Late Defence

KeithP

Yes, that sentence "The good news in that case is that nothing untoward will happen before 8am Monday" only applied if you filed an AoS before 5th July.

mercuteio

KeithP said:

Yes, that sentence "The good news in that case is that nothing untoward will happen before 8am Monday" only applied if you filed an AoS before 5th July.

Ah, yes, that makes perfect sense! Ok, great - looking for recent ParkingEye defences now. Many thanks!

Mouse007

Great news, now please crack on - before 5pm tomorrow, I won't be available to help thereafter

mercuteio

Mouse007 said:

Great news, now please crack on - before 5pm tomorrow, I won't be available to help thereafter

Thanks @Mouse007. Unfortunately my attention has been almost entirely zapped by a storm in a teacup at this end since shortly after I last posted, so sadly it's only around this time that I'm finally managing to open up my computer and get reading again, let alone have anything to present to you. Eep. Nonetheless, thank-you sincerely for your offer to help. 

Given that I'm likely not to have anything written down until later tonight, I would imagine any feedback I receive may end up being tomorrow anyway, so I guess if it helps, I'm not likely to actually submit my defence until tomorrow afternoon, now that I know I've got til 4pm. If you happen to catch sight of my defence before then, I'll be very glad to consider any feedback before submission. If not, I very much appreciate your advice to this point anyway, and your offer of help today. Many thanks indeed, and I will be in touch via this thread soon either way. Warm regards.

Mouse007

I'm watching the football - not sure how sober I will be when it ends

Coupon-mad

Mouse007 said:

I'm watching the football - not sure how sober I will be when it ends

Woohhoooo!! We are watching too - WHAT A RESULT FOR THE ENGLAND WOMEN'S TEAM!!

Mouse007

Good news @mercuteio tomorrow I will be sober, well at least by the afternoon

@Coupon-mad - what a result for women's football sport - much better than the men

mercuteio

Coupon-mad said:

Mouse007 said:

I'm watching the football - not sure how sober I will be when it ends

Woohhoooo!! We are watching too - WHAT A RESULT FOR THE ENGLAND WOMEN'S TEAM!!

Mouse007 said:

Good news @mercuteio tomorrow I will be sober, well at least by the afternoon

@Coupon-mad - what a result for women's football sport - much better than the men

Wait, what?! I've been writing a defence statement whilst England's women have been busy winning the Euros?! Where are my priorities, and what is happening with my life?? I will watch this on replay tomorrow and will try to pretend I don't know what's happened . . . !

Anyhoo, in the meantime, I found a rather lovely ParkingEye defence from @bfree15 (thank-you so much @bfree15!) so I've adapted that and kept it pretty short and sweet. Only Points 3 and 4 are tailored to my specific case - the rest of it is all taken from templates on this site (thank-you so much, all of you!!!), although I have omitted one paragraph from the templated section on ParkingEye vs Beavis being distinguished (it's a paragraph referencing the new Code of Practice that was being finalised by the then MHCLG, and had a quote from the chief exec of the IPC - I figured that so much has happened with the Code of Practice since this happened, and also the Claimant is a BPA member rather than IPC, so it may be best just to leave this out?).

Would be grateful to hear any thoughts. One thing it's probably worth noting is that I've referenced the fact that I've only ever known the car park in question to be free for the past 30 years until this event, but on looking into it, parking charges were introduced in June 2020. As such, I haven't included some rather delicious lines that @bfree15 included regarding warning signs and transition periods, as I figured it had been 18 months since the change when I parked. Not sure if you think I should include these? @bfree15's additional paragraphs read as follows:

Unclear terms - unconscionable penalty relying upon unclear signage

6.         The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

7.         Between the Defendant’s previous visit to the car park and the visit in question, ParkingEye had placed signage within the car park creating new terms and conditions for motorists. The BPA AOS Code of Practice January 2020 states: 19.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

7.1.      No warning signs where installed at the site to make it explicitly clear to motorists that new parking arrangements were coming into force prior to the changes being made, nor after the changes had been made.  

7.2       No transition period was put in place to allow regular visitors to the site like the Defendant to adjust and familiarise themselves with the new changes. 

mercuteio

So, it's only just occurred to me that I didn't actually post my defence as it currently stands. Whoops. If anyone has any thoughts on whether I should add the thing about warning signs and transition periods as noted in my last post, given that parking charges were introduced 18 months before my ticket, I'd be particularly interested to hear. Ok, here goes:

Defence

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor 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 Defendant avers that the signage at this site is woefully inadequate, and that the Defendant was not able to see any signage whatsoever before, during or after the period in question. It was therefore an unexpected shock to receive a subsequent charge and claim, particularly as the Defendant has lived nearby the site in question for over three decades and only ever known it to be a free parking area prior to this event.

 

4. It is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The terms on the Claimant's signage are displayed with only limited lighting available from external lights, and are placed in such a position and minuscule font that in dark conditions, such as those that were present at the time of parking, anyone attempting to read these signs would be unable to do so easily, whether from inside a vehicle or even standing next to the signs. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

 

5. 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.  

 

6. 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. 

 

7. 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.  

 

8. 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.

 

9. 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.

 

10. 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.

11. 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:

 

12. (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.

13. 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.

mercuteio

Hello everyone,

I’ve got til 4pm to send in my defence, so if anyone has any thoughts between now and about 3pm, I’ll hold off submitting until then. I’ll re-post my defence and a couple of questions here to save you from having to look at my last two posts. 

I’ve basically nabbed most of this from @bfree15 and adapted it to my case, keeping things pretty succinct. Only Points 3 and 4 are tailored to my case, and the rest of it is from the templates you’ve all so generously provided. Alongside any general feedback you all have, I have two specific questions at the end. First, though, here’s my defence as it stands:

Defence

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor 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 Defendant avers that the signage at this site is woefully inadequate, and that the Defendant was not able to see any signage whatsoever before, during or after the period in question. It was therefore an unexpected shock to receive a subsequent charge and claim, particularly as the Defendant has lived nearby the site in question for over three decades and only ever known it to be a free parking area prior to this event.

 

4. It is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The terms on the Claimant's signage are displayed with only limited lighting available from external lights, and are placed in such a position and minuscule font that in dark conditions, such as those that were present at the time of parking, anyone attempting to read these signs would be unable to do so easily, whether from inside a vehicle or even standing next to the signs. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

 

5. 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.  

 

6. 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. 

 

7. 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.  

 

8. 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.

 

9. 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.

 

10. 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.

11. 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:

 

12. (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.

13. 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.

____________________________________________

Ok, a couple of questions:

Question 1

Should I include some of the paragraphs @bfree15 included regarding there being no warning signs or transition period to this car park changing from a free car park to introducing charges? It has been free for over 30 years in the time that I’ve lived nearby, but it seems that charges were introduced in June 2020, which was 18 months before my PCN. I’m not sure if that’s considered plenty of time for people to get used to the change, but there were several periods of lockdown during those 18 months, and I certainly knew nothing about it. For now I’ve decided not to include this, as I think perhaps a judge will think that 18 months was more than enough time to be aware of the introduction of parking charges in a nearby car park, but I could include the following paragraphs from @bfree15’s defence? 

Unclear terms - unconscionable penalty relying upon unclear signage

6.         The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

7.         Between the Defendant’s previous visit to the car park and the visit in question, ParkingEye had placed signage within the car park creating new terms and conditions for motorists. The BPA AOS Code of Practice January 2020 states: 19.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

7.1.      No warning signs where installed at the site to make it explicitly clear to motorists that new parking arrangements were coming into force prior to the changes being made, nor after the changes had been made.  

7.2       No transition period was put in place to allow regular visitors to the site like the Defendant to adjust and familiarise themselves with the new changes. 

Question 2

I’ve omitted the following paragraph from the templated section regarding ParkingEye vs Beavis being distinguished, but if you think I should include it then just let me know and I’ll add it in - I omitted it seeing as this is a BPA rather than IPC case, and also because the Code of Practice has been in flux since this was written. Should I add it back in?

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.    

Any other feedback would also be gratefully received! Many thanks for all your help so far, and ongoing. Warm regards.