Draft Defence for Port of Wells

Cyclocyte

I would very much appreciate criticisms, of which there surely will be many, of my proposed defence for the infamous Port of Wells. Many thanks in advance:-

Between

CIVIL ENFORCEMENT LTD 

(Claimant) 

- and -

XXXXXXXXXXXXXXX

(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.

Summary of evidence requested from the Claimant:

2.       Proof of authorisation from the landowner for the operator to act as creditor at the car park with signatures from both parties.

3.       Copies of all photographs taken of the vehicle on 22/12/20

4.       Full details of the contract the Defendant is alleged to have breached

5.       Detailed and contextual photographs of all signage at the car park at 22/12/20

6.       Detailed calculations justifying how the additional £82 costs, which have been added to the original £100 claim, were arrived at, and where these are referred to in the Contract.

7.       Detailed calculations and invoices justifying how the £50 legal representative’s costs, which also form part of the claim, were arrived at, and also precisely where these costs are referred to in the Contract.

8.       Provide evidence that the car was parked for the period claimed, and not just in the car park.

 

 

 

Defective particulars of claim

9.       The Particulars of claim are deficient in that the full details of the “Contract” they claim the Defendant has breached has not been included. The Defendant believes that absence of important detail in the Particulars reflects the fact that the Claim has been produced without due care and does not form the basis for a valid claim. Indeed the Defendant’s surname is also misspelt

10.    The Particulars do not contain detailed calculations justifying how the additional £82 costs, which have been added to the original £100 claim, were arrived at, and where these are referred to in the Contract.

11.    The Particulars do not detailed calculations and invoices justifying how the £50 legal representative’s costs, which also form part of the claim, were arrived at, and also precisely where these costs are referred to in the Contract.

The facts as known to the Defendant:

12.    At the time of the alleged event the Defendant was on holiday with his family. Other members of his family who accompanied him, are authorised to drive his car and frequently do so, and did so during his stay in the area. He cannot recall who was driving at the time, since at the time of writing this occurred over a year ago and according to the Claimant’s records indicate that his car was only present in the car park for about 30 mins. Unless the Claimant’s photographic images can clarify who the driver was then their identity remains unknown.

13.    It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The land in question is under Statutory Control, therefore for the purposes of ‘keeper liability’, the Protection of Freedoms Act 2012 does not apply, and, for the avoidance of any doubt for the courts, operators, and consumers alike, the CMA Guidance on CRA 2015 also clarifies on which land POFA 2012 applies. As such, transfer of liability from Driver to Keeper does not apply, and should not have been invoked. A private operator cannot hold a keeper liable on any land where parking is controlled by statute law.

14.    In addition, the driver-liability-only PCN which was issued, fails to comply with POFA 2012 Paragraph 9 Schedule 4, notably, the absence of 9(2)(f), warning about the recipient of the letter becoming liable in law. A registered keeper cannot be lawfully assumed to be the driver on private land - if that had been possible then the POFA would not have been needed at all in 2012 - and this was confirmed by POPLA Lead Adjudicator and parking law expert barrister, Henry Greenslade, in his notes about keeper liability misunderstandings, in the POPLA Annual Report 2015.

Defective car park signage

15.    Notwithstanding the foregoing, the Claimant’s records note that the Defendant’s car entered the car park at 16:02  on the day in question (22nd December 2020). The Defendant claims that if the car park signs were clear and visible to the driver then the modest car park fee alleged to have been due would have been paid. Sunset was at 15:42 on the day and at the time the Defendant’s car arrived it would likely have been dark. The Defendant’s recent researches indicate that the car park signs at the entrance are not illuminated, so they would not have been seen by the driver and thus the driver did not enter into a contract with the Claimant for this and other reasons detailed below.

16.    The BPA Code of Practice states (Paragraph 19.3) that “Signs must be conspicuous and legible, so that they are easy to see, read and understand”. More specifically on the issue of illumination the Code states:

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.”

The Defendant claims that the signs at the entrance would not easy to see at the time at least because of lack of illumination, and therefore the Claimant failed to adhere to the BPA Code in this respect.

17.    The lack of illumination of the signs is compounded by signage defects revealed by the Defendant’s recently obtained images, which clearly show that important signage at the entry point is difficult or impossible to read fully by any driver, particularly if approaching the car park from an easterly direction. The sign on the left of the entrance, whilst partially conforming to BPA requirements, is positioned on the passenger side of the car and would not be seen when approaching from either direction even in daylight. The sign on the right hand side of the entrance does not appear to be facing the road and therefore the driver. It is positioned inside the entrance facing west so a driver approaching from the east might easily fail to notice it. In addition, this notice disregards the BPA requirements for entry signs in multiple ways. It does not refer the user to terms and conditions on additional signs in the car park. Whereas the sign on the left of the entrance claims that the car park is managed by Civil Enforcement Ltd, the notice on the right hand side states “BY ORDER OF WELLS HARBOUR COMISSIONERS” and does not refer to Civil Enforcement Ltd. These signs are clearly contradictory.

 

18.    The Claimant’s signage does not attempt to create a contract with the car park user.  They state on their signs that their role is to 'enforce', 'monitor' and 'patrol' and it is clear that their limited function is to facilitate the terms offered by the principal, including 'contact the DVLA' and 'issue PCNs'.  This limited function is confirmed in the Claimant's own Linked-In page at [URL] where they proclaim 'Civil Enforcement Ltd process and administer Parking Charge Notices (PCN's) on the behalf of UK Small Businesses and Major UK Brands.'

19.    Unlike in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67, there is no sentence in the signage that offers or attempts to create a contract between this Claimant and a driver.  A parking management firm could use wording to make themselves personally liable on the contract and they could make a contractual offer themselves by saying 'by parking at this site you, the driver, are entering into a contract with us' (or words to that effect) but there is no such contract on the signs.  In fact, at no point is a driver told that they are entering into any contractual relationship.

 

20.    The Claimant’s signage within the car park displays the £100 parking charge, but in an unacceptably small font seemingly chosen to limit its visibility. The font size chosen for this very important warning is about 20% of the size of other words of much lesser importance. In an even smaller lower case font it states “Additional costs/recovery charges will be incurred if payment is not received within 28 days”. Notably this statement does not proceed to make clear who would incur these costs. The Defendant’s interpretation of this is that the Claimant will incur these charges and not the driver/Defendant

21.    Furthermore, these statements alongside other Terms and Conditions appear on inward facing signs within the car park, which would not be visible to the driver on entry. The Particulars of claim state that (the Contract)  “…was agreed to on entry/parking”. Based on the visibility and wording on the entry signs, the driver would not at the time of parking be acquainted with the conditions of the contract, even assuming they were fair and clear, which is denied, and therefore cannot be bound by one.

 

22.    The Claimant is a member of the British Parking Association (BPA), and also their Approved Operator Scheme (AOS) under which they are obliged to adhere to the BPA Code of Practice (latest version dated January 2020). They have failed to comply with the BPA Code relating to signage in a number of important ways referred to above

CONTINUED ON NEXT POST

KeithP

Hello and welcome.

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service? If so, when?

Cyclocyte

Thanks for your very prompt welcome!
Issue date is 23/12/2021 and I have sent AOS on 29/12/21

Umkomaas

Don't you already have an existing thread with all the background details?  Not easy to comment on an important document like a Defence in a total vacuum. 

Forum rules: one case, one thread. 

KeithP

Cyclocyte said:

Issue date is 23/12/2021 and I have sent AOS on 29/12/21

With a Claim Issue Date of 23rd December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 25th January 2022 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving 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'.

KeithP

Umkomaas said:

Don't you already have an existing thread with all the background details?  Not easy to comment on an important document like a Defence in a total vacuum. 

Forum rules: one case, one thread. 

The OP does have a second thread - the remaining parts of his Defence are in a separate thread. 

Umkomaas

KeithP said:

Umkomaas said:

Don't you already have an existing thread with all the background details?  Not easy to comment on an important document like a Defence in a total vacuum. 

Forum rules: one case, one thread. 

The OP does have a second thread - the remaining parts of his Defence are in a separate thread. 

Augers well for WS and Evidence time!

Cyclocyte

Sorry I have used a second post to continue my Defence doc. I am not accustomed to forums so dont know the form. Should I add the remaining contents again here?

Umkomaas

Cyclocyte said:

Sorry I have used a second post to continue my Defence doc. I am not accustomed to forums so dont know the form. Should I add the remaining contents again here?

It would certainly help to have everything in one place. A bit of background to your case wouldn't go amiss either. 

Cyclocyte

POW DRAFT DEFENCE CONTINUED

23.         The BPA Code of Practice states (Paragraph 19.1) that “You must use signs to make it easy for them to find out what your terms and conditions are” The Claimant has failed to do this.

 

24.         The Claimants have also failed to adhere to this regulation.

 

25.         The Claimant’s various unclear and conflicting signs have vague/hidden terms and a mix of small fonts, 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.

 

26.         The Claimant has failed to comply with the Code of Practice that they are signed up for in multiple ways. Under the Consumer Protection from Unfair Trading Regulations, it is an unfair/misleading business practice to state that a Trader complies with a Code of Practice, but in reality, does not.

 

Quantum and other issues of Fairness

27.         The Claimants are demanding £100 for the PCN, which is about 20 times the full parking charge which the driver is alleged to have failed to pay. This is clearly a punitive claim. The Claimant has further enhanced this with £82 unspecified additional costs, which have not been justified, and in addition they have added £50 legal representative costs which have also not been justified and are presumably for their legal representative, XXXXXXXX, who is not a qualified solicitor and who appears to have produced deficient Particulars of Claim.

 

28.         The claim for £82 additional costs/recovery charges 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 (CRA 2015).  The Defendant claims 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. It is notable that 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.

 

29.         The Defendant denies that the exaggerated sum sought is recoverable.  His position is that this moneyclaim is in part/wholly a penalty. The Claimants are applying the authority in the following cases:

 

i.             ParkingEye cases (ref: paras 98, 100, 193, 198), ParkingEye Ltd v Beavis [2015] UKSC 67,

ii.            para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB)

 

In the above examples 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. In this current claim against the Defendant, the initial parking charge is £100 which has been increased to £182 plus an additional charge of £50 for legal costs (total = £232 plus interest)

30.         Even if the Claimant had shown the global sum to be claimed in the largest font on clear and prominent signs - which is denied - they are attempting more than 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

 

31.         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.

 

32.         The new Parking Code enforcement framework recognises the need for efficient car park management and was developed in consultation with the management companies and other stakeholders. Within London, as in the Beavis case, the PCN for normal breaches under this Framework has been set at £80. Outside of London this is set at £50. Both are subject to a 50% discount for prompt payment. The Defendant asserts that since £50 is an adequate amount for a PCN outside London the current claim for £100 is a penalty and cannot be recoverable.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is differentiated from this case

 

33.         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.

 

34.         Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location, the fact that parking was free for 2 hours,  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.

 

35.         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.

 

36.         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.

 

37.         The Claimant's Terms and Conditions parking notices vaguely refers to unidentified sums being incurred. Such imprecise terms would be considered incapable of binding any person reading them under common contract law, and would also be considered void according to Schedule 2 of the CRA. Claims pleaded on this basis by multiple parking firms have routinely been struck out at the start in various County Court areas. Recent examples include multiple Orders from District Judge Fay Wright sitting at Skipton County Court, with similar Orders seen in the public domain from Deputy District Judge Josephs sitting at Warwick County Court, District Judge Taylor at the Isle of Wight and Deputy District Judge Colquhoun sitting at Luton County court in March 2020. All were summarily struck out, solely due to parking firms falsely adding £60 to inflate the claim.

 

 

38.         This matter was recently determined by District Judge Grand, sitting at Southampton County Court on 11 November 2019, where the Claimants sought to have multiple strike out Orders set aside. The application was dismissed, and a copy of the Approved Judgment is appended to this defence. No appeal was made in that case, where the learned Judge found that £160 parking claims represented an abuse of process that `tainted' each case. It was not in the public interest for courts to allow exaggerated claims to proceed and merely disallow the added £60 at trial on a case-by-case basis. To continue to do so would restrict the proper protections only to those relatively few consumers robust enough to reach hearing stage. In this case the Claimant has enhanced their claim not by £60 but by £132.

39.         Whilst these cases are not precedents, it is only right that Defendants should use them and expect no less protection and proactive sanctions against parking firms whose claims happen to fall to other courts.

 

40.         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:

 

iii.           Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

iv.           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.

 

41.         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.

 

42.         The official Competition and Markets Authority guidance on the Consumer Rights Act 2015, clarifies under `Disproportionate financial sanctions' and `Indemnities against risk' [URL]

"Other kinds of penal provisions which may be unfair are clauses saying that the business can:

 

•             claim all its costs and expenses, not just its net costs resulting directly from the breach;

•             claim both its costs and its loss of profit where this would lead to being compensated twice over for the same loss; and claim its legal costs on an `indemnity' basis, that is all costs, not just costs reasonably incurred.

•             The words `indemnity' and `indemnify' are also objectionable as legal jargon — see the section on transparency in part 2 of the guidance... " (p87 - 5.14.3);

"Terms under which the trader must be `indemnified' for costs which could arise through no fault of the consumer are open to comparable objections, particularly where the business could itself be at fault. The word `indemnify' itself is legal jargon which, if understood at all by a consumer, is liable to be taken as a threat to pass on legal and other costs incurred without regard to reasonableness. " (p119 - 5.31.7).

 

43.         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.  The Defendant seeks proof that the freeholder authorises this Claimant to issue parking charges and 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.

 

44.         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.

Cyclocyte

The background is.... On holiday with family around Christmas 2020 and we pulled into the car park just after dark to pick up some fish n chips, so only there for about 30 mins. Most businesses were shutdown because of lock-down so it was probably unusually dark but didnt see the signs at the entrance, which from current researches dont appear to have their own illumination.
Threw the stream of letters from CEL etc into draw marked Scams so didnt respond to any until the Court invitation! The identity of the driver remains unkown!