Please help!

Hatebeingdone

Coupon-mad said:

You've deleted the template point #2 which you should keep in and edit to say you admit to being the registered keeper but deny being the driver (ONLY IF THAT IS TRUE).

And you can't say these two things (below) because they conflict:

The defendant is not able to identify who was driving the car on an unremarkable day nearly six years ago because other family members had use of the car.

An occupant of the car holds a Blue Disabled Badge and the car would have been parked in a disabled bay. 

So you do know something about the event.  You can't lie that you don't.  If you know the driver (your wife?  You?) would have been displaying a blue badge, then you do know who was driving - but as a matter of law, you don't have to name them to a private parking firm.

Sorry, I will put the template in again. The Defence is completely true.  My daughter would not have driven there because she was a learner and still is because of a fear of driving.  Therefore, she only ever drove near her home which is rural. I did think it sounded like it wasn't true because if you don't know who was driving then how can you know that the occupant was disabled? I hold the Blue badge and drive us there sometimes.  However, when my family go to this area to shop they always take me.  It is a nearly 2 hour round trip and the only place near where we live that has a Hobbycraft which I like to shop in.  Shall I explain it a bit better?

Coupon-mad

However, when my family go to this area to shop they always take me.  It is a nearly 2 hour round trip and the only place near where we live that has a Hobbycraft which I like to shop in.  

Shall I explain it a bit better?

Yes, say the above but change 'I' to 'the Defendant'.  And state that you would have been a passenger (not 'an occupant of the car') and would have displayed your blue badge and legally, under the Equality Act 2010, disabled persons are entitled to extra time.

Hatebeingdone

Is this OK? We have left 'occupants of the car' in some places as we don't know whether my mother (who has a Blue Badge) or my husband was driving at the time. Thanks for your help.

IN THE COUNTY COURT

Claim No.:  XXXXXXX

Between

HIGHVIEW PARKING LTD

(Claimant) 

- and -  

XXXXXXX

 (Defendant)

_________________

DEFENCE

 

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.

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 because the defendant was not driving the vehicle as she was, and still is a learner driver and only practised locally to her home.

3.  The Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant Highview Parking Limited (Now Nexus DPO Ranger) for a total amount of £287.34 (inclusive of £35 Court Fee & £50 Legal representative's costs). The Defendant has come to understand that this relates to a PCN that was issued against the Defendant’s vehicle XXXXXX, almost 6 years ago on xx/xx/201X at XXXXXXXX, XXXX. The car insurance was in the defendant’s spouses name with the defendant as a named driver. The defendant is not able to identify who was driving the car on an unremarkable day nearly six years ago because two family members had use of the car.

4. The Defendant believes that as the Notice to Keeper is not POFA 2012 compliant, the charge liability cannot transfer from the driver to the registered keeper because the Notice Keeper does not warn the keeper that, if after a period of 28 days, Highview Parking Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012. Highview Parking Ltd. (now Nexus DPO Ranger)(or their legal team, DCB Legal limited) need to pursue the driver for the charge, not the registered keeper.

Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, the Claimant has included a clear falsehood in their POC which was signed under a statement of truth by the Claimant's legal representative.

The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015)

5. The defendant’s family rarely shop at XXXX as it is a fifty minute drive each way.  The reason the defendant shops at this location is to visit Hobbycraft with her mother who is registered disabled and has a Blue Disabled Badge.  There are two people who may have been driving the car, the defendant’s mother or the defendant’s spouse. The car would have been parked in a disabled bay and would have displayed the blue badge and legally, under the Equality Act 2010, disabled persons are entitled to extra time.This car park is open to the public and therefore the landowner, managing agent, on-site outlets and the private parking company are all 'service-providers' who have a legal duty to adhere to the 'Equality Act Code of Practice on Services, Public Functions and Associations' which became law on 6th April 2011.

In this case the service providers did not make reasonable adjustments for disabled customers and are in breach of the Equality Act 2010. The situation is that the defendant was sent a PCN for allegedly 'overstaying' an arbitrary time limit imposed as a fixed amount of time for parking. The occupants of the car had no idea there was an arbitrary time limit due to the very small notices which were not near the disabled parking bays in 2016 and were high up on posts (evidence gathered from Streetview 2017). It was reasonable to assume that displaying a Blue Disabled Badge would allow three hours parking. Nexus DPO Ranger (previously Highview Parking ltd.) have refused to send a close-up photograph of the signs used in 2016 and I believe no 'reasonable adjustments' of time are in place for your disabled visitors. They have also ignored my request for information regarding their grace period at the time.

Simply having parking spaces close to the entrance of one of the shops is not reasonable adjustment enough to accommodate someone with a disability. As the parking area has 8 shops (B&M, Outfit, Matalan, H & M, Hobbycraft, Poundland, Card Factory, Starbucks) 2.5 hours is not long enough for the disabled customer to access the shops. Due to the occupant’s disability frequent rest breaks are needed and walking to each shop takes more time. Two of the shops have lifts specifically for disabled customers but these are at the back of the shops and these particular lifts take a lot of time to operate, therefore more time is needed to use them. Having a disability which prevents a person from being able to move around at the same speed as able-bodied people and with no provision given to extend the parking period means that, you are not making reasonable adjustments and thereby putting disabled customers at a disadvantage. The position now is that I have appealed in good faith but Highview Parking ltd. (now Nexus DPO Ranger) have pursued this charge in contempt of the Equality Act, it seems. This is despite having knowledge of the occupant’s disability. This treatment is illegal and constitutes indirect disability discrimination as explained in the EHRC Code of Practice already adduced above. The company have a statutory duty in the Code, to avoid 'indirect discrimination' by applying a blanket term or policy (such as a time limit with no flexibility for disabled people). If the person or organisation doesn’t cooperate with their duty to make reasonable adjustments, the Equality Act says it’s unlawful discrimination. You can ask the person or organisation to make the necessary changes. If they refuse, a discrimination claim under the Equality Act can be made.

The BPA Code of Practice for which Highview Parking was a member, makes an explicit statement about Blue Badges:

16.5) If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices. (Version 1 – October 2012).

Coupon-mad

The last bit is very out of date.  The BPA pulled that, many years ago.

4 and 5 would flow better if swapped, and every paragraph needs a number.  

Cut it down - it is too long and much of it should be kept for the witness statement later.

Of course, the rest of the template defence follows (just re-numbered).

Le_Kirk

Every paragraph requires a number.

Hatebeingdone

Thanks.  Is this any good? I will add the rest of the Template thank you.

IN THE COUNTY COURT

Claim No.:  XXXXXXX

Between

HIGHVIEW PARKING LTD

(Claimant) 

- and -  

XXXXXXX

 (Defendant)

_________________

DEFENCE

 

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.

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 because the defendant was not driving the vehicle as she was, and still is a learner driver and only practised locally to her home.

3. The car insurance was in the defendant’s spouses name with the defendant as a named driver. The defendant is not able to identify who was driving the car on an unremarkable day nearly six years ago because two family members had use of the car.

4. The defendant’s family rarely shop at XXXX as it is a fifty minute drive each way.  The reason the defendant shops at this location is to visit Hobbycraft with her mother who is registered disabled and has a Blue Disabled Badge.  There are two people who may have been driving the car, the defendant’s mother or the defendant’s spouse. The car would have been parked in a disabled bay and would have displayed the blue badge and legally, under the Equality Act 2010, disabled persons are entitled to extra time. This car park is open to the public and therefore the landowner, managing agent, on-site outlets and the private parking company are all 'service-providers' who have a legal duty to adhere to the 'Equality Act Code of Practice on Services, Public Functions and Associations' which became law on 6th April 2011.

 

5. The Defendant believes that as the Notice to Keeper is not POFA 2012 compliant, the charge liability cannot transfer from the driver to the registered keeper because the Notice Keeper does not warn the keeper that, if after a period of 28 days, Highview Parking Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012. Highview Parking Ltd. (now Nexus DPO Ranger)(or their legal team, DCB Legal limited) need to pursue the driver for the charge, not the registered keeper. The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015).

Coupon-mad

That's better!

I'd take this sentence out of 4 and instead put it at the end of 3, and add my suggested addition:

There are two people who may have been driving the car, the defendant’s mother or the defendant’s spouse.  The legislators behind Schedule 4 of the Protection of Freedoms Act 2012 stopped short of requiring a registered keeper to have any obligation to name the driver, or possible driver(s) to any private parking firm.  The Defendant does not know which of their relatives was driving.  She has seen no evidence either way that could assist, and in any case, exercises her right not to name the possible drivers to this aggressive Claimant and risk a repeat of the years of harassment she has suffered.  There is no cause of action and this claim ends now.  The parking industry was certainly not left powerless by the POFA 2012 and could have - under certain circumstances - used that law to hold the keeper liable.  Those circumstances have not been met.  

Hatebeingdone

Coupon-mad said:

That's better!

I'd take this sentence out of 4 and instead put it at the end of 3, and add my suggested addition:

There are two people who may have been driving the car, the defendant’s mother or the defendant’s spouse.  The legislators behind Schedule 4 of the Protection of Freedoms Act 2012 stopped short of requiring a registered keeper to have any obligation to name the driver, or possible driver(s) to any private parking firm.  The Defendant does not know which of their relatives was driving.  She has seen no evidence either way that could assist, and in any case, exercises her right not to name the possible drivers to this aggressive Claimant and risk a repeat of the years of harassment she has suffered.  There is no cause of action and this claim ends now.  The parking industry was certainly not left powerless by the POFA 2012 and could have - under certain circumstances - used that law to hold the keeper liable.  Those circumstances have not been met.  

Thank you!

Hatebeingdone

Coupon-mad said:

That's better!

I'd take this sentence out of 4 and instead put it at the end of 3, and add my suggested addition:

There are two people who may have been driving the car, the defendant’s mother or the defendant’s spouse.  The legislators behind Schedule 4 of the Protection of Freedoms Act 2012 stopped short of requiring a registered keeper to have any obligation to name the driver, or possible driver(s) to any private parking firm.  The Defendant does not know which of their relatives was driving.  She has seen no evidence either way that could assist, and in any case, exercises her right not to name the possible drivers to this aggressive Claimant and risk a repeat of the years of harassment she has suffered.  There is no cause of action and this claim ends now.  The parking industry was certainly not left powerless by the POFA 2012 and could have - under certain circumstances - used that law to hold the keeper liable.  Those circumstances have not been met.  

I'd be so grateful if you could check this before it goes.  Obviously I'll add the top bit..

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.

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 because the defendant was not driving the vehicle as she was, and still is a learner driver and only practised locally to her home.

3. The car insurance was in the defendant’s spouses name with the defendant as a named driver. The defendant is not able to identify who was driving the car on an unremarkable day nearly six years ago because two family members had use of the car. There are two people who may have been driving the car, the defendant’s mother or the defendant’s spouse. The legislators behind Schedule 4 of the Protection of Freedoms Act 2012 stopped short of requiring a registered keeper to have any obligation to name the driver, or possible driver(s) to any private parking firm.  The Defendant does not know which of their relatives was driving.  She has seen no evidence either way that could assist, and in any case, exercises her right not to name the possible drivers to this aggressive Claimant and risk a repeat of the years of harassment she has suffered.  There is no cause of action and this claim ends now.  The parking industry was certainly not left powerless by the POFA 2012 and could have - under certain circumstances - used that law to hold the keeper liable.  Those circumstances have not been met.  

4. The defendant’s family rarely shop at Riverside Retail Park as it is a fifty minute drive each way.  The reason the defendant shops at this location is to visit Hobbycraft with her mother who is registered disabled and has a Blue Disabled Badge.  The car would have been parked in a disabled bay and would have displayed the blue badge and legally, under the Equality Act 2010, disabled persons are entitled to extra time. This car park is open to the public and therefore the landowner, managing agent, on-site outlets and the private parking company are all 'service-providers' who have a legal duty to adhere to the 'Equality Act Code of Practice on Services, Public Functions and Associations' which became law on 6th April 2011. 

5. The Defendant believes that as the Notice to Keeper is not POFA 2012 compliant, the charge liability cannot transfer from the driver to the registered keeper because the Notice Keeper does not warn the keeper that, if after a period of 28 days, Highview Parking Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012. Highview Parking Ltd. (now Nexus DPO Ranger)(or their legal team, DCB Legal limited) need to pursue the driver for the charge, not the registered keeper. The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015).

6.  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.

7.  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.

8.  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.  

9.  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').

10.  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

11.  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.  

12.  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.

13.  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.  

14.  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.

15.   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.

16.   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.

17.  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.

18.  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:

19.  (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.

20.   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

I think now, 4 and 5 need swapping and then it's done (assuming you didn't remove anything from the template, which I didn't check).