CCJ for PCN I knew nothing about

Le_Kirk

You should use your original defence, add paragraph numbers, show in italics anything you add and strike through anything you want to take out.  For finding anything on the forum: -

Type your Search Words into the Search bar, hit Enter. Takes you to a second page, click 'Threads', click from 'Best Match' to 'Newest', click 'Categories', go to r/h side of page to 'Category', start typing 'Parking', drop down box will bring up 'Parking tickets, fines & parking', scroll down slightly, uncheck 'Polls' and 'Ideas', then click 'Filters'. That should give you a list of results. 

Coupon-mad

Ah sorry forgot to link the other one and can't go looking for it now. No idea which username!

Search the forum for amended defence and change to NEWEST.

Le_Kirk

Could it be this one @WarriorsFan2005

hallie28

Thanks for the feedback. Here is my amended document ... 

KeithP

You've left your full name clearly visible in that document.
You have also used your real name as your Dropbox username.

Coupon-mad

hallie28 said:

Thanks for the feedback. Here is my amended document ... 

Let's see it again. 

hallie28

I have tried for 2 days to send a version over so you can see the properly formatted version, but all my dropbox accounts have my name or work details, and the images I screenshotted are apparently too small. So here is a copy & paste version. I've used strikethrough for removed bits and red text in italics for added text. 

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.

2.      The claimant maintains and will evidence that:

a.      No parking took place, so a parking charge cannot be enforced

b.      Incorrect information has been submitted in the PCN and particulars of claim

c.       The terms and conditions of the car park are unclear

d.      The defendant has been disadvantaged by the claimants unfair practices thus was unable to gather an adequate defence

e.      The claim is exaggerated and disproportionate

f.        The claim is discriminatory

g.      The claimant has breached a range of CPR’s

 

The facts as known to the Defendant:

3.      It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

4.      The defendant was not made aware of the Parking Charge Notice until they applied for a mortgage on 15th May 2023 and found that they had a CCJ. When immediately contacting the courts, they were informed that a Default Judgement had been entered on 14th November 2022. The court proceeding had been sent to an old address of the defendant (XXX), hence the inability for the defendant to defend the claim. The defendant was successful in having the CCJ set-aside on 19th September 2023.

5.      The Defendant was 6 months pregnant at the timepoint on the PCN. Please see Exhibit 1 for a birth certificate to prove this. They did not receive a PCN on the windscreen of their car to notify them of the alleged charge. They have only ever visited the address in question very briefly on one occasion, when they needed to use public facilities due to antenatal sickness whilst driving. It is unclear if this is the occasion when the PCN was given, as there were multiple drivers of the vehicle. Nonetheless, pregnancy is a protected characteristic, and the defendant acted in the most appropriate manner by pulling up in the safest location. For UK Car Park Management to penalise a pregnant woman from using their facilities for a few minutes is discriminatory and morally abhorrent.

6.      They pulled into the car park from a busy dual-carriageway (Exhibit 2) The defendant had been sick whilst waiting in traffic at the dual-carriageway. This is an incredibly dangerous area, with people walking in the road and knocking on car windows for money, and a high rate of serious accidents. Please see Exhibit 3 for proof of this. The defendant was distressed and needed to get to safety urgently. The shopping area was the first opportunity that the defendant had to reach safety, in a spot where there are enough people to enhance her safety. Please see Exhibit 2 to understand the route taken by the defendant and lack of safe alternatives for her. As the route enters the city centre which is very congested, the defendant knew that alternative safe provisions were not available to them close-by. The defendant would not risk stopping in a residential area as a vulnerable female, given the high rate of gang activity in the area.

7.      The approach to the car park does not have a sign to declare it to be a car park or display terms and conditions, and the approach is hidden by road signage (see Exhibit 4). The road is a busy dual-carriageway, and thus there is no opportunity to stop before entering the car park, or to turn around and ‘not enter’ the car park once you have committed to driving in that direction. There is no time for drivers to consider their contractual obligations prior to being placed in the car park.

8.      The defendant placed the car as close as possible to the facilities to attend to a vicissitude of short duration (antenatal sickness) which, as per Jopson v Homeguard B9GF0A9E is not parking. CM14P02455/CH13P02050 (parkingcowboys.co.uk) Pregnancy is a protected characteristic, and the defendant acted in the most appropriate manner by pulling up in the safest location. For UK Car Park Management to penalise a pregnant woman for using their facilities for a few minutes is discriminatory, morally abhorrent and against their code of practice.

9.      The defendant chose to place their car in the photographed spot as it appeared to be the only viable option. The car park has a range of road markings prohibiting parking (Exhibit 5):

10.  There are red double lines on the entrance, signalling no stopping/parking at any time for any reason (in line with the highway code) (Exhibit 5)

11.  There is a large criss-cross box that says “no stopping loading bay” (see Exhibit 5)

12.  All of the car park spaces in the car park are either numbered and allocated to the residential apartments above the shops or allocated to disabled drivers. There are no parking spaces without road markings (see Exhibit 5)

13.  The defendant does not live in the residential apartments and does not have a blue badge, which makes none of the parking spaces viable to them.

14.  As shown in the claimants particulars of claim, the car was placed beside a pavement on the road with no road markings. They were not in the area marked ‘no stopping’, which led to defendant to believe that stopping was allowed in this space. The defendant intentionally placed the car away from the loading space, to avoid being obstructive. If the claimant wanted to communicate that space was to have ‘no stopping at any time for any reason’ (as purported by the particulars of claim), then they should have used the same red lines that they have used at the entrance of their car park.

15.  The car was placed on a part of the road, close to the pavement, between Greggs and Co-op, as to ensure there wasn’t obstruction of the doorways to the shops and there was room for cars to drive through the car park. The defendant ensured that there wasn’t a violation of parking rules that they were aware of and liable for immediate fines: you can’t park in spaces allocated to residential addresses, you can’t park in disabled spaces if you don’t have a blue badge, you can’t park on yellow road markings, you can park beside a curb that isn’t on a bend and doesn’t have road markings. The highway code relating to road marking can be found here: Road markings (publishing.service.gov.uk)

16.  If the location where the defendant’s car was placed is not allowed for cars, it is unclear where a car is able to place itself that allows a driver to find the car park terms and conditions and decide if they want to enter the contract. A car cannot be placed safely outside of the car park on approach (as it’s a ‘no stopping’ area), or inside the car park without penalty. The claimant has not made the location they would expect the defendant to have parked evident in the car park, the PCN or the particulars of claim.

17.  The vehicle that the claim refers to was sold 23rd August 2021 (Exhibit 6), thus there is limited supporting documentation. The failure to send communication to the defendant regarding the PCN has meant that they have been unable to collect adequate evidence for the purpose of collating a defence, which has disadvantaged them in this matter.

18.  CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." It is clear that the Claimant, having obtained a previous address from the DVLA and having received no response, did not perform the requisite "reasonable diligence" required to find the defendants correct address to serve the claim form. Had reasonable diligence been taken, the correct personal details are found in multiple public sources, such as the electoral register, DVLA, HMRC.

19.  The address on the claim is 106 Ringwood Drive, B450BJ. The defendant moved from this address to their current address at 495 Tessall Lane, B31 5HA in October 2017. The finance settlement agreement for the vehicle related to the PCN is attached (Exhibit 1) and shows their correct address. Their driving licence is also attached (Exhibit 2), issued on 29th April 2018, showing the correct address. Attached is a claim form (Exhibit 3) they received from a different parking company, relating to a PCN from 2017 (pre-dating the claimants PCN). This demonstrates that the current address could be located by parking companies and their associated solicitors had they shown due diligence and complied with CPR 6.9 (3).

20.  The Claimant did not have any response from communications sent to 106 Ringwood Drive B45 0BJ but then filed a claim there anyway. In their witness statement regarding the CCJ set-aside, they report that they did not file the claim to the ‘possible alternative address’ as they did not receive a response, thus “that address could not be confirmed for GDPR purposes”. There is no rationale for why a non-response at 106 Ringwood Drive did not meet those same criteria. Had the claimant completed the Experian search as claimed and found an alternative address, this would be the usual or last known residence of the Defendant for the purposes of CPR 6.9, as this search would have been completed after the DVLA request.

21.  As the claim form was not served at the defendants current address, this is a breach of CPR 13.2 (a). Due to this, the judgment was wrongly entered as the defendant was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).

22.  The only opportunity the claimant has had to respond to the claim, is through this defence, at which point the claim sum is inflated and disproportionate to the alleged parking violation.  Thus the Defendant was denied any opportunity to appeal because the current parking industry line is "it's too late - pay up and pay more".  This despite the fact that the Government's new statutory Code (linked later in this defence) requires a fresh Notice to be served at the original rate, and appeal to be made available, in cases where the first Notice was not received.

23.  In addition to these facts, a recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the PoC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The Defendant asserts that this Claim is based upon an agreement by conduct. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the PoC. Please see the transcript in Exhibit 7.  

24.  Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. Please see Exhibit 8.

25.  Furthermore, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning .Please see Exhibit 9.

26.  Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. Please see Exhibit 10.

27.  The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

28.  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:

29.  (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.

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.

hallie28

Parking did not take place, thus no parking charge can be enforced

30. The defendant only ever visited the location in the photographs of document 4 very briefly on one occasion, when they needed to use public facilities due to antenatal sickness whilst driving.  

31. The Road Traffic Regulation Act 1984 and The Highway Code talk about "parking","waiting", "loading or unloading" “stopping” and "setting down or picking up passengers", each as a separate activity. "Loading and unloading", “stopping”, "setting down or picking up passengers" and “waiting” are clearly different from parking.

32. The claimant is clearly aware of this, as they have specifically marked an area in their car park as a “no stopping” area. 

33. The signs submitted by the claimant make no offer or contract towards anyone other than drivers who are parking. Thus the defendant did not enter into a contract with the claimant. 

34. As found by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ it was held as a finding of fact, that stopping to unload was not 'parking'

35. The defendant placed the car as close as possible to the facilities in order to attend to a vicissitude of short duration (antenatal sickness) which, as per Jopson v Homeguard B9GF0A9E is not parking. 

36. The defendant was only at the location for a few minutes. Document 4 of the claimants Particulars of Claim provide 2 photographs with timestamps of 08:00:46 and 08:01:58. Thus the claimant is only able to evidence that the car was on the premises for 72 seconds. The claimants regulatory body states that a 10 minute grace period should be available to a driver. 

37. Document 2 claims that the signage states that the Car Park in an ANPR controlled car park. However document 6 states that the PCN was obtained by a patrol. The angles of the photographs in Document 4 also suggest that the photographs for the PCN were taken by hand, rather than ANPR. It is likely that the warden saw the defendant return to their car, and chose to submit the postal PCN anyway, despite the duration of stopping being significantly shorter than the standard grace period of 10 minutes. 

38. It is unclear why a notice was not given to the driver or placed on their car when there was a patrol warden in place. Paragraphs 9 and 10 of The Civil Enforcement of Parking Contraventions General Regulations The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (legislation.gov.uk) clearly state that an enforcement authority should provide the PCN to a stationary vehicle by fixing it to the vehicle or giving in to the person appearing to him to be in charge of the vehicle. The conditions in which providing PCN’s by post were not met in this case. The PCN was not recorded by an approved device and the enforcement authority was not prohibited from providing a physical PCN by a person or a moving vehicle. 

39. There is no apparent rationale for why the patrol warden did not wait 10 minutes or provide a physical PCN, other than to unfairly disadvantage the driver. A PCN can not be enforced for 72 seconds of stopping in this case and providing it by post hinders the defendants opportunity to gather a fair defence. 

40. Furthermore, the claimant admits to obtaining the defendants address via the DVLA. Parking companies can only lawfully obtain personal details from the DVLA “to seek recovery of unpaid parking charges”. Since no parking took place, the claimant obtained the defendants details unlawfully, in breach of the Data Protection Act 1998, which is both a crime and a civil matter. 

41. For these reasons alone, the claimant has no case to bring towards the defendant and the case should be struck out. 

The claim is discriminatory

42. The claimant stopped their car due to antenatal sickness. Pregnancy is a protected characteristic under the Equality Act (2010) Equality Act 2010 (legislation.gov.uk), and the defendant acted in the most appropriate manner by pulling up in the safest location. 

43. The UK government describes indirect discrimination as: “putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage” Discrimination: your rights: How you can be discriminated against - GOV.UK (www.gov.uk). 

44. The Equality Act (2010) also references that indirect discrimination takes place where the claimant cannot show their provision/criterion to be a proportionate means of achieving a legitimate aim. There is no legitimate aim that prevents a pregnant woman seeking refuge in crisis in a car park. It is a discriminatory aim to financially penalise a pregnant women for momentarily finding a safe place in sickness, when no cost or inconvenience was incurred towards the claimant. 

The claimant has submitted incorrect and ambiguous information in the PCN and the particulars of claim 

45. The claimant has benefitted from the opportunity to submit a second version of their particulars of claim, given that their original particulars of claim were inadequate. Their second version is also flawed. 

46. The PCN in document 5 and 6 of the particulars of claim allege that a parking violation took place in Park Central Retail Park. There is no address given to indicate the city or area the alleged parking violation took place. A google search of ‘Park Central Retail Park’ shows that there is no retail park in the UK with that name, and google offers an alternative in Wrexham (central retail park) and Coventry (Central 6 Retail Park) (Exhibit 11). A PCN must contain a clear and valid location where the alleged violation took place. This did not occur in this case. The defendant was at an incredible disadvantage having to research where the PCN related to, which is still ambiguous.  

47. The address provided in Paragraph 4 and Document 1 of the claimants particulars of claim (B15 2DF) where the alleged parking took place is not the address where photos of the alleged PCN took place. 

48. Exhibit 12 shows google images of B15 2DF. The Claimant has provided no evidence that the vehicle registered xxxxxxxx was parked at this location. On this basis alone, the claimant has no case to take forward. 

49. The correct address for the site where the photographic evidence was taken is B15 2DZ. This is a location known as ‘Lexington Gardens’. The claimant is aware that the area is called Lexington Gardens, as document 3 shows they have clearly searched for this area when obtaining google images of the site. A search for Lexington Gardens immediately shows the area photographed in the PCN, as demonstrated in document 3 of the POC. It took incredible effort on the Defendants behalf to research the correct location. Please see Exhibit 13 for the distance between the address in the particulars of claim and those on the PCN, which is 0.5 miles. These are separate and distinct places. This is not a case where a site is so big that it encompasses multiple postcodes.  The car park at B15 2DZ does not display any sign referring to the address as ‘park central retail park’ as evidenced in document 3 of the particulars of claim and Exhibits 4 and 5. 

50. Furthermore, document 3 from the claimant is a ‘self-annotated’ map of the site, rather than an official document. A ‘self-annotated’ map has little value in the case, as anyone can add dots to pictures. However the map in document 3 is worse the useless, it is a falsified representation of the parking site. Document 3 shows an outdated arial view of Lexington Gardens, before the apartment/shopping development was built. A copy of a more recent version obtained easily from Google earth is found in Exhibit 14. As clearly demonstrated by comparing this photo to that provided by the claimant in document 3, there is a completely different layout of the premises, thus the locations that they claim their terms and conditions exists (as represented by yellow dots, mostly in places where there are trees) are not accurate. Given how easy it was to obtain this accurate image, it is unclear why the claimant would intentionally provide a map that is self-annotated, other than to be lazy or intentionally deceptive. If signage exists, the claimant should have produced photographs of the signs, which they have failed to do.  

51. The photographs from google-maps provided latterly in document 3 by the claimant show a more accurate representation of how the site looked at the time of the PCN issue date. The images provided by the claimant show that there are no visible signs at the car park, countering their claim that multiple signs exist on the site. 

The defendant was unable to exercise their right to appeal the PCN

52. In Paragraph 9 of the claimants particulars of claim they state “Every recipient of a PCN from the Claimant is afforded the opportunity of appealing the PCN, via their internal appeals process, if they consider that it is issued in error or was unlawfully issued. In the event that the recipient fails to exercise their right to appeal via the internal appeals process or they are dissatisfied with the outcome they have the right to make an appeal to the appeals service hosted by their ATA. Both limbs of the appeals process are designed to ensure that a person who is aggrieved by the issuing of a PCN has the opportunity to have the opportunity to engage in ADR both with the Claimant itself and an independent appeal entity at an early stage”. 

53. Paragraph 9 is incorrect. The defendant did not have the opportunity to appeal the PCN, as it was sent to their wrong address. The first opportunity that the defendant has had to provide an explanation/defence to the current PCN is through this defence. To do this, the defendant had to first defend their right to have the associated CCJ set-aside, which was granted, as the judge recognised how disadvantaged the defendant had been by the lack of due diligence by the claimant. 

54. The defendant would have pursued both the internal appeals process of the claimant and of their ATA, had the option been available to them. Had this not been successful, they would have also contacted the Ombudsman. 

55. Thus the point at which the defendant has first been able to respond to the allegations, the claim sum is inflated and disproportionate to the alleged parking violation.  The Defendant has been denied any opportunity to appeal because the current parking industry line is "it's too late - pay up and pay more".  This despite the fact that the Government's new statutory Code (linked later in this defence) requires a fresh Notice to be served at the original rate, and appeal to be made available, in cases where the first Notice was not received.

The defendant is disadvantaged 

56. The defendant did not receive a PCN on the windscreen of their car to notify them of the alleged charge, and as they were not made aware of the PCN until 15th May 2023 when they were made aware of the associated CCJ. Thus the defendant has been unfairly disadvantaged by the inability to collate evidence. Had the defendant been aware of the PCN at the time of issuing, they would have been able to obtain CCTV evidence from the shops and obtained witness statements from members of the public. 

57. The vehicle that the claim refers to was sold 23rd August 2021 (Exhibit 6), thus there is limited supporting documentation. The failure to send communication to the defendant regarding the PCN has meant that they have been unable to collect adequate evidence for the purpose of collating a defence, which has disadvantaged them in this matter. 

hallie28

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

58. 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:

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

60. (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.

61. 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.

62. 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).

63. 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.

64. 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." 

65. 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

66. 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).

67. 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.

68. 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. 

69. 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'.

70. 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).

71. 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'.

72. 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.

73. The Defendant avers that the DLUHC's analysis now overrides plainly wrong assumptions made by Circuit Judges steered by Counsel in astonishingly weak appeal cases that the parking industry engineered their way: 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 cherry-picked litigant-in-person consumers without the wherewithal to appeal. Incorrect presumptions were made in every case; and there were major evidence discrepancies (e.g. in Wilshaw, where the Judge was also oblivious to the DVLA KADOE requirement for landowner authority). One Judge inexplicably sought out for himself and quoted from the wrong Code of Practice (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was wrongly aligned with the agreed contract in Beavis.

74. 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').

75. Uk Car Park Management’s HMRC information suggests that in the year ending 31st March 2023 they made revenue of £14.1 million pound with £10,000,000 of dividends paid. The defendant argues that the errors made by the claimant (ambiguous road markings, poor signage, lack of diligence by the enforcement authority on patrol, self-annotated maps, reliance on google maps, incorrect information in the POC) are not accidental, and rather an intentional way to mislead drivers and obtain revenue from them in a predatory way. The company is clearly making a significant profit from issuing PCNs. The lack of effort from the Claimant in this case (e.g. to submit correct information, appear at court for the CCJ set aside hearing) evidences how little effort is typically required for them to financially gain from drivers and thus hold a business model that does not allocate appropriate resources to submit evidence that is accurate and personal to a case. The claimant has the resources to provide a provision that is fair to drivers rather than for excessive profit, if they so wish. 

CRA breaches

76. 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):

77. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

78. 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.

79. 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

80. 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.  

81. 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,

82. both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

83. (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''. 

84. 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 standing or landowner authority, and lack of ADR

85. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name.  The Claimant is put to strict proof of their standing to litigate. The evidence submitted is for a contract at an address that is different to Lexington Gardens and thus not relevant to this case.

86. 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

87. 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. 

88. Given that the claim/judgement was sent to the wrong address, and the claimant did not get the opportunity to acknowledge service or defend the claim prior to this stage, and that more than 4 months have passed from issue of proceedings, and service of the claim was defective (i.e. it was never served), the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.

89. The claimant has clearly put little effort in collating their POC, failing to provide a correct address for the PCN or and submitting inaccurate evidence. This contrasts with the tireless efforts the defendant has made to write a defence and witness statement for their CCJ set aside, write an original and amended defence for this current process, visiting the site on multiple occasions to obtain photographic evidence and attempt to understand the legal underpinnings of PCNs. What the claimant has studied as a career, the defendant has had to teach themselves in their limited spare-time. 

90. Given that the defendant has evidenced that parking did not take place, the PCN is discriminatory, the particulars of claim are inaccurate and there are multiple CRA breaches, the claim should be struck out and costs awarded to the defendant. 

91. 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 pursuant to CPR 46.5. 

(c) £275 for the costs of applying to set aside the associated CCJ

92. 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

93. 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.

hallie28

List of Exhibits

1.       daughter’s Birth Certificate

2.       Arial map of Belgrave Middleway

3.       News articles related to begging and crashes on Belgrave Middleway

4.       The approach to the car park

5.       The road markings in the car park: Red lines on the approach to the car park, The criss-cross box in the car park, the numbers in the parking spaces

6.       Proof of vehicle being sold in August 2021

7.       CEL vs Chan transcript

8.       Parallel Parking vs anon

9.       District Judge Sprague in Luton

10.   Manchester district judge McMurtrie and District Judge Ranson

11.   Google search of Park Central Retail Park

12.   Google images of B15 2DF

13.   Distance between B15 2DF and B15 2DZ

14.   Google Earth pictures of Lexington Gardens