UKPC / DCB Legal

IloveElephants · 31 January 2022 at 5:24PM

IloveElephants said:

Le_Kirk said:

OP, you would be better starting with the template defence, adding your changes to paragraphs 2 & 3 and any other new paragraphs you feel need adding. If you do add, say, two new paragraphs, then you need to adjust the number in : -
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.
... to be point 7#. If you add three new paragraphs you change it to point 8#. Do NOT attempt to change the wording of the template defence away from what it is. Just edit/add your bits, adjust the numbering and that is your defence. We don't actually need to see the rest of the template as it was written by @Coupon-mad and there is no need to check her work. Just make sure you add it back before you send it to CCBC.

Hi Le,

Quote "to be point 7#. If you add three new paragraphs you change it to point 8#. Do NOT attempt to change the wording of the template defence away from what it is. Just edit/add your bits, adjust the numbering and that is your defence. We don't actually need to see the rest of the template as it was written by @Coupon-madand there is no need to check her work. Just make sure you add it back before you send it to CCBC."

Hi Le, I just want to ask where do I add the new paragraphs in? I wont change the wording of the template defence. I am unsure what do I add in paragraph 7? My 5 main points of the defence are at the top,

1. Defendant denying any contract was entered into
2. Misleading signage and markings
3. No grace period given
4. Consumer notices letters were not given or served
5. Defendant was registered keeper of vehicle in question but liability is denied.

I am still unsure what I need to adjust before I send this defence off. Sorry for my lack of understanding on this one.

Le_Kirk said:

I wrote IF you add in extra paragraphs, I did not write that you have to. Have you found the defence template here: -
https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1
You will note that the defence template looks like this: -
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.
You should leave paragraph 1# unchanged and you should edit paragraphs 2# & 3# to suit your case. Do not edit paragraph 4# onwards; if you cannot edit 2 & 3 sufficiently to state all that you want to, then by all means add extra paragraphs after 3# and renumber from 4# onwards. THEN if you have added the additional paragraphs you need to adjust the words in the original template paragraph 7# to take account of your additional paragraphs. If you do not need additional paragraphs, then leave the template paragraph 7# as it is. We do not need to see the template paragraphs we are checking only your work not that of @Coupon-mad who wrote the template.

Thank you Le Kirk, I have left paragraph 1 unchanged from the template, I have put in paragraph 2, 3, 4, then onwards I have not added additional paragraphs, its a direct copy from the template that coupon-mad created.

I have pasted the revised version below and made bold the recent changes. Thank you Le Kirk.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

UK PARKING CONTROL LIMITED

- and -

Mr John Smith (Defendant)

____________________

DEFENCE

____________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant.

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

3. Misleading signage and markings - it is denied that a contract was agreed. There was a lack of clear/conspicuous signage in the car park, which the Defendant will evidence. The Claimant is put to strict proof to the contrary. The Defendant also states that no surface markings were on the ground to suggest 'no parking' if this is the allegation, which is incoherent from the particulars.

4. No grace period given. Despite the industry Code of Practice at the time requiring a mandatory consideration or 'observation' period before issuing a parking charge, the Defendant believes that predatory ticketing took place within minutes. The Claimant is put to strict proof to the contrary along with notes/a statement from the ticketer.

5. Consumer notices (letters) were not given or served to the Defendant, this being a failure by the Claimant to provide the necessary information about the alleged contractual breach and parking charge. The Defendant avers this was a material breach of the test of fairness (transparency and prominence of consumer notices) ref the Consumer Rights Act 2015. The court has a duty in s62 to consider the test of fairness of not just terms but consumer notices (includes all communications - signage and the letters intended to be given). It is believed that, beyond relying on unreliable DVLA data, UKPC did not make any attempt to trace the defendant in a timely manner to serve the required information and avoid court.

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.

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 paragraph 5 above and in any event it is worth noting that the lead Southampton case of Brittania v Crosby was not appealed. It is averred that District 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').

No papers were served to the defendant as stated in paragraph 4 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.

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.

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.

Defendant’s signature:

Mr John Smith - (paste signature here)

Date: 30/01/2022

KeithP · 31 January 2022 at 5:46PM

Once again I ask... why are these words there?...

No papers were served to the defendant as stated in paragraph 4 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.

No idea why you are insisting on adding those words anywhere, but if you are going to add them there, then as a separate paragraph, it needs a sequential number.

Le_Kirk · 31 January 2022 at 6:12PM

We are getting there. You still have a random paragraph between paragraph 9 & 10 without a number but it does appear to be a repeat of your paragraph 5#. Suggest you remove the unnumbered one. Then, take the bolding off paragraph 9# and adjust it as below: -

He was not taken by either party to Somerfield in paragraph 5 7 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.

IloveElephants · 31 January 2022 at 6:17PM

KeithP said:

Once again I ask... why are these words there?...
No papers were served to the defendant as stated in paragraph 4 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.
No idea why you are insisting on adding those words anywhere, but if you are going to add them there, then as a separate paragraph, it needs a sequential number.

Hi Keith, sorry for my mistakes, I have deleted No papers were served to the defendant as stated in paragraph 4 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.

IloveElephants · 31 January 2022 at 6:28PM

Le_Kirk said:

We are getting there. You still have a random paragraph between paragraph 9 & 10 without a number but it does appear to be a repeat of your paragraph 5#. Suggest you remove the unnumbered one. Then, take the bolding off paragraph 9# and adjust it as below: -
He was not taken by either party to Somerfield in paragraph 5 7 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.

Hi Le Kirk, thanks for having patience, sorry for my misunderstandings.

I have pasted it below, removed the paragraph about no papers being served. I have underlined some comments just to confirm shall I delete all the underlined paragraph between 9 and 10? Thank you

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

UK PARKING CONTROL LIMITED

- and -

Mr John Smith (Defendant)

____________________

DEFENCE

____________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant.

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

3. Misleading signage and markings - it is denied that a contract was agreed. There was a lack of clear/conspicuous signage in the car park, which the Defendant will evidence. The Claimant is put to strict proof to the contrary. The Defendant also states that no surface markings were on the ground to suggest 'no parking' if this is the allegation, which is incoherent from the particulars.

4. No grace period given. Despite the industry Code of Practice at the time requiring a mandatory consideration or 'observation' period before issuing a parking charge, the Defendant believes that predatory ticketing took place within minutes. The Claimant is put to strict proof to the contrary along with notes/a statement from the ticketer.

5. Consumer notices (letters) were not given or served to the Defendant, this being a failure by the Claimant to provide the necessary information about the alleged contractual breach and parking charge. The Defendant avers this was a material breach of the test of fairness (transparency and prominence of consumer notices) ref the Consumer Rights Act 2015. The court has a duty in s62 to consider the test of fairness of not just terms but consumer notices (includes all communications - signage and the letters intended to be given). It is believed that, beyond relying on unreliable DVLA data, UKPC did not make any attempt to trace the defendant in a timely manner to serve the required information and avoid court.

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.

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 paragraph 7 above and in any event it is worth noting that the lead Southampton case of Brittania v Crosby was not appealed.

It is averred that District 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'). (Just to confirm Do I delete this paragraph?)