Anything to add before submitting defence?

nayfeee

Hello,

First time posting in this section so please be gentle with me! Thank you to everyone that offers their time and input on these forums, it's much appreciated.

I received the court claim form on 11th January and filed AOS not long after, so my defence deadline is now looming (I know I am leaving it last minute and I am a terrible person).

I have used the suggested template so thank you for providing that. I have made a couple of additions that may be relevant and just wanted to ask if there were any final touches to be made. Changes made by myself are under section 3, please feel free to tell me if they are rubbish and need changing/removing.

Any help I would be truly grateful for. Here is the 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. The defendant was the driver of the vehicle on the date in question.

 

 

3.  The defendant did not see adequate signage of parking restrictions or any requirements to pay for parking. Signage was not adequate and not placed in adequate positions around the carpark to be visible from all spots. The defendant first heard about the parking charge after of the parking date. Prior to that there was no knowledge of the alleged contract that the claimant is referring to.  After receiving this initial letter the defendant was bombarded by debt recovery letters by their agents DCB limited with added charges to the initial amount that were grossly inflated.  The defendant felt constantly harassed for many years since the parking date, with very intimidating letters that were banded with the text “Can’t pay, we’ll take it away!”.  These are frightening messages to be sent for a debt that has no merit to be claimed.

The defendant denies that the driver of the vehicle agreed to pay within 28 days as stated in paragraph 4 of the claimants particulars. The defendant requests claimant to produce evidence of such claim. Claimant has no evidence of the drivers identity so how can they know the driver agreed to pay PCN.

The amount claimed does not seem proportionate to any potential loss that could have allegedly been incurred by the claimant and/or land owner. For allegedly being minutes over the free parking time offered, the claimant is seeking disproportionately large damages from defendant.

The defendant sent a SAR to UKPC on 10th November 2021 by post but received no response.

The defendant has received no proof that the claimant has an agreement in place with the landowner.

In a letter dated 6th December 2021, the defendant has asked the claimant’s legal representative to provide proof that the CCTV cameras/poles/equipment were erected and operate legally and with permission from the local council but did not receive any response.

 

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.

Redx

2) should say keeper and driver , losing the second sentence , keep it concise ( we have no idea why people use 2 separate sentences to say the same facts , just add the entity or entities into one single sentence ! )

There is a lot wrong with 3 , plus each paragraph needs a number , even in 3 , making renumbering from 2 onwards a priority , plus it should have the new bargepole post at the old 6 ( but could be 12 after renumbering , lol )

Half of that first post is a rant about debt collectors letters , a legitimate business practice , definitely not a defence point

That statement about denying a contract with the driver is untrue , it has been rubbished on here scores of times , with an excellent explanation by KeithP dozens of times

When a driver parks anywhere , a contract is made by the signs , or they are on their own land , or are trespassing

You park a vehicle , you are bound by any terms , in these cases the terms are on the signs

The next paragraph about loss was killed off at the Supreme court 7 years ago in the Barry Beavis case , so is a complete folly to bring it up , especially when it lost in 3 courts !

nayfeee

Thanks for your input, I appreciate you taking the time to look through it. I have made some changes based on your suggestions. Here are the updated #2 and #3 (without all the stupid extra un-numbered paragraphs).

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 could not see any signage indicating that parking restrictions were in place. Any signage that may be present is not adequately sized, clearly legible or positioned that it can be readily seen by shoppers using the car park. The majority of supermarket car parks are free for customers and the Defendant assumed this to be the case and saw no signage to the contrary. The Defendant did not hear about any parking charge until debt recovery letters were sent. The Claimant and their legal representatives have not answered several requests for information made by the Defendant after their Letter of Claim was issued.

When you refer to bargepole I did not know what that meant so did some searching and read some posts- and now I'm more confused. Are you referring to his post regarding the new CoP and if so how can this be worked into a defence? Can you please elaborate if you have a moment?

Also has it not been mentioned in previous cases that no contract is formed in cases of trespass?

Thanks again, honestly appreciate any help. Never had to do anything like this and the more I read the more I go down a rabbithole and get confused.

KeithP

nayfeee said:

I received the court claim form on 11th January and filed AOS not long after, so my defence deadline is now looming.

You are right - your Defence filing deadline is looming.

I am going to assume you filed an Acknowledgment of Service sometime after 14th January. Please confirm.

With a Claim Issue Date of 11th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 14th February 2022 to file your Defence.

Just a few days to go.

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'.

nayfeee

KeithP said:

I am going to assume you filed an Acknowledgment of Service sometime after 14th January. Please confirm.

That's correct, I filed AoS on 17th.

Ideally I would like to submit today to ensure it is in before the deadline as I know life likes to distract me when things are due.

Redx

nayfeee said:

Thanks for your input, I appreciate you taking the time to look through it. I have made some changes based on your suggestions. Here are the updated #2 and #3 (without all the stupid extra un-numbered paragraphs).

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 could not see any signage indicating that parking restrictions were in place. Any signage that may be present is not adequately sized, clearly legible or positioned that it can be readily seen by shoppers using the car park. The majority of supermarket car parks are free for customers and the Defendant assumed this to be the case and saw no signage to the contrary. The Defendant did not hear about any parking charge until debt recovery letters were sent. The Claimant and their legal representatives have not answered several requests for information made by the Defendant after their Letter of Claim was issued.

When you refer to bargepole I did not know what that meant so did some searching and read some posts- and now I'm more confused. Are you referring to his post regarding the new CoP and if so how can this be worked into a defence? Can you please elaborate if you have a moment?

Also has it not been mentioned in previous cases that no contract is formed in cases of trespass?

Thanks again, honestly appreciate any help. Never had to do anything like this and the more I read the more I go down a rabbithole and get confused.

You are nayfeee , a member here , whereas DC uses bargepole , a nom de plume , or pseudonym , a "handle"

If you read his posts this week , he recommended a paragraph about the new government CoP to add in at paragraph 6 in the template , meaning renumbering from 2 onwards , regardless

Find it , add it ( copy and paste , like others are doing )

Yes , forbidding signage means no contract was on offer , so no offer = no consideration = no contract

A company cannot offer what is forbidden

nayfeee

Thank you for your replies both.

I submitted my defence via e-mail earlier this afternoon. The e-mail I sent it to was copy/pasted direct from the defence template thread (CCBCAQ@Justice.gov.uk).

I did not receive any automated reply which has me concerned - should I have received one or are they manually sent out?

KeithP

I suggest you resend your Defence on Monday during working hours, by forwarding today's email from your 'sent' folder pointing out that this is your second attempt to get the thing filed properly.

If you still don't receive an automated email receipt then you must phone the CCBC (number on your Claim Form) and ask them what's going on.

nayfeee

Thanks Keith.

I will resend it on Monday morning during working hours and hope to receive an automated reply. If I don't get one I will call as you suggest.

Are they likely to try and tell me to file it via MCOL instead and if so do I just politely decline?

KeithP

nayfeee said:

Are they likely to try and tell me to file it via MCOL instead and if so do I just politely decline?

No they won't suggest that... but even if they do you will politely refuse to do that because MCOL will truncate your Defence and destroy all formatting.

nayfeee

My court date is approaching. I have filed my witness statement with both the court and claimant. I have not received anything from the claimant- are they also required to submit a WS by the same deadline as I, and what happens if they don't?

Thank you!