8 PCN's from Premier Park passed to RDP...

Coupon-mad

Add the images. Anything goes in small claims.  You are saving it all as a PDF once signed & dated anyway, so images will be fine for a Judge to read. Might make your local Judge do the same.

I am considering adding them to the Template defence!  I think they are powerful.

B789

manooo said:

Also AOS was submitted 1st, acknowledged by courts on 4th, that means I've got until tomorrow to submit right?

Wrong...

Which bit about my earlier post advising you that you have until 4 pm on Monday the 18th of September was not comprehended?

KeithP

I agree with @B789. 

You have until 4pm on Monday 18th September 2023 to file your Defence.


Also, a small point...
In your latest paragraph 5 you say...

5. On the 23rd of September 2022 the Claimant's saw...

Tell us more about this saw belonging to the Claimant?  

[hint: there should be no apostrophe]

manooo

B789 said:

With an issue date of 15th August, you have until 4 pm on Monday 18th September to file your defence. Don't rush it if you are not 100% ready.

As your AoS was filed in time, you have 33 days, plus any weekend/bank-holiday days from the issue date. Issue date 15th August, served date 20th August. AoS deadline date is 3rd September (actually 4 pm on the 4th of September as the 3rd is a Sunday. 28 days from the service date is 17th September which is a Sunday. Therefore your defence deadline is 4 pm Monday 18th September.

Ah its good to know was sweating it a bit thinking I may have run it too close, thank you my friend

manooo

B789 said:

manooo said:

Also AOS was submitted 1st, acknowledged by courts on 4th, that means I've got until tomorrow to submit right?

Wrong...

Which bit about my earlier post advising you that you have until 4 pm on Monday the 18th of September was not comprehended?

Apologies that was before I saw your response, got it!! was getting my calculations a bit wrong there.. Thanks

manooo

Coupon-mad said:

Add the images. Anything goes in small claims.  You are saving it all as a PDF once signed & dated anyway, so images will be fine for a Judge to read. Might make your local Judge do the same.

I am considering adding them to the Template defence!  I think they are powerful.

Great!! Oh I think you should as it's very relevant, I've had a look at the POC again and all it says is "The driver of the vehicle with reg XXX parking in breach of the terms of parking stipulated on the signage at XXX" it's not very specific, so I decided to amend part 5 again to..... 

3. The Defendant is a resident of the block of flats at XX, Southampton where the car park is situated. The car parking area contains allocated parking spaces demised to some residents via the leasehold or leased separately from XX Ltd (XXLtd) who manage the leasing on behalf of XX (landowner). The Defendant pays a considerable amount per month for a parking bay in this car park which they use on a daily basis without encountering any issues.

4. In the Defendant’s case they lease the parking space via managing agent XX Ltd with this lease agreement commencing from 13th of September 2022.

5. On the 23rd of September 2022 the Claimant saw it fit to issue a parking charge notice as the Defendant's vehicle was allegedly in breach of the terms of parking at XX which the Defendant denies all liability to.

6. Under the terms of the Defendant's AST lease, references are made to conditions of parking motor vehicles in section “6” of the lease titled “Behaviour – Your Responsibilities", under clause “P” & “Q” which the Defendant expressly notes that none of the conditions of the lease were breached.

(i). There are no terms within the AST lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

(ii). Under the terms in the “Parking Space Licence” lease, there are again no conditions requiring the same as stated in section 6 (i) of this defence.

Hope this is OK, @Coupon-mad

fixed the spelling mistake, gonna give it a few more comb overs @KeithP 

Coupon-mad

All looks good.  Show us what the whole defence now looks like because I might use it as an exemplar Gladstones defence specific to claims that demand 10.25% interest.  

manooo

IN THE COUNTY COURT

Claim No.:  XXXXXXX

Between

XXXXXXXXXXXX

(Claimant) 

- and -  

XXXXXXXXXXX

 (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 was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case.  The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper & driver of the vehicle but liability is denied.

3. The Defendant is a resident of the block of flats at XXXX, XXX where the car park is situated. The car parking area contains allocated parking spaces demised to some residents via the leasehold or leased separately from XXX XXX XXX Ltd (XXX Ltd) who manage the leasing on behalf of XXX (landowner). The Defendant pays a considerable amount per month for a parking bay in this car park which they use on a daily basis without encountering any issues.

4. In the Defendant’s case they lease the parking space via managing agent XXX Ltd with this lease agreement commencing from 13th of September 2022.

5. On the 23rd of September 2022 the Claimant proceeded to issue a parking charge notice as the Defendants vehicle was allegedly in breach of the terms of parking at XXX which the Defendant strongly denies all liability to.

6. Under the terms of the Defendant's AST lease, references are made to conditions of parking motor vehicles in section “6” of the lease titled “Behaviour – Your Responsibilities", under clause “P” & “Q” which the Defendant expressly notes that none of the conditions of the lease were breached.

(i). There are no terms within the AST lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

(ii). Under the terms in the “Parking Space Licence” lease, there are again no conditions requiring the same as stated in section 6 (i) of this defence.

7. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Lessee is unaware of any such vote having been passed by the residents.

9. Despite the fact residents shouldn't need to display a permit due to the lack of terms of this requirement in the lease, there is issue with the signage the Claimant uses that:

- The sign is forbidding and you cannot contract to do that which is forbidden. If you're not permitted to park there without a valid permit, then you cannot contract to park there for an arbitrary sum.

10.  Furthermore, Gladstones have applied the wrong interest rate of 10.25% which they appear to have made up.  The highest rate allowed in civil claims (only at the discretion of courts) is 8%. The Defendant has discovered from research that this legal representative roboclaim firm (connected to the IPC trade body) always adds a made-up and enhanced 10.25% interest and are highly likely to be one of the top five 'bulk parking case litigators' shown in the Government's analysis, linked elsewhere in this statement.  Gladstones issue tens of thousands of inflated parking claims every year, all of which have the wrong interest rate (a deplorable 10.25%) and the unconscionably enhanced £60 or £70 (per PCN) which together adds hundreds to each claim.  Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Gladstones and nothing to do with the Claimant's alleged £100 PCN.

11.  The Defendant trusts that (if the claim is not struck out at Allocation stage, which the Defendant believes it should be) the Judge will address the wholly unreasonable inflation of Gladstones claims in their final judgment, at the very least to warn or sanction this bulk litigator so that they cease this abuse.

12.  The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  At the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC from Gladstones in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing:

(i)  Similarly, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning:

13. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

14. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

15. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:

(i). the alleged breach, which is not pleaded in the POC and requires further and better particulars, and

(ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest was calculated, which looks to be improperly applied on the entire inflated sum, as if that was all overdue on the day of the alleged event.

16. The Defendant avers that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

17. This case is a classic example where adding exaggerated fees funds the 'numbers game' of bulk litigation of weak and/or archive parking cases.  MoJ statistics of bulk litigators reveal that there are several hundred thousand parking claims per annum, with some 90% causing default CCJs totalling hundreds of millions of pounds.  No checks and balances are likely to have been made to ensure facts, merit or a proper cause of action (given away by the woefully inadequate POC).

18. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "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." 

18. Despite legal challenges delaying the Code - marked as temporarily withdrawn - it is thankfully 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis exposes what they say are industry-gleaned facts about supposed 'fees'. The analysis is found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

19. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of what the former calls debt recovery or 'enforcement' ( = pre-action) stage totals a mere £8.42 per case (not per PCN).

20. With that in mind, it is clear that the extant claim has been enhanced by an extreme sum, believed to be routinely retained by the litigating legal team, not the Claimant.  In this Claim it is additional to the intended 'legal representatives fees' cap set within small claims track rules.  This conduct has been examined and found - including in a detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery'. The Defendant takes that position.

21. The draft IA shows that the intimidating letter-chains actually cost 'eight times less' than the seemingly 'price-fixed' +£70 per PCN. This causes consumer harm in the form of almost half a million wrongly-enhanced CCJs each year that District Judges are powerless to prevent.  This false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who suddenly aligned in 2021 re allowing +£70, each led by a Board of the very parking operators and debt firms who stood to gain from it. 

22. It is denied that the purported damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  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 (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of template letters and 'would appear to be penal'.

23. This Claimant has not incurred costs. A parking charge model already includes what the Supreme Court called an 'automated letter-chain' and it is a model that generates a healthy profit.  In Beavis, there were 4 pre-action letters/reminders and the £85 'PCN' was held to more than cover the minor costs of the operation.  The DLUHC's IA confirms that the parking charge more than covers the minor costs of the letters (NB: the debt collectors do not charge anything in failed collection cases).

24. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged by the parking industry. The 2022 DLUHC Code will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  In a clear steer for the Courts and for the avoidance of doubt: the DLUHC say they are addressing 'market failure'.

25. In addition, 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.  Further, the Claimant is put to strict proof of POFA compliance.

26. The Defendant avers that the DLUHC's analysis now overrides plainly wrong assumptions made by Circuit Judges steered by Counsel in astonishingly weak appeal cases that the parking industry engineered their way: 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 cherry-picked litigant-in-person consumers without the wherewithal to appeal. Incorrect presumptions were made in every case; and there were major evidence discrepancies (e.g. in Wilshaw, where the Judge was also oblivious to the DVLA KADOE requirement for landowner authority). One Judge inexplicably sought out for himself and quoted from the wrong Code of Practice (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was wrongly aligned with the agreed contract in Beavis.

27. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant failed to erect well-placed, large and readable signs on a par with the yellow & black warnings seen in Beavis, and unlike the signage requirements set out in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

28. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

29. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications intended to be read by consumers. Signage must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

30.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith). 

manooo

ParkingEye v Beavis is distinguished

31.  Unlike in Beavis, the penalty rule remains engaged, not least due to the unconscionable added 'Fee'.  The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

32. The Supreme Court held that 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 alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  In the present case, the Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver.  Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

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

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

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

(iii) 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, due to "the absence of any notice on the wall opposite the parking space''. 

33.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In 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." 

 Lack of standing or landowner authority, and lack of ADR

34. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name.  The Claimant is put to strict proof of their standing to litigate.

35. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed.  The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (2020 Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should lead Judges to know that a fair appeal was never on offer.

Conclusion

36. There is now evidence to support the view - long held by many District Judges - that these are knowingly, exaggerated claims that are causing consumer’s harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that claims like this should be struck out. 

37. In the matter of costs, the Defendant seeks:

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

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

38.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) 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))."   

 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.

Signature:

Date: 

B789

Notice the contradiction here?

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case.  The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper & driver of the vehicle but liability is denied.

5. On the 23rd of September 2022 the Claimant proceeded to issue a parking charge notice as the Defendants vehicle was allegedly in breach of the terms of parking at XXX which the Defendant strongly denies all liability to.

Perhaps word para #5 a bit differently.