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Introducing Ws info not used in defence

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Comments

  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    edited 29 April 2023 at 3:19PM
    I have inserted the following from another ws bundle after paragraph 21

    The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

    1.       As detailed in my earlier Defence document 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. (Exhibit xx-10)

    2.       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.

    3.       The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any ‘concealed pitfalls or traps’. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of these tests.

    4.       In the alternative, if the Claimant alleges signage was present, I aver that the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains my 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

    (iii)  Vine v London Borough of Waltham Forest CA 5 Apr 2000

    Where Ms Vine won because it was held that she had not seethe 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 site Vine, they often mislead courts by quoting out of context, Roch LJ’s words about the Respondents losing case, and not from the ratio).

    26.     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 its clear to one person but another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive all parties involved - it’s either fair or it isn’t. The introduction of a new ‘Code fo Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike.” If the Claimant alleges a sign was present, my position is that the signs and terms the claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

    POFA and CRA breaches

     

    27.     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’).

    28.     Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA 37, 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.

    29.     Section 71 creates a duty upon courts to consider the test 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. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver 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.


    *edited to hopefully read correctly

  • B789
    B789 Posts: 3,441 Forumite
    Fifth Anniversary 1,000 Posts Name Dropper Photogenic
    You really should proofread your own statements. There are line breaks which make reading your submission difficult. If you want assistance, please do us the courtesy of at least formatting the content to be readable.

    There should be nothing to stop you from editing what you have posted if you see an error or anything that is not right when it comes to formatting.

    One example of many:
    ...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. (Exhibit xx-10)

  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    edited 29 April 2023 at 3:19PM
    B789 said:
    You really should proofread your own statements. There are line breaks which make reading your submission difficult. If you want assistance, please do us the courtesy of at least formatting the content to be readable.

    There should be nothing to stop you from editing what you have posted if you see an error or anything that is not right when it comes to formatting.

    One example of many:
    ...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. (Exhibit xx-10)

    Apologies- I just copied and pasted onto the forum from my document where there are no line breaks as shown, so wouldn't expect that to have happened.

    Now hopefully edited correctly
  • B789
    B789 Posts: 3,441 Forumite
    Fifth Anniversary 1,000 Posts Name Dropper Photogenic
    Is your para numbering correct?
  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    B789 said:
    Is your para numbering correct?
    On my latest document yes, double/ treble checked along with table of contents edited to correct page numbers after adding the above.
  • B789
    B789 Posts: 3,441 Forumite
    Fifth Anniversary 1,000 Posts Name Dropper Photogenic
    Punkstig said:

    3.       The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any ‘concealed pitfalls or traps’. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of these tests.

    4.       In the alternative, if the Claimant alleges signage was present, I aver that the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains my 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

    (iii)  Vine v London Borough of Waltham Forest CA 5 Apr 2000

    Where Ms Vine won because it was held that she had not seethe 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 site Vine, they often mislead courts by quoting out of context, Roch LJ’s words about the Respondents losing case, and not from the ratio).

    26.     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 its clear to one person but another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive all parties involved - it’s either fair or it isn’t. The introduction of a new ‘Code fo Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike.” If the Claimant alleges a sign was present, my position is that the signs and terms the claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

    POFA and CRA breaches

     

    27.     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’).

    Above, it reads from para #4 then next para #26
  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    B789 said:
    Punkstig said:

    3.       The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any ‘concealed pitfalls or traps’. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of these tests.

    4.       In the alternative, if the Claimant alleges signage was present, I aver that the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains my 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

    (iii)  Vine v London Borough of Waltham Forest CA 5 Apr 2000

    Where Ms Vine won because it was held that she had not seethe 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 site Vine, they often mislead courts by quoting out of context, Roch LJ’s words about the Respondents losing case, and not from the ratio).

    26.     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 its clear to one person but another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive all parties involved - it’s either fair or it isn’t. The introduction of a new ‘Code fo Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike.” If the Claimant alleges a sign was present, my position is that the signs and terms the claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

    POFA and CRA breaches

     

    27.     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’).

    Above, it reads from para #4 then next para #26
    I saw after you asked your question, and checked on my pdf and as stated all appear correct on my document, I only have access to these documents on a mobile phone so don't understand why the previous post copied and pasted with the break errors, nor why the paragraph numbers have changed!
    I very much appreciate you pointing out errors from what you can see though.
  • Coupon-mad
    Coupon-mad Posts: 140,450 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    If you already had all that in your defence (which you did, if you used the Template Defence) then you don't need to re-state it verbatim in a WS.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of this/any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    If you already had all that in your defence (which you did, if you used the Template Defence) then you don't need to re-state it verbatim in a WS.
    Many thanks, this all comes from the aphex and sjjr ws bundles previously mentioned to refer to.
  • Coupon-mad
    Coupon-mad Posts: 140,450 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 29 April 2023 at 10:53PM
    Punkstig said:
    If you already had all that in your defence (which you did, if you used the Template Defence) then you don't need to re-state it verbatim in a WS.
    Many thanks, this all comes from the aphex and sjjr ws bundles previously mentioned to refer to.
    Yep, I recognise it but it's all taken from the Template Defence.  Only suitable if people haven't used that.

    Don't repeat verbatim what you already have in your defence.  You can expand on the defence by all means, but no point in verbatim repetition.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of this/any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
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