Private Parking Solutions claiming x2 PCNs of £100, x2 £70 admin and £92 interest!

exresident_privateland

Hello there, 

I have spent the day looking through the newbies forums so thank you for this wealth of helpful information. 

Before I post a draft of my defence, I wonder if anyone can help give me a sense of what from my story I should highlight?

In April 2019 I parked outside a place I used to live to go to a 2 day event with friends from my old place. It's a warehouse conversion style residence on a road that is on private land (this is not a council PCN) – a kind of industrial / local retail estate. The road was never parking controlled when I lived there a couple of years back. I arrived in the night and because of the size of my van, the van itself obscured the sign. (it's a luton). There are more signs about 10 metres in either direction but they are quite small and certainly not the yellow and black type, and there are street lights but I didn't notice them. 



I came back from the event 2 days later to find 2 tickets on it. 

When the letters started coming through, I was still under the impression (having not seen this forum for a long time) that the 'ignore' option was still a viable strategy. 
Seeing all the threads today I guess it's good to know that this strategy is not viable any more! Anyway, they sent the same chain as I see in many other posts.

But then weirdly a letter they sent in Autumn 2019 had the date and something out scrubbed out as in the pic below (you see the D and V at the top?)

 

I then didn't hear anything from them until april this year (I guess because of Covid?) when they sent the 'letter before claim'. Still under the impression to "ignore ignore ignore", I did so!

Recently I received the claim form for the CCBC which says Private Parking Solutions and Gladstones are seeking £100 pounds per PCN, £70 per "PCN contractual costs pursuant to the Contract and PCN terms and conditions"  as well as £92.92 in interest! This comes to over 500 pounds including the court fee and legal reps costs (both 50)!

So questions: 

So I'm wondering what out of my story do you think I should highlight to win this case as there is no way I can afford to pay this (I am on UC and wageless at the moment).

All help is greatly appreciated!



 

Coupon-mad

Welcome!

What's the issue date on the claim, top right?

When does your MCOL record say you did the AOS online, as coached in the NEWBIES thread?

Have you read the Template Defence sticky and realised you only need to write one extra paragraph or so?

Ed2022

What is the date on the CCBC?
The newbie post re when to AOS then having 28 days for a defence using the template.
Can you park outside your place? Is there anything in the tenancy contract etc?

exresident_privateland

Thanks for the replies! the date on the CCBC says 13 oct, so I was going to put in an AOS tomorrow as I just want to be done with it tbh and feel there's no advantage to using all the time I can get for a defence. I have indeed read the template sticky (v helpful thanks). So the extra paragraph would be about... the fact that I used to live there? Basically there are parking spaces at the old place but vehicles used to park on the road when those were taken. I don't think there was anything in the tenancy contract about parking (it was quite informally arranged) but it was a few years back now so I honestly can't remember. 

So in theory, if I add the part about living there, it was dark, I left for 2 days etc, you think I'll be ok?

Ed2022

@KeithP, i hope you don't mind.

The AOS should or would be approximately 01/11/2022 and defence by 4pm 15/11/2022. 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'.

Were you entitled to park there? Can you not chase the landlord or agency to cancel this. Similar cases that people have received a PCN for parking in their own spot and a similar statement in their tenancy agreement.

The DS is what happened on the day, more of a statement of facts of the event.

Le_Kirk

The extra paragraph would be about why you refute what it states in the POC on the N1 claim form.  Add in signage, it was dark, there were not enough signs, when you lived there it was free, there were no large advisory signs telling local residents (or even ex-residents) that things had changed.

exresident_privateland

Hi all. Thanks again for your responses. I have now put together the following defence. I wonder if anyone could take a look at it and suggest any amendments before I send it in. So just to let you know, the landlord I'm talking about did say I could come park there, but the place I parked just across the street is owed by someone different (the ones who employ parking eye). They are apparently impossible to get hold of so getting it cancelled through them is not an option. 

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 and driver of the vehicle in question.

3. The defendant arrived in their vehicle to their previous residence in the |||||||||||||| late at night (10.30pm) on Sunday the 14th April, 2019. After parking, the defendant left to go to a two-day event in Central ||||||||||||||. On returning the defendant was surprised to find two separate PCNs issued by the Claimant placed on the defendant’s windscreen.

4. The landlord of |||||||||||||| granted verbal permission for the defendant to park in the previously uncontrolled area. The defendant was not aware at the time of parking that their previous residence’s road had become controlled. There were no large advisory signs alerting residents to this change nor did any other residents (or landlord of ||||||||||||||) seem to be aware of this change.

5. Signage at the time of parking was obscured by multiple large vehicles parked together on the road.

6. Light conditions at the time of parking were poor and the (obscured) signage was small, with text in a small font size that even in daylight the defendant found hard to read.

7. 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. 

8. 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.  

9.  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'.

10. 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: ||||||||||||||

11. 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." 

12. 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." 

13. 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.  

14. 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.

15. 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. 

16. 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.

17. 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

18. 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. 

19. 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.

20. 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.  In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. 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 dealing and good faith. 

 

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

21. 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 be determined on their own facts.  That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.

22. 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 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 any 'concealed pitfalls or traps'.

23.  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.  It was unsurprising that she did not see the sign, 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).  

24. 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 landowner authority evidence and lack of ADR

25. 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.

26.  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

27. 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. 

28. 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.

29. 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. 

30.  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.

exresident_privateland

Hi there just an update to my case and some questions:

I received notice that that the case has been successfully allocated to the small claims track and I now have a hearing date in a couple of weeks. Tomorrow is the last day to file a witness statement (WS). But I have no idea whether the case has been struck out or not as the original letter from the court stated that the claimant needed to pay the court fee by 11 April. The magistrates court in question is actually impossible to get hold of as they never pick up their phones so I have no way of knowing whether the hearing date is confirmed. 

I also have not received a WS from the claimant.

I'm assuming I should just prepare the WS anyway even though this is going to at least take me all day today and probably much of tomorrow. 

Anything I'm missing here? 

Boat_to_Bolivia

You need to prepare and submit your WS by 4pm tomorrow.

Latest exemplar WS are by @aphex007 and @SJRRJS.

exresident_privateland

ok will do

KeithP

exresident_privateland said:

I'm assuming I should just prepare the WS anyway even though this is going to at least take me all day today and probably much of tomorrow. 

You make it sound like the need for a Witness Statement has suddenly appeared.

I suggest that you have known for weeks that a witness statement was needed and by what date it was needed.
Don't forget to file and serve all your evidence with your witness statement.