PCN residential address WS stage vs UKCPM/gladstones

Coupon-mad

If it's a Gladstones case and about your own home car park @manooo just wrote an exemplar defence (with pictures in it) today here:

https://forums.moneysavingexpert.com/discussion/6368024/8-pcns-from-premier-park-passed-to-rdp/p1

Don't stop at their first draft, obviously!

AND remember it is based on the Template Defence so it is in total a good 40 paragraphs.

AND don't send it to the CCBC Northampton either.

taleb

I'm struggling to find information about the process of submitting the defence post setting aside of a CCJ.
As I understand it, I need to send my defence both to the court and the claimant
But how do I do that? For the court, I've been dealing with them via email, so do I just send my defence as an attachment in an email?
Can I also email the claimant? or do I post the defence to them.
Any help would be much appreciated.
Thank you

B789

You send your documents as PDF attachments to both the court and the claimant (or their solicitor, if they're using one). Ideally, address a single email to both the court email address and the claimant/solicitor email address. Also CC in yourself so that when you receive the email, you have proof of having sent it.

Coupon-mad

Just email the local court & cc in the solicitor.

taleb

thanks @Coupon-mad and @B789
I'll start drafting the defence and post here for your input

taleb

here's my first attempt at the defence, based on the defence template and @manooo's defence.
I would appreciate any feedback and have a couple of questions:

• can I attach my old tenancy agreement as an exhibit, or does it have to be part of the defence document

• do I mention that I had the old visitor permit (from the previous operator) in the car, and is visible in one of their pictures

• do I mention that the agreement they mention with the freeholder had a schedule for delivering the permits, which they did not respect (they were supposed to deliver them in november, but we only got them in december, two days before the PCN)

• do I mention anything about the default judgement?

here's the defence:

IN THE COUNTY COURT

Claim No.:  XXXXXXX

Between

XXXXXXXXXXXX

(Claimant) 

- and -  

XXXXXXXXXXX

 (Defendant)

_________________

DEFENCE

 

1.     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 in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability'.

The facts known to the Defendant:

2.     The facts in this defence come from the Defendant's own knowledge and honest belief. I will make reference to exhibits from the claimant’s witness statement, henceforth referred to as Claimant’s Exhibits.

It is admitted that the Defendant was the registered keeper of the vehicle at the time of the contravention, but liability is denied.

3.     The Defendant was a resident of the block of flats at XXXX, XXX where the car park is situated on the date of the contravention. The car parking area contains unallocated parking spaces demised to the residents and their guests via the leasehold.

4.     On the 19th of December 2018 the Claimant proceeded to issue a parking charge notice as the Defendant’s vehicle was allegedly in breach of the terms of parking at XXX which the Defendant strongly denies all liability to.

5.     Under the terms of the Defendant's tenancy agreement (See Exhibit 1), references are made to the usage of parking spaces in section “3.15” of the lease titled “Use of the property", under clause “3.15.14”, which the Defendant expressly notes that none of the conditions of the lease were breached.

6.     The claimant relies on the agreement with the freeholder (Claimant Exhibit GS-1) to assert the right to issue PCNs in relation to vehicles parked in breach of the terms and conditions. The said agreement states that: (i) permit holders (and visitors) only, (ii) no parking outside of a designated area.

·       The defendant, being a resident, was a permit holder, a fact never contested by the claimant, and asserted by the defendant in their original appeal against the PCN.

·       As the claimant’s own photos show (Claimant Exhibit GS-4), the vehicle is parked within a designated area.

·       Hence, it is asserted that the Defendant, at all material times, parked in accordance with the terms and conditions. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

 

7.     The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

        (i).   a strong 'legitimate interest' extending beyond mere compensation for loss, and

       (ii).   'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

 

8.     The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

9.     The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:

        (i).   the alleged breach, which is not pleaded in the POC and requires further and better particulars, and

       (ii).   a breakdown of how they arrived at the enhanced sum in the POC, including how interest was calculated, which looks to be improperly applied on the entire inflated sum, as if that was all overdue on the day of the alleged event.

 

10.  The Defendant avers that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

 

11.  This case is a classic example where adding exaggerated fees funds the 'numbers game' of bulk litigation of weak and/or archive parking cases.  MoJ statistics of bulk litigators reveal that there are several hundred thousand parking claims per annum, with some 90% causing default CCJs totalling hundreds of millions of pounds.  No checks and balances are likely to have been made to ensure facts, merit or a proper cause of action (given away by the woefully inadequate POC).

 

 

12.  The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "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.  Despite legal challenges delaying the Code - marked as temporarily withdrawn - it is thankfully 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis exposes what they say are industry-gleaned facts about supposed 'fees'. The analysis is found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

 

14.  Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of what the former calls debt recovery or 'enforcement' ( = pre-action) stage totals a mere £8.42 per case (not per PCN).

 

15.  With that in mind, it is clear that the extant claim has been enhanced by an extreme sum, believed to be routinely retained by the litigating legal team, not the Claimant.  In this Claim it is additional to the intended 'legal representatives fees' cap set within small claims track rules.  This conduct has been examined and found - including in a detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery'. The Defendant takes that position.

 

16.  The draft IA shows that the intimidating letter-chains actually cost 'eight times less' than the seemingly 'price-fixed' +£70 per PCN. This causes consumer harm in the form of almost half a million wrongly-enhanced CCJs each year, that District Judges are powerless to prevent.  This false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who suddenly aligned in 2021 re allowing +£70, each led by a Board of the very parking operators and debt firms who stood to gain from it. 

 

17.  It is denied that the purported damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  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 (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of template letters and 'would appear to be penal'.

 

18.  This Claimant has not incurred costs. A parking charge model already includes what the Supreme Court called an 'automated letter-chain' and it is a model that generates a healthy profit.  In Beavis, there were 4 pre-action letters/reminders and the £85 'PCN' was held to more than cover the minor costs of the operation.  The DLUHC's IA confirms that the parking charge more than covers the minor costs of the letters (NB: the debt collectors do not charge anything in failed collection cases).

 

19.  Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged by the parking industry. The 2022 DLUHC Code will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  In a clear steer for the Courts and for the avoidance of doubt: the DLUHC say they are addressing 'market failure'.

 

20.  In addition, 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.  Further, the Claimant is put to strict proof of POFA compliance.

 

21.  The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant failed to erect well-placed, large and readable signs on a par with the yellow & black warnings seen in Beavis, and unlike the signage requirements set out in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

Claimant Exhibit GS-4, page 29, gives a better indication of the illegibility of the parking signs as seen from a driver’s perspective (unlike the closeup image seen on page 24). Also note that the only charge that's legible in the signage is £100 (Claimant Exhibit GS-2). The extra were not even included in the original PCN (see Claimant Exhibit GS-5)

 

CRA breaches

22.  Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

 

23.  The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications intended to be read by consumers. Signage must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

24.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).  

ParkingEye v Beavis is distinguished

25.  Unlike in Beavis, the penalty rule remains engaged, not least due to the unconscionable added 'Fee'.  The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

 

26.  The Supreme Court held that 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 alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  In the present case, the Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver.  Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i)             Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii)            Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

(iii)           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, due to "the absence of any notice on the wall opposite the parking space''. 

 

27.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In 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." 

Lack of ADR

28.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed.  The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (2020 Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should lead Judges to know that a fair appeal was never on offer.

 

Conclusion

29.  There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that claims like this should be struck out. 

30.  In the matter of costs, the Defendant seeks:

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

b)    a finding of unreasonable conduct by this Claimant, and further costs, including those incurred to set aside the default judgement, pursuant to CPR 46.5. 

 

31.  Attention is drawn to the (often-seen) distinct 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.

 

Signature:

Date:

 

 

Le_Kirk

I will make reference to exhibits from the claimant’s witness statement, 

Defences are written in the third person, so no "I" but "the defendant"

B789

That is not the latest defence template and there is no reference to the latest appeal judgment that should get this quashed at allocation stage.

Your "story" is to detailed and should be saved for WS. You are answering the allegations in the PoC which you already know are woefully inadequate and do not state what terms you allegedly breached. Don't do the claimants work for them.

The second post in the template defence thread is the correct defence template you should be using.

taleb

B789 said:

That is not the latest defence template and there is no reference to the latest appeal judgment that should get this quashed at allocation stage.

Your "story" is to detailed and should be saved for WS. You are answering the allegations in the PoC which you already know are woefully inadequate and do not state what terms you allegedly breached. Don't do the claimants work for them.

The second post in the template defence thread is the correct defence template you should be using.

in my case the claimant (represented by gladstones) responded to my application to set a default CCJ aside with a witness statement, and asked the judge to use that as the PoC if he sets the judgement aside and reopens the claim. in their statement they do specifically say that I have broken the terms because I was parked without displaying a permit. so do you think the same defence applies here?

B789

We need to see the actual PoC on the original claim form. If the PoC fail to specify exactly what terms were allegedly breached then there is still al opportunity for the judge to throw the case out due to the claimants failure to adhere to the CPR and PDs.