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Rocky88

Thanks for all the input so far. This is my full draft defence. Anything i have missed/added that needs amending?

Total Car Parks Limited

(Claimant) 

- and -  

XXXXX

 (Defendant)

_________________

DEFENCE

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

 

The facts as known to the Defendant:

 

2. It is admitted that the Defendant was the registered keeper of the vehicle at the material time; it is denied that the Defendant was the keeper or driver at the material time thus liability is denied.

 

3. The Defendant parked the car at Slade Street Car Park on 16th February 2019. The Defendant used the car wash service (Mint Car Wash) that operates within Slade Street Car Park. Using this service allowed the Defendant free parking 'all day'. That was the advertised offer in large lettering that the Defendant read and accepted and had used often, with no issues. This offer is also confirmed as correct by Total Car Parks Limited. The car was parked in the designated area to be washed. The keys handed over to Mint Car Wash. There was no requirement for the Defendant to do anything themselves, except use the services of the car wash, which the defendant did. On the material date, there must have been a failure of the Claimant's keypad VRM exempting system, caused either by human error/oversight of the car wash staff, or alternatively, by failure or buffering of the online system itself. All of this was unbeknown to the Defendant and completely out of the Defendant's control. Drivers were not even aware there was a back office 'VRM exempting' keypad or online system and the Defendant has only learned about this from advisers, when preparing this Defence. There was no requirement upon the driver to do anything themselves to exempt their car except to use the services of the car wash, which the Defendant did, as usual, doing nothing differently from any other occasion and leaving the car in the wardenship of the car wash staff.  There was no breach by the Defendant, by conduct or otherwise, and no parking charge could have arisen.

 

4.In the alternative, it is a fact that the Defendant was not 'in charge of' the vehicle at the material time. The Defendant was neither the 'keeper' nor the driver at the time of the alleged breach.  By leaving the car with Mint Car Wash for several hours, they were the 'keeper' under the POFA 2012 definition.  The 'keeper' during an alleged parking event does not at all times remain the registered keeper in a case where the car was in fact being 'kept' for that period, by another party.  Further, the Defendant was absent and was not driving at the material time, either.  There can be no liability on the part of the Defendant at all, not even keeper liability in this case.

 

5. The Defendant received a PCN from the Claimant on 27th August 2021. When contacted to investigate how this error could have occurred, the Claimant stated that they couldn't contact Mint Car Wash any longer due to it 'changing hands'. However, a simple internet search shows that they still operate within the same town with clear email and telephone contact details.

 

6. The Claimant is put to strict proof, if their case argues facts to the contrary, including stating whether they are relying upon Schedule 4 of the POFA, and on what basis they are trying to hold the Defendant liable.

 

7. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

 

8. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated.  

 

9.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

 

10. This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

 

11. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 

12. The Code's Ministerial Foreword is unequivocal about abusive 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." 

 

13. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were '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, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.  

 

14. This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

 

15. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event. 

 

16. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts.

 

17. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

 

POFA and CRA breaches

18. 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 firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred. 

 

19. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

 

20. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith. 

 

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

21. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts.  That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.

 

22. 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 a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'.

 

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:

Le_Kirk

Rocky88 said:

3. The Defendant parked the car at Slade Street Car Park on 16th February 2019. The Defendant used the car wash service (Mint Car Wash) that operates within Slade Street Car Park. Using this service allowed the Defendant free parking 'all day'. That was the advertised offer in large lettering that the Defendant read and accepted and had used often, with no issues. This offer is also confirmed as correct by Total Car Parks Limited. The car was parked in the designated area to be washed. The keys handed over to Mint Car Wash. There was no requirement for the Defendant to do anything themselves, except use the services of the car wash, which the defendant did. On the material date, there must have been a failure of the Claimant's keypad VRM exempting system, caused either by human error/oversight of the car wash staff, or alternatively, by failure or buffering of the online system itself. All of this was unbeknown to the Defendant and completely out of the Defendant's control. Drivers were not even aware there was a back office 'VRM exempting' keypad or online system and the Defendant has only learned about this from advisers, when preparing this Defence. There was no requirement upon the driver to do anything themselves to exempt their car except to use the services of the car wash, which the Defendant did, as usual, doing nothing differently from any other occasion and leaving the car in the wardenship of the car wash staff.  There was no breach by the Defendant, by conduct or otherwise, and no parking charge could have arisen.

You have repetition in paragraph #3

Rocky88

Thank you @Le_Kirk. I will remove. 

Does the rest seem ok?

Fruitcake

Perhaps amend your para 2,

2. It is admitted that the Defendant was the registered keeper of the vehicle at the material time ; it is denied that the Defendant was but was neither the keeper as defined by The Protection of Freedoms Act (PoFA) 2012 Schedule 4, paragraph 2 (1), nor driver at the material time, thus liability is denied.

You could also add in para 3, or perhaps a new para 4 and renumber everything after that upon handing over the keys, the car wash company became the keeper for the purposes of the PoFA, Schedule 4, paragraph 2 (1), which states,

2 (1) In this Schedule—

• ...

• “driver” includes, where more than one person is engaged in the driving of the vehicle, any person so engaged;

• “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper;

In para 3, you might also want to amend reference to parking the car in the car wash bays and instead refer to visiting, or handing the car over, delivering the car to the car wash company, or something similar.

Coupon-mad

Yes - and remove your sentence that says you parked it!  Nonono.

You left the car with them to move and park where needed to wash the vehicle.

Rocky88

Thanks all - @Fruitcake sorry, bit confused about what/where to put in the info regarding the 'driver' and 'keeper' you have provided.

This is now what i currently have - 

2. It is admitted that the Defendant was the registered keeper of the vehicle but was neither the keeper as defined by The Protection of Freedoms Act (PoFA) 2012 Schedule 4, paragraph 2 (1), nor driver at the material time, thus liability is denied.

 

3. The Defendant parked the car at Slade Street Car Park on 16th February 2019. The Defendant used the car wash service (Mint Car Wash) that operates within Slade Street Car Park. Using this service allowed the Defendant free parking 'all day'. That was the advertised offer in large lettering that the Defendant read and accepted and had used often, with no issues. This offer is also confirmed as correct by Total Car Parks Limited. The car was then left with Mint Car Wash and the keys handed over to them. On the material date, there must have been a failure of the Claimant's keypad VRM exempting system, caused either by human error/oversight of the car wash staff, or alternatively, by failure or buffering of the online system itself. All of this was unbeknown to the defendant and completely out of the defendant's control. Drivers were not even aware there was a back office 'VRM exempting' keypad or online system and the Defendant has only learned about this from advisers, when preparing this Defence. There was no requirement upon the driver to do anything themselves to exempt their car except to use the services of the car wash, which the Defendant did, as usual, doing nothing differently from any other occasion and leaving the car in the wardenship of the car wash staff.  There was no breach by the Defendant, by conduct or otherwise, and no parking charge could have arisen.

 

4.In the alternative, it is a fact that the Defendant was not 'in charge of' the vehicle at the material time. The Defendant was neither the 'keeper' nor the driver at the time of the alleged breach.  By leaving the car with Mint Car Wash for several hours, they were the 'keeper' under the POFA 2012 definition.  The 'keeper' during an alleged parking event does not at all times remain the registered keeper in a case where the car was in fact being 'kept' for that period, by another party.  Further, the Defendant was absent and was not driving at the material time, either.  There can be no liability on the part of the Defendant at all, not even keeper liability in this case.

5. The Defendant received a PCN from the Claimant on 27th August 2021. When contacted to investigate how this error could have occurred, the Claimant stated that they couldn't contact Mint Car Wash any longer due to it 'changing hands'. However, a simple internet search shows that they still operate within the same town with clear email and telephone contact details.

 

6. The Claimant is put to strict proof, if their case argues facts to the contrary, including stating whether they are relying upon Schedule 4 of the POFA, and on what basis they are trying to hold the Defendant liable.

Jenni_D

The wording by @Fruitcake for para 2 can be used exactly as shown, and it is supported by your current para 4 ... I don't think the additional bit explaining POFA is necessarily needed in the defence as para 4 already alludes to it. (You can expand on this in your WS - if this ever gets anywhere near a hearing).

In para 3 refer to TCP as the Claimant rather than using their full company name.

Coupon-mad

"3. The Defendant parked the car..."

As I said, absolutely no!

KeithP

Did you miss my post yesterday evening?

Rocky88

KeithP said:

Did you miss my post yesterday evening?

Hi Keith - awaiting a reply from them. Thanks for the suggestion.