premier park ltd taking us to court

Coupon-mad

Good spot, I didn't read down that far and assumed it was the template.

Agreed, I'd say all this needs removing:

The Defendant would like to now ask to see a copy before court proceedings begin. He has also submitted a Subject Access Request which has been acknowledged by the Claimant Premier Park but to date has not received the information required by law.

17. The landowner also committed a criminal offence under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 in allowing parking signs and cameras to be installed on the property during the August 2019 to October 2020 period without planning permission and advertising consent from Bromsgrove and Redditch Council. The pub was furthermore a listed building. Semya Smith, an information officer in Planning and Regeneration at Bromsgrove and Redditch said: " I have checked historically and can see no applications for the parking signs". The matter was passed to Gail Aucott in Planning Enforcement, but of course the Defendant subsequently learned all the cameras and signs had been removed. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.

18. The Defendant was never given a proper chance to defend this case at the outset in August 2019 as he never received the Notice to Keeper or a POPLA code with which he could make an appeal. His grandfather died in 2018 and the Defendant's parents sold their family home in (redacted), after 28 years and where he was living. They all moved to the grandfather's old property. The Defendant subsequently moved and lived with a girlfriend, then moved again to Brierley Hill to live in his parents' rented accommodation. He moved yet again in 2021 to Tipton to live with his new partner with whom he had a baby girl in November 2021. The DefendantI never received the NTK because he had simply forgotten to change address with the DVLA during a traumatic period of bereavement and continually changing addresses. Premier Park and BW Legal only caught up with him last year. Despite all this and Covid 19 the Claimants chose to pursue this matter despite the age of the case.

Le_Kirk

KeithP said:

Your paragraph 3 is written in the first person - using the word I repeatedly.

A Defence is usually written in the third person as you will see in all the other paragraphs.

Have you changed anything in the template paragraphs 4 to 19?
If so, please highlight those changes, otherwise we don't need to see those paragraphs.

............. and it reads more like a witness statement.  Keep the defence short, punchy and use only legal/technical arguments as to why the claim is not valid.

gazza123456

thanks for all your comments. will do another revision shortly

gazza123456

is this looking ok now?

claimants Premier Park Ltd and BW Legal v defendant

 

 

 

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 and driver of the vehicle in question but liability is denied. 

 

3.       The Defendant did not see any signs as it was very late at night and the car park and entrance was poorly lit. The Defendant had previously been a fairly frequent visitor to the pub and the car park had always been free, so he would not have been looking out for signs or parking restrictions.  The British Parking Association Code of Practice requires that, where parking terms or restrictions are new or have been significantly changed, additional very conspicuous signage is required to alert returning patrons who may be familiar with the 'old rules' and who cannot be expected to read signs every time on the off-chance a word or line of text has changed, especially when a patron is revisiting a (known to be free) pub car park in the dark, where any signs are most likely to be mere advertising boards about the premises, such as Sunday lunch deals, etc.

4. Subsequent photographs show there were no parking signs at the entrance to the alleyway that leads to the rear of the pub and the pub car park. Nor were there any signs along the alleyway. There was one sign attached to a tree at the very bottom that was unlit, but the main sign and ticket machine were around on the corner of the pub and would not be visible to a motorist entering the car park or even getting out to enter the pub.  The main sign was erected in a confusing position being placed right next to a huge advertising board. That area is also dark, poorly lit and screened from the rear pub entrance. The ticket machine is black making it impossible to see at night.  The main sign and ticket machine area are outside the pub car parking area next to some disabled bays. The pub car park is a dog leg left as you enter. It is quite dark and screened at the rear by large trees

5.  The Defendant now understands that restrictions were introduced shortly before he visited in August. The licensee states they were introduced in August 2019 and withdrawn in October 2020. One could deduce that the parking restrictions were so poorly advertised that issues and complaints forced the licensee to ask the landowners to remove the Claimant (or not renew the contract - the Claimant is put to strict proof of what happened) after just a year. The licensee was clearly utterly fed up with the predatory nature of this operation and said he had to keep paying his pub cleaners' parking "fines". If the morning cleaners could not spot a sign in broad daylight, one wonders how the Claimant expected customers to see the signs and hidden machine on dark evenings.

6.  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.

7.       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.

8.       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.  The Defendant spent less than an hour in the car park which would have cost 50p in charges.

9.  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 number 7 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').

10.  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

11.       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.  

12.       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.

13.   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.  

14.   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.

15.       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.

16.   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.

17.   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.

 

18.  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. The Defendant has previously asked for a copy of the contract between the landowner and Premier Park but has been refused.

In the matter of costs, the Defendant seeks:

19.   (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.

20.   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.

 

gazza123456

one question i have is that when at court.....if the judge or the claimant asks if you were the driver should you say yes or decline to answer?

Redx

gazza123456 said:

one question i have is that when at court.....if the judge or the claimant asks if you were the driver should you say yes or decline to answer?

Read the comments by Bargepole about the keeper versus driver arguments or dilemma

Your answer must be truthful

Declining to answer is likely to result in you being deemed the driver on the balance of probabilities and the lack of a denial

Coupon-mad

gazza123456 said:

one question i have is that when at court.....if the judge or the claimant asks if you were the driver should you say yes or decline to answer?

Why would they ask? Your defence admits to driving so of course you were!

Looks fine to me.

gazza123456

ok

thanks everyone. really appreciate the help and comments.

will post the defence in the next couple of days on the mcol website.

will let you know what happens

KeithP

gazza123456 said:

will post the defence in the next couple of days on the mcol website.

What??

Why would you do that?

On 5 January at 2:28PM, just five days ago, I wrote on your thread...

To create a Defence, and then file a Defence by email...

Notice those words - by email?

I followed that with...

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'.

I welcome any suggestion on how that can be made clearer.

gazza123456

hi how do you file your defence in the timescale?

MCOL website has a tag start defence