Received Claims from QDR relating to numerous tickets for motorbike in residence parking

Ubersmush

Defence taken from residential car parking template in the newbie thread. Thank you for posting this @coupon-mad

I have bolded/italicized some edits and left notes at the bottom of this post.

EDIT: I have snipped out this defence so it won't confuse anyone reading this thread later on. paragraphs from this have been inserted into the 2022 templated defence.

DEFENCE

[SNIPPED out beginning as this is from an older templated defence.]

3. The Particulars refer to the material location as LOCATION. The Defendant has, since DATE, held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant's lease, the defendant is entitled with all necessary right of access and quiet enjoyment of the property

5.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

8.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

8.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

[SNIPPED out remainder as it is from an older templated defence.]

I have bolded paragraph 5 - It is my own edit relevant to my lease. Please let me know if it could be improved/edited

Small bold in paragraph 10 - the amount added is £70 (total being claimed is 170 plus fees)

I have italicised paragraph 8 - I am not sure if this is relevant with the signage in the car park. 

Final question - if I am to include the cause of action estoppal into this defence - where shall I integrate it (which paragraph does it fit into)

Coupon-mad

Have you told the CCBC and QDR that they must erase that old address immediately?

Change:

"Cases related to this are:"

to

"Authorities to support the Defendant's position that the subsequent claims are all estopped are:"

What does the rest of your defence look like?

You should list all six claim numbers early on so that a Judge can step in and strike the later ones out because they are all estopped (and you should ask that the court does this, in your defence).

KeithP

...and of course you will be fleshing out your Statement of Truth, won't you?

Back on 27th February you confirmed that you would be slotting your bespoke paragraphs into the '2022 Template Defence'.

Ubersmush

Thank you both for your speedy responses. I appreciate it.
Here I have integrated the old lease template (paragraphs 3 - 8.2) with my edits above and the 2022 template in full.

I have italicised paragraphs that do not appear in the 2022 template. I have bolded paragraphs 5.2, 6.1 and parts of 3.1 which are my own additions. paragraph 3.3 has been updated as per last comment from @Coupon-mad

I'm sure there will be some edits to numbering as well.

EDIT March5th :
cleaned up some rogue numbering
un-bolded 6.2 which is not my own work.

EDIT2 :
changed wording of 3.2 from I believe to the defendant believes,
removed some headings I had thrown in, including a misspelling of the word estoppel.
Moved list of claims to a and b heading in 3.1

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 and driver of the vehicle in question. 

3.1. There have been six other similar claims filed by the Claimant to the defendant all relating to PCN's at the defendant's address. A full list of claims are as follows:

    a. Claim-XYZ

    b. Claim-XYZ-2 etc

3.2. It is my strong belief that the Claimant is purposefully abusing the court process to their own ends by submitting multiple claims for same circumstance PCN’s all of which they would have been aware of. The defendant believes they do this to bombard any defendant such as myself with multiple claim forms to have to acknowledge service of, submit defence statements, witness statements and prepare cases for, in the hope that defendants, who mostly have no knowledge of civil law, will give up or that claims will ‘slip through the net’.

3.3. Authorities to support the Defendant's position that the subsequent claims are all estopped are:

a. Arnold V National Westminster Bank PLC [1991] 3 ALL ER 41. The court noted that ‘....cause of action estoppel applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties, or their privies and involving the same subject matter’. This case involves the same Claimant and Defendant, The same vehicle, The same Car Park and the same manner in which the PCN was issued.

b. In Henderson v Henderson [1843]67 ER 313 The court noted the following…’when a matter becomes subject to litigation, i) the parties are required to advance their whole case, ii) the Court will not permit the same parties to reopen the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence or error

3.4. By filing the first claim and failing to advance the whole case at that time, any cause of action was immediately extinguished for any other similar fact Parking Charges against the defendant. The courts may estop further claims beyond the first where the cause of action is substantially the same. 

4. The Particulars refer to the material location as LOCATION. The Defendant has, since DATE, held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

5.1. The car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5.2. No signage has been erected on entrance to the property, all erected signage is available only after entry has been granted by fob to the gated property.

6.1. Under the terms of the Defendant's lease, the defendant is entitled with all necessary right of access and quiet enjoyment of the property

6.2. There are no terms within the lease requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

7. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

9. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

9.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

9.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

10. 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. 

11. 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.  

12.  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'.

13. 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: https://www.gov.uk/government/publications/private-parking-code-of-practice

14. 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." 

15. 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." 

16. 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.  

17. 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.

18. 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. 

19. 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.

20. 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

21. 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. 

22. 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.

23. 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)

24. 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.

25. 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'.

26.  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).  

27. 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

28. 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.

29.  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

30. 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. 

31. 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.

32. 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. 

33.  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.

Defendant’s signature:

Date:

Johnersh

As a side point, depending on the signage, some purport to permit unauthorised vehicles/parking without permits for periods of up to 24hr in exchange for the £100 consideration.

I guarantee you that the resident leases don't permit a parking company to do that.

Dressing up a residential site as though it's a car park just doesn't work. 

Ubersmush

You should list all six claim numbers early on so that a Judge can step in and strike the later ones out because they are all estopped (and you should ask that the court does this, in your defence).

I will need to write a letter to the court to do this, is that correct?

Coupon-mad said:

Have you told the CCBC and QDR that they must erase that old address immediately?

No, should this be done over email? If so I'll send them an email immediately. 

Coupon-mad

---- ESTOPPAL DEFENCE HERE ---- NOTE: there are two vehicles in question with invoiced claims, do I still have the right to have all cases squished into one? 

Estoppel. Not estoppal.

You don't want them consolidated. You want the subsequent claims struck out. Your case is like this one, except you probably have slightly better Particulars of Claim than a DCB Legal effort?:

https://forums.moneysavingexpert.com/discussion/6423646/dcb-legal-2019-parking-ticket-in-own-private-parking-bay/p3

Ubersmush

I have updated the defence above. There are some parts that are bolded that I have written/rephrased. Could I get feedback on those parts.

Castle

Johnersh said:

As a side point, depending on the signage, some purport to permit unauthorised vehicles/parking without permits for periods of up to 24hr in exchange for the £100 consideration.

I guarantee you that the resident leases don't permit a parking company to do that.

Dressing up a residential site as though it's a car park just doesn't work. 

And you need planning permission to run a public car park.

B789

3.4. By filing the first claim and failing to advance the whole case at that time, any cause of action was immediately extinguished for any other similar fact Parking Charges against me. The courts may estop further claims beyond the first where the cause of action is substantially the same. 

Try "against the defendant".