UKPC / DCB Legal

IloveElephants

Just wanted to ask is this point (below)  enough for my defence? It is going to be my defence, other things I can put in my defence is:

2. At the time they were no clear signage upon entrance at the time. 




 IloveElephants said:

Redx said:

IloveElephants said:

If I remember correctly they was even another car parked next to me before I pulled into this gap opposite the sign, when the traffic warden took the photo it seems that car parked next to me on my left was gone. My point is they should have used markings on the ground to make it clear.

And that is precisely the main point of your defence , bay markings and signage are key elements of the parking contract , so poor markings and a possible trap are in your favour

This is my exact point, even when I visited the site today 2 cars parked in the same spot, signage on the wall to catch people out. If anyone else could share their opinion on this please? Thanks RedX

p.s this took place in 2018 and since then they have not changed the car park to deliberately catch people out 

Coupon-mad

No that's not enough.  Read other claim threads to see what others put,

IloveElephants

Coupon-mad said:

No that's not enough.  Read other claim threads to see what others put,

Hi Coupon-mad, thanks for your input, I appreciate your kindness. 

I can put these arguments in my defence aswell:

3. No grace period,
4.letters not received from 2018 - December 2021,  UKPC did not make any attempt to trace me, 
4. UKCPM have added £60 that breaches the CRA, POFA and Supreme court case law.''


So the above are all my defence points, the main one being they is no clear markings and the sign is not positioned in front of the parking bays but on the left as my screen shots show, if cars are parked against the wall its impossible to see if they are parking bays of not. If they painted the ground with markings this would be clear to drivers. 

Coupon-mad

I doubt UKCPM have added money to a UKPC claim! 

But that point isn't needed.  You need to read the template defence, as I club that point about the false added 'costs' to death in it already!

3 and 4 are fine and you also need to tell the Judge (in this defence) some info about the car park and why you felt you were not 'unauthorised'.

IloveElephants

Coupon-mad said:

I doubt UKCPM have added money to a UKPC claim! 

But that point isn't needed.  You need to read the template defence, as I club that point about the false added 'costs' death in it already!

3 and 4 are fine and you also need to tell the Judge (in this defence) some info about the car park and why you felt you were not 'unauthorised'.

Thanks Coupon-Mad, I really appreciate your input. 

Please see the revised version of my defence draft. Thank you so much. I hope to get this sent off by Monday hopefully. Please if they are chunks of paragraph that needs to be removed please say. Thank you everyone. 

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

UKPC

UKPC

- 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:

1.  Misleading signage and markings. 

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

3.  No grace period given, 

4.letters not received from 2018 - December 2021,  UKPC did not make any attempt to trace the defendend. 

The Defendant didnt see clear signage in the carpark, from screen shots (photos provided) you can see vehicles can park along the wall which was the case when the defendant parked in the space. Its very misleading to have a sign directly opposite the out of bounds parking bay. This can be easily misleading to drivers thinking they are fine to park opposite the signage.  The Defendant also states that no markings were made on the carpark ground to suggest no parking. 

.  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:

IloveElephants

Hi, Do you think I should show screenshots to the judge in supporting documents of the 1 star reviews this carpark has because many people have had the same problem with the carpark. Google reviews has all of the info 

Umkomaas

IloveElephants said:

Hi, Do you think I should show screenshots to the judge in supporting documents of the 1 star reviews this carpark has because many people have had the same problem with the carpark. Google reviews has all of the info 

Not at Defence stage. Maybe later as part of your Witness Statement. 

IloveElephants

Some of the reviews for this particular Carpark. Will this be good to print and use it as supporting documents for my witness statement or defence. I can link the source aswell - google review. Thank you friends

Before gym service was very good now its become awful. No customer services too much confusion they make you difficult to come out of membership I going through night mare with them sending email after email that they open my contract finished membership and issued ticket.I already cancel membership been year ago but they still issue tickets. No phone service at all recently heard some had takeover it😔

They said we have provided free parking for membership but they sold the carpark too parking ticket company I have got more the  5 tickets here. I dont recommend.

SHARP PRACTICE Parked in a very dark car park outside, the signs said no more than 2 hours. My mate (a member) was working out, I was to collect him, he got delayed so had to wait. I got a parking ticket when I was standing at the entrance area with the street. the reason given "Vehicle Owner/Driver left site" but the member hadn't and we were still there or thereabouts. Furthermore there are no signs on Display that clearly stated that you must not leave your vehicle. I shall appeal and insisting on a Hearing. More News Later!

Went to inside the gym to find out the cost of becoming a member. Ended up with a parking ticket for 'leaving the site'. Will not be joining gym now.

the carpark is just crazy too ... be carful of parking tickets being given out with out reason and the potholes and lighting are worse then a third world country....

IloveElephants

Umkomaas said:

IloveElephants said:

Hi, Do you think I should show screenshots to the judge in supporting documents of the 1 star reviews this carpark has because many people have had the same problem with the carpark. Google reviews has all of the info 

Not at Defence stage. Maybe later as part of your Witness Statement. 

I see thanks UMkomaas, I appreciate it

Coupon-mad

The facts as known to the Defendant:

1. (as template)

2. It is admitted that the Defendant was the registered keeper and driver 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.

(The rest as template...)