Late Defence

Coupon-mad

Yep - you have no choice.

Attend the waste of time mini-hearing and if there are any Directions about a date to submit your WS, comply!

mercuteio

Marvellous! Thank-you so much, and hope you have a lovely Christmas and New Year
Take care, and catch up with you next year!

mercuteio

Hello everyone,

I hope you're all keeping well. Just wanted to check something - my Directions Hearing is going to be held midweek. My understanding is that this hearing is an attempt at mediation, and nothing to do with the details of the case. I don't want to settle and therefore, as I understand it, I just need to turn up and say I'm not willing to mediate and would like to proceed to the hearing of the case. Job done.

However, I note that I have received a full witness statement from ParkingEye, which appears to be the witness statement they will use for the proper case hearing. This has not yet been requested by the court (or, at least, I have certainly not been asked for a witness statement at this stage), but I am starting to question whether I should have prepared anything for this hearing?

Do I need to turn up with anything like an evidence pack or a witness statement myself  . . . or, even worse, should I have submitted any evidence to the court already??

My intention at present (unless this forum advises otherwise) is:

1. To write to the court this weekend and confirm that they definitely haven't requested witness statements or any other documents already, just in case I've missed a letter or something

2. To turn up ready to explain why this claim is ridiculous in lay terms, with my Defence in hand, but without a Witness Statement or evidence pack.

I am not planning to read up on any particular legal stuff, or make any cogent legal arguments at this point because, honestly speaking, I can't remember the legal arguments that I have previously read and, in my experience, reading up on them is a very time-consuming process, so I planned only to do this before the proper hearing. 

Is that a reasonable outline of what I should do, or do you think I need to be much more prepared/urgently prepare any documentation prior to the hearing?

Many thanks for your help, as always.

Mouse007

mercuteio said:

However, I note that I have received a full witness statement from ParkingEye, which appears to be the witness statement they will use for the proper case hearing. This has not yet been requested by the court (or, at least, I have certainly not been asked for a witness statement at this stage), but I am starting to question whether I should have prepared anything for this hearing?

Do I need to turn up with anything like an evidence pack or a witness statement myself  . . . or, even worse, should I have submitted any evidence to the court already??

This worries me, go and read the Notice of Allocation to the Small Claims Track papwork again. Does it tell you "Each party must send to the other party and to the court office copies of all documents on which that party intends to rely at" or words to that effect? And if so by what date?

mercuteio

This worries me, go and read the Notice of Allocation to the Small Claims Track papwork again. Does it tell you "Each party must send to the other party and to the court office copies of all documents on which that party intends to rely at" or words to that effect? And if so by what date?

Thanks for this @Mouse007. I've just had a look at the correspondence I've previously had, and no, I can't see words to that effect. The correspondence I've had are as follows:

1. Notice of Proposed Allocation to the Small Claims Track

2. General Judgment or Order (which was an order to fill in the Directions Questionnaire, which I somehow forgot about - I sorted it at that point) 

3. Notice of Transfer of Proceedings

4. Notice of Allocation to the Small Claims Track (Hearing) - this is the notice for the upcoming Directions Hearing


None of these say anything about sending the other party any documents, except for the last one, but only in relation to settlement offers. It says:

No later than 7 days before the directions hearing the parties must send to the other party their final offers to settle.

There isn't any other mention of sending any other documentation to the other party, and at no point is there any request for documentation, witness statements or evidence. The only mention of evidence anywhere within these bits of correspondence is in one bullet point in the smaller print Notes section at the bottom of the last letter, which says:

If the claimant attends but the defendant does not, the district judge may make a decision based on the evidence of the claimant only.

Apart from this, there is no mention of submitting evidence either to the court or to the other party.

Given this, would you say that the following excerpt from my previous post is reasonable?

My intention at present (unless this forum advises otherwise) is:

1. To write to the court this weekend and confirm that they definitely haven't requested witness statements or any other documents already, just in case I've missed a letter or something

2. To turn up ready to explain why this claim is ridiculous in lay terms, with my Defence in hand, but without a Witness Statement or evidence pack.

I am not planning to read up on any particular legal stuff, or make any cogent legal arguments at this point because, honestly speaking, I can't remember the legal arguments that I have previously read and, in my experience, reading up on them is a very time-consuming process, so I planned only to do this before the proper hearing. 

Is that a reasonable outline of what I should do, or do you think I need to be much more prepared/urgently prepare any documentation prior to the hearing?

Coupon-mad

You don't have time to write to the court to ask anything (and they won't reply).  Either your order say it somewhere or they don't.

Be aware that the DJ does have power to find in favour of P/Eye at this hearing, if he/she thinks you have no case that distinguishes your case from Beavis.

So it's not just a matter of telling them you won't settle.  You need to explain on what basis you believe you have prospects of success at a full hearing.

Remind us what your defence case is?  Dark signs?  Do you have photos taken in pitch black?

mercuteio

Thanks @Coupon-mad. 

Hmm, I didn't realise this - I just thought it was an offer to settle. My defence essentially says that at night there's no lighting on the signs, so I didn't see them. Plus, in 30 years of living next to the area, I've only ever known it to be a free car park. Turns out (as confirmed by ParkingEye's witness statement) that in Feb 2020 the village hall asked ParkingEye to manage the car park.

I have taken some photos of the area at night, in preparation for my intention to prepare an evidence pack, and I suppose I could write urgently to the court on Monday asking them to add those photos to the case file so I can reference them? ParkingEye's witness statement has loads of photos of the signage, but I honestly couldn't see any of them when I parked. In fact, there's loads and loads of free on-street parking around the village hall, which I would have used instead if I'd seen any of the signs, but I didn't. I was only trying to finish a phone conversation before going home, and thought that it was safer at night to get off the road and into the village hall car park, which I thought was free until I received the PPC in the post.

Do you think I should prepare a mini-evidence pack and ask for it to be added to the file now? In my experience, the local court has been pretty responsive to emails previously, so perhaps that could work? Then, even without a witness statement, at least I've got some images I can reference to point out why I couldn't see anything?

mercuteio

I think this is the Defence I submitted, in case you want to see the exact wording

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.

____________________________________________

Coupon-mad

If you are sure you have not been told to file and serve any evidence, do not email anything to the court next week.  If you did that, then your brief submission now would be seen as your WS and you won't be able to add to it.

In their WS, have they included photos of the signs in the dark?  If not then I'd argue at the hearing that this is no evidence at all, but by contrast, you do have relevant dated photos showing the signs are completely unlit, and you would respectfully ask the court to list the case for a hearing and issue Directions for you to submit your evidence and WS.

Is this a direct claim from P/Eye and not DCBLegal on their behalf?

mercuteio

This is super useful, @Coupon-mad - thank-you!

Coupon-mad said:

If you are sure you have not been told to file and serve any evidence, do not email anything to the court next week.  If you did that, then your brief submission now would be seen as your WS and you won't be able to add to it.

Ok, got it - yes, I definitely haven’t been asked to submit anything, so I’ll heed this advice. 

In their WS, have they included photos of the signs in the dark?  If not then I'd argue at the hearing that this is no evidence at all, but by contrast, you do have relevant dated photos showing the signs are completely unlit, and you would respectfully ask the court to list the case for a hearing and issue Directions for you to submit your evidence and WS.

No, they haven’t. All of their pictures are in the day, so I think this makes a lot of sense as to making a justification for proceeding to a full hearing.

Would it be silly to take some printed copies of the photos with me so the judge has an opportunity to informally see what I’ll be listing as evidence later, accepting that it isn’t currently a formal submission of evidence?

Is this a direct claim from P/Eye and not DCBLegal on their behalf?

No, this is directly from ParkingEye. Does that make much of a difference to proceedings at this point?

Thank-you so much for this advice!