Court Proceedings - Defence Critique Please

KeithP

Why are you refusing to use the template Defence?

If for no other reason, your Defence will be rejected because your Statement of Truth is several years out of date.

Johnersh

Be careful. If Mum is being sued it's her defence, so why the guff about what the driver did? 

To be honest I might not use the template as there are just 2 points to make:

1. Liability was transferred in accordance with pofa to the o/p, so there is no statutory basis by which she can be held liable as keeper under the act (cite the relevant provision). 

2. She was not the driver, as a matter of fact so there is no contractual basis for her to be liable for the sums claimed. 

Why pad the defence with guff about making a complaint to the ico? By all means do that, but it doesn't add anything to the defence, it merely makes it much harder to find the core defence. 

Strike out is a rarely used power (absent a hearing) so personally I don't think it should be routinely pleaded. By all means make clear the claim is misconceived and that it is unreasonable to continue the pursuit of it when both she and the o/p have provided the salient details. 

MsSLP

KeithP said:

Why are you refusing to use the template Defence?

If for no other reason, your Defence will be rejected because your Statement of Truth is several years out of date.

I didn’t realise there was a template that was newer than the defence version I was utilising – from your last comment that is now clear.  I must’ve missed this whilst reading through all the info.  I will reposition my defence in accordance with this template  and apply the parts I think are relevant to the defence in this situation.  I am currently redrafting and will repost once done. 

Also, to address a previous question – court papers were issued on Aug 9th,  I believe I sent the AOC on Aug 15th – and I had called the County Court Business Centre help line as the portal wasn’t loading and they instructed that the date I needed to submit the Defence was by Sep 11th – which then meant Sep 12th as the next working day.

ab2000

MsSLP said:

KeithP said:

Why are you refusing to use the template Defence?

If for no other reason, your Defence will be rejected because your Statement of Truth is several years out of date.

I didn’t realise there was a template that was newer than the defence version I was utilising – from your last comment that is now clear.  I must’ve missed this whilst reading through all the info.  I will reposition my defence in accordance with this template  and apply the parts I think are relevant to the defence in this situation.  I am currently redrafting and will repost once done. 

Also, to address a previous question – court papers were issued on Aug 9th,  I believe I sent the AOC on Aug 15th – and I had called the County Court Business Centre help line as the portal wasn’t loading and they instructed that the date I needed to submit the Defence was by Sep 11th – which then meant Sep 12th as the next working day.

Just use the template in the newbies d=section and amend para's 2+3 as required.

KeithP

MsSLP said:

KeithP said:

Why are you refusing to use the template Defence?

If for no other reason, your Defence will be rejected because your Statement of Truth is several years out of date.

Also, to address a previous question – court papers were issued on Aug 9th,  I believe I sent the AOC on Aug 15th – and I had called the County Court Business Centre help line as the portal wasn’t loading and they instructed that the date I needed to submit the Defence was by Sep 11th – which then meant Sep 12th as the next working day.

Yes, you are right with your Defence filing deadline but there might be something useful here...

With a Claim Issue Date of 9th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 12th September 2022 to file your Defence.

That's tomorrow. 

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'.

MsSLP

 Ok so this is getting longer each draft - but I think (hope) I'm almost there:

 ___________________________________________________________________________________________________

DEFENCE

Preliminary:

1.                The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2.                The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

 

3.                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 adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

4.                With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated.  

 

 

MsSLP

Background:

5.                It is admitted that the Defendant is the registered keeper of the vehicle in question. It is admitted that on ***date** the vehicle was at ***location***.  The vehicle was insured with four named drivers permitted to use it.

 

6.                As the registered keeper of the vehicle the Defendant notified the Claimant and the legal representative on no fewer than six occasions prior to commencement of court proceedings, that the Claimant has been informed of the driver’s details.  This included the full name and serviceable address via email, phone and post, in response to letters received from the claimant pursuing this PCN – all of which can be evidenced. 

 

Having provided the name and address of the driver (on numerous occasions, and prior to commencement of court proceedings as prescribed by POFA) the Defendant has no keeper liability under POFA and so it is requested that the claim be struck out.

 

 

The facts as known to the Defendant:

 

7.                The driver at the time had accessed the car park at ***location*** and had stopped in a communal area to load and unload luggage from the vehicle. 

 

8.                The particulars of this claim refer to ***address***  The driver’s partner (a named driver on the vehicle) has held legal title under the terms of a lease to *no* since *year*.  At some point the managing agent contracted with the Claimant company to enforce parking conditions on the estate (a relationship that has since been terminated.)

 

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

 

 

MsSLP

Defence - Authority to Park and Primacy of Contract

 

10.             The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

 

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 Leaseholder is unaware of any such vote having been passed by the residents.

11.             It is denied that the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose leasehold agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. 

 

12.             Even though not a requirement of the Leasehold Agreement - the Car itself was registered with the landowner ***name*** and had been issued with a permit to park on the premises (express permission).  The car park is accessed by means of a fob, which had been provided to the driver by the Leaseholder.  Any vehicle parked therein are , therefore, de facto authorised to be there.

 

13.             Whilst there is reference to terms relating to parking of vehicles, there are no terms within the Lease Agreement requiring lessees to pay penalties to third parties, such as the Claimant for not complying with the erected signs on site.  Nothing in the Leasehold Agreement confers any rights on any person pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

14.             The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

 

15.             Furthermore, as previously stated at the time the alleged contravention took place, the driver was loading and unloading from the vehicle -  Jopson v Homeguard determined in an appeal case that loading and unloading does not constitute parking: 

 

Jopson v Homeguard (case no B9GF0A9E)

 

Paragraph 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 8 © Crown Copyright 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…

 

As this is an appeal judgement this sets the precedence that the legal interpretation of loading or unloading does not constitute parking - that interpretation should be applied in this instance. 

16.             In addition to the definition of loading and unloading being determined, Jopson v Homeguard also established that the lease contained an easement to the entrance of the building the Leasehold Agreement for *address* also includes a similar easement:

Schedule 2 – Included Rights:

Full right and liberty for the Tenant and all persons authorised by him (in

common with all other persons entitled to the like right) at all times and for all purposes

in connection with the permitted user of the Demised Premises to go pass and repass

over and through and along the Common Parts including the main entrances and the

passages landings halls lifts and staircases leading to the Demised Premises but

excluding any balcony terrace or patio forming part of the Building…

17.             Further and in the alternative, if the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

 

18.             The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

 

19.             In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents (and their visitors with their permission) are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

 

20.             Should this charge be proven invalid, ***CPO*** will have breached data protection laws by acquiring the Defendant’s personal information from the DVLA without a legal purpose to do so. In Vidal-Hall v Google Inc. it was established that the misuse of personal data is a tort, and in Halliday v Creation Consumer Finance Ltd, it was determined that a reasonable sum for compensation in such an instance would be £750.

 

21.             Accordingly it is denied that:

 

18.1      there was any agreement as between the Defendant or driver of the vehicle and the Claimant, and

18.2      the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

 

MsSLP

ParkingEye v Beavis is distinguished 

22.             The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

 

23.             In addition, this Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. 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 unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

24.             This finding is underpinned by the Government, who have now stated 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

25.             Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming 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." 

26.             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." 

27.             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, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.  

28.             This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

29.             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. 

30.             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.

31.             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. Those 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

32.             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 liability - the Claimant is put to strict proof of full compliance and liability transferred. 

33.             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.

 

MsSLP

Lack of landowner authority evidence and lack of ADR

34.             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 the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area.  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.

35.             The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - 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 reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

 

Conclusion

36.             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. 

37.             With the DLUHC's ban on the false 'costs' 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 the intimidating pre-action demands. 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.

38.             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.

39.             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))."   

40.             Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

 

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)

 

……………………… (Date)

____________________________________________________________________________________________________

Clarification points:

I have had a bit of a hard time determining where to put the residential aspect of my defence.  I have tried to section it in accordance with both the defence written by the solicitor in this thread and the updated template defence in the Newbies thread, so hoping I have not conflated points. 

I have tried to utilise all the info in the standard defence template in the Newbies thread – but also incorporate the info specific to residential PCNs/  I have therefore removed the later reference to ParkingEye, as the residential defence says it’s not relevant as not the same situation, so didn’t want to contradict that by then citing it in my defence later on. 

Having all this additional info e.g. terms of the leasehold agreement and Jopson to establish loading and unloading, I wasn’t sure where to start with the info about the use of templates (paras 4 & 5 in the defence template) so I put them up the top in the ‘preliminary’.

I didn’t include the reference to the N1 Parking form as I don’t know what the original form said – so didn’t know if this applied in this instance? 

I omitted para 17 (of the newbies thread) under POFA and CRA as I wasn’t sure it applied in this instance as I have not included anything about the signage in the defence. 

In para 20 (in my defence)  I have also included reference to acquiring personal details from the DVLA without a legal purpose to do so (as in because the leasehold agreement isn’t altered by the CPO contract terms) and that this could result in compensation.  Should I include that, and if so, do I then also need to mention it in para 39 – ‘In the matter of costs’?

 

Having read some of the advice re submitting the defence, I’ll wait until the court opens tomorrow to ensure it is received (I’ll set an alarm to do so, as I’m in Australia and 11 hours ahead!) - and should I include the solicitor on the email?

 

Thanks again for all the advice that has been provided so far.