HX Parking - CCBC Claim Form defence now needed

meditate

Ref: HX Parking Ltd and Gladstones Solicitors.

County Court Business Centre - Defence after receiving a Claim Form

Hello,

I missed the opportunity to ask for the SAR from the Claimant at the 'Letter Before Claim' stage - incorrectly thinking that the advice was to 'do nothing till the Claim Form arrives from the County Court'. My complaint to the hospitality company, who is the lease-holder of land, was rejected with them saying they are unable to cancel a PNC.

I am so grateful for this forum and the Template Defence - THANK YOU!

This is my defence (part 3) for scrutiny and comment. It needs to be emailed by 8th October 2022 at the latest.

I am getting confused about what is a 'relevant fact', so I suspect this is too much.

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3. On ****** 2022, the Defendant took his infirm, disabled elderly mother to the ********** for her birthday.

(i) The Defendant saw the big board by the pay machine, which states the cost of parking is £1 per hour, and noticed the car park is “managed and maintained by the landowner” (which he believes to be the Council, who leases the premises to ********** Ltd.), and felt secure that he understood the terms for parking. The assumed reasonableness on behalf of the landowner is evidenced by written statements from the Claimant to the Council, such as “Whilst Highways may have concerns about cause for confusion the tariff is very simple at £1 per hour for each hour spent in the car park, £2 for 2 hours, £3 for 3 hours etc. This minimises the need for the user to look for T&Cs”.

(ii) The Defendant’s mother cannot walk more than a few yards without her zimmer-frame with wheels. She has various ailments, including rheumatoid arthritis in her hips, feet, and back, causing her extreme pain (especially when sitting in a restaurant chair for any length of time).

(iii)  After long delays in service, the Defendant paid for the meal before the end of the 2 hours paid parking and went to the car.

(iv)  It took longer than expected for the Defendant’s mother (supported by her daughter) to hobble out of the premises, to help her (and the zimmer-frame) into the car, and for the car to exit the car park. But, as a genuine customer/user of the establishment, the Defendant felt confident he was not in breach of the terms stated, since he was no longer parked in a parking space (even though the car park was half empty), therefore not stopping others from parking in that space. The Defendant believed, at this point, he was no longer parking, but “picking up” – for which the Claimant told the Council in writing, there is a 30 minute grace period.

(v)  The Claimant told the Council that they “... measure the success of the parking scheme in ensuring sufficient car parking is available for the users of the building.”

(vi)  Furthermore, the car of the Defendant was outside the car parking boundary while waiting for his mother.

(vii) This Defendant has zero prior experience of obfiscated contracts by signage created to 'catch-out' the unwary and vulnerable. The Defendant thinks it makes no sense to assume that the Defendant willingly and with full comprehension, agreed to a contract that stated a £100 PNC then disregarded it in favour of the stress of being hounded to court. Likewise, if the Defendant knew the full ramifications of the alleged contract, he would have paid the £1 to avoid the PNC. The fact that the Defendant did't purchase another ticket is not proof that he wanted to avoid or disregard the alleged contract; simply proof that he didn’t understand the full ramifications of the alleged contract.

(vii) No copy of the alleged contract was sent in reply to the Defendant’s request. Therefore, the Defendant doesn’t know what 'contract' he is defending against. Because of this, the Defendant has no option but to offer a generic defence.

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I have proof (invoice, ticket, photos, pdf of the planning documents mentioned), and I'm assuming these do NOT get sent with this Defence.

Correct?

Thank you for your assistance.

KeithP

Hello and welcome.

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

It is not to late to send a Subject Access Request to the parking company. The information returned will be far more useful at Witness Statement and evidence time rather than for your Defence.

Coupon-mad

I'd get rid of the first paragraph numbered vii (you have two!) and instead replace it with the fact that the passenger was indisputably protected under the Equality Act 2010, and whilst the industry minimum ten minute grace period to leave a car park is sufficient for able bodied drivers hopping straight into their car, it is insufficient for disabled patrons.  In this case, the inflexibility of a non-manned car park has resulted in indirect discrimination.  This is a criminal offence for which there is no excuse that the trader 'didn't know' about a driver or passenger's protected characteristics. This is because indirect discrimination is not about individuals and is, in fact, a failure of the anticipatory duty to consider the needs of the disabled population 'at large' and set in place extended time to set down or pick up disabled persons.  The Claimant is put to strict proof that it met this anticipatory duty.

meditate

Thank you KeithP,

The issue date in the CCCF is 12th Sept 2022. I sent the Acknowledgment of Service via MCOL on 19th Sept.

Great, I shall get onto the Subject Access Request today!

meditate

Thank you Coupon-mad,

Thank you for the reference to the Equality Act 2010

I'll change that paragraph as you suggest and change the numbering.

Greatly appreciated.

meditate

Subject Access Request email sent to dpo@hx-pcn.com

KeithP

meditate said:

The issue date in the CCCF is 12th Sept 2022. I sent the Acknowledgment of Service via MCOL on 19th Sept.

With a Claim Issue Date of 12th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 17th October 2022 to file your Defence.

That's three weeks away. Plenty of time to produce a Defence and it is good to see you are not leaving it to the last minute.

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'.

meditate

Here is the updated Defence for any comment or suggestion. Thanks.

3. On ****** 2022, the Defendant took his infirm, disabled elderly mother to the ********** for her birthday.

(i) The Defendant saw the big board by the pay machine, which states the cost of parking is £1 per hour, and noticed the car park is “managed and maintained by the landowner” (which he believes to be the Council, who leases the premises to ****[hospitality company]****** Ltd.), and felt secure that he understood the terms for parking. The assumed reasonableness on behalf of the landowner is evidenced by written statements from the Claimant to the Council, such as “Whilst Highways may have concerns about cause for confusion the tariff is very simple at £1 per hour for each hour spent in the car park, £2 for 2 hours, £3 for 3 hours etc. This minimises the need for the user to look for T&Cs”.

(ii) The Defendant’s mother cannot walk more than a few yards without her zimmer-frame with wheels. She has various ailments, including rheumatoid arthritis in her hips, feet, and back, causing her extreme pain (especially when sitting in a restaurant chair for any length of time).

(iii)  After long delays in service, the Defendant paid for the meal before the end of the 2 hours paid parking and went to the car.

(iv)  It took longer than expected for the Defendant’s mother (supported by her daughter) to hobble out of the premises, to help her (and the zimmer-frame) into the car, and for the car to exit the car park. But, as a genuine customer/user of the establishment, the Defendant felt confident he was not in breach of the terms stated, since he was no longer parked in a parking space (even though the car park was half empty), therefore not stopping others from parking in that space. The Defendant believed, at this point, he was no longer parking, but “picking up” – for which the Claimant told the Council in writing, there is a 30 minute grace period.

(v)  The Claimant told the Council that they “... measure the success of the parking scheme in ensuring sufficient car parking is available for the users of the building.”

(vi)  Furthermore, the car of the Defendant was outside the car parking boundary while waiting for his mother.

(vii) The passenger is protected under the Equality Act 2010, and whilst the industry minimum ten minute grace period to leave a car park is sufficient for able bodied drivers hopping straight into their car, it is insufficient for disabled patrons and the inflexibility of a non-manned car park has resulted in indirect discrimination. A criminal offence for which there is no excuse that the trader 'didn't know' about a driver or passenger's protected characteristics. This is a failure of the anticipatory duty to consider the needs of the disabled population 'at large' and set in place extended time to set down or pick up disabled persons.

(viii) No copy of the alleged contract was sent in reply to the Defendant’s request. Therefore, the Defendant doesn’t know what 'contract' he is defending against. Because of this, the Defendant has no option but to offer a generic defence.

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The rest of the defence is the template provided on this site, without change.

Thanks for reading. You are greatly appreciated.

Coupon-mad

I'd get rid of (viii) because this isn't a generic defence.

What do you mean by this, where did the Claimant say this?

"the Claimant told the Council in writing, there is a 30 minute grace period.

(v)  The Claimant told the Council that they “... measure the success of the parking scheme in ensuring sufficient car parking is available for the users of the building.”

meditate

Coupon-mad said:

What do you mean by this, where did the Claimant say this?

"the Claimant told the Council in writing, there is a 30 minute grace period.

(v)  The Claimant told the Council that they “... measure the success of the parking scheme in ensuring sufficient car parking is available for the users of the building.”

Thank you for asking for clarification.

These quotes are from statements on public record as part of HX Parking Management Ltd planning application in response to questions from Council officials. I have pdf copies of the documents I fetched from online via the council planning website.

The two you mention are in response to an objection to the planning permission from Taxi drivers in the area. On the 12th January 2022 HX write:

"After discussions with the site owners and in understanding the range of the Dome’s customers, HX has offered a 30-minute grace period to operate at the car park."

The last paragrph of the same response states:

"Emphasis is on the grace period being used purely for drop off/pick up purposes for customers of the Dome and is not intended for use by vehicles to receive free parking. HX Car Park Management and the site owner will monitor car park use to measure the success of the parking scheme in ensuring sufficient car parking is available for the users of the building."

On alleged 'contract signage' (not the big board next to the payment meter), it states "YOU MUST MAKE A VALID PAYMENT FOR YOUR FULL PARKING DURATION WITHIN 10 MINUTES OF ENTERING THE CAR PARK."

Thanks!

Coupon-mad

Ok, I suggest you explain that in the defence.