EDIT: CASE DISMISSED - BW Legal / P&PM Ltd

spacebuns

Grizebeck said:

Please post up the Skelly
BW don't often do skeleton arguments

Here is the Skeleton argument (sorry for the delay and apologies as the formatting is slightly off):

Introduction

1. This skeleton is filed by the Claimant because it is the Claimant’s solicitor’s belief that the Defendant has filed a template Defence commonly found on internet forums seeking to challenge parking charges. One frequently used forum can be found on <i>www.moneysavingexpert.com</i><span><br><br></span>

2. As the Court will appreciate, CPR 32 confirms that evidence should address facts. The Defendant’s Defence largely seeks to rely on technical arguments based on case law and legislation which therefore fails to comply with CPR 16.5 requiring a Defendant to admit or deny (with reasons) the Claimant’s allegations in a claim.
   
   

3. Therefore, in order to make the best use of the Court’s time, the Claimant’s solicitors shall:
   
   

1. Only respond to the facts stated in the Defence in the Claimant’s witness statement. This ensures that the hearing can focus on the facts of the case at the hearing; and
   
   

2.  Address the technical issues raised in the Defence in this Skeleton, so that the Court can decide which, if any, of these technical points should to be considered at the final hearing.
   
   

Court’s power to strike out

1. CPR 3.4 allows the Court to consider striking out part or all of a statement of case where:
   
   

1. The statement of case discloses no reasonable grounds for bringing or defending the claim;
   
   

2. The statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
   
   

3. There has been a failure to comply with a rule, practice direction or court order.
   
   

2. Owing to the majority of the Defence failing to comply with CPR 16.5 but containing detailed technical submissions which are not believed to be within the Defendant’s knowledge or belief such that the Defendant has arguably made a false statement (CPR 32.14) supported by a statement of truth, the Claimant would:
   
   

1. Ask the Court to consider striking out all or part of the Defence; or
   
   

2. Consider the same at the hearing;
   
   
   

            So that the Court and the parties can ensure the “just disposal of the proceedings”.

Formation of the contract

1. The signage situated across the car park forms a unilateral offer to anyone wishing to park their vehicle at the location, and there is no need for the motorist to communicate their acceptance; the performance of entering the private land and remaining there is the act of acceptance.
   
   

2. The claimant also places reliance on the judgement in the appeal case - Vehicle Control Services Limited vs Alfred Charles Crutchley ]2017], in which the court confirmed the user’s positive obligation to familiarise themselves with the terms and conditions. in this case, is honour judge wood QC decided that:

“It is incumbent, in my judgement, on a person entering private property, when it is clear that a contractual licence is being provided, to understand the terms of such a licence. It would not be onerous or oppressive although probably inconvenient, for a visitor to establish those terms and conditions before entering the business park in the first place, even if this required remaining outside, and entering on foot, when the contents of the notices in combination, would become apparent”

1. Therefore, the defendant, by entering and remaining in the car park, wilfully agreed to abide by the terms and conditions, including payment of the contractual charge upon any breach.

Particulars of Claim

1. The claim has already passed through the hands of a judge upon allocation to the small claims track. As such, it is submitted that the same already has been deemed CPR-compliant

Consumer Rights Act 2015 (CRA 2015)

1. The defendant's arguments are generic and not at all made out.
   
   

2.  S62(4) provides that “... a term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.”
   
   S62(5) confirms: “Whether a term is fair is to be determined -
   
   

1.  Taking into account the nature of the subject matter of the contract, and
     

2.  By reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.”

As confirmed by his honour judge Parkes QC in the appeal judgement of Britannia Parking Group Ltd V Matthew Julianne [2020 ]7 WLUK 443 (Appeal), the court must probably take into account a claimant’s evidence before making a determination under this section, otherwise any premature conclusion is liable to be set aside.

1. Therefore, It is submitted that in the order for the court to make a determination under CRA 2015, The defendant must properly apply its arguments to the claim, and the claimants advocate can then respond.
   
   

ParkingEye v Beavis [2015]; Somerfield [2011]

1. The Defendant again quotes a number of paragraphs from the lengthy Supreme Court judgement of ParkingEye v Beavis [2015] UKSC67, scattered throughout the defence with little unknown application of those paragraphs to the facts of this clone for example, after summarising the supreme court's findings at various paragraphs the defendant simply says “this claim must fail” and “In the present Case the claimant has fallen foul of the tests in Beavis.”; the Defendant has not applied the facts of this case to Beavis to enable these conclusions to be arrived at, and upon cross examination is unlikely to be able to do so.
   
   

2.  The parking charge of £100.00 was confirmed as reasonable in Beavis and is supported by the Claimant’s Credited Trade Association’s Code of Practice.
   
   

3. In ParkingEye v Somerfield Stores Limited (2011), a commercial dispute surrounding the provision of parking services at the Defendant’s supermarkets, HHJ Hegarty made a finding of fact in that particular case that the objective was deterrent rather than compensation. The Claimant is seeking the additional sum, not as part of the parking charge, but as its debt recovery costs. As HHJ Hegerty recognised in para. 419, the Claimant will show that these debt recovery charges (or additional administrative costs as he called them) are reasonable in circumstances where the Defendant has been given the chance to pay the parking charge but declined to do so.
   
   

The appeal decision of VCS v Adam Percy confirming that debt recovery charges are recoverable

1. On 28 September 2021, HHJ Saffman handed down the judgement in Vehicle Control Services LTD v Mr Adam Percy (currently unreported) in an appeal in the County Court in Leeds. HHJ Saffman fully considered lengthy skeleton arguments concerning Beavis, the Consumer Rights Act 2015 and the recoverability of debt recovery costs under the parking contract (set out in the signage) when no specific amount was set out. He concluded that:
   
   

1. Such costs were not considered in ParkingEye v Beavis [2015] UKSC67. He said at paragraphs 42-43 “True it is [as the judge below] says in paragraph 15 and 16, that Beavis concerned a motorist who did not pay but it does not touch on the question of recovery of an additional charge for Stage 2. It deals only with the lawfulness of the original charge for failing to comply with the contractual terms - not the additional charges for chasing up the motorist who has failed to pay what was owed for failing to comply with the contractual terms.”
   
   

2. Such costs are not built into the parking charge, saying at para 39 “...it is inevitable that further work of some kind is necessary where the motorist does not respond to the PCN. Fundamentally it requires the appellant to undertake the stage 2 activity which would have been avoided if payment had been made at stage 1… it is not double recovery. It is an attempt to recover in respect of stage 2 work that would have not been incurred if payment had been made at stage 1.” For the same reasons he found that such costs were not a duplication of post-issue legal costs restricted by CPR as these costs relate to pre-issue.
   
   

3. Such costs were not unfair as against the Consumer Rights Act 2015:
   
   

1. Considering examples 10 and 14 of Schedule 2 to the Act, he said at para 61 “I do not think that the term, albeit that it seeks an unquantified amount, causes a significant imbalance in the parties’ rights and obligations. As HHJ Maloney QC observed [in Beavis], the motorist is being given the valuable privilege of parking on private land in return for a promise to pay a specified son in the event that he/she fails to display a ticket and, in this case, an additional sun if he/she fails to pay the specified sum.”
   
   He went on to say at para 64 that “...any imbalance in that case did not arise contrary to the requirements of good faith because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay… I do not see why VCS does not have a legitimate interest in inducing Motorists to pay on receipt of the PCN so as to avoid… the stage 2 procedure.”
   
   

2. Considering example 6 of Schedule 2 to the Act, he said at para 65 and 66. “VCS is governed by a code of practice which currently limits the additional charge to £70.00. I fully accept that the Code of Practice does not find the court but it is clearly a consideration in the context of all the circumstances. The Supreme Court in Beavis had in mind the Code of Practice in the course of its finding that the contractor was fair… It is also appropriate to observe that I do not think that the charge of £60 is excessive or disproportionate. Even if that sum does not represent VCS' loss it cannot be said that it is a charge that is higher than necessary to achieve VCS’ legitimate objective of inducing Motorists to pay at stage 1.” He also concluded a Paras 17 that previous judgments up and down the country in the county court had heard in their findings that such a term was unfair.
   
   

4. Finally he also found that such costs were not contrary to paragraph 4(5) of Schedule 4 of the Protection of Freedoms Act 2012 given its sets out the content of the PCN, but regardless of this, para 4(6) provides for “other remedy”.
   
   

2. Under the Claimant’s Trade Association’s Code of Practice, where parking charges become overdue, Debt Recovery charges may be added. This was also endorsed by HHJ Saffman in the above appeal, acknowledging the Supreme Court's recognition of the same in ParkingEye v Beavis [2015] UKSC67.
   
   

The lead Southampton case of Britannia v Crosby

1. As a County Court matter dealt with by the Claimant’s solicitors, this judgement is neither binding nor persuasive. On the contrary, the Appeal successfully challenged an identical order made by District Judge Grand. Part of the reasoning in allowing the appeal was the lower court's failure to properly consider CRA 2015. As such the order in Crosby has equally to be regarded as wrong.
   
   

The Protection of Freedoms Act 2012 (POFA)

1. Paragraph 4 of Schedule 4 POFA relates solely to the recovery of “parking charges”, which is defined as “a relevant obligation arising under the terms of a relevant contract means a sum in the nature of a fee or a charge”.
   
   

2. Debt Recovery charges only become payable if the PCN remains unpaid and debt recovery has to be pursued as explained in the Claimant's statement under the heading “Debt Recovery Charges”. Such costs are therefore clearly not a parking charge and therefore not within the scope of paragraph 4.
   
   

Spurling v Bradshaw, Thornton v Shoe Lane Parking & Vine v London Borough

1. Once again, the Defendant attempts to summarise these cases without applying the same to the facts of this claim. To simplify the matter the claimant relies on the factual evidence as to its signage in its witness statement.
   
   

The “new” Code of Practice

1. The defendant refers to the Draft code of practice, which has not been implement, and has no application until 2024. It is also subject to significant changes following recent successful challenges against the reduction of the parking charge immense and Debt Recovery costs, with www.gov.uk withdrawing it’s guidance on the draft code and advising; “This guidance was withdrawn on 7 June 2022 - Private Parking Code of Practice is temporarily withdrawn pending review of the levels of private parking charges and additional fees.
   
   

The Claimant’s authority

1. The Claimant relies on the factual evidence in the witness statement. However, case authority on appeal confirms the Claimant’s authority does not need to be proved for the Claimant to pursue the Defendant under its contract with them.

2. In Link Parking Limited V Haris [2020], before His Honour Judge Petts, the Defendant challenged the validity of the parking operator’s agreement with the landowner. HHJ Petts set at para. 12: “The defendant has no standing to say that the contraction should be declared void and in any event even if it was voidable, the contract has clearly been affirmed or ratified, however one wants to look at it, by [the landowner] through years there are after of subsequent operation of the parking system by [the Claimant].”
   
   

3. This position was affirmed by His Honour Judge Simpkiss in the appeal case of One Parking Solution Ltd v Norma Wilshaw [2021] in a judgement dated 1 February 2021 where at paragraph 32, he says (emphasis added): “Therefore the terms offered the driver a licence to park on the terms and conditions set out in the signage. This is a standard situation which is replicated in car parks across the country. It is not dependent upon proof that the parking company has authority to operate a car park, although if it did not the freeholder would be likely to take issue with it.
   
   Further at paragraph 51 he says “This is a contract between the appellant and the freeholder which does not affect the validity of any contract between the Appellant and the Respondent.”
   
   

Costs

1. The Claimant doubts that the defendant has spent much time at all on their Defence, given that the majority has been simply copied from the internet and pasted into a separate document. Indeed, the relevant thread on www.moneysavingexpert.com previously boasted “PLEASE READ THIS POST FIRST TO UNDERSTAND HOW TO USE THE NEW 2020 TEMPLATE DEFENCE, WHICH CAN BE ADAPTED IN HALF AN HOUR (honestly!).”
   
   

2. Conversely, the claimant relies on paragraphs 2-4 above to invite the Court to make an order for unreasonable costs against the Defendant. In considering conduct that can be deemed as unreasonable in relation to appeals in Small Claims (under CPR 27.14(2)(g)), the Court of Appeal in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269 said “In the somewhat different context of the jurisdiction to order a party's legal (or other) representative to meet what are called “wasted costs” …defined as costs incurred “as a result of any improper, unreasonable or negligent act or omission” of such representative), the court speaking through Sir Thomas Bingham MR said: “...conduct cannot be deemed as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting in a practitioner’s judgement, but it is not unreasonable,” see Ridehalgh v Horsefield [1994] Ch 205, 232F …Litigants in person should not be in a better position than legal representatives but neither should they be in any worse position than such representatives.”
   
   

3. It is submitted that in all the above circumstances, the Defendant’s Defence amounts to unreasonable behaviour.

Coupon-mad

Hmmm...did your defence even talk about all these things, including Britannia v Crosby?  The template defence doesn't mention it and hasn't done for over a year or two.

Ironically, that skelly is a template.  Entirely the same as we've seen before.

I think @Grizebeck and @bargepole have seen it more times than they care to recall!

Grizebeck

Coupon-mad said:

Hmmm...did your defence even talk about all these things, including Britannia v Crosby?  The template defence doesn't mention it and hasn't done for over a year or two.

Ironically, that skelly is a template.  Entirely the same as we've seen before.

I think @Grizebeck and @bargepole have seen it more times than they care to recall!

Indeed it adds nothing to their case

spacebuns

Apologies as I haven't actually mentioned the facts of the case.

Resident living in the flats gave me a visitor's permit to use on my car while visiting, by the time I'd got back to my vehicle in the car park (under 10 mins), the parking attendant had appeared, done their business and disappeared. Have a slight suspicion they were waiting and watching.

Parking and Property Management have been enforcing parking restrictions on the site since January 2021, the resident I was visiting has been a leaseholder since 2008. I have a copy of the lease if it's of interest to any of you guys.

Thanks for the help once again.       

spacebuns

Coupon-mad said:

Hmmm...did your defence even talk about all these things, including Britannia v Crosby?  The template defence doesn't mention it and hasn't done for over a year or two.

Ironically, that skelly is a template.  Entirely the same as we've seen before.

I think @Grizebeck and @bargepole have seen it more times than they care to recall!

Yes I have referenced Britannia v Crosby - I think I may have used outdated information when compiling my defence?

Coupon-mad

No worries.  You didn't use the current Template Defence then.

Did you get the WS bundle with some good photo exhibits filed and served to the local court and BW Legal?

Le_Kirk

Isn't a skeleton supposed to be shorter and more concise than the original?

spacebuns

Coupon-mad said:

No worries.  You didn't use the current Template Defence then.

Did you get the WS bundle with some good photo exhibits filed and served to the local court and BW Legal?

Unfortunately not - went a little off piste and was mainly researching via the thread posted by someone who had what was described as an exemplary WS, I thought that was the most up to date information but think I got a little confused.

I sent my WS in but without photos from the site, as BW have provided all of those. My core argument is to locate a flat on a site with multiple blocks, get to the property, obtain a permit and return to place that in your car isn't always feasible in under ten minutes, especially when it's your first visit and you have no idea where to go.

spacebuns

Well for me it's finally over, today almost a year after the ticket was placed on my car, after umpteen coercive and vaguely threatening letters, on the third court date, second attendance and second hearing location - the Judge dismissed Parking and Property Management's case.

Can't deny it was nice listening to BW Legal's Advocate struggle for an hour to maintain their bungling, half baked and clumsy position against the Judge's short shrift. 

Was even awarded some costs in my favour so a nice turnaround from what it could have been at the start of today.

Happy it's over, thanks to all who helped on here and I think I've learned quite a few things on this subject by going through the process. My hearing was delayed for most of the day so ended up spending a considerable amount of time chatting to the BW Advocate, some of it about our respective positions.

Anyone who's reading, it's worth it but please make sure you have a genuinely sensible and logical point to make and don't just rely on copy paste stuff taken from here as they will try and throw that straight back at you to tie you in knots, trying to take advantage of their full time vs your layman status.

Now I have the task of emailing BW Legal to inform them that they lost their client's case against me and furnish them with the sum of costs and correct bank account details. I won't take any pleasure in doing that

 

Coupon-mad

spacebuns said:

Well for me it's finally over, today almost a year after the ticket was placed on my car, after umpteen coercive and vaguely threatening letters, on the third court date, second attendance and second hearing location - the Judge dismissed Parking and Property Management's case.

Can't deny it was nice listening to BW Legal's Advocate struggle for an hour to maintain their bungling, half baked and clumsy position against the Judge's short thrift. 

Was even awarded some costs in my favour so a nice turnaround from what it could have been at the start of today.

Happy it's over, thanks to all who helped on here and I think I've learned quite a few things on this subject by going through the process. My hearing was delayed for most of the day so ended up spending a considerable amount of time chatting to the BW Advocate, some of it about our respective positions.

Anyone who's reading, it's worth it but please make sure you have a genuinely sensible and logical point to make and don't just rely on copy paste stuff taken from here as they will try and throw that straight back at you to tie you in knots, trying to take advantage of their full time vs your layman status.

Now I have the task of emailing BW Legal to inform them that they lost their client's case against me and furnish them with the sum of costs and correct bank account details. I won't take any pleasure in doing that

Haha! Brilliant!  Costs as well! Nicely done.

ANOTHER ONE BITES THE DUST!

Which point won it, crappy signage?