Private Parking Court Claim - No sign at the entrance and lack of illumination in dark

_Freedom_Fighter_

Hello all,

I read and followed the advice from the NEWBIES thread and now that I've got a court claim I've completed AOS on MCOL and prepared the defence below. Please let me know if it is good to go or suggest any changes. Thank you, any input will be greatly appreciated. Looking forward to hearing from you.

DEFENCE 

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 and the driver.

3. There was no sign at the entrance of the car park which meets the minimum standards under the IPC Code of Practise to state the terms of parking. As a result, the driver cannot be liable for breach of contract where none was established. The IPC Code of Practise has guidelines for signage and is defined in Schedule 1 which states: “Entrance signs should: a) make it clear that the Motorist is entering onto private land; b) refer the Motorist to the signs within the Car Park which display the full terms and conditions. Signs should where practicable, be placed at the entrance to a Car Park. Otherwise, the signage within the Car Park must be such as to be obvious to the Motorist.”  In a court case of PACE v Lengyel (Claim Number C7GF6E3R), in the County Court of Manchester the claim got struck out as the judge ruled that it is important element that the signs inform the driver that he is entering into a contract and if the correct signage is not in place a contract has not been entered. As this would be a consumer contract, it must be ‘fair’ under paragraph 62 of the Consumer Rights Act 2015. As the Supreme Court held in ParkingEye Ltd v Beavis 2013 EWCA Civ 1539 and [2015] EWCA Civ 402, the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice. Therefore, the failure to adhere to the IPC guidelines on adequate signage which is required to form contract, the claim is unenforceable.

4. It was dark, and the sign was not lit or illuminated. Enforcing charges in a dark place where the signs are not clear is unfair. The signage was not well illuminated and not possible to see in dark conditions by the driver. On ‘Contrast an Illumination’ the IPC Code of Practice provides guidance which states that: “If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. Appropriate illumination can be achieved in a variety of ways for example: 1. ensuring sufficient ambient lighting; 2. using reflective material on signage; 3. positioning signs where headlights are likely to illuminate them.”  Failure to make the terms clear to motorists means the terms are unfair under the requirement for transparency. The Consumer Rights Act 2015 states: “68 Requirement for transparency: (1) A trader must ensure that the written term of a consumer contract or a consumer notice in writing is transparent. (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language, and it is legible.” As the signage was not possible to read during the poor lighting, the driver cannot be deemed to have entered a contract. The operator is therefore relying on unfair terms and as the signage was illegible, the claim is unenforceable. 

1505grandad

Who is the claimant?

Le_Kirk

Far too wordy for a defence,  keep to the bare facts as a short, punchy set of legal/technical arguments and save the story for the witness statement. In paragraph #3 you state there was no sign but in the following paragraph it mysteriously appears but with no illumination! 

KeithP

_Freedom_Fighter_ said:

Hello all,

I read and followed the advice from the NEWBIES thread and now that I've got a court claim I've completed AOS on MCOL and prepared the defence...

Hello and welcome.

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

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Coupon-mad

'Practise' is a verb, so that's incorrect.  Should be:

Code of Practice

_Freedom_Fighter_

Thanks all for you input. Please find answers to the questions below:

@1505grandad The claimant is CPM.

@Le_Kirk I will revise the defence to make it less wordy. Just to note that I'm talking about lack of signage at the entrance to the car park and one non-illuminated sign inside the car park. I've collected photographic evidence to prove it.

@KeithP The date of issue is 06/01/23 and I filed AOS on 20/01/2022 so I must submit my defence by 08/02/23.

@Coupon-mad Noted, thank you. 

Le_Kirk

Signage (or lack of it) is a very good defence point; providing you introduce it in the defence, you can go to town with the story and the evidence in the witness statement later in the process.

KeithP

_Freedom_Fighter_ said:

@KeithP The date of issue is 06/01/23 and I filed AOS on 20/01/2022 so I must submit my defence by 08/02/23.

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

With a Claim Issue Date of 6th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 8th February 2023 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence and it is good to see that 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'.

_Freedom_Fighter_

Morning @Le_Kirk, could you please let me know if you think this is now lest wordy and therefore good to go? Thanks a lot. 

DEFENCE

 

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 and the driver.

3. There was no sign at the entrance of the car park which meets the minimum standards under the IPC Code of Practise to state the terms of parking. As a result, the driver cannot be liable for breach of contract where none was established. The IPC Code of Practise has guidelines for signage and is defined in Schedule 1 which states: “Entrance signs should: a) make it clear that the Motorist is entering onto private land; b) refer the Motorist to the signs within the Car Park which display the full terms and conditions. Signs should where practicable, be placed at the entrance to a Car Park. Otherwise, the signage within the Car Park must be such as to be obvious to the Motorist.”  Therefore, the failure to adhere to the IPC guidelines on adequate signage, which is required to form the contract, the claim is unenforceable.

4. It was dark, and the sign inside the car park was not lit or illuminated. Enforcing charges in a dark place where the signs are not clear is unfair. The signage was not well illuminated and not possible to see in dark conditions by the driver. On ‘Contrast an Illumination’ the IPC Code of Practice provides guidance which states that: “If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. Appropriate illumination can be achieved in a variety of ways for example: 1. ensuring sufficient ambient lighting; 2. using reflective material on signage; 3. positioning signs where headlights are likely to illuminate them.”  Failure to make the terms clear to motorists means the terms are unfair under the requirement for transparency. As the signage was not possible to read during the poor lighting, the driver cannot be deemed to have entered a contract. The operator is therefore relying on unfair terms and as the signage was illegible, the claim is unenforceable. 

Le_Kirk

In my opinion you only need to introduce the fact of "no sign outside" under the IPC code of practice and lack of illumination on the sign inside and then, in the witness statement, you provide the reasoning (evidence) by giving the relevant clause in the CoP.

Coupon-mad

Coupon-mad said:

'Practise' is a verb, so that's incorrect.  Should be:

Code of Practice

As above...again!