Phase 1: CCJ Removed. Phase 2: Claim Discontinued. Phase 3: Costs.

Harvez63

IN THE COUNTY COURT

 Claim No.:  xxxxxx

Between

 Premier Park Limited

- and -  

 (Defendant)

_________________

DEFENCE

 

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

The facts as known to the Defendant:

2.    It is admitted that the Defendant was the registered keeper of the vehicle and driver.

3.    The Defendant entered a car park on 28-12-2017, to purchase a Subway, during which the Defendants partner went inside whilst the defendant remained in the car. On the approach to the car park from a busy road no sign was noticed on entry, and no contract was formed with The Claimant. 

4.    Only by revisiting the site after receiving the PCN did The Defendant learn the sign read “Private”, however this is only readable by standing in front of the sign directly, which is unreadable from a car. Entry to this car park also involves crossing a busy footpath, and directly behind the sign are neon lit signs for subway, a small “P” isn’t readable and invites parking, not signalling any contract was being entered into.

5.    The car park is next to Subway, The car park boundary includes and appears to serve the retail store Subway but the parking is apparently owned by Vets4Pets in the building adjacent. Two signs are placed on the wall noting Vets4Pets, which are directly central to the car parking bay, and when a car is parked in front of them, unreadable. The Defendant did not park in these spaces, or any space as a matter of fact. 

6.   Whilst reviewing the location historically since the PCN was received, its noted these signs appear to move regularly, they are there one year, but not the next. In 2017, according to Google Streetview, there was sometimes a P sign on entry, which read “Parking restrictions in place, see additional signs for full details”, however the only additional sign was (again, sometimes) placed above car height, on a dark shadowed brick wall.  Even if it was there - and the Claimant is put to strict proof - this sign isn’t adequate and therefore wasn’t noticed either. There where no other signs at the time of the event to indicate parking restrictions were in place.  Along with his witness statement for this hearing, the Defendant will append Google Streetview images to demonstrate the 'now-you-see-it-now-you-don't' disappearing signage issue at this notorious entrapment zone.

 7.   The Claimant's conduct has been wholly unreasonable throughout this process and caused sleepless nights and illness from the stress. Unreasonable behaviour ranges from increasing the costs aggressively and unfairly at the start, to threatening bailiffs and CCJs. The Claimant sought and obtained a default CCJ against the Defendant on April 2022, for which they eventually signed a consent order to set aside the day before the court hearing (one year later) and admitted that they improperly served the claim. This was despite the Defendant notifying them of their mistake months before signing the consent order, which the Claimant denied.  Not only this, the Claimant has failed to meet the court mandated timescales since, both for re-serving this claim, and paying the costs ordered. The Claimant has acted with complete disregard to the Court and the Defendant.

 8.    The Claimant was ordered by District Judge Grand to reserve the claim to The Defendants address by 4pm 6th March 2023, however it wasn’t served until 14th March 2023, by which time The Defendant assumed the case was dead.

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

10.  This Claimant continues to pursue a disproportionate fixed sum (routinely added per PCN) despite knowing that this is now likely to be confirmed as banned by the Government this year. It is denied that the purported 'damages' or 'debt fee' sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

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

12.  Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) 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." 

13.  The Code's Ministerial Foreword is unequivocal about abusive existing cases such as this 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." 

14.  The DLUHC consulted for over two years, considering 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.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt/robo-claim firms operate on a 'no win, no fee' basis, seeking to inflate these claims with 'costs/damages' in addition to the strictly capped legal fees the small claims track allows.  

15.  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.  In Beavis, there were 4 or 5 letters including reminders.  The parking charge was held to cover that work.

16.  The driver did not agree to pay a parking charge, let alone these unknown costs, which were not quantified in prominent text on signage.

17.  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 which it is hoped overrides mistakes made in a few appeal cases that the parking industry desperately rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).

18.  Far from being persuasive, regrettably these one-sided appeals saw Circuit Judges led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal. In case this Claimant tries to rely upon these, the Defendant avers that errors were made in every case.  Evidence was either overlooked (including signage discrepancies in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice 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 parking contract in Beavis. Those learned Judges were not in possession of the same level of information as the DLUHC, whose incoming statutory Code of Practice now clarifies such matters as a definition of 'parking' as well as consideration and grace periods and minor matters such as 'keying errors' or 'fluttering tickets/permits' where a PCN should not have been issued at all, or should have been cancelled in the pre-action dispute phase.

 

POFA and CRA breaches

19.  Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred. 

20.  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.

21.  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.  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/open dealing and good faith. 

Harvez63

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

22.    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 each be determined on their own facts.  That 'unique' case met a commercial justification test, and took into account the prominent yellow/black uncluttered signs with £85 in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach.

23.    Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'.

24.    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, 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).  

25.    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 standing or landowner authority, and lack of ADR

26.    DVLA data is only supplied to pursue parking charges 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 from the landowner to issue charges in this place in their own name.  The Claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name.

27.    The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new incoming statutory Code shows that genuine disputes such as this would see the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair appeal was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

28.    ADR regulations, Schedule 3, Section 13, para (e), require that ADR must be offered to a consumer for not less than twelve months. It is the will of parliament that this will be included in the forthcoming mandatory parking code of conduct.

 

Conclusion

29.    The claim is entirely without merit. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

30.    There is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of intimidating pre-action threats.

31.  In the matter of costs, the Defendant asks:

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

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

32.  Attention is drawn specifically to the (often-seen from this industry) 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.

Defendant’s signature:

Date:

 

Harvez63

I was just about to send this off but then thought its worth checking, does it matter what I my original reply was to BWL before I found this forum 

Original response was (laughable now how naive I was)

I've just received your fine notice and I'm shocked you feel a parking fine needed to be issued. I wasn't "parked" or obstructing anyone, if you review your CCTV or what cameras you have you will see I am sat in the car with the car engine running the entire time, you can see from the second picture the driver (me) in the driving seat which is where I was. During this time nobody else came in or out the parking area, which I'm not in a car parking space blocking anybody. 

I am happy to take the case with Popla but I shouldn't think this will be needed when the case is reviewed. 

I look forward to your response:"

I've just rechecked the photos they gave me hoping it would show the walls where the signs sometimes are but they dont show much more then just my car 

B789

Harvez63 said:

I am happy to take the case with Popla but I shouldn't think this will be needed when the case is reviewed.

Errr... what has POPLA got to do with this at defence submission stage???

Le_Kirk

B789 said:

Harvez63 said:

I am happy to take the case with Popla but I shouldn't think this will be needed when the case is reviewed.

Errr... what has POPLA got to do with this at defence submission stage???

I think the OP was just showing us the original reply to BWL.

Harvez63

I'm going to send in the next hour if everyone believes its good to go?

My only reservation is actually on the Southampton courts email address, I definitely dont send to ccbcfees@justive.gov.uk? do I? as its to go to my local court. The only correspondence I've had with them is via that previously posted; hearings.southampton.countycourt@justice.gov.uk (the one BWL used to cancel CCJ).

then for BWL just CC in parking@bwlegal.co.uk. 

Body of the email just to read short something like;

Please see appended defence for case ref ########,

Yours faithfully, 

Fruitcake

If nobody has a definitive answer for you then you could try 'phoning the Soton court and ask where to send everything.

Coupon-mad

The hearings email is the right one.

Copy in BW Legal to the same email.

DEFINITELY NOTHING TO THE CCBC!

Harvez63

Sent, BWL are total muppets, this is an automatic reply from parking@bwlegal

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Before I spam every email address I have for them, do you think its worth me CC the court back in so they can see I've used a different email address following the above response? 

Harvez63

I cant help but think stuff is put in place to try and catch people out doing stuff at the last minute. I could be reading into it to much but when I went to serve them, their email system kept bouncing back the email to saying it was read as spam