DCBLegal Help with draft defence

KCO09

Firstly thanks in advance for any help and advice that is given. I think my defence is due tomorrow (12th April) so any quick responses would be very much appreciated. I must admit I do find this process quite daunting but i've spent some time reviewing the various threads and expert advice so hopefully I have followed the necessary steps (apart from not leaving things until the last minute!)

Summary is as follows:

Claimant: 
Alleged offence: Parking in an area where no parking is allowed.
Alleged offence date: 23/11/2018.
Claim Issue Date: 10/03/2023
Submitted AoS: 22/03/2023
AoS Received: 23/03/2023
Date defence Due: 12/04/2023

KCO09

Sorry - posted too soon by accident:

Claimant is UK Parking Control.

I had parked in a town centre car park which was under going extension works, as such there was an area of the car park that was blocked off by metal fences. I had parked next to the metal fences along with at least 3 other vehicles, did not overstay my time but received a PCN for "Parking in an area where no parking is allowed" - the main points in my defence are quite literally that it wasn't clear that no parking was allowed specifically in these spaces. Draft defence below, but I also have pictures after submitting a SAR if that would help?

Any advice is appreciated - thanks in advance

IN THE COUNTY COURT

 

Claim No.:  xxxxxx

 

Between

 

UK Parking Control Limited

 

(Claimant)

 

- and - 

 

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

 

 (Defendant)

 

_________________

 

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. 

 

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 but liability is denied.

3. On XX/11/2018 the Defendant admits parking at XXXXXX whilst visiting Wetherspoons for lunch, but denies parking in an area where no parking is allowed.

4. On this day and for some time before and after, the car park was undergoing extension works. As such there were multiple bays that were not specifically allocated with lines, which the Defendant had utilised multiple times previously as a frequent patron of this car park.

5. There were no signs, either temporary or permanent in the car park which stated there was no parking allowed in the space the Defendant occupied. There were also at least three other cars parked in the same row as the Defendant, suggesting that it was not clear and obvious to others that this area should not be used for parking. It is, therefore, denied that the Claimant's non-existent signage is capable of creating a legally binding contract.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

 

6. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

 

7. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach. 

 

8. 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.  

 

9. 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 the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

 

10. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

 

11. 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, would 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 the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact 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.

12. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

 

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

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

14. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

 

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.

B789

As it is likely that DCB Legal are acting on behalf of UKPC and your Claim has been signed by Yasmin Mia who is known to sign the statement of truth which is it is not, you need to add the extra paragraphs from this pdf after your paragraph #5 and then renumber them all sequentially:
https://www.dropbox.com/s/zshkl21uz2he3to/dcbl_para_5-11.pdf?dl=0

KCO09

Couple of pictures for reference, as you can see absolutely no signage or indication that parking is not allowed here

KCO09

@B789 Yes that's correct. Thanks for pointing that out. Do the other paragraphs 3-5 seem ok in your opinion please?

B789

KCO09 said:

@B789 Yes that's correct. Thanks for pointing that out. Do the other paragraphs 3-5 seem ok in your opinion please?

I am not sure because I haven't read it all. However, I doubt it as most defences should consist of around 30 paragraphs or more.

I just pointed out what was obvious. Unfortunately, too many visitors/victims on here expect to have everything proofread for them. I am sure someone with more patience than me will come along and advise.

KCO09

Thanks for the reply.

I took everything except paras 2-5 from a more recent post which seemed to have good feedback from other members and the claim got discontinued. But assume I need to go back to the 'Template Defence' thread and use @Coupon-mad second post as the template instead, potentially just inserting paras 2-5 from the above to make it specific to my case then?

In terms of the specifics I'm not sure what more to add as I am essentially just saying that it's not clear that there was no parking allowed for those spaces.

Appreciate that there are a lot of posts but if anyone has a chance to review the 'specific' paragraphs that would be smashing!

Thanks all

B789

The whole point of the "template" defence is to counter almost every argument that the Claimant is making. You can only refer to points in your eventual WS that are covered in your defence.

You should use the template defence by @Coupon-mad with the extra paras I linked to inserted after your own edited paras.

This is just an example and consists of 38 paragraphs:

https://www.dropbox.com/s/66hosld75llha3j/2023_defence.pdf?dl=0

KCO09

This is my revised defence which I plan to send tomorrow AM, unless anyone else comes back with any suggestions/amendments. Paragraphs 3, 4 and 5 in bold italics are the additions specific to my case. Taken from @Johny86 recent defence

Thanks in advance

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim were 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 on the material date the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied.

 

3. On XX/11/2018 the Defendant admits parking at XXXXXX whilst visiting Wetherspoons for lunch, but denies parking in an area where no parking is allowed.

 

4. On this day and for some time before and after, the car park was undergoing extension works. As such there were multiple bays that were not specifically allocated with lines, which the Defendant had utilised multiple times previously as a frequent patron of this car park.

 

5. There were no signs, either temporary or permanent in the car park which stated there was no parking allowed in the space the Defendant occupied. There were also at least three other cars parked in the same row as the Defendant, suggesting that it was not clear and obvious to others that this area should not be used for parking. It is, therefore, denied that the Claimant's non-existent signage is capable of creating a legally binding contract.

6. The Particulars of Claim ('POC') appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action”.

 

7. The Defendant is unable, on the basis of the POC, to understand with certainty what case is being pursued.

 

8. The POC are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; and (c) how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum.

 

9. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and requires proper particularisation in a detailed document within 14 days, per 16PD.3

 

10. The guidance for completing Money Claims Online confirms this and clearly states: "If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, tick the box that appears after the statement 'you may also send detailed particulars direct to the defendant.'"

 

11. No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either.

 

12. In view of it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is respectfully invited to strike this claim out.

-- Everything after here is a copy of paragraphs 12 onwards from @Johny86defence

B789

Looks OK to me but I'd wait for some better-trained eyes to go over your paras. #3, #4, and #5.

KCO09

Thanks @B789 - hopefully someone else is able to have a quick review by tomorrow!