County Court Claim - UKPC / St Marys View

estevenin

Hi All,

I am mounting up a defence against a Defence against a Claim from UKPC, location in St Marys View, Watford, looking for validation in order to be sure to do things right. Here is a quick summary of the course of events :

- 20/12/2020 : Parking Charge Notice
- 22/01/2021 : Notice to Keeper
- 13/05/2022 : County Court Claim (Issue Date)
- 19/05/2022 : Claim Acknoledged
- 24/05/2022 : SAR Requested
- 24/05/2022 : SAR Received (15mn later)
- 24/05/2022 : Complaint to MP Submitted
- 25/05/2022 : Contacted QDR, the solicitors
- 25/05/2022 : Draft defence using the template provided
- 15/06/2022 : Last day to submit the defence
- 02/08/2022 : N180 Sent to the court and QDR Solicitors
- 16/08/2022 : N180 Received by the court ("You filed a DQ on 16/08/2022" on MCOL)
- 25/08/2022 : N180 Sent to myself from QDR Solicitors (Dated 25th, received a couple of days after that)

- 01/09/2022 : Received a "General Form Of Judgment or Order" from the County Court : General sanctions order was made on 01/09/2022 (on MCOL)

- 07/09/2022 : DQ filed by claimant on 07/09/2022 (on MCOL)

- 07/09/2022 : Your claim was transferred to """""""""""" on 07/09/2022 (on MCOL)

(PS : I have not complained to the landowner - This land is attached to Royalty House next to it, which is an office building, leased to Quindell PLC. Their Data is not publicly available, renting is managed by real-estate agents. That building in question is apparently empty since COVID and, irronically enough, is set to be turned into the "Watford County & Family Court", so I guess that the claims for that car park, are part of Quindell PLC's income (maybe their only one at the moment). Maybe that's the reason why they are deciding to dig the old files and file a claim after 1 and a half year. So not sure it would change anything anyway to complain)

And here is the content of everything done so far, emails sent, results of the SAR, and my draft defence. I have copy/pasted the template defence provided in the newbies thread, modified the 2nd bullet point as asked :

1. Parking Charge Notice : Please see the SAR
2. Notice to Keeper : Please see the SAR
3. County Court Claim : https://www.dropbox.com/s/732a92i19nul42f/County%20Court%20-%20St%20Marys%20View.pdf?dl=0 

POC : The Claimants claim is for an outstanding parking charge issued to vehicle """"" when parked at ST MARYS VIEW CAR PARK, 10 KINGS STREET WATFORD WD18 0BW. The Site is managed by the Claimant. The Defendant is the keeper of the driver named in accordance with Schedule 4 of Protection of Freedom Act 2012 of the vehicle. Vehicles parking at the Site are subject to the parking restrictions and terms and conditions which are set out on signs at the Site and form part of a contract between the driver of the vehicle and the Claimant. On 20 12 2020, the Vehicle was parked at the Site in breach of the contract, the contravention being Registered Users Only. By entering this contract the Defendant agreed that they would be liable for 100 pounds parking charges, plus addictional contractual charges incured by the claimant for the collection of the debt pursuant to the terms and conditions.

Amount claimed : 182

Court Fee : 35

Legal representative's costs : 50

Total amount : 267

4. Claim Acknowledged : 

Intention

I intend to defend all of this claim

Signed

I am the Defendant

19/05/2022

5. SAR Requested : 

Dear Sir or Madam,

This is a subject access request (Data Protection Act 2018 / General Data Protection Regulations (GDPR)), regarding the county court claim, """ regarding car """"""", sent to """"""""""""""""""""""""""""""""""".

Please supply the data about me that I am entitled to under data protection law relating to myself.

This includes but it is not limited to:

- All photos taken.
- All videos taken. Including but not limited to : entry of the vehicle, exit of the vehicle, and any interaction of your agent with the vehicle, any interaction of the driver with the vehicle, full footage of the car being present at the location, from the moment of entry and exit.
- All letters/emails sent and received.
- All data held, all evidence against me and a full copy of the parking charge notice, notice to keeper.
- And a list of all PCNs outstanding against me or the vehicle """"", as any claim must be for all PCNs, not several separate claims.

Please forward that information preferably by email : """"""""""""""""""" or to my address : """""""""""""""""""""""".

If you need any more data from me to confirm my identity please let me know as soon as possible. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or it can be contacted on 0303 123 1113.

Yours Faithfully,

5. SAR Received : 

Windscreen ticket : https://www.dropbox.com/s/zzymvryc85v6zzu/Ticket Copy.pdf?dl=0
Parking Charge (sent by post) : https://www.dropbox.com/s/5dxct0ze5cqpc8m/Parking Charge.pdf?dl=0
Notice to Keeper (sent by post) : https://www.dropbox.com/s/zdigiz2t7b8zbrp/Notice To Keeper.pdf?dl=0
Pictures :
 

There is no other pictures, and, they haven't sent any video footage, so I suppose there is none. Convenient for them, as the car barely stayed 5mn.

6. Complaint to MP :

Mr,

This is a complaint about borderline practices, taking place at the St Marys view car park, off Kings Street in Watford. This parking looks like a regular parking with no street sign, only after something that looks like an official PCN from the council, so you understand that small signs on the wall are binding you into a contract with them, which makes you liable for a £100 fine.

Those £100 are a claim for loss of business, however the car park was empty, the building attached to that car park is also fully empty, so the claim is illegitimate. The landowner should be forced to install a gate at the entrance, if it wants to bind users into a contract. Or at the very least, very big signs should be installed everywhere, especially at the entrance of the car park, to specify that this is private and parking is not allowed.

Those practices are unacceptable and hope this subject will be addressed.

This looks like a global problem, this is what have been said by the MPs in Parliament concerning the unregulated parking industry (Feb 2018):

https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

Yours faithfully, 

7. Contact to QDR :

Dear Sir, Madam,

I am writing you regarding a county court claim, no. """". I am seeking debt advice, but I deny any debt and the case must be put on hold for not less than 30 days, under PAP for debt claims 2017.

I have sent UKPC, who you represent, a subject access request (SAR), yesterday.

Furthermore, the correct address for service, is the one mentionned below this email, as I have recently moved.

Best Regards,

8. Defence : To follow in the next post

Fruitcake

You have left personal data showing including your VRM, PCN number, and claim number. I suggest you delete the text and replace it with a one liner saying editing in process or similar (you can't delete the post/thread) then repost with personal data redacted.

What you refer to as "Parking Charge (sent by post) :" is a NTK reminder.

Coupon-mad

This looks like a global problem.

No, it's a national problem.  No other countries let this happen like this; private firms acting in a predatory way to rip people off and having an almost free pass to DVLA data with a nod and a wink.

This is NOT correct so remove it:

Those £100 are a claim for loss of business, however the car park was empty, the building attached to that car park is also fully empty, so the claim is illegitimate. The landowner should be forced to install a gate at the entrance,

The PCN is absolutely NOT based on loss and doesn't pretend to be, and no MP is going to agree that a landowner should be 'forced' to instal a gate. This is the wrong thing to say.

Instead, you should be telling your MP about the new Government Code of Practice that was published in February.  Same as a poster did last week to a clueless MP, whose name escapes me.

Your email doesn't tell the MP what you want them to do!

KeithP

estevenin said:

- 13/05/2022 : County Court Claim (Issue Date)
- 19/05/2022 : Claim Acknowledged

- 15/05/2022 : Last day to submit the defence

That Defence filing deadline is correct - except for the typo. 
But there might be something useful here...

With a Claim Issue Date of 13th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 15th June 2022 to file your Defence.

That's three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

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'.

KeithP

All those images on Dropbox that you have shown us include the vehicle's registration mark and the parking charge reference number.

The parking companies are known to trawl this forum just waiting for people to trip themselves up and will use anything they find here to help their case.

The Dropbox image of the Claim Form gives away enough information for anyone - literally anyone - to file a Defence on your behalf. The Claim Number and MCOL password are clearly shown.

estevenin

Location :

https://www.google.com/maps/@51.6538818,-0.3942283,3a,75y,307.01h,84.45t/data=!3m6!1e1!3m4!1scSVZcd2PELDZJrSlGQ8lnQ!2e0!7i13312!8i6656

For the context : This was during the 2nd lockdown, I am a Private Hire Driver and as Private Hire Jobs were much more scarce, I have been doing food delivery as well for a couple of weeks. If I remember correctly, I was picking up something from McDonalds. Where I stopped, is the staff entrance / exit of Mcdonalds, they have their bins there. I assumed it would be fine to stop here since I'm picking up from them, plus I'm aware that councils stay 5mn near your car before giving you a fine, in case parking here was not allowed.

Turned out it wasn't a public street, it was a private land, and 3/4mn after I returned with my package, with a PCN on the windscreen. I was surprised as, I hadn't seen any warden around and usually they would allow a 5mn observation period. Anyway I didn't think anything at the time but when I opened it, there was no mention of Watford Council, so after I understood it was a scam I threw it in the bin. In the meantime I got familiar with private parking practices, as I had a similar case in a motorway service area by the same period (which I fought here in this forum as well, but unfortunately, it was one of the case were my defence wasn't logged hence default was applied).

This is a bit weird as, McDonalds has it's bins there, but apparently they don't have anything to do with this land. (It's the offices on the other side, whiches are empty at the moment since the first lockdown)

I came back there by foot afterwards to inspect the signs, and I realized what the business is : The UKPC marshall is waiting in his car in the parking. When he sees a car coming into the parking and leaving his car, he applies the PCN (invoice) very quickly, he leaves with his car to avoid confrontation, and he returns a few minuts later to do the same thing again to another car.

This is a popular spot for people picking up food (just as I did), because the street is a one way and that would be the first safe spot for cars to spot, near all the restaurants. When it's your first time, you don't realize that it's a private area, there are only signs in the wall - which you don't see / you don't realize what it is, unless you are familiar with private parking practices.

UKPC knows that (and is very happy of that), and that's why the guy is waiting there, with the key here beeing the speed to apply the parking charge, which can be done as quickly as 2 minuts : The machine is ready, he just entered the VRM, print the ticket, put it in the screen, a few pictures... It's fascinating to watch.

I have evidence of my food order, which shows an order at 12.29, plus the time for me to drive there, and PCN was applied 12.35. It means that the marshall was indeed waiting for a prey and went to apply the charge straight away.

So I will defend this claim, in full.

I have used the template provided, no changed anything out of it, just added my own point in BOLD below to save you time of reading. I would be very grateful if you could let me know if I forgot something, if I should add something, remove something, or anything else helpful in my case.

Or, if it's ready to go and be sent to CCBCAQ@Justice.gov.uk. (Where I'll make sure this time the defence is logged)

Thank you all in advance for your advice

DEFENCE ::

IN THE COUNTY COURT

Claim No.:  

Between

---------------------------

UK Parking Control Limited (Claimant) 

- and -  

""""" (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 and driver of the vehicle in question but liability is denied. 

 

3. The vehicle was stopped in St Marys View, Watford, in order to pick-up a food delivery (loading / unloading) in St Marys View, in the context of business activities. The close, which has a “street name” (St Marys View), looks like a regular public space, with no visible sign post with parking restrictions.

A hatched area behind McDonalds (staff exit), which is where the car was stopped, gives the idea that this is a normal, usually free, loading area for McDonalds customers or partners, as they have their own bins at this location. It seems however that McDonalds had nothing to do with this strange, and instead this land is attached to Royalty House opposite, which is odd since they seems to have the right to use this location as they please.

Further research shows no sign post in display. But shows small panels attached to some random locations, which does not look like any usual council parking restriction and would remain unseen for the unaware driver, as “looking at the wall to consent to a contract” is not something to be expected from a driver or anyone really. Walls that are dark and constantly in the shadow (as shown in UKPC's pictures), which doesn’t help noticing any contract at all.

Letters also look to be very small, and would not be readable from a vehicle passing through, only if someone would notice / understand that this is actually a contract in display, stand below and read-it through. It is also unclear if those signs were to apply for the whole area (which looks like a public street, with a service area used by McDonalds) or only the marked parking spaces further down the close (the car was not stopped there), to marked reserved areas for residents.

As I have witnessed later by coming back to inspect the area, I believe the Marshall to have been waiting in its car nearby, waiting for cars to arrive and apply a Parking Charge quickly :

- The issue time of the charge is 12:35:18, and the last picture is taken at 12:36:29, a process lasting less than 2 minutes, the car probably left unattended 3/4 minutes or less. The food order was requested at 12:29 (Evidence attached), counting a 4 to 5 minutes to arrive at the pickup location (around 12:33 / 12:34). The parking charge has therefore been applied one minute after arrival, which shows that a Marshall is purposely waiting for cars to arrive at this location, knowing that wall signs / contracts will not be seen by drivers stopping here.

- For the context, food delivery was at that period a complementary business of the Defendant’s Private Hire business during the 2nd Coronavirus lockdown, in order to help getting through this professionally difficult period, as the taxi and PH business has been heavily affected. Picking up food at this location is therefore not a usual business and I was unaware at that time of any restriction or contract at this location.

Without any gate or visible sign post at entry or inside the close, a motorist is in no position to understand that it is accepting a contract, nor accept its conditions or give consent.

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 source.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant 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, the Defendant observes after researching 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." 

estevenin

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.

 

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 the Defendant’s 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, 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 (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.  The Defendant invites 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 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.

 The 25th of May 2022

 

estevenin

Fruitcake said:

You have left personal data showing including your VRM, PCN number, and claim number. I suggest you delete the text and replace it with a one liner saying editing in process or similar (you can't delete the post/thread) then repost with personal data redacted.

What you refer to as "Parking Charge (sent by post) :" is a NTK reminder.

KeithP said:

All those images on Dropbox that you have shown us include the vehicle's registration mark and the parking charge reference number.

The parking companies are known to trawl this forum just waiting for people to trip themselves up and will use anything they find here to help their case.

The Dropbox image of the Claim Form gives away enough information for anyone - literally anyone - to file a Defence on your behalf. The Claim Number and MCOL password are clearly shown.

Sorted, thanks. I have left all the dates and times I hope it's ok, can delete as well if that could be an identification issue.

KeithP said:

estevenin said:

- 13/05/2022 : County Court Claim (Issue Date)
- 19/05/2022 : Claim Acknowledged

- 15/05/2022 : Last day to submit the defence

That Defence filing deadline is correct - except for the typo. 
But there might be something useful here...

With a Claim Issue Date of 13th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 15th June 2022 to file your Defence.

That's three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

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'.

Typo sorted, thanks. Got it.

Coupon-mad said:

This looks like a global problem.

No, it's a national problem.  No other countries let this happen like this; private firms acting in a predatory way to rip people off and having an almost free pass to DVLA data with a nod and a wink.

This is NOT correct so remove it:

Those £100 are a claim for loss of business, however the car park was empty, the building attached to that car park is also fully empty, so the claim is illegitimate. The landowner should be forced to install a gate at the entrance,

The PCN is absolutely NOT based on loss and doesn't pretend to be, and no MP is going to agree that a landowner should be 'forced' to instal a gate. This is the wrong thing to say.

Instead, you should be telling your MP about the new Government Code of Practice that was published in February.  Same as a poster did last week to a clueless MP, whose name escapes me.

Your email doesn't tell the MP what you want them to do!

Sorry about that that is my mistake, I was unsure what to fill him up with, I will update him with the new Government Code of Practice from February.

Have posted the defence above, which is a copy / paste of the provided defence, except for the /2 where I identify as a driver, and 3/ where I explained the context.

Thank you all.

Fruitcake

Your para 3 is a narrative, more like a witness statement than a defence. Para 2 of your section 3 does not make sense. One of the sentences just suddenly stops.

Chop it down and stick to facts. Don't mention anything about expecting to see council parking signs. It was a parking attendant or employee, not a Marshall.

You haven't mentioned lack of grace periods, which is a breach of the BPA CoP.

Have a look at the Jopson vs Homeguard case where the judge said around par 19 or 20 that loading/unlading is not parking. This was heard on the appeal so is persuasive on the lower courts. The case number is B9GF0A9E, and the transcript is available online.
Quote the case name, number, judge's name, and what he said about loading/unloading.

estevenin

Thank you for the valuable feedback and the mention of the Jopson Vs. Homeguarde case. I have updated and reorganized it, it is now a bit longer though with the quotes from the case and grace period:

=====================================================================  

3. The vehicle was stopped in St Marys View, Watford, on the edge of a hatched area behind McDonalds (staff exit) where they have their own bins installed, in order to pick-up a food delivery (loading / unloading) from them in the context of business activities. Picking up food at this location is not a usual business for the Defendant, who was unaware at that time of any restriction or contract at this location.

3.1. Further research shows no visible sign post or restriction, but only small panels attached to some random locations, which would remain unseen for the unaware driver, as “looking at the wall to consent to a contract” is not something to be expected from a driver or anyone really:

- Walls that are dark and constantly in the shadow (as shown in UKPC's pictures).

- Letters also look very small, and would not be readable from a vehicle passing through (not even from UKPC's pictures), only if someone would notice / understand that this is actually a contract in display, stand below and read-it through.

- It is also unclear if those signs were to apply for the whole area (which looks like a public street, with a service area used by McDonalds) or only the marked parking spaces for residents further down the close (the car was not stopped there). No lign is seperating the public street to this private land. McDonalds seems to (and have the rights to) use this location for their bins, but the Parking Charge was not applied on behalf of McDonalds, which is instead attached to Royalty House opposite.

Without any gate or visible sign post at entry or inside the close, a motorist is in no position to understand that it is accepting a contract, nor accept its conditions or give consent.

3.2. As I have witnessed later, I believe the parking attendant to have been waiting in its car nearby, ignoring the grace period requiered by the BPA, waiting for cars to arrive and apply a quick Parking Charge :

- The issue time of the charge is 12:35:18, and the last picture is taken at 12:36:29, a process lasting less than 2 minutes, the car probably left unattended 3/4 minutes or less. Evidence of a food order requested at 12:29 (attached), shows that, after considering a driving time to the location, the car would have been stopped for 1 or 2 minutes only before the charge was applied.

- That consitutes a lack of grace periods, which is a breach of the BPA CoP : "13.1 The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes."

3.3. The POC mentions a "parking" prohibition, and it is important to draw the distinction between "parking" and "loading/unloading"

- In Jopson Vs. Homeguard, case no: B9GF0A9E, which had seen this appeal allowed, his honour Judge Harris QC mentions that loading/unloading is not parking:

"19. The purported prohibition was upon "parking", and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time"

and

"20. Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moment for these purposes. Discussion in this area left the respondent in obvious difficulties, from which the attractive advocacy of Miss Fenwick was unable to rescue it."

and 

"21. Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. I think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant, unloading an awkward piece of furniture. Any other approach would leave life in the block of flats close to unworkable, a consideration which those instructing Miss Fenwick seemed reluctant to accept. I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice."

As evidence shows that the car was only stopped for less than 5 minutes (loading/unloading) and the breach of contract is only claimed for parking, as found in Jason Vs. Homeguard case, there has therefore been no breach of contract.

KeithP

As @Fruitcake mentioned earlier, all of that stuff would be better placed in a Witness Statement.

Read again the Template Defence.