CCJ for PCN I knew nothing about

hallie28

Their Particulars of Claim:

THE PARTICULARS 1. The Claimant is and was at all material times involved in the management and enforcement of parking on private land. The Claimant achieves this by way of a variety of schemes including, but not limited to, warden controlled sites and ANPR. The Claimant does so in accordance with the authority granted to them under the terms of a Landholder agreement. In accordance with the terms of the Landholder agreement the Claimant is authorised by the landowner to manage and enforce parking on the land in question. The Claimant does so in return for a right to raise charges from the users of vehicles who infringe the ‘regulations’ (a relevant obligation) which relates to the entitlement to use the same. As a result, the Claimant does issue Parking Charge Notices in relation to vehicles parked in breach of the terms and conditions, on sites that they manage. The landholder agreement confirms that the Claimant has a legitimate commercial interest and sufficient standing to: a. Issue PCNs as a result of the Terms and Conditions (as detailed in the signage) being breached; and b. Bring proceedings in its own name.

 2. The Claimant is and was at all material times a member of an Accredited Trade Association (ATA) as evidenced by the logo displayed on the signage at the site and the Claimants correspondence.

3. The Claimant is and has been at all material times a signatory to the Keeper at the Date of the Event agreement (the ‘KADOE’). Under the terms of the agreement with the DVLA the Claimant is entitled to request that the DVLA provide the Claimant with the details of a vehicles registered keeper as at a specific date under the reasonable cause criteria, provided that certain criteria are me

Site Details
4. The Claimant provides, manages and enforces private parking at the land located at Park Central Retail, Birmingham B15 2DF (the ‘Site’). The agreement between the landowner and the Claimant sets out, inter alia, the Claimant’s standing and rights to manage and enforce the regulations in situ at the Site. (Document 1)

5. The “regulations” (‘Terms and Conditions’) are displayed on signs erected by the Claimant at various points throughout out the Car Park. (Document 2) The Terms and Conditions of the Site, Inter alia, express the following conditions for any motorist using the Site:

PARK FULLY WITHIN A MARKED BAY
6. The signs are displayed at various points throughout the site as evidenced by the attached site plan. (Document 3) The Driver would have had the opportunity to read and understand them when entering and then parking at the Car Park. An objective observer would consider this action to have been done in acceptance of the Terms and Conditions. It is the signage that forms the basis of the contract between the driver and the Claimant (the ‘Contract’). The signage also states that any breach of the terms and conditions of using the site will result in the issuing of a Parking Charge in the sum of £100.00, plus additional costs if the same remains unpaid.

7. It is the Claimant’s case that such terms and conditions are clear and fair to all motorists, in accordance with their ATA’s Code of Practice and established case law. However, if the motorist believes them not to be, they always have the option to leave, and not enjoy the benefits offered from using the private car park. The signage situated across the Site forms a unilateral offer to anyone wishing to park their vehicle at the location. As the offer is a unilateral one, there is no need for the motorist to communicate their acceptance, their performance of parking (as opposed to leaving) in accordance with the Terms and Conditions is the act of acceptance.

8. If a driver choses to remain in breach of the terms and conditions of parking at the site, it is the Claimant’s position that they agree to pay the parking charge, detailed on the signage, plus any additional costs associated with the same. Given that the Driver has the choice as to whether to accept them or refrain from remaining at the site, it is the Claimant’s case that the Terms and Conditions should not be considered unfair or unreasonable.

9. 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. Breach of the Terms and Conditions

10. On the 8th July 2021, vehicle registration number CAR was observed by the Claimant to be parked in breach of the terms and conditions applicable at the Site. The photographic evidence shows the vehicle to be parked outside of a marked bay, on the roadway outside of the Co-Op store. (Document 4) The site in question is a small retail site however, parking is offered to patrons by way of parking within a marked bay. No parking is permitted on the roadway so as to ensure there is sufficient area for loading/deliveries and to prevent congestion given the site is one way only. PCN

11. As a result, the Claimant obtained the details of the vehicles registered keeper from the DVLA, under the terms of the KADOE. The Defendant was named as the Registered Keeper. The address supplied by the DVLA as being the Registered Keepers address is an address by which notices concerning the Vehicle can be sent and is deemed to be current, given that it is the Registers Keepers responsibility to update the DVLA of any changes. The Claimant issued a postal PCN to the Defendant as they were the Registered Keeper of the vehicle at the time of the contravention. (Document 5)

12. The above notice being issued pursuant to Schedule 4, paragraph 4(1) and paragraph 5(1)(a) and (b) which states the creditor the right to enforce against the driver and at paragraph (b) is unable to take steps to enforce that requirement against the driver because the creditor does no know both the name of the driver and a current address for service for the driver”; and paragraph 6(1)(a) “has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8, OR (b) has given a notice to keeper in accordance with paragraph 9.

13. The PCN gave the Registered Keeper three options: i. To pay the PCNs; ii. If they were not the driver to provide the Claimant with the driver’s full name and a serviceable address, in order that liability could be transferred; and iii. To appeal the PCNs initially via the Claimant’s internal appeals process and then if dissatisfied by the outcome to appeal the PCNs to the IAS.

14. No payment was made and no response was received. The Defendant is therefore pursued as the registered keeper pursuant to Schedule 4 of the Protection of Freedoms Act 2012. 

THE CLAIMANT THEREFORE CLAIMS:

 (i) The sum of £100 in respect of the unpaid PCNs (The Principal Debt).

(ii) Additional costs as referred to in the signage on display at the site and referred to in the Liability Notice sent to the Registered Keeper in the sum of £70 each.

By virtue of the IPC Code of Practice where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £70 (inclusive of VAT where applicable) unless Court Proceedings have been initiated. The Claimant therefore seeks an additional amount of £70 in addition to the monies in respect of the unpaid PCN as a contractual entitlement which the Court should enforce. The Claimant however understands that the additional costs, as to the amount, are completely at the courts discretion and are subject to its equitable power to disallow unreasonable expenses.

It is the Claimant’s position however, that as the PCN remained unpaid additional costs were incurred by them that were both reasonable and reasonable and proportionate in the circumstances of the case. The Company had to divert time and resources to recover the PCN charge, including but not limited to referring the matter to debt recovery services and instructing Solicitors (incurring yet further expense), costs which would have been avoided had the Defendant paid the PCN within the 28 day period, specified in the notice.

 AND THE CLAIMANT CLAIMS:
 1. Judgment for the principal sum of £100.00.
2. The additional costs of £70.00 or such other amount as the court considers fair and reasonable (not exceeding £70) given the circumstances of the case.
3. Any additional costs incurred by the Claimant to date.
4. The Claimant also seeks interest pursuant to Section 69 County Courts Act 1984.

STATEMENT OF TRUTH I believe that the facts stated in these Particulars of Claim are true. I am duly authorised by the Claimant to sign this statement truth. 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

I've just spoken to the court, who weren't too helpful. But they have confirmed my defence was received on 2nd October. On the 9th November court sent a letter to the defendant stating 

"it is ordered that the claimant does by 24th November 2023 file and serve better particulars of Claim properly setting out the contracted terms it relies upon, its claim shall be struck out without further order". 

The POC's (the ones I've posted above) were submitted on time (15th November).

The letter I received yesterday is the next correspondence from the court. She said that this isn't a CCJ letter, but an order from the courts. 

Is this just the judge being kind towards me and allowing me time to respond to the POC.

KeithP

You appear to have missed my post on your thread on 11 January at 10:26PM.

Le_Kirk

You could submit an amended defence based on the very full particulars, removing confusion about when the event took place and "multiple drivers" and just state that the Defendant placed/put the car as close as possible to the facilities in order to "attend to a vicissitude of short duration" (your sickness) which, as per Jopson v Homeguard B9GF0A9E is not parking. 

Coupon-mad

I do think the Judge has been fair to let you amend your defence because he/she let the Claimant have a lot of slack to amend and massively improve their original (unserved) POC.

So you should now do an amended defence.  

Remove everything about the fact the claim wasn't served to the right address because you are in a new position now, where full POC have been served.

Remove CEL v Chan.

Search the forum for Jopson B9GF0A9E defence

hallie28

Here is my amended defence. I haven't numbered the paragraphs yet. I left in Cel vs chan, as I wanted to ask if it's worth keeping in due to the POC's being inaccurate? 

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 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:

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

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 (), hence the inability for the defendant to defend the claim. The defendant was successful in having the CCJ set-aside on 19th September 2023.

The Defendant was 6 months pregnant at the timepoint on the PCN. Please see Exhibit 1 for a birth certificate to prove this. 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.  

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 your 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.

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.

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. (link to PDF) 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.

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):

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

·         There is a large criss-cross box that says “no stopping loading bay” 

·         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.

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.

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.

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)

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.

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.

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:

(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.

 

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

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.  

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.

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

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.

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'

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.

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.

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.

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.

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.

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.

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

hallie28

The claim is discriminatory

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.

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).

 

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

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.

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 6). 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.  

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.

Exhibit 7 shows google images of B15 2DF. The Claimant has provided no evidence that the vehicle registered VA18 VKC was parked at this location. On this basis alone, the claimant has no case to take forward.

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 8 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.

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. I have attached a copy of a more recent version obtained easily from Google earth (Exhibit 9). 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.  

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.

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 10.  

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 11.

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 12.

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 13.

 

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

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”.

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.

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.

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

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.

The vehicle that the claim refers to was sold 23rd August 2021, 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.

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

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:

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

(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.

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.

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).

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.

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." 

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

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).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.

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. 

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'.

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).

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'.

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.

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

hallie28

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').

Uk Car Park Management’s HMRC information shows 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

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):

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

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.

The Defendant avers that the CRA has been breached due to unfair/unclear terms, notices and lines, 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

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.  

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,

both leading authorities 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 seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''. 

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

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.

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

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 inaccurate. The Defendant believes that it is in the public interest that claims like this should be struck out. 

The claimant has clearly put little effort in collating their POC, failing to provide a correct address for the PCN 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.

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.

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

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

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.

Coupon-mad

Here's another Amended Defence from this week, where you will see that anything you want to remove has to be shown with a strike through.

hallie28

Coupon-mad said:

Here's another Amended Defence from this week, where you will see that anything you want to remove has to be shown with a strike through.

Where do I find this?

For clarity, I can add bits, and anything I remove I need to 'strike through'?