Thought I had a defence lined up, now doubting myself

MildPanic

Hello,

I have read the newbies post and understand the defence template but have managed to doubt myself.  I'm not sure if I should stick with original defence and/or abuse of power or if it is even a viable route at all and would like some advice please.

I'll start with background (bare bones so as to not give away any identifiable info), then follow with the Claim Form details as received in the New Year, Issue Date 23rd December from CCBC Northampton:

Background:
Car ran out of fuel on the way back to my place of work where I have a designated car parking space, road I broke down on is 40mph one way system railings on pavement to stop cars parking/mounting pavement, entered car park and pushed car out of the way just inside entrance whilst called for help to go and get fuel.  Submitted details to C E L within their timelines, only to be told they hadn't received my defence in time, not sure how as it was well within their timeline and sent by 1st class post.  Didn't hear anything further until the Claim Form arrived from CCBC this year.

Issues I now have - I have moved house in this time frame (all paperwork and receipt for jerry can of fuel lost) and had a new laptop due to previous ones failing, documentation irretrievable.  Also, this car park has now closed and all signage removed and entry barricaded, so I can no longer show where my car died in relation to any signage etc.

Claim Form:
Issue Date 23rd December 21

Claim for money relating to a Parking charge for breach of contract terms/conditions (TCs) for parking in private car park (CP) managed by Claimant.
Drivers may only park pursuant to TCs of use displayed in CP and agreed upon entry/parking.
Charges of £170 claimed
Violation date: nn/nn/2019
Payment due date : nn/nn/2019 (1 month after violation date)
Time in: nn:nn  Time Out: nn:nn (totals 35 mins)
PCN:Refnnnnnnnnnnn
Vehicle Reg: ABnnCDE
Car Park: abcdef

Total Due: £170
The claimant claims the sum of £205
for the unpaid parking charge in £35 
interest under S.69 of the CCA 1984
Rate: 8% PA from due date to 23/12/21
Same rate to Judgement or sooner payment at daily rate of: £0.04
Total debt and interest due - £205

signed by blah blah, head of legal (claimant's legal representative)

I am panicking as I have no original documents.

Thanks if you've got this far, any/all help would be hugely appreciated

MildPanic

Added to the above, there is also a box with additional fee breakdown:

Amount claimed - £205
Court Fee - £35
Legal representative's costs - £50
Total - £290

Redx

Abuse of power won't wash , it's actually abuse of process , which is no defence to the PCN or claim , only the additional spurious charges , which is already in the defence template

Email a SAR today to the DPO at CEL attaching a copy of the claim form as proof of I D under the GDPR law to obtain all your data , including the documents and pictures etc

Use GSV Go back feature to check for historical signs

Login to MCOL and do the AOS online only , nothing else on there , just the AOS , today !

Then post your proposed draft of paragraphs 2 and 3 below for critique

Stop panicking

MildPanic

Thanks Redx, yes, Abuse of Process!  Not abuse of power, that's for something else and more of a muscle memory typo, oops.


I'll crack on with the steps you've outlined now, and pop back with my proposed draft in the next couple of days.

KeithP

MildPanic said:

Claim Form:
Issue Date 23rd December 21

With a Claim Issue Date of 23rd December, you have until Tuesday 11th January to file an Acknowledgment of Service. That's tomorrow. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS 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, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that 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'.

MildPanic

SAR submitted
AoS filed

I'll be back with draft defence shortly.

Thank you for your time and help thus far 

MildPanic

Sorry that took a bit longer to get finished than I anticipated, please critique.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Civil Enforcement Limited

(Claimant) 

- and -  

                  XXXXXX XXXX                     

 (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.

It is admitted that the Defendant was the driver of the vehicle in question.

 

3.   On the date in question the Defendant was on their way back from their lunch break to their allocated parking space at their place of work XXX XXXXXX, XXXXXXXX (200m north of the car park in question).  On setting off the Defendant had enough fuel in their vehicle to get back to work and then to a petrol station at the end of the day to re-fuel.  Having owned the vehicle for a number of years and being familiar with the fuelling requirements, the Defendant was not concerned about the level of fuel at the start of the journey.

The traffic was unexpectedly heavy and stop-start all the way back from lunch.

The Defendants vehicle began to slow and judder on a busy dual carriageway (200m from the Defendants usual place of work). Sensing the vehicle was about to conk out, the Defendant looked for a safe place to pull over, the pavement to their left had railings, preventing the Defendant from being able to remove their vehicle out of the flow of the fast-moving traffic.  The defendant spotted an opening and dropped kerb, which they saw to be the xxxx car park, due to the entrance signs stating the car park name and listing hourly rate of 0.50p and daily rate of £2.50 in bold lettering.  The signs were also partially covered with foliage from the bushes surrounding them and covered in a grubby green moss type film.

The words on the prominent entry sign did not seek to make a contract with drivers for parking or remaining (there were no 'contractual agreement' words saying that by doing x you agree to y, as is normally seen).

The Defendant was able to limp the vehicle into the car park and just out of the way of the entrance, so as to not block the entry and this is where the vehicle proceeded to die.  The Defendant would like to note this was not within or near a parking bay.

The Defendant then phoned a colleague to help them with their vehicle.  The Defendant was given a lift to the nearest service station and purchased a 5ltr jerry can and 5ltrs of fuel and proceeded back to the car park to fill the car with fuel.  This took around 30 minutes after which time the vehicle started and the Defendant was able to return to work for the afternoon to their allocated car parking space 200m up the road.

The Defendant found no ticket on their vehicle but subsequently received a Parking Notice in the post.  The Defendant attempted to appeal to the Claimant in a timely manner with the details above, including sending through copies of the date time stamped receipt for the jerry can and fuel purchase.

The Claimant denied receipt of the evidence in a timely manner.  The Defendant sought evidence to this but no further communication was heard until the CCBC claim form arriving in 2022 via a redirect from the Defendants previous address.

In the time since the incident, the Defendant has moved house and had a replacement laptop, due to the original laptop failing irreversibly and all prior documentation has been lost.  A SAR has been submitted to the Claimant on 10/01/2022.

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

Every paragraph needs a number. You have eight unnumbered paragraphs between your paragraphs numbered 3 and 4.

Apart from that, most of those unnumbered paragraphs are not legal argument and would be better placed in your Witness Statement.

Redx

I agree , too much information , remove the waffler and save it for the witness statement in several months time

Just a brief outline of the case in 3 , then renumber them

2) should say keeper and driver , losing the second sentence

Be as concise as possible , the jackanory back story should be in the WS , in several months time

Coupon-mad

Remove all of this (below) and why are you saying the entrance sign was 'prominent'?  If you knew there was a tariff why didn't you pay it whilst waiting?  A Judge will no doubt ask that.

, due to the entrance signs stating the car park name and listing hourly rate of 0.50p and daily rate of £2.50 in bold lettering.  The signs were also partially covered with foliage from the bushes surrounding them and covered in a grubby green moss type film.
The words on the prominent entry sign did not seek to make a contract with drivers for parking or remaining (there were no 'contractual agreement' words saying that by doing x you agree to y, as is normally seen).
The Defendant was able to limp the vehicle into the car park and just out of the way of the entrance, so as to not block the entry and this is where the vehicle proceeded to die.  The Defendant would like to note this was not within or near a parking bay.
The Defendant then phoned a colleague to help them with their vehicle.  The Defendant was given a lift to the nearest service station and purchased a 5ltr jerry can and 5ltrs of fuel and proceeded back to the car park to fill the car with fuel.  This took around 30 minutes after which time the vehicle started and the Defendant was able to return to work for the afternoon to their allocated car parking space 200m up the road.
The Defendant found no ticket on their vehicle but subsequently received a Parking Notice in the post.  The Defendant attempted to appeal to the Claimant in a timely manner with the details above, including sending through copies of the date time stamped receipt for the jerry can and fuel purchase.
The Claimant denied receipt of the evidence in a timely manner.  The Defendant sought evidence to this but no further communication was heard until the CCBC claim form arriving in 2022 via a redirect from the Defendants previous address.
In the time since the incident, the Defendant has moved house and had a replacement laptop, due to the original laptop failing irreversibly and all prior documentation has been lost.  A SAR has been submitted to the Claimant on 10/01/2022.

MildPanic

Thank you KeithP, Redx and Coupon-mad.

@Coupon-mad, I had no intention of parking in the car park/using the car park as a parking spot, I broke down and felt I needed to get my car out of the way of fast flowing traffic.  Had access to the pavement been available I would have landed the car there but this was not an option and unfortunately this car park was. I didn't even think to get a ticket as I was in a mild panic about getting the car started and back to work for my meetings whilst calling friends/colleagues for help.


Updated draft:

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Civil Enforcement Limited

(Claimant) 

- and -  

                  XXXXXX XXXX                     

 (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.

It is admitted that the Defendant was the driver of the vehicle in question.

 

3.   On the date in question the Defendant was on their way back from their lunch break to their allocated parking space at their place of work XXX XXXXXX, XXXXXXXX (200m north of the car park in question).  On setting off the Defendant had enough fuel in their vehicle to get back to work and then to a petrol station at the end of the day to re-fuel.  Having owned the vehicle for several years and being familiar with the fuelling requirements, the Defendant was not concerned about the level of fuel at the start of the journey. The traffic was unexpectedly heavy and stop-start all the way back from lunch. The Defendants vehicle began to slow and judder on a busy dual carriageway (200m from the Defendants usual place of work). Sensing the vehicle was about to conk out, the Defendant looked for a safe place to pull over, the pavement to their left had railings, preventing the Defendant from being able to remove their vehicle out of the flow of the fast-moving traffic.  The defendant spotted an opening and dropped kerb, which they saw to be the xxxx car park

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: