County Court Claim Liverpool John Lennon Aiprort

JohnnyLenny

Hi guys,

I received a parking notice through the post from Liverpool John Lennon Airport, after stopping for 10 seconds and letting someone out. I stopped in the entrance to Wynne Aviation (I read a thread about someone stopping in the exact same place). After receiving the notice I made a quick google search about Liv Airport fines and came across an old forum stating that you can just ignore the letters and threats. I didn't look into it any further as i'd been told something similar by a friend so the old thread was just a confirmation to me. Obviously I was wrong and the old thread is just that, old. 

Fast forward a few months and I've ignored and binned every letter that has come through. That is until I received a County Court Claim against me (Issue date 30 Dec 2021). so that's when i came back to the forum and looked into it more thoroughly. 

I've Just filed an AoS on 10/01/22.

I haven't asked for a SAR as I've gone past the Letter Before Claim and I'm at the Claim stage. Should I still request a SAR?

I've completed my Defence using the defence template. Paragraph 2 and 3 (with an extra 4th and 5th paragraph. Numbers have been amended throughout defence) are below: 

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 had only recently started using the vehicle in question for private hire taxi services. The Defendant had become a taxi driver on a short term basis to cover for losses due the closure of the Defendants full time business. The Defendants full-time business was temporarily closed down as a result of the pandemic laws and guidelines. The defendant had previously dropped off two customers at the airport express drop-off and the £3 drop off fee was automatically covered by the Defendants private hire company (Uber).

4.    In response to the claim, the Defendant had picked up a new customer from a location in Woolton Liverpool and the drop-off location was Liverpool John Lennon Airport. On route to the airport along Speke Hall Avenue, the Defendant was driving up to the speed limit of 40mph whilst looking after the welfare of the customer, who had become increasingly anxious about her flight and was stating that she felt sick and wanted to get out of the vehicle and have a cigarette before entering the airport. The customer asked the Defendant to pull over and let her out as she was not ready to enter the car park and felt she might vomit. The Defendant pulled over into a side road away from the main road. There were double red lines here so the defendant pulled into and let the customer out. With Uber there is no exchange of cash so the time taken for the customer to leave the car and for the defendant to move off would have been around 10 seconds. The Defendant did not see any road signs stating that you cannot stop and did not agree to any terms and conditions. The defendant had no reason to avoid entering the car park as the car park fee is automatically covered by Uber.

5.  The defendant received a picture of the signs in question from the Claimant and it is clear that there are a number of issues with said signs; the font size is too small and the words too many to be safely read while driving. These signs could only be read while stopped and the normal time allowed in these situations is 5-10 minutes to allow for a genuine meeting of minds and for the driver to understand and comprehend any potential contract. There can therefore be no contract entered into by consideration.

Any advice and feedback at this point would be greatly appreciated. I'm following the guidance step by step and I know the next stages are getting feedback on this, amending (if necessary), sign and date and email. 

Thanks in advance,

Jay

Umkomaas

Get a SAR, it will be useful at Witness Statement time. Get your defence prepared using the Template Defence found in one of the first five threads (announcements) at the top of the forum thread index. 

Then read the other LJLA threads currently on the first two or three pages of the forum, plenty there as this is a recent push by VCS to raise court claims in numbers. Look at how others are framing their defences, use to formulate your own, then show your draft here for critique. 

Sareck

Read the discussion by @Router66 too

JohnnyLenny

Thanks Umkomaas. I'll get a SAR.

I've completed a Defence using the Defence Template posted by coupon-mad (Below). or are you telling me to use a different defence template? 

is the Defense I posted at the top of the thread (paragraph 2, 3, 4, 5)  not suitable? 

Thanks, 

J

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (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. 

^^^ CHANGE THE ABOVE IF NOT TRUE, OBVIOUSLY! ^^^ 

(Also, continue here in your words, by either also admitting to being the driver, or hirer/lessee, if you were.   Alternatively, deny being the driver in #2, but ONLY IF TRUE.  If you DON'T KNOW, say so).

 

3.  [REMOVE AND REPLACE THESE NOTES! EXPLAIN WHAT YOU KNOW IN YOUR OWN WORDS]  

If you are admitting to driving, you will be talking about what the Defendant saw or didn’t see, in terms of the signs, whether it was dark, whether the signs were obscured by a tree, really small, broken or not lit? etc. Or maybe the signs about inputting your VRM were not conspicuous, or maybe this was a fluttering ticket situation, or maybe the machine made an error in your VRM (never assume the driver made a typo, unless clearly the driver, say, input their other car VRM or something).

If you are only the registered keeper and were not driving, you will be saying when you first heard about this parking charge (by post, months later?) and maybe how harassed you felt by the bombardment of ‘debt recovery’ letters, and you might be taking the point that the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

If this is a residential car park where you live, you will be talking about your rights in your lease (as tenant or as leasehold owner), denying accepting any contract with this third party.

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

JohnnyLenny said:

I received a County Court Claim against me (Issue date 30 Dec 2021). 
I've Just filed an AoS on 10/01/22.

With a Claim Issue Date of 30th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 1st February 2022 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence and it is good to see 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'.

JohnnyLenny

KeithP said:

With a Claim Issue Date of 30th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 1st February 2022 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence and it is good to see you are not leaving it to the last minute.

Thank you.  

KeithP said: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 DefenceDo 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'm following this newbies thread step by step and it told me to post my defence (paragraph 2 and 3 only) on my own thread once I've completed it. for feedback. So that's the stage I'm up to. I've added it again below:

JohnnyLenny said:

I've completed my Defence using the defence template. Paragraph 2 and 3 (with an extra 4th and 5th paragraph. Numbers have been amended throughout defence) are below: 

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 had only recently started using the vehicle in question for private hire taxi services. The Defendant had become a taxi driver on a short term basis to cover for losses due the closure of the Defendants full time business. The Defendants full-time business was temporarily closed down as a result of the pandemic laws and guidelines. The defendant had previously dropped off two customers at the airport express drop-off and the £3 drop off fee was automatically covered by the Defendants private hire company (Uber).

4.    In response to the claim, the Defendant had picked up a new customer from a location in Woolton Liverpool and the drop-off location was Liverpool John Lennon Airport. On route to the airport along Speke Hall Avenue, the Defendant was driving up to the speed limit of 40mph whilst looking after the welfare of the customer, who had become increasingly anxious about her flight and was stating that she felt sick and wanted to get out of the vehicle and have a cigarette before entering the airport. The customer asked the Defendant to pull over and let her out as she was not ready to enter the car park and felt she might vomit. The Defendant pulled over into a side road away from the main road. There were double red lines here so the defendant pulled into and let the customer out. With Uber there is no exchange of cash so the time taken for the customer to leave the car and for the defendant to move off would have been around 10 seconds. The Defendant did not see any road signs stating that you cannot stop and did not agree to any terms and conditions. The defendant had no reason to avoid entering the car park as the car park fee is automatically covered by Uber.

5.  The defendant received a picture of the signs in question from the Claimant and it is clear that there are a number of issues with said signs; the font size is too small and the words too many to be safely read while driving. These signs could only be read while stopped and the normal time allowed in these situations is 5-10 minutes to allow for a genuine meeting of minds and for the driver to understand and comprehend any potential contract. There can therefore be no contract entered into by consideration.

Any advice and feedback at this point would be greatly appreciated. I'm following the guidance step by step and I know the next stages are getting feedback on this, amending (if necessary), sign and date and email. 

Thanks in advance,

Jay

Coupon-mad

There were double red lines here so the defendant pulled into and let the customer out.

Did you mean to say this entrance was a place where there were NO red lines so it appeared to be off the enforced roadway?

JohnnyLenny

Coupon-mad said:

There were double red lines here so the defendant pulled into and let the customer out.

Did you mean to say this entrance was a place where there were NO red lines so it appeared to be off the enforced roadway?

Apologies, that was supposed to say There were double red lines here so the defendant pulled into the entrance of Wynne Aviation and let the customer out.' 

looking at google maps, it appears that the double red lines go into the entrance of wynne aviation and there appears to be signs on the railings too.

 I remember driving in towards wynne gates then doing a half turn in the road, so that I was parallel to the gates (sort of looking as though I was attempting to block the entrance) this is where i was stopped for 10 seconds and the customer got out. Engine still running and foot on the breaks (Break lights on).

Coupon-mad

Don't say any of that.  It sounds like you deliberately stopped on double reds 'here'.

JohnnyLenny

Coupon-mad said:

Don't day any of that.  It sounds like you deliberately stopped on double reds 'here'.

That's great, I didn't think it would be good. To be honest I didn't even notice the double reds until looking at google maps. Is there anything you would recommend to say or just leave it as "I pulled over into side road to let the customer out".

Do you think that would then be ready to send for my defence.

Lastly, I've filled in the SAR template ready to send to VCS. but I have completely lost the part of one of the threads that stated what to put in the Email Subject and Email itself when emailing the SAR. I have about 50 forum tabs open and now I'm thinking I've completely imagined seeing this information. Any idea where this information is?

Thanks,

J

Umkomaas

You could put your PCN number and your vehicle's registration number.  Ensure you enclose copies of your V5C (logbook) and a couple of redacted utility bills too.