Notification of Instruction from ELMS Legal LTd

DWGrassman

4. The facts in this defence come from my own knowledge and honest belief.  I  should not be criticised for using some pre-written wording from a reliable source.  The Claimant is urged not to patronise me with (ironically template) unfounded accusations of not understanding my defence. I have signed it after full research and having read this defence several times, because the court process is outside of their life experience.  The claim was an unexpected shock.

5. With regard to template statements, I have researched other parking cases, that the Particulars of Claim ('POC') set out a generic and incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) was served with a Letter of Claim.  The POC is sparse on facts about the allegation, making it difficult to respond in depth at this time.  

6.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this is now banned.  It seems they have also calculated 8% interest on that false sum. 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 admin costs inflating it to £135 'would appear to be penal'.

7. This finding is underpinned by Government intervention and regulation.  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

8. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a very short section called 'Escalation of costs' the new 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." 

9. 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." 

10. 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; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.  

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

12. 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.

13. 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.

14. 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. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

DWGrassman

POFA and CRA breaches

15. 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. 

16. 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.

17. 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

18. 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.

19. 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 concealed pitfalls/traps, hidden terms or unfair/unexpected obligations.

20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains my  position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound.  It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).  

21. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, 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." 

Lack of landowner authority evidence and lack of ADR

22. DVLA data is only supplied to pursue parking charges if there is an independently signed landowner agreement (ref: KADOE rules).  It is not accepted that the Claimant has adhered to a defined enforcement boundary, hours of operation, any extended grace period or exemptions (whatever these definitions were) nor that this Claimant has authority from the landowner to issue charges at this place or for the reason given.  The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents for a principal, as some parking firms do.

23. Further, the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR).  The rival Trade Bodies provided 'blink and you've missed it' time-limited appeals services which failed to consider facts or rules of law properly and unfairly rejected disputes: e.g. despite using legally qualified but anonymous Adjudicators, the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  The Appeals Annex in the new Code shows that genuine disputes such as this, even if made late, would have seen the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and any reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer.

24. In the matter of costs, I ask;

(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 (due to parking firms using and abusing the court process as a cheap - indeed lucrative - form of debt collection) the hearing continues as a costs hearing. 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))."   The Defendant may seek a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

Conclusion

25. With the DLUHC's ban on additional costs, there is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only dismiss extortionate costs in the tiny percentage of cases that reach hearings, whilst allowing other such claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers every year, who suffer CCJs or pay inflated amounts due to intimidating tactics at pre-action stage. The Defendant believes that knowingly enhanced parking claims cause consumer harm on a grand scale and it is in the public interest that claims like this should not be allowed to continue.  I invite the court to dismiss the false 'costs' element at least, and to consider whether an appropriate sanction is to resume the policy of striking out parking claims altogether, where the POC include a vague but fixed sum in 'damages/costs'. 

26. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and my time.. 

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:

DWGrassman

Is there anything else I need to change on the template ? as not sure if all paras apply to my situation

Maybe para 6? Thanks

KeithP

Please read again my post just two days ago - on 23 May at 9:18PM.
You seem to have done exactly the opposite.

You appear to have a huge number of unnumbered paragraphs between paragraphs 3 and 4. Every paragraph need a number - renumbering subsequent paragraphs as necessary..

A lot of that stuff would be better placed in your Witness Statement.

There is no need to post all that template Defence for appraisal - unless of course you have altered any of it - in which case you need to tell us exactly what you have changed. It is unreasonable for you to expect anyone to check all that just to see if you've made changes and if those changes are good.

Coupon-mad

Remove all of this as the stuff about the PCN isn't correct and you already covered the non-POFA issue with the NTH, in para2:

VCS’s Civil Parking Notice online constitutes an invoice for payment. Accordingly their invoiced charge must include an element of VAT. However, their civil parking notice does not state a breakdown of VAT, and an invoice reference number and so cannot constitute a lawfully valid demand for payment.

Having examined VCS’s parking charge notice online I believe it is a non compliant demand for payment for the following reason;

Their  notice refers to a “contravention” which is misleading for implying it to have been issued by a statutory authority.  The term "contravention" which is usable only in penalty charge notices issued by local authorities is neither correct nor appropriate terminology for a civil parking notice. 

I understand that, as a legal minimum, the Parking Charge Notice must include a prescribed set of information.  The following is not shown on your notice online and therefore it is invalid. 

I understand that a Parking Charge Notice must also include the following which is absent from the notice online you have provided and therefore it may be invalid. 

A detailed location of the vehicle within the carpark

An identifier number of the warden who issued the ticket

Any additional charges which may be levied.

I asked VCS in an email for the following information which was not provided to me.

A copy of your contract with the land owner which authorises you to act on their behalf in the management of this car parking area.

A copy of the contract which you allege I entered in to when the vehicle was parked.

Photographic evidence of the actual signs in situ, together with identification of the locations around the site where these signs are currently placed. Please also confirm the date when the photographs were taken (if not evident from the photographs themselves) and whether you have made any alterations to the signage since the photograph was taken.

A copy of the full terms and conditions for use of the land where I was allegedly parked wrongly.

A copy of your certificate of membership to any trade bodies

A copy of your protocol which your enforcement and CCTV operators are required to follow. 

A copy of your standard appeal procedure and confirm whether or not it complies with the Arbitration Act 1996.

Full details of the owner of the parking area (if it is not already stated in the copy contract above) as I wish to send them a copy of my letter to you.

A copy of your protocol for handling personal data such as images of my vehicle. I assume that such data is not disclosed to any third party (other than POPLA in the event of an appeal) but please confirm this.

All correspondence between me and VCS / ELMS can be provided to the court as evidence. Also photographic evidence can be provide that there is no signage at the entrance to the carpark which warns the driver that the site is private parking only.

In my opinion VCS have made no attempt to resolve my complaints and have just sent me copies of their paper chain template letters that they must send out to thousands of other motorists trying to distort money off them.

DWGrassman

Sorry Keith I’m obviously struggling to get this right, so i need to re number all the paragraphs, then the rest of the template needs to be kept as it is written? And I shouldn’t use I ? Referring to myself?

KeithP

DWGrassman said:

Sorry Keith I’m obviously struggling to get this right, so i need to re number all the paragraphs, then the rest of the template needs to be kept as it is written? And I shouldn’t use I ? Referring to myself?

Yes.                  

DWGrassman

1. I deny  that the Claimant is entitled to relief in the sum claimed, or at all.  I deny that any conduct by the driver gave rise to a ‘parking charge’ and I  deny that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.P

2. I am the hirer of this vehicle but more than one driver in the family uses it locally (including for this regular trip) and there is no evidence that the driver was the Defendant on this occasion.  In order to hold the hirer liable for the actions of an unidentified driver, a parking firm must have complied with paragraph 13 and 14 of Schedule 4 of the Protection of Freedoms Act 2012.  It is denied that the Claimant complied in terms of the documents that must have bern served and thus, liability is denied

3. My vehicle is parked in that area once a week for an hour due to my son having football practice at the site next door. The Vehicle has been parked in the car park before when there is no room at the site next door to park. Having since visited the site I found the following;

There is no signage at the entrance to the car park/ land stating the restrictions in force.

There are not sufficient signs in place around the carpark covering every parking spot  stating the restrictions that are in force.

The signs that are attached to the fencing in the car park area are not well lit in the dark and can easily be missed. The requirements are that clear signage must be erected at all entrances to the carpark stating the restrictions in force. Therefore anybody who was driving the vehicle at the time has not entered into a contract with VCS

4. I received a letter before claim from VCS on XX/xx/xx

In the letter, there is no explanation of the contravention and having had no previous contact from VCS before in regards to the PCN this is something I am totally unaware of. Also I never received the PCN which was photographed on my windscreen which may have not been attached properly and just fell off when the vehicle drove off. I emailed VCS with regards their PCN and they replied by saying they said it was too late to investigate why I had not received their previous correspondence and said they will be pressing on with further action against me. As VCN don’t have any proof that I received their PCN I believe it should be deemed null and void due to the fact that I had not received it in my hand or at my address within 56 days of the time stated on their notice.

              

DWGrassman

Is that any better Coupon? Not sure what Keith meant with I?

KeithP

DWGrassman said:

 Not sure what Keith meant with I?

Compare your paragraph 1...

1. I deny  that the Claimant is entitled to relief in the sum claimed, or at all.  I deny that any conduct by the driver gave rise to a ‘parking charge’ and I  deny that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.P

with paragraph 1 from the Template Defence thread...

1. 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 gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.

Compare it word for word (and spot the spurious character at the end).

Your paragraph 1 was absolutely fine on 23 May at 9:10PM, but for some reason you have introduced several instances of the word 'I' since then - and in other paragraphs too.

All Defences are traditionally written in the third person.
Just maybe you'll get a Judge who couldn't care less about this, but on the other hand your Judge may get extremely irritated. It's up to you.