County court claim from UKPC

Coupon-mad

Can you show us what the entire defence now looks like, with the new wording from para 4?  You do need to add the number for paragraph 3 (it's missing its number in your post above).

I need to see how it flows as it's so new.  Could use yours as a good example.

mhagle

It does not allow me to post the whole defence as an error comes up:

• Body is 1747 characters too long.
• also not allowing me to post links 

KeithP

mhagle said:

It does not allow me to post the whole defence as an error comes up:

• Body is 1747 characters too long.
• also not allowing me to post links 

Sometimes a little imagination is needed.  
Break it up into manageable pieces and post it over two or more posts.

No, you can't post links until you have made a few more posts.
An anti-spam measure I believe.

mhagle

The facts as known to the Defendant:

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

2.      The defendant parked his car in xercise4less based on the fact that the parking is free for up to 2 hours. The defendant was at the said location in order to use the gym as the defendant was a member and left well ahead of the 2 hours of free parking allowed on the site. Due to the unclear markings and signage, it is not known to the defendant that they were parked in an accessible bay parking space.

3.      The signage was unclear as it did not indicate that the driver was in an accessible bay. The British Parking Association state that signs for accessible bay should “display the appropriate sign at a driver’s eye level”.  This was not followed and there is no signage to indicate that it is an accessible bay. The defendant believes that the signs fail the test of 'large accessible bay display signs’’. Also there are yellow bays that are identical to the bay that the defendant parked in and therefore there is no distinction between these bays.

4.      The facts in this defence come from the Defendant's own knowledge and honest belief.  The Defendant should not be criticised for using some pre-written wording from a reliable and experienced source, which is exactly what this serial litigant Claimant routinely does with their cut & paste statements and responses.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their Defence. This Defendant fully understands this defence, and is only signing it after a great deal of research, after editing and adding facts and reading it through several times because the court process is outside of the Defendant's life experience and this claim was an unexpected shock.

5.      With regard to template statements, the Defendant observes after researching many other parking cases that the Particulars of Claim ('POC') in this claim set out a typically generic and incoherent statement of case.  Despite the requirements of the pre-action protocol for 'Debt' Claims, there were no photos nor even a copy of the contract (sign) enclosed with any Letter before Claim.  The POC is sparse on detail and has a distinct lack of facts about the alleged breach, making it very difficult for the Defendant to respond in depth at this time.

6.      The quantum and interest has also been enhanced beyond the parking charge sum.  It is denied that the sum sought is recoverable and this claim seems to represent (in whole or in part) a penalty, applying the authority from two well-known ParkingEye cases.  The court's attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet this was a case where the learned Judge also considered added 'costs'.  The parking charge was set at £75 (discounted to £37.50 for prompt payment) then increased ultimately to £135.  At paras 419-428, HHJ Hegarty sitting at the High Court (decision later ratified by the Court of Appeal) found that adding £60 on top and taking the sum sought to £135 'would appear to be penal' and was unrecoverable.  

7.      The Defendant's stance regarding the pseudo 'debt recovery/admin fees' enhancement is supported by the Government. The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice

8.       The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unjustified and is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

 

mhagle

9.      This particular Claimant continues to add a sum on top of each PCN, despite indisputably knowing that these are banned costs which they have neither paid nor incurred.  The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue.  According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'.  Although the parking industry flooded both public consultations, some even resorting to masquerading as consumers, the DLUHC saw through this and identified in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were clearly 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis and are effectively Trade Body Board/member colleagues, passing data around electronically.  Parking firms such as the Claimant have not incurred any additional costs (not even for their own letters) because the full parking charge itself more than covers what is merely a 'letter chain' business model that generates a healthy profit.

10.  The Ministerial Foreword to the new Code is unequivocal, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

11.    The Government banning such add-ons altogether must be viewed as a clear steer for the Courts in existing cases and overrides the mistakes and/or presumptions in the appeal cases the parking industry used to rely upon (Semark-Jullien, Wilshaw or Percy) where Circuit Judges who appeared to be somewhat inexperienced in niche private parking law, DVLA rules about landowner authority and the proper application of the CRA 2015, were led in one direction by legally trained counsel for the parking firms, and were not in possession of the same level of facts and evidence as the DLUHC considered.

Protection of Freedoms Act 2012 and Consumer Rights Act 2015

12.   Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm may have complied with the other requirements (e.g. adequate signage, correct wording and dates of Notice to Keeper, and the existence of a relevant contract/relevant obligation that was properly communicated).  The Claimant is put to strict proof of full compliance, if attempting to seek keeper/hirer liability under the POFA, because liability for a PCN is not accepted by the Defendant. 

13. Claiming unexpected ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3, being the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015').  This consumer legislation goes further than the UTCCRs, in that it introduced a new requirement for 'prominence' and states that both contract terms and 'consumer notices' (i.e. signage and any other notices/communications, including the timely service of any PCN in parking cases) must be fair.

14.  Section 71 provides for the duty of court to consider the test of fairness and this includes whether all terms and notices were unambiguously and conspicuously brought to the attention of the consumer.  In the case of letters/the PCN, this means such communications must have been served.   In the case of signage, this must be prominent, plentiful, well placed and lit, and the terms clear and unambiguous.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices, pursuant to s62 and having regard to the requirements for transparency and good faith, taking into account as guidance, examples 6, 10, 14 & 18 of Schedule2.  

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

15.     Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN and overcame the possibility of it being dismissed as punitive and unrecoverable.  However, their Lordships were clear that ‘the penalty rule is plainly engaged’ in these cases.  Their decision mentioned a 'unique' set of facts including the legitimate interest, the car park location and prominent, clear signs with the parking charge in the largest/boldest text.  The unintended consequence is that, rather than persuading Judges that all parking charges are automatically justified, the Beavis case facts (and in particular, the brief and conspicuous yellow/black warning signs) set a high bar that this Claimant has failed to reach.

16.  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.  

17. 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 those tests.

18.   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.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

19.    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 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.  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.  

20.   Fairness and clarity of terms and 'consumer notices' are paramount in the new statutory Code and this stance is supported by the BPA and IPC Trade Bodies.  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 terms the Claimant is relying upon were unclear/unfair and the Beavis case is fully distinguished.

Lack of landowner authority evidence and lack of any fair ADR

21.  DVLA registered keeper data is only supplied to pursue parking charges issued on private land, where there is an independently signed landowner agreement (this is part of the KADOE rules for AOS BPA or IPC members).  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, etc. and there has been no evidence that the freeholder authorises this Claimant to issue PCNs at the place where the vehicle was and/or for the reasons given.  Nor is it known what the land enforcement boundary and start/expiry dates are or were.  The Claimant is put to strict proof of same and that they have standing to enforce charges by means of civil litigation in their own name.

22.  The Defendant further avers that the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR).  Both the rival parking Trade Bodies provided 'appeals services' which reportedly fail to consider facts and rules of law properly, and find in favour of parking firms most of the time: e.g. despite purporting to be decided by legally qualified Adjudicators, the IPC's version upheld appeals in just 4% of decided cases, as reported in their 2020 Annual Report.  Both POPLA and the IAS will be replaced by the DLUHC's new Appeals Service as soon as possible and looking at the Appeals Annex in the new Code, disputed cases such as this would very likely have been cancelled without the need for court, had a proper ADR existed.  The fact is, there was no fair ADR on offer and - whether or not a defendant engaged with it - the Claimant's reliance upon it is not something that should sway the court into a belief that a fair process was followed before litigation.

23.   In the matter of costs, the Defendant asks:

(a) for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that, in the event of a late Notice of Discontinuance (which the Defendant is aware happens where parking firms use and abuse the court process as a cheap form of debt collection) any paid-for hearing is not vacated but continues as a costs hearing. The Defendant may seek a finding of unreasonable conduct by this Claimant, and may seek costs pursuant to CPR 46.5.  CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))." 

 

Conclusion - claim should be dismissed in whole or in part

24     The Defendant observes that this conduct by parking firms operating under their previous Codes of Practice (described by several District Judges as 'self-serving') has caused consumer harm on a grand scale in recent years.  The Defendant believes that knowingly inflated claims such as this should not be allowed to continue, and invites the court to dismiss the false 'costs/damages' element at least, and to consider whether the appropriate sanction may be to resume the policy of striking out enhanced parking claims altogether, where 'costs/damages' of a fixed £60/£70 per PCN have been added.  Thanks to the DLUHC's response in banning additional costs, there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCS to only deal with the relatively few defended cases that reach hearings and to allow such claims to continue to flood the courts unabated, is to fail hundreds of thousands of other consumers every year, who suffer hugely inflated CCJs or pay more than they should at debt demand or Letter of Claim stage.

25    The claim is entirely without merit and the Claimant is urged to discontinue this claim immediately to avoid incurring costs and wasting the court's time and that of the Defendant. 

 

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.

 

mhagle

Thank you KeithP

mhagle

I wanted to know if i can put pictures in my defence or do i save that for the court date?

KeithP

mhagle said:

I wanted to know if i can put pictures in my defence or do i save that for the court date?

No.

Your Defence is just legal argument.

Pictures and other evidence comes later - at Witness Statement time.

Coupon-mad

This is explained in the NEWBIES thread section under the red heading.  IMPORTANT - KNOW WHAT HAPPENS WHEN'.

mhagle

hi Coupon-mad,

Can I post this as my defence as my deadline is tomorrow and does it look ok now? Also do I have to add anything else to the points from 4 down to 25?

thank you very much