VCS- IPC rules and subsequent CCJ

sarahmm85

This is what worries me! You are absolutely right, it doesn't state anything about the MCOL after a set aside but I looked at the Newbie thread as advised and didn't read clearly enough. This is why I'm worried I'm going to include something ridiculous in my defence...

The Claim Form states County Court Business Centre but I had my set aside hearing through Gloucester.

Coupon-mad

sarahmm85 said:

This is what worries me! You are absolutely right, it doesn't state anything about the MCOL after a set aside but I looked at the Newbie thread as advised and didn't read clearly enough. This is why I'm worried I'm going to include something ridiculous in my defence...

The Claim Form states County Court Business Centre but I had my set aside hearing through Gloucester.

Yep, so you IGNORE all the old info on the old claim form (because it's out of date and was only supplied to you for information so you could see the Particulars of Claim and sums involved) and you must forget the forms and submit to Gloucester and the Claimant's solicitor:

- Your defence (see Template Defence thread).  Show us your draft first.

- Your new (2nd) witness statement in support of your defence of the PCN this time, and your exhibits (evidence in support of the defence of the PCN) and your costs assessment (see examples of the complete bundle, by @Nosy and @jrhys)

And of course those cases are from 2021 so you need to add the good news from 2022 (this month) as explained here to someone who is working on their WS:

https://forums.moneysavingexpert.com/discussion/comment/79013061/#Comment_79013061

Happy reading, get up to speed with the new Code of Practice from the DLUHC.  That thread explains why it matters even to existing cases.

sarahmm85

Finally received the SAR info back. Interestingly, considering my CCJ set aside was granted due to the wrong address, they still sent correspondence to my old address 7 days after the hearing! With a reduced offer and to let me know that Elms were no longer representing them. Can I list that somewhere in my Defence that yet again, they've not conducted their due diligence or do I let that be seeing as I have not intention of accepting the reduced off anyway?

sarahmm85

Quick recap before I show my defence below:

• photos show my vehicle stopping on the main road just after a pedestrian crossing
• checked the map of where VCS operate and they do on this road
• defence will focus on

1. Extortionate charge
2. can't enter into contract due to inadequate signage
3. No Stopping is not something that can be enforced (this is the sticky one for me as there are clear white zig zag lines after a crossing but again, rules are to not park on them.)

I've adapted the Defence from the Newbies sticky thread and the recent one posted by RobertCox999. I would like to know whether to include it all or to cut some of it. I have two questions in (capitals and italics) if anyone would be willing to cast their eye over it. I am aware that the paras need to be renumbered, I shall do this once I know what is being kept. Thank you in advance.

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.  ( DO I NEED TO STATE WHY HERE?)

3. Despite the Claimant stating that ‘terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations’ the Defendant did not see them as they are very small, coupled with the speed at which the Defendant was travelling (20mph) it would not have been possible to acknowledge these before driving on to the Bristol Airport site, or whilst continuing along the road.

 

DO I INCLUDE BOTH NO 4 PARAGRAPHS BELOW?

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.

4     In order to pursue this claim, the Claimant is relying on Sch 4 of the POFA. However, para. 1 of this schedule states that “This Schedule applies where— (a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Firstly, it is to be noted that this is an event of stopping but not parking. No parking event has, nor is alleged to have occurred in relation to this claim and so sch 4 of the POFA does not apply.

5.        Para. 3 goes on to clarify: “In this Schedule “relevant land” means any land (including land above or below ground level) other than—… (b) a parking place which is provided or controlled by a traffic authority. (c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.” However, as the roads outside of the car parks at Bristol Airport are publicly accessible, they are covered by the Road Traffic Enactments and therefore under authority of the police. Additionally, driving and parking at Bristol Airport is under the statutory control of Bristol Airport Byelaws 2012 section 6 “Prohibited Acts on private airport roads and other parts of the airport to which traffic enactments do not apply”. Therefore, the airport is not ‘Relevant Land’ and the POFA does not apply.

 

  The Particulars of Claim indicate that the Claimant wishes the courts to believe that a contract was agreed to by the Driver of the vehicle by the act of entering the land of Bristol Airport. However, it is not possible to read, consider and accept the terms of the signage which the Claimant relies upon from a moving car and indeed stopping to read a sign constitutes the very contravention for which this charge has arisen – ‘No Stopping’. Therefore, this supposed contract is paradoxically impossible to accept without breaking.

8.        Furthermore, the term “No Stopping”, as written on the signs, is forbidding and therefore not an offer to stop and pay a charge. Therefore, no contract to pay a charge in the event of stopping was agreed to by the Driver and so no charge can be brought about by doing so. Precedence in Case Law can be found in CS036 PCMUK v Bull et al B4GF26K6.

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:

 

Coupon-mad

You can't use the POFA at all because you are admitted to be the driver.

Don't use old defence or WS examples; things changed very recently when the Govt banned debt recovery 'fees'.

The newest defence was edited last week and is the one now in the template defence thread.

The robertcox WS example is old news now, but I just haven't had time yet to open up the NEWBIES thread, to edit that.   A big job and I will...

The best 2021 examples of what the WS bundle snd contents page looks like, is that by @jrhys, but don't just copy its wording verbatim, because the newest changes to WS in the light of the DLUHC's new Code of Practice is last week by @ricky_balboa

Yes, you should mention as unreasonable conduct that the Claimant is still using your old address even now, post CCJ set aside!

sarahmm85

Coupon-mad said:

sarahmm85 said:

This is what worries me! You are absolutely right, it doesn't state anything about the MCOL after a set aside but I looked at the Newbie thread as advised and didn't read clearly enough. This is why I'm worried I'm going to include something ridiculous in my defence...

The Claim Form states County Court Business Centre but I had my set aside hearing through Gloucester.

Yep, so you IGNORE all the old info on the old claim form (because it's out of date and was only supplied to you for information so you could see the Particulars of Claim and sums involved) and you must forget the forms and submit to Gloucester and the Claimant's solicitor:

- Your defence (see Template Defence thread).  Show us your draft first.

- Your new (2nd) witness statement in support of your defence of the PCN this time, and your exhibits (evidence in support of the defence of the PCN) and your costs assessment (see examples of the complete bundle, by @Nosy and @jrhys)

And of course those cases are from 2021 so you need to add the good news from 2022 (this month) as explained here to someone who is working on their WS:

https://forums.moneysavingexpert.com/discussion/comment/79013061/#Comment_79013061

Happy reading, get up to speed with the new Code of Practice from the DLUHC.  That thread explains why it matters even to existing cases.

So to be clear, I have to submit all of this at same time? I’ve seen on other posts where the Defence is entered first and then once a court hearing is set the W/S needs to be in 14 days before. I’ve got until the 22nd March but want to submit by the 18th to be on the safe side 

Jenni_D

But you're not in the normal flow of things - you're now post-set-aside rather than contesting a claim for the first time, so the process is different.

sarahmm85

Thanks @Jenni_D . I was hoping for a bit more 'breathing room' to get my head around this!