Excel Parking - Claim Form - Defence

Redbread

Good Evening

I understand I've left this a bit late to post as I need to submit my defence by Monday essentially, (Christmas holidays and buying a house, renovating etc haven't helped) so any last minute tips would be appreciated. I know I'll have some more time before the court date as well.

Essentially dcb legal on behalf of Excel Parking Service Limited sent me a 'Letter of Claim', I responded, submitted a SAR, received information but we could not agree. Therefore I have received a 'Claim Form' from the County Court Business Centre. I have sent off my Acknowledgement and have been doing my research and accumulating evidence.

My Main defence points:

1)  I paid for parking by phone so the PCN 'Contravention reason 'Parked without displaying a valid ticket/permit' doesn't make any sense. I would not receive one if paying by phone. I have bank statements as evidence and they also  show I was a regular paying customer at the site.

2) The claim being made is inflated as they are essentially seeking 'double damages' i.e they are charging £480 for the PCN(S) and 'damages'. This could be considered unfair and not enforceable in accordance with the consumer rights act section 67. As a result I believe the claim should be struck out and  considered an abuse of process in civil procedure rules.

3) I also argue that no contract has been formed as they have provided me with a 'Witness Leaseholder statement' created and signed by themselves that they lease the land, but no proof that the landowner has actually signed a contract with them to use the land etc.

See this link to my evidence list. I have blacked out personal information and it is only available to those with access to the link.

imgur.com/a/GsxGODN 

So I have used the template provided on this site for my Defence, any advice on how this looks? I don't know if it was a bad idea to include some opinions/emotion in my facts space, point number 2.

IN THE COUNTY COURT

Claim No.: 

Between

Excel Parking Services Limited

(Claimant) 

- and -  

 (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.

3.       The Defendant was the driver of the vehicle on the dates listed. This was a car park the Defendant used frequently in 2018 and was therefore a regular paying customer. The Defendant recalls the signage being varied and confusing as to what the price of parking or charges were. As the Defendant did not carry change, they opted to pay by phone on these occasions. 

The Defendant occasionally used the car park to park more than one day in a row. The Defendant enquired with Excel parking Limited if they could pay for more than one day in advance but were denied. The Defendant would therefore have to renew the parking as soon as the previous one had run out, even if it was at an unreasonable time. The Defendant views this as poor customer service.

The Defendant recalls ringing Excel Parking on 13/03/2018 to discuss that the Defendant believed they had paid late, but Excel Parking were dismissive and insisted that a PCN would be issued. The Defendant does not recall receiving a PCN for this occasion. The Defendant has no recollection of not paying on the dates listed.

The Defendant recalls receiving PCNs for the 05/05/18 and 08/07/2018 but dismissed Excel Parking Services Limited’s appeal process as they came across as unreasonable on the previous occasions and showed qualities of poor customer service. After doing some research the Defendant concluded that it was not legally binding and not worth their time.

The Defendant has not used to car park since because of these reasons. 

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.

Defendant’s signature:

Date:

KeithP

Redbread said:

I have received a 'Claim Form' from the County Court Business Centre. I have sent off my Acknowledgement...

Hello and welcome.

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.

Redbread said:

 I need to submit my defence by Monday...

A Defence filing deadline will never be on a Bank Holiday.

Redbread

Hi Keth

Thanks for responding. To answer you:

Claim History

A claim was issued against you on 06/12/2021

Your acknowledgment of service was submitted on 13/12/2021 at 03:30:22

Your acknowledgment of service was received on 13/12/2021 at 08:05:29

The response pack states that after filing an acknowledgement of service, I must file a defense within 28 days of the date of service of the claim form, which was 06/12/21.

Coupon-mad

The response pack states that after filing an acknowledgement of service, I must file a defence within 28 days of the date of service of the claim form, which was 06/12/21.

No, it wasn't.  Read on the back what 'service' means. 

Also corrected defenCe as your keyboard seems stuck in Americanism mode!

Redbread

Thanks Keith, I've the read the back and Service date is 5 days after the issue date, so that would be the 11/12/21. That should mean I have until the 08/01/22 to submit the defence?

You're correct about the Americanisms!

Redbread

Sorry Coupon-mad, not Keith on that last one! Apologies.

KeithP

Redbread said:

A claim was issued against you on 06/12/2021

Your acknowledgment of service was submitted on 13/12/2021 at 03:30:22

Your acknowledgment of service was received on 13/12/2021 at 08:05:29

The response pack states that after filing an acknowledgement of service, I must file a defense within 28 days of the date of service of the claim form, which was 06/12/21.

Redbread said:

Thanks Keith, I've the read the back and Service date is 5 days after the issue date, so that would be the 11/12/21. That should mean I have until the 08/01/22 to submit the defence?

Almost right, but a Defence filing deadline will not be on a Saturday or Sunday either. 

With a Claim Issue Date of 6th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 10th January 2022 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'.

Redbread

Thanks Keith

That's brilliant news and gives me plenty of time. I'll keep reviewing my defence and follow instructions in-line with the NEWBIES thread. 

KeithP and Coupon-mad, your advice is already helping me immensely so thank you for this.

Le_Kirk

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied.
3.       The Defendant was the driver of the vehicle on the dates listed. This was a car park the Defendant used frequently in 2018 and was therefore a regular paying customer.

Suggestions above, keeps it clean and it flows better.  The rest of your paragraph 3 (and ALL paragraphs require a number) could be saved for the witness statement.  Defences should be short, punchy and comprised of legal/technical arguments; you just need to mention a point and then you can expand upon it in the WS.  A heads up, when you post your amended defence for critique you only need to post those paragraphs that you have edited from the template or have added.  Of course, you add it back in before sending to CCBC.

Redbread

Hi All

I finally get to spend a good deal of time on this today. Thanks again for all your help.

Is this a better facts section for my Defence? Do I need to mention the 'inflated damages' and no proof of lease from the landowner in my points or is this fine, as these are already covered in the sections that (from what I have read) are detailed lower in the defense template?


The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied.

3. The Defendant was the driver of the vehicle on the dates listed. This was a car park the Defendant used frequently in 2018 and was therefore a regular paying customer.

4. The Defendant viewed the signage as confusing, with a mixture of large and small, unreadable print in unfavorably coloured texts. The information included is misleading and contradictory so no contract can be formed.

4. The Defendant paid for parking by phone so the PCN 'Contravention reason 'Parked without displaying a valid ticket/permit' is invalid as no such ticket/permit was received physically or otherwise after payment.

5. The Defendant sought more convenient methods of payment for parking prior to receiving any PCN(s) from the Claimant, but this was refused, placing the Defendant into an unfavorable position if they wished to park for more than one consecutive day.

Le_Kirk

Signage is covered in the defence template; just make sure you are not duplicating the same points.  Not sure that point 5 is a defence point, either save if for the witness statement or explain why it is a defence.