Court Claim - Forbidding Parking PCN - 5 years ago

tygrysek

B789 said:

tygrysek said:

B789 said:

Interestingly a very recent case where the defendant lost but the judge threw out the "extra" £70 because they already added on £40 after the original £60 discounted charge to cover their "extra costs".

Needs rewording better to be included in all future defences methinks.

Thank you. Do you happen to have the details which case it was? I will definitely look to include it. 

There won't be a "record" of the judgment as it was a small claim. However, it was interesting to hear about the judge's reasoning for disallowing the £70 fake add-on.

It has been suggested that something along the lines of the following be added into the defence:

The Defendant contends that the claimant has unjustifiably added extra costs to the claim in an attempt to cover supposed recovery costs. This assertion is contradicted by the original Parking Charge Notice (PCN) issued, which clearly stated that the charge was £100, discounted to £60 for early payment. This original pricing structure implies that the £60 amount was intended to cover all their original costs, including any additional expenses or eventualities.

By subsequently increasing the charge to £100, it is evident that the claimant has already factored in any potential extra costs or contingencies. Therefore, it is unreasonable and unjust for them to seek further compensation beyond the initial £100 charge. This sudden increase in the claim amount raises doubts about the claimant's intentions and suggests an unjustified attempt to overstate their recovery costs.

Brilliant, thank you very much. Again that's very helpful. 

Johnersh

OK, so here is how I like to view it. These musings are just that - they won't necessarily apply to every case. 

There is the primary argument (whatever that may be) regarding the PCN.

All defences (in my view) should include comment on the uplift claimed and interest. That is as simple as denying any entitlement to enhancement under the contract and interest in the amounts claimed (see below) with a short explainer. 

Uplift: this is usually described as a contractual entitlement, with nothing further said. Most signs refer to *may* be responsible for additional costs or to indemnify.

If you are to indemnify the claimant, then they need to prove that those costs have been incurred. Writing to you to seek payment is office overhead, it's part of the business model. They have not pleaded or established that any additional costs are incurred, much less at that level. The cost of court fees are claimed separately.

Further, if this is a liquidated damage (a general sum defined by contract for costs relating to a default) it needs to be expressly stated. It is not. For example, my bank charges £15 if I default on a monthly credit card payment and they have to write to me. That is in the t&cs and is contractual. The claimant could have drafted the contract in that way, but chose not to.

Interest: this is discretionary not an absolute entitlement. I would always seek to argue disapplication on that basis. *interest is now more important than ever as it is 8% above base and base is now much higher*

In almost all cases interest is incorrectly claimed on both the primary PCN and on the enhancement, despite the latter being applied/incurred on a later date. That is incorrect. It could be argued that enhancing their claim to interest on either impermissible sums or on an incorrect basis is reason enough to disallow the claim. 

If the claimant has unreasonably delayed commencing proceedings there is also scope to argue that interest should be disallowed or reduced. See for example Claymore Services Ltd v Nautilus Properties Ltd [2007] BLR 452

tygrysek

Johnersh said:

OK, so here is how I like to view it. These musings are just that - they won't necessarily apply to every case. 

There is the primary argument (whatever that may be) regarding the PCN.

All defences (in my view) should include comment on the uplift claimed and interest. That is as simple as denying any entitlement to enhancement under the contract and interest in the amounts claimed (see below) with a short explainer. 

Uplift: this is usually described as a contractual entitlement, with nothing further said. Most signs refer to *may* be responsible for additional costs or to indemnify.

If you are to indemnify the claimant, then they need to prove that those costs have been incurred. Writing to you to seek payment is office overhead, it's part of the business model. They have not pleaded or established that any additional costs are incurred, much less at that level. The cost of court fees are claimed separately.

Further, if this is a liquidated damage (a general sum defined by contract for costs relating to a default) it needs to be expressly stated. It is not. For example, my bank charges £15 if I default on a monthly credit card payment and they have to write to me. That is in the t&cs and is contractual. The claimant could have drafted the contract in that way, but chose not to.

Interest: this is discretionary not an absolute entitlement. I would always seek to argue disapplication on that basis. *interest is now more important than ever as it is 8% above base and base is now much higher*

In almost all cases interest is incorrectly claimed on both the primary PCN and on the enhancement, despite the latter being applied/incurred on a later date. That is incorrect. It could be argued that enhancing their claim to interest on either impermissible sums or on an incorrect basis is reason enough to disallow the claim. 

If the claimant has unreasonably delayed commencing proceedings there is also scope to argue that interest should be disallowed or reduced. See for example Claymore Services Ltd v Nautilus Properties Ltd [2007] BLR 452

Thank you so much @Johnersh for taking time to look at my case and offer some advice. It's much appreciated and hopefully will help my case.

I will be looking to include it in my defence along the example you quoted. 

Le_Kirk

If you are using the template defence, just check you do not duplicate what is already in there.

tygrysek

Le_Kirk said:

If you are using the template defence, just check you do not duplicate what is already in there.

Thank you for pointing it out, will do. 

tygrysek

Thank you so much to date for all your help. I have incorporated your advice to date, and have been researching this and other forums and finally got the first draft of the defence ready. Any comments or advice would very welcome:

1. The Defendant denies that the claimant is entitled to relief in the sum of 343.39 claimed, or at all, for the reasons stated in the following paragraphs.

Deficient Particulars of Claim and Request for Strike Out or Further Particulars

1. The Particulars of Claim put forward by the Claimant assert that the Defendant was the registered keeper or the driver of the vehicle. These statements indicate a failure on the part of the Claimant to identify a clear Cause of Action, instead presenting a range of possibilities. As a result, the Claim fails to meet the requirements outlined in Civil Procedure Rule 16.4 and Civil Practice Direction 16, paragraphs 7.3 to 7.5. Furthermore, the particulars of the claim do not satisfy the standards set forth in Practice Direction 16, paragraph 7.5, as they lack any specific details regarding the alleged breach of terms. The Claimant has not provided sufficient information within the Particulars of Claim to allow the Defendant to prepare a comprehensive defence. In particular, crucial details regarding the contract that purportedly was violated have not been disclosed.

Consequently, the Defendant respectfully requests that the court consider striking out the case due to the absence of a detailed cause of action or on the grounds that the claim is unlikely to succeed. Alternatively, the Defendant seeks an order for Further and Better Particulars of Claim, and requests permission to amend the Defence accordingly.

Claimant’s Non-compliance with Pre-court Protocol

2. The Claimant's non-compliance with the pre-court protocol is evident. A Letter Before Claim, a crucial step in the pre-action process, was not issued to the Defendant as required. This failure to provide the necessary notice infringes upon the Pre-action Conduct Practice Direction.

I draw the court's attention to Paragraph 4 of the Practice Direction, which addresses non-compliance and the associated sanctions. It is noteworthy that the Claimant, represented by their own Solicitors, initiated these proceedings, indicating their access to legal advice prior to commencing the claim. Therefore, the absence of a reasonable excuse for the Claimant's failure to adhere to the Pre-action Conduct process is apparent.

Considering the aforementioned points, the Defendant respectfully requests that the court acknowledges the Claimant's non-compliance with the pre-court protocol. This failure should be taken into account when assessing the credibility and validity of the Claimant's case.

 

Insufficient Signage, Breach of BPA Code of Practice, Absence of Consultation and Grace Period

3. The facts of the matter are as follows: At the time the private parking charge notice was issued, the Defendant was a permitted visitor to the location. This visitor status was validated by displaying a valid visitor permit, which had been provided by the resident. The Defendant chose to park at the specific site in question because there were no clear indications of private land, such as adequate signage, road markings or entrance signs. In the absence of clear signage or road markings, the Defendant contends that no valid contract can be established invoking the contra proferentem principle.

4. It is crucial to highlight that there was an absence of signage at the entrance of the road ’the land’, which would have effectively communicated the parking restrictions to drivers. The only signs present were on the building, situated at a distance from the road, making it impossible for drivers to clearly read or take notice that they pertained to parking on the road.

c) The British Parking Association (BPA) rules explicitly outline the requirements for entrance signs. “Entrance Signs should: a) Make it clear that the motorist is entering onto private land b) Refer the motorist to the signs within the car park which display the full terms and conditions.”

The absence of entrance signage directly contravenes the provisions outlined in the BPA Code of Practice, highlighting a breach on the part of the claimant.

Given these circumstances, the Defendant respectfully contends that the lack of signage at the road entrance, as well as the failure to meet the BPA's requirements for entrance signs, significantly impairs the effectiveness of the Claimant's case.

5. It is important to note that the road “the Land” where the Claimant alleges the vehicle was parked in breach of ‘Contract’ did not previously have any restrictions and had been commonly used for parking for several years prior to the issuance of the Parking Charge Notice (PCN). The Claimant or the Landowner did not engage in any consultation or provided information to the residents regarding the introduction of restrictions on the said road. Additionally, no grace period was provided, as recommended by the British Parking Association Code of Practice (BPA CoP) at 18.11. ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.'' The absence of consultation, information, and grace period raises concerns about the fairness and reasonableness of the Claimant's actions.

Considering the aforementioned points, the Defendant respectfully asserts that the lack of clear signage, road markings, entrance signs, and communication of changes regarding restrictions on the road in question undermines the formation of a valid contract. The absence of consultation, grace period, and entrance signage further highlights the unfair and unreasonable nature of the Claimant's actions.

 

The Inadequacy of Forbidding Signage to Form a Contract with the Motorist

6. The Claimant's notices purport to make a forbidding offer, which, in essence, is not an offer at all. Consequently, no contract can be said to exist. The Claimant lacked the authority to offer a contract, as there was no meeting of minds or exchange of consideration. None of the essential elements necessary for the formation of a contract were present, rendering the alleged contract impossible. At most, the Defendant was granted a license to park. If the Claimant asserts a breach of this license, it would be a matter of trespass, not a breach of contract, which can only be pursued only by the landowner.

The Defendant draws the court's attention to the following cases:

• B6QZ4H3R UK Parking Control Ltd -v- Sean Masterson 9th May 2016 (Edmonton County Court)
• B4GF26K6 Parking Control Management (UK) -v- Christopher Bull 21st April 2016 (High Wycombe County Court)

In both of these instances, the judges ruled that the decision in ParkingEye Limited v Beavis [2015] UKSC 67 did not apply because the signs were forbidding in nature. As a result, they could not form the basis of a contract with the Defendants.

The Defendant respectfully urges the court to consider the cited cases, which demonstrate the inapplicability of ParkingEye Limited v Beavis [2015] UKSC 67 when signs are of a forbidding nature. This is a crucial point in assessing the validity of the Claimant's case.

Primacy of Tenancy Agreement over any purported contractual terms asserted by the Claimant's signage

7. The Defendant asserts that the tenancy agreement takes precedence over any purported contractual terms asserted by the Claimant's signage. As a tenant of the premises, the Defendant is bound by the terms and conditions outlined in the tenancy agreement, which govern the use and rights associated with the property. Any provisions set forth in the Claimant's signage must be considered secondary to the contractual obligations established within the tenancy agreement. The tenancy agreement, being a legally binding document, supersedes any unilateral claims made by the Claimant through their signage.

 

The Defendant asserts that the Claimant, NATIONAL PARKING MANAGEMENT LTD, lacked the capacity to offer a valid contract with the Defendant

8.The Defendant disputes the lawful occupancy of National Parking Management Limited on the land in question. The Defendant holds a reasonable belief that the Claimant lacks the authority to issue charges on this land in their own name and that they do not possess the necessary rights to bring this case.

(a) It is asserted that the Claimant is not the landowner but rather an agent acting on behalf of the landowner. The Claimant has failed to provide evidence demonstrating their legal standing to independently form a contract and enforce parking charges.

(b) The Defendant challenges the Claimant to provide strict proof of their sufficient interest in the land or specific contractual terms that enable them to initiate legal action in their own capacity. As a third-party agent, the Claimant may not lawfully pursue any charge independently. The Defendant reasonably believes that the Claimant lacks the authority to issue charges on this land in their own name and has no legitimate basis to bring an action regarding this claim.

The Defendant requests that the court scrutinize the Claimant's authority and standing in relation to the land in question and seeks strict proof of their right to initiate and pursue this claim.

 

Disproportionate and Unconscionable Claim Amount, Lack of Cost Explanation, and Non-Compliance with Statutory Codes

9. The Defendant denies that the amount claimed by the Claimant is a fair and reasonable reflection of any actual loss suffered. The claimed amount is a charge that is evidently disproportionate and unconscionable under the circumstances. Particularly in light of the anticipated ban on such charges by the Government.

a)     It is denied that the purported 'damages' or 'debt fee' sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. 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 (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal’.

b)    This finding is further supported by the Government, who stated in 2022 that attempts to add 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

c)     Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

10. The Defendant contends that the demanded amount cannot be considered a genuine pre-estimate of the Claimant's loss. The Claimant has failed to provide any explanation or breakdown of how the sum was calculated, the specific conduct that led to it, or how the amount escalated from £60 to £170.

11. Claiming unexpected ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the official Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA goes further than the UTCCRs, introducing a requirement for 'prominence' of both contract terms and 'consumer notices' (i.e. signage and any other notices/communications, including the timely service of any PCN in parking cases).

12. The Protection of Freedom Act Para 4(5) explicitly states that the maximum recoverable amount from the keeper is the charge stated on the Notice to Keeper.

13. The Claimant has not incurred any additional costs, including reminder letters, as the parking charge itself already encompasses the necessary administrative work. This aligns with the Supreme Court's decision in Beavis, where it was established that the parking charge covers the associated work and expenses.

14. The Defendant highlights the lack of agreement to pay the parking charge, let alone any undisclosed and unquantified costs, which were not prominently displayed on the signage

Unreasonable Delay and Disproportionate Interest Charges

15.  The Defendant contends that the claimant's delay of over 5 years in bringing this claim to court is unreasonable. The additional interest charged at 10.25% per annum from the date of parking is disproportionate to the actual loss and appears to be an attempt to penalize the Defendant with further charges.

16. Regarding interest, it is crucial to recognize that it is discretionary and not an absolute entitlement. The Defendant intends to argue for the disapplication of interest based on this discretionary nature. Moreover, it is worth noting that interest has become more significant than ever due to the current higher base rate.

17. Furthermore, the interest is incorrectly claimed on both the primary Parking Charge Notice (PCN) and the enhancement, despite the latter being applied or incurred at a later date. This discrepancy is incorrect and may be sufficient grounds to disallow the claim. Arguably, the Claimant's improper enhancement of their claim with interest on impermissible sums or on an incorrect basis is reason enough for its dismissal.

18. If the Claimant has unreasonably delayed commencing proceedings, the interest should be disallowed or reduced. The case of Claymore Services Ltd v Nautilus Properties Ltd [2007] BLR 452 serves as an example where courts have considered such factors.

The Defendant requests that the court carefully consider the disproportionate and unfair nature of the total sum, the lack of detailed cost breakdown, the unreasonable delay in bringing this claim to court and well as incorrectly applied interest.

tygrysek

continued:

Abuse of Court Process

19. The Defendant holds the reasonable belief that the Claimant is exploiting the court process with the intention of alarming the Defendant into making an unjustified payment.

It has come to the Defendant's attention that the Claimant has an extensively documented history of initiating numerous court claims, only to discontinue them abruptly and without valid justification shortly before scheduled hearings. This pattern raises serious concerns regarding the Claimant's motives and its abuse of the court system.

 

Defendant’s Costs

20. The Defendant wishes to draw the court's attention to the potential financial burden imposed upon the Defendant as a result of defending this baseless claim.

In the matter of costs, the Defendant asks:

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

(b) that, in the event of a late Notice of Discontinuance (which the Defendant is aware happens where parking firms use and abuse the court process as a cheap form of debt collection) any paid-for hearing is not vacated but continues as a costs hearing. The Defendant may seek a finding of unreasonable conduct by this Claimant, and may seek costs pursuant to CPR 46.5.  CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but 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))." 

 

Request for Claim Dismissal: Lack of Cause of Action and Abuse of Court Process

21. In light of the absence of a viable cause of action, as supported by the arguments presented above, and considering the apparent abuse of the court process by the Claimant, the Defendant respectfully requests that the court exercises its authority to strike out the claim due to its lack of prospects for success.

It is of utmost importance for the court to take into account the potential harm inflicted upon the Defendant through the baseless nature of the claim. By dismissing the claim, the court can uphold the principles of justice and fairness, discouraging such practices from occurring in the future.

 

Urgent Request for Claim Discontinuation

22. The Claimant is hereby strongly urged to discontinue the claim immediately to prevent incurring unnecessary costs and to avoid wasting the valuable time of both the court and the Defendant.

 

Statement of Truth:

I believe that the facts stated in this Defence are true.

tygrysek

Apologies this is a long defence and i dont expect anyone to read it fully.... even if you can comment on 1 or 2 points it will be super helpful!!!

KeithP

Where did you get that from?
Why are you not using the template Defence?
If you are using parts of the already written template Defence, it is unfair to ask others to read through all that stuff which has already been checked many times over.

Please just show us those parts of the template that you have changed.

Oh... and your Statement of Truth is several years out of date.

You mention British Parking Association, or BPA, several times, citing their CoP too.
National Parking Management Ltd are not part of the BPA's Approved Operator Scheme and are therefore not bound by the BPA's rules.

tygrysek

KeithP said:

Where did you get that from?
Why are you not using the template Defence?
If you are using parts of the already written template Defence, it is unfair to ask others to read through all that stuff which has already been checked many times over.

Please just show us those parts of the template that you have changed.

Oh... and your Statement of Truth is several years out of date.

You mention British Parking Association, or BPA, several times, citing their CoP too.
National Parking Management Ltd are not part of the BPA's Approved Operator Scheme and are therefore not bound by the BPA's rules.

Thank you @KeithP I took parts from the defence template as well parts I thought may be relevant in my case from various threads here and forums.

Yes, I get reading it all is too much to ask and counterproductive as well! I'll review and highlight what is different or what I'm particularly unsure of. 

Thank you for pointing out the statement of truth and the BPA! I should have checked it. I'll remove or reword those bits later on too. 

I admit I'm a complete novice so that was a massive learning curve and it certainly takes a lot of time to get even the basic knowledge necessary to defend it properly.