Old Claim Form for unpaid PCN for incident over 3 years ago

Troublesum1

Coupon-mad said:

Aagh, it does say that!  Sorry!  No need though...

That NTK is a 'POFA' one so it does use keeper liability (the red bit).  So you are right to have removed the stuff you did.

Lovely, thanks again I appreciate you checking over it! I think I'm going to submit this I don't want to miss the deadline to submit. Here is my full defence. I do not expect anyone to read it it's here just for info:

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 of the vehicle in question but liability is denied. The identity of the driver at the material time is unknown to the Defendant. The Defendant was not the only insured driver of the vehicle in question and is unable to recall who was or was not driving on that unremarkable day, almost four years ago.. 

3.  Defendant does not recall the PCN in question nor any correspondence related to the PCN. Defendant kept spare key for car with VRM XXXXXX, which was accessible by many family members and close friends. The location of the incident, XXXXXX, was the Defendant's place of residence so any driver could have plausibly parked the vehicle in an attempt to return the vehicle to the owner.

3.1. The tenancy agreement the Defendant signed with operator of the premises states that the Defendant was unable to apply for a council parking permit which in turn forced the Defendant to have to pay for the operator's parking permit if the Defendant wanted to park their vehicle in a reasonable distance to their place of residence. The Defendant was told no parking permits were available at the time of signing the tenancy agreement in March 2018 and was subsequently put on the waiting list. The defendant did not receive this parking permit until December 2019 over 18 months later. The operator clearly did not act professionally, failing to provide the parking permit in a reasonable amount of time. The defendant notes during this period the car park itself was generally under capacity and made several remarks about this to the operator. The operator has acted unfairly by delaying this paper permit for no good reason and not providing any alternative to accommodate a genuine resident with willingness to pay for the permit.

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  The Defendant should not be criticised for using some pre-written wording from a reliable source.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed it after a great deal of research, after adding facts and reading the defence through several times because the court process is outside of their life experience and this claim was an unexpected shock.

5.  With regard to template statements, the Defendant observes after researching other parking cases, that the Particulars of Claim ('POC') set out a generic and incoherent statement of case.  Prior to this and in breach of the pre-action protocol for 'Debt' Claims, there were no photos nor a copy of the contract (sign) enclosed with any Letter of Claim.  The POC is sparse on detail or facts about the alleged breach, making it difficult to respond in depth at this time.

6. The Defendant does recall receiving multiple "debt collection" letters over the years that can only be described as extremely threatening and harassing in nature from multiple different senders (there was always a different name/company). The letters all appeared to demand immediate action on the part of the Defendant and gave rise to the feeling that they must be part of some sort of scam. It felt like the Defendant was being harassed in to hastily handing over money (with ever changing amounts) in order to avoid further costs down the line, court visits and an impending CCJ that would impact on the Defendant livelihood. The Defendant ignored these threatening “Debt Collection” type letters believing that they could be part of a scam.

7.     The quantum and interest has also been enhanced.  It is denied that the sum sought is recoverable and a significant chunk of this claim represents a penalty, per the authority from two well-known ParkingEye cases.  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet here, the learned Judge also considered added 'costs'.  The parking charge was set at £75 (discounted to £37.50 for prompt payment) then 'admin costs' inflated it to £135.  At paras 419-428, HHJ Hegarty sitting at the High Court (decision ratified by the CoA) found that adding £60 to enhance the sum sought to £135 'would appear to be penal', i.e. unrecoverable.

8.  The Defendant's stance regarding this punitive add-on is now underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators must comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

9.  Adding 'debt recovery' costs, damages or fees (however described) on top of a parking charge is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

10.    This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs.  The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 or £70 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking.  Clearly an abuse of the court process.

11.  The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue.  According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'.  This despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and exposed as fact, in its published Response to the Technical Consultation (also on 7/2/22) 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 and are effectively Trade Body Board member colleagues passing motorists' data around electronically and inflating parking charges.  This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

12.   The Ministerial Foreword to the new Code 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. These are now banned costs which the Claimant has neither paid nor incurred, and were not quantified in prominent lettering on signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists, and came far to late.  The driver did not agree to it.

14.  Whilst the new Code is not retrospective, it was brought in due to the failure of the previous two competing (self-serving) BPA & IPC codes of practice and the Ministerial Foreword is indisputably talking about existing cases when declaring the add-on to be 'designed to extort money'. A clear steer for the Courts from now on.

15. This overrides the mistakes and presumptions in the appeal cases that the parking industry had been relying 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 or assisting with clarifying the law, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in niche private parking law and where the litigant-in-person consumers had no financial wherewithal to appeal further.

Troublesum1

16. In case this Claimant tries to rely upon those old cases, significant errors were made.  Evidence - including unclear signage and Codes of Practice -was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC.

17.   The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

18.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

POFA and CRA breaches

19.  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 the other requirements (e.g. adequate signage, correct wording and dates of Notice to Keeper, and the existence of a relevant contract/relevant obligation that was properly communicated).  The Claimant is put to strict proof of full compliance, if seeking keeper/hirer liability under the POFA, because liability is not accepted by the Defendant. 

20.   Claiming unexpected ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the official Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA goes further than the UTCCRs, introducing a requirement for 'prominence' of both contract terms and 'consumer notices' (i.e. signage and any other notices/communications, including the timely service of any PCN in parking cases).

21.   Section 71 provides for the duty of court to consider the test of fairness. This includes whether all terms and notices were unambiguously and conspicuously brought to the attention of the consumer.  In the case of letters/the PCN, this means such communications must have been served.   In the case of signage, this must be prominent, plentiful, well placed and lit, and the terms clear and unambiguous.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and having regard to the requirements for transparency and good faith and as guidance, examples 6, 10, 14 & 18 of Schedule2.  

 

ParkingEye v Beavis is distinguished

22.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 PCN and overcame the possibility of it being dismissed as punitive.  However, their Lordships were clear that ‘the penalty rule is plainly engaged’ in these cases.  Their decision mentioned a 'unique' set of facts including the legitimate interest, site location and prominent, clear signs with the parking charge in the largest/boldest text.  The unintended consequence is that, rather than persuading Judges that these charges are automatically justified, the Beavis case facts (and in particular, the brief and conspicuous yellow/black warning signs) set a high bar that this Claimant has failed to reach.

23.   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.  

24.  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 a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests.

25.   The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding any person reading them.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

26.  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, 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 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.  The CoA held that it was unsurprising that Miss Vine did not see the sign, due to "the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in statements, they have misled courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio.  

27. Fairness and clarity of terms and 'consumer notices' are paramount in the new statutory Code and this stance is supported by the BPA & IPC Trade Bodies.  In the 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 ADR

28. The Defendant further avers that the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR).  Both the rival parking Trade Bodies provided 'appeals services' which reportedly fail to consider facts and rules of law properly, and find in favour of parking firms most of the time: e.g. despite purporting to be decided by legally qualified Adjudicators, the IPC's version upheld appeals in just 4% of decided cases, as reported in their 2020 Annual Report.  Both POPLA and the IAS will be replaced by the DLUHC's new Appeals Service as soon as possible and looking at the Appeals Annex in the new Code, disputed cases such as this would very likely have been cancelled without the need for court, had a proper ADR existed.  The fact is, there was no fair ADR on offer and - whether or not a defendant engaged with it - the Claimant's reliance upon it is not something that should sway the court into a belief that a fair process was followed before litigation.

29.  In the matter of costs, the Defendant asks:

(a) for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that, in the event of a late Notice of Discontinuance (which the Defendant is aware happens where parking firms use and abuse the court process as a cheap form of debt collection) any paid-for hearing is not vacated but continues as a costs hearing. The Defendant may seek a finding of unreasonable conduct by this Claimant, and may seek costs pursuant to CPR 46.5.  CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but 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))." 

 

Conclusion

30.  The abusive conduct by parking firms operating under previous Codes (described by several District Judges as 'self-serving') has caused consumer harm on a grand scale.  The Defendant believes that knowingly inflated claims such as this should not be allowed to continue, and invites the court to dismiss the false 'costs' element at least, and to consider whether an appropriate sanction is to resume the policy of striking out enhanced parking claims altogether.  With the DLUHC's ban on additional costs, there is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCS to only deal with the tiny percentage of cases that reach hearings and to allow such claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers every year, who suffer inflated CCJs or pay more than they should at or before Letter of Claim stage.

31.   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. 

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

Looks fine to me.  See you back here for the Public Consultation, coming soon.

UK motorists need you to help us make a difference forever.  What a waste of your time this is, and why should there be such a litigation culture in parking?

It's truly horrible being pursued for £100 plus false 'fees' for no reason, by an ex-clamper aggressive firm, isn't it?   Join us in trying to end the conniving PPC and DRA 'added fees' fuelling the court culture. There will be one window of opportunity very soon, likely early this year.

Together, we can stop the rotten parking industry from riding roughshod over the new statutory Code and the charge level caps, and otherwise bullying all motorists forever, using the regulation to gain kudos and status.

If you are not likely to pop back here every week to check, please set up email alerts for this forum and bookmark this thread (below) as we intend that one of us posts on it when the Government opens the Consultation:

https://forums.moneysavingexpert.com/discussion/6333989/mse-parking-ticket-appeals-guide-feedback#latest

Read only the latest (2022) posts there.

The PPC money-grabbers have blocked the new Code by filing for Judicial Reviews.  Stopped the much welcomed parking code from February 2022, which stated that added £60 or £70 false 'DRA fee' extortion was to be banned and that parking levels would start at £50.

It's all on hold...

Motorists urgently need the statutory Code reinstated and the ban on false 'DRA fees' confirmed, to stop the toxic litigation culture.

This will be your chance to make a difference, plus other drivers you know (family, friends) who are also fed up with greedy and unscrupulous parking firms and the stranglehold they and their 'legals' have on people.

We need VERY high numbers of real victims to make a point of responding to this final Consultation.

Coming soon....and it will be all over the forum for weeks.

Troublesum1

Coupon-mad said:

Looks fine to me.  See you back here for the Public Consultation, coming soon.

UK motorists need you to help us make a difference forever.  What a waste of your time this is, and why should there be such a litigation culture in parking?

It's truly horrible being pursued for £100 plus false 'fees' for no reason, by an ex-clamper aggressive firm, isn't it?   Join us in trying to end the conniving PPC and DRA 'added fees' fuelling the court culture. There will be one window of opportunity very soon, likely early this year.

Together, we can stop the rotten parking industry from riding roughshod over the new statutory Code and the charge level caps, and otherwise bullying all motorists forever, using the regulation to gain kudos and status.

If you are not likely to pop back here every week to check, please set up email alerts for this forum and bookmark this thread (below) as we intend that one of us posts on it when the Government opens the Consultation:

https://forums.moneysavingexpert.com/discussion/6333989/mse-parking-ticket-appeals-guide-feedback#latest

Read only the latest (2022) posts there.

The PPC money-grabbers have blocked the new Code by filing for Judicial Reviews.  Stopped the much welcomed parking code from February 2022, which stated that added £60 or £70 false 'DRA fee' extortion was to be banned and that parking levels would start at £50.

It's all on hold...

Motorists urgently need the statutory Code reinstated and the ban on false 'DRA fees' confirmed, to stop the toxic litigation culture.

This will be your chance to make a difference, plus other drivers you know (family, friends) who are also fed up with greedy and unscrupulous parking firms and the stranglehold they and their 'legals' have on people.

We need VERY high numbers of real victims to make a point of responding to this final Consultation.

Coming soon....and it will be all over the forum for weeks.

Thanks coupon, I've done as you've said and I will definitely be checking back weekly at the very least!

I have now submitted my defence, received my acknowledgement. I am now waiting for my Directions Questionnaire. Am I good to wait for this given I have submitted my defence on time or should I download the Directions Questionnaire now and try to submit that also before 4pm? Thanks all

KeithP

Troublesum1 said:

Coupon-mad said:

Looks fine to me.  See you back here for the Public Consultation, coming soon.

UK motorists need you to help us make a difference forever.  What a waste of your time this is, and why should there be such a litigation culture in parking?

It's truly horrible being pursued for £100 plus false 'fees' for no reason, by an ex-clamper aggressive firm, isn't it?   Join us in trying to end the conniving PPC and DRA 'added fees' fuelling the court culture. There will be one window of opportunity very soon, likely early this year.

Together, we can stop the rotten parking industry from riding roughshod over the new statutory Code and the charge level caps, and otherwise bullying all motorists forever, using the regulation to gain kudos and status.

If you are not likely to pop back here every week to check, please set up email alerts for this forum and bookmark this thread (below) as we intend that one of us posts on it when the Government opens the Consultation:

https://forums.moneysavingexpert.com/discussion/6333989/mse-parking-ticket-appeals-guide-feedback#latest

Read only the latest (2022) posts there.

The PPC money-grabbers have blocked the new Code by filing for Judicial Reviews.  Stopped the much welcomed parking code from February 2022, which stated that added £60 or £70 false 'DRA fee' extortion was to be banned and that parking levels would start at £50.

It's all on hold...

Motorists urgently need the statutory Code reinstated and the ban on false 'DRA fees' confirmed, to stop the toxic litigation culture.

This will be your chance to make a difference, plus other drivers you know (family, friends) who are also fed up with greedy and unscrupulous parking firms and the stranglehold they and their 'legals' have on people.

We need VERY high numbers of real victims to make a point of responding to this final Consultation.

Coming soon....and it will be all over the forum for weeks.

I have now submitted my defence, received my acknowledgement. I am now waiting for my Directions Questionnaire. Am I good to wait for this given I have submitted my defence on time or should I download the Directions Questionnaire now and try to submit that also before 4pm? Thanks all

Wait patiently for you own DQ to be sent you by the CCBC.
You MCOL Claim History will advise you when it is on its way.

Don't forget that checklist you were following. It has guidance about the next steps.

Coupon-mad

If you send the DQ too soon it will be chucked out.

Troublesum1

I've just realised in my rushing I've made an error. I've not added the header in the template to my defence pdf, this part:

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to driver now)                        

 (Defendant)

_________________

DEFENCE

My defence pdf does at least start with the claim number with the word "Defence" written next to it. Is it worth sending a second version with this header added or is it a waste of time given the deadline has now passed? 

Coupon-mad

Ring up the CCBC and check it is OK.  It might take them an hour to answer.

Troublesum1

Good evening all,

I've had updates on my 2 ongoing cases in the last month or so, it has been an incredibly busy and stressful time for me so I'm only just getting round to updating you all now. 

Last week at some point I received a pack with a covering letter titled, "Notice of Proposed Allocation to the Small Claims Track". It says I must complete the Small Claims Directions Questionnaire (Form N180) and file it with the court office by 20th April 2023. I've followed direction from the forum on how to fill the form and I've now filled it out. If I understand correctly I must now send this via mail the Northampton County Court and also Spring Parking Ltd.

In my mind I am going to photocopy the form I've just filled out and send the Directions Questionnaire by post to:
1) Northampton County Court
2) Spring Parking Ltd

Spring Parking LTD
PO Box 77282
London
NW4 9LR

I am also going to email a copy to Spring Parking Ltd using this email address info@springparking.co.uk

Not sure whether that's the right physical address for them, would be grateful if anyone could advise. 

As always, thank you all for your continued help.

KeithP

In my post on your thread on 25 January at 4:51PM I wrote...

KeithP said:

Don't forget that checklist you were following. It has guidance about the next steps.

Why not continue to follow the guidance in that checklist you were using earlier?

Here again are items 9 and 10 from that list...