCP - BW Legal

PCNotice

Hi Everyone, please help i think i have till tomorrow to file my defence.
Claim form issue date: 24/11/21
AOS submitted on: 29/11/21
AOS acknowledged on: 30/11/21
Could Keith please help confirm my deadline date? Thank you.

Background: I'm a member of a gym where i am permitted to park at a certain car park for a maximum of 2 hours. Total time from entry to exit was 1 hour Xmins Xseconds so i was well within the time allowed not even including BPA's Grace periods.

Main points i would like to highlight in my defence are the grace periods, authority from landowner, and abuse of process though the addition of the £60 debt collection fee.

As i will have to admit i was the driver to gain the membership benefit of parking will i still be able to use Mrs Coupon-mad's suggested template regarding POFA 2012?

Defence Draft: I've only changed points 2,3 and 4 everything else is copied from Mrs coupon-mad's template

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

National Car Parks Limited

(Claimant) 

- and -  

                                                                 XXXXXXXXX                                                                 

 (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 is the driver of the vehicle in question but liability is denied. The claim relates to an alleged debt arising from the driver’s alleged breach of contract for ‘parking longer than the time paid for’ based on images by an ANPR camera at the entrance and exit of the car park. This is merely an image of the vehicle in transit and is no evidence of not being a patron of the facility.  

 

3.       The Defendant being a member of the gym is permitted to park at XYZ car park for a maximum of 2 hours through an agreement between XYZ Gym and the landlord via National Car Parks Limited. The total time from entry to exit was 1-hour X minutes and X seconds without including BPA’s code of conduct regarding a minimum of 10 minutes grace periods before and after parking this is within the permitted maximum time allowed.

 4.      The Defendant avers that the system causes an unfair imbalance against consumers and it would be a far more workable operation to exempt gym users by registering the car VRMs on a whitelist that the gym could control and update to support the interests of its members, registering the data as part of the online membership process as people join or memberships expire. Requiring people to have to use an iPad to input their registration every time can be argued to be a Distance Contract, and the consumer law on that sort of contract concluded by digital inputs by the consumer, requires the trader to produce a receipt for the transaction (input) by durable medium.  That can be an email but has to be supplied to confirm the digital input. National Car Park Limited has failed to do this. The lack of receipt makes it impossible for a gym visitor to know which days the system has worked and which days it hasn't, and a blip can certainly be temporary - a connectivity dropout for a minute would catch at least one person and they would never know because there isn't even a confirmation message, let alone the required receipt supplied 'by durable medium'. As such, the term that requires a gym member (rather than having their VRM exempted on a whitelist from day one, as staff at the gym do, and is easy for parking firms to record) to have to input their VRM correctly every visit, is a 'concealed pitfall or trap'.  That was a consideration in the Beavis case, and even if it's not deliberate, it places an imbalance and unfair burden upon the consumer.  That's a breach of the CRA 2015 - unfair terms and notices are not enforceable. The MHCLG draft Code of Practice, at the start, lists the applicable laws identified as relevant and one of those laws listed in the Draft Code, is indeed, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

5.  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.

 

6.      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.

 

7.       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.  

 

8.  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').

 

9. 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

10.      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.  

 

11.      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.

 

12.   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.  

 

13.  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.

 

14.       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.

 

15.   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.

 

16.   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.

 

17.  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:

18. (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.

19.   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:

Le_Kirk

PCNotice said:

2.  This is merely an image of the vehicle in transit and is no evidence of not being a patron of the facility.  

3.       The Defendant being a member of the gym is permitted to park at XYZ car park for a maximum of 2 hours through an agreement between XYZ Gym and the landlord via National Car Parks Limited. The total time from entry to exit was 1-hour X minutes and X seconds without including BPA’s code of conduct regarding a minimum of 10 minutes grace periods before and after parking this is within the permitted maximum time allowed.

 4.      The Defendant avers that the system causes an unfair imbalance against consumers and it would be a far more workable operation to exempt gym users by registering the car VRMs on a whitelist that the gym could control and update to support the interests of its members, registering the data as part of the online membership process as people join or memberships expire. Requiring people to have to use an iPad to input their registration every time can be argued to be a Distance Contract, and the consumer law on that sort of contract concluded by digital inputs by the consumer, requires the trader to produce a receipt for the transaction (input) by durable medium.  That can be an email but has to be supplied to confirm the digital input. National Car Park Limited has failed to do this. The lack of receipt makes it impossible for a gym visitor to know which days the system has worked and which days it hasn't, and a blip can certainly be temporary - a connectivity dropout for a minute would catch at least one person and they would never know because there isn't even a confirmation message, let alone the required receipt supplied 'by durable medium'. As such, the term that requires a gym member (rather than having their VRM exempted on a whitelist from day one, as staff at the gym do, and is easy for parking firms to record) to have to input their VRM correctly every visit, is a 'concealed pitfall or trap'.  That was a consideration in the Beavis case, and even if it's not deliberate, it places an imbalance and unfair burden upon the consumer.  That's a breach of the CRA 2015 - unfair terms and notices are not enforceable. The MHCLG draft Code of Practice, at the start, lists the applicable laws identified as relevant and one of those laws listed in the Draft Code, is indeed, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

In paragraph 2, is this really what you want to say; that you were not a patron?  I worked out what you meant but it is a double negative and could be confusing.  Surely you mean "no evidence of parking"?
In paragraph 3 it would help us if you put the actual time in minutes and seconds.  There is no risk of data compromise here.
Most of your paragraph 4 should be kept for the witness statement; just open the door to it by stating that the PPC uses a complicated system of registration.
In the standard defence template it states to only post paragraphs 2 & 3 (and any that you add) so that regulars do not have to read through the whole template to see if you have changed anything.  We only need to check and critique your submissions not @Coupon-mad's as she wrote the template.

Redx

As above , only post the few paragraphs that you changed , not the rest , after making the alterations suggested above

Your deadline date is 33 days after the issue date , so could be next week but assume that it's Thursday of this week for now , just in case ( I am sure that KeithP will assist you on that  , but at most it's say the 29th due to bank holidays )

KeithP

PCNotice said:

Hi Everyone, please help i think i have till tomorrow to file my defence.
Claim form issue date: 24/11/21
AOS submitted on: 29/11/21
AOS acknowledged on: 30/11/21
Could Keith please help confirm my deadline date? Thank you.

With a Claim Issue Date of 24th 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 a week 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'.

PCNotice

Le_Kirk said:

In paragraph 2, is this really what you want to say; that you were not a patron?  I worked out what you meant but it is a double negative and could be confusing.  Surely you mean "no evidence of parking"?
In paragraph 3 it would help us if you put the actual time in minutes and seconds.  There is no risk of data compromise here.
Most of your paragraph 4 should be kept for the witness statement; just open the door to it by stating that the PPC uses a complicated system of registration.
In the standard defence template it states to only post paragraphs 2 & 3 (and any that you add) so that regulars do not have to read through the whole template to see if you have changed anything.  We only need to check and critique your submissions not @Coupon-mad's as she wrote the template.

Thank you Le_Kirk i have made the adjustments based on your suggestions points 5 onward remains unchanged.

Are there any more key points i am missing that i should include in my defence? I feel as Mrs Coupon Mad's template has everything i need from recent cases struck out due to abuse of process, Consumer contract 2013 , Landowner authority, BPA's CoP grace periods, signs failing the CRA 2015 and also the ATA Code of practice regarding unclear small illegible terms also missing terms regarding NCP's contract with the Gym for free parking.

As i have to admit i was the driver am i still allowed to add this and quote Sch4 of the POFA at 4(5) or will i have to delete anything regarding POFA in my defence?

2nd Defence Draft: 

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

National Car Parks Limited

(Claimant) 

- and -  

                                                                 XXXXXXXXX                                                                 

 (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 is the driver of the vehicle in question but liability is denied. The claim relates to an alleged debt arising from the driver’s alleged breach of contract for ‘parking longer than the time paid for’ based on images by an ANPR camera at the entrance and exit of the car park. This is merely an image of the vehicle in transit and is no evidence of parking.  

 

3.       The Defendant being a member of the gym is permitted to park at Crawley Kingsgate car park for a maximum of 2 hours through an agreement between The Gym Group and the landlord via National Car Parks Limited. The total time from entry to exit was 1-hour 50minutes and 16 seconds without including BPA’s code of conduct regarding a minimum of 10 minutes grace periods before and after parking this is within the permitted maximum time allowed.

 

4.      National Car Park Limited uses a complicated system of registration whereby the system creates ‘concealed pitfalls or traps’ which causes an imbalance and unfair burden against consumers with breaches in both the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 & Consumer Rights Act 2015.

PCNotice

Redx said:

As above , only post the few paragraphs that you changed , not the rest , after making the alterations suggested above

Your deadline date is 33 days after the issue date , so could be next week but assume that it's Thursday of this week for now , just in case ( I am sure that KeithP will assist you on that  , but at most it's say the 29th due to bank holidays )

KeithP said:

PCNotice said:

Hi Everyone, please help i think i have till tomorrow to file my defence.
Claim form issue date: 24/11/21
AOS submitted on: 29/11/21
AOS acknowledged on: 30/11/21
Could Keith please help confirm my deadline date? Thank you.

With a Claim Issue Date of 24th 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 a week 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'.

Thank you Redx and KeithP for your valuable information i was scared it would be tomorrow and i had no choice but to print scan sign and send of what i currently have. 

1505grandad

What was the date of the parking event?

PCNotice

1505grandad said:

What was the date of the parking event?

Hi 1505grandad, It was on the 23rd October 2020

1505grandad

Then you must use/quote from the BPA CoP version 8 dated January 2020 which may have different grace/consideration periods than you quote above.

Coupon-mad

The alleged breach doesn't match what you are saying, or at least it makes no sense to me.  Are you sure this is the allegation on the PCN?

alleged breach of contract for ‘parking longer than the time paid for

But you are saying in the draft defence that in fact this wasn't about paying a fee, as you get 2 hours free as a gym member?

You need to explain more. Is it normally a pay & display car park?  How come they say you paid a fee but overstayed?

PCNotice

1505grandad said:

Then you must use/quote from the BPA CoP version 8 dated January 2020 which may have different grace/consideration periods than you quote above.

Hi 1505grandad thank you for your help i have now quoted only from the BPA's code of practice version 8 - January 2020

Defence draft 3: points 5 onwards remain unchanged from Mrs Coupon Mad's template.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

National Car Parks Limited

(Claimant) 

- and -  

                                                                 XXXXXXXXX                                                                 

 (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 is the driver of the vehicle in question but liability is denied. The claim relates to an alleged debt arising from the driver’s alleged breach of contract for ‘parking longer than the time paid for’ based on images by an ANPR camera at the entrance and exit of the car park. This is merely an image of the vehicle in transit and is no evidence of parking.  

 

3.       The Defendant being a member of the gym is permitted to park at Crawley Kingsgate car park for a maximum of 2 hours through an agreement between The Gym Group and the landlord via National Car Parks Limited. The total time from entry to exit was 1-hour 50 minutes and 16 seconds without including the BPA’s code of practice section 13.3 “Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN”.

4.      National Car Park Limited uses a complicated system of registration whereby the system creates ‘concealed pitfalls or traps’ which causes an imbalance and unfair burden against consumers with breaches in both the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 & Consumer Rights Act 2015.