NCP, BW Legal & Impending LoC

Coupon-mad

Yes indeed. What cobblers!  Sit tight. 

ADorreen

Has this all gone quiet? No further exchanges?

stutaylor86

ADorreen said:

Has this all gone quiet? No further exchanges?

I had hoped that would be the case, unfortunately however it seems they are in wasting court time mode.

Claim form now received from Northampton, with an issue date of 23rd August. I plan to do the acknowledgement of service on MOS in a couple of days and then I think i have until 25th September to submit my defence, which i full intend to do ahead of that.

I’ll be pulling something together later/tomorrow so will post a draft in here so the brilliant forum regulars can help me get it right.

KeithP

stutaylor86 said:

Claim form now received from Northampton, with an issue date of 23rd August. I plan to do the acknowledgement of service on MOS in a couple of days and then I think i have until 25th September to submit my defence, which i full intend to do ahead of that.

Your are right with your Defence filing deadline but there might be something useful here...

With a Claim Issue Date of 23rd August, you have until Monday 11th September to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 25th September 2023 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute. 

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

stutaylor86

KeithP said:

stutaylor86 said:

Claim form now received from Northampton, with an issue date of 23rd August. I plan to do the acknowledgement of service on MOS in a couple of days and then I think i have until 25th September to submit my defence, which i full intend to do ahead of that.

Your are right with your Defence filing deadline but there might be something useful here...

With a Claim Issue Date of 23rd August, you have until Monday 11th September to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 25th September 2023 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute. 

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Thank you Keith, i was only confident on the date based on one of your posts on another thread where the issue date was the same - always good to get confirmation too!

AOS now filed, i will post my draft defence in the next couple of days 👍🏼

stutaylor86

Hi, slightly later than planned due to unforeseen circumstances, the following is my current draft defence.

I'm concerned I may have strayed into Witness Statement territory in para 3 but I need to get across that I did actually pay but just to the wrong provider, directly due to NCPs poor signage! I'm also unsure of how much of the shambolic contact / non-contact / re-contact that occurred over the eighteen month period to include, or if this is all for the WS.

In terms of the remainder, I've read through and think it all to be relevant with the potential exception of the one i've struck through, on the basis this is NCP and the entry signage is so large and subsequent signage so frequent that it seems difficult to argue it's non-prominence. 

Any thoughts and feedback gratefully received!

IN THE COUNTY COURT

Claim No.:  

Between

NCP 

- and -  

 (Defendant)

_________________

DEFENCE

 

1.  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 in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

 

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case.  The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper and driver of the vehicle.

 

3. On the date in question, the defendant entered and parked in the stated car park with the full intention of paying via mobile app. Having parked adjacent to a clear pedestrian exit from the car park to the adjoining street, due to the inclement weather the defendant hurriedly exited the car park and noted down the stated car park code from a payment terminal located directly underneath two large yellow signs, one stating ‘Have You Paid’ above the claimants brand name and another which stated ‘Pay Here’. The defendant accessed the required mobile app, paid the appropriate fee and later, within the allotted time, returned to their car and exited the car park. No contact was received from the claimant to indicate any wrongdoing. The defendant contacted the claimant on the16th August 2021 providing proof of the aforementioned payment, following receipt of a ‘Debt Collection’ letter from a third party acting on behalf of the claimant. The claimant did not respond to this contact or three subsequent attempts from the defendant. Following sporadic contact from the claimant’s various agents over the subsequent eighteen months, the defendant revisited the site to acquire evidence. It was at this point that the defendant realised payment had been made to a separate car park, immediately adjacent to the claimants and directly alongside the aforementioned pedestrian exit, with poor delineation and no obvious indication of difference.

4. 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.

5. 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.


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

6. 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.

7. 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.

8. 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).

9. 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." 

10. 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

11. 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).

12. 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.

13. 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. 

14. 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'.

15. 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).

16. 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'.

17. 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.

18. 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.

19. 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').

 

CRA breaches

20. 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

21. 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.

22.  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

23.  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.  

24. 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''. 

25.  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

26. 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.

27. 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

28. 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. 

29. 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. 

30.  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))."   

 

KeithP

This sentence in paragraph 1 of your Defence...

Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC')

...apart from the words "liability is denied", appears to be superfluous.
I say that because the last sentence in your paragraph 2 states...

However, it is admitted that the Defendant was the registered keeper and driver of the vehicle.

...so there is no need for the Claimant to make any attempt at 'claiming keeper liability'.

Coupon-mad

'NCP' is not the full name of the Claimant.

Don't cross vital stuff out from the Template.  It's not about whether the signs were big.  Never mind the size of the sign itself.

This is about not showing prominent terms.  Is the £100 "in big"?

stutaylor86

Coupon-mad said:

'NCP' is not the full name of the Claimant.

Don't cross important (vital) stuff out from the Template.  It's not about whether the signs were big.

Ok thank you, I will keep that para in that case.

The abbreviation was a space saving move as I went over the character limit for the post - i have National Car Parks Ltd on my defence document.

Other than that, and Keith's comment, does para 3 read ok as is?

stutaylor86

KeithP said:

This sentence in paragraph 1 of your Defence...

Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC')

...apart from the words "liability is denied", appears to be superfluous.
I say that because the last sentence in your paragraph 2 states...

However, it is admitted that the Defendant was the registered keeper and driver of the vehicle.

...so there is no need for the Claimant to make any attempt at 'claiming keeper liability'.

Thank you, that is me misunderstanding the edits needed on the template.

I have amended so that para 1 ends with "Liability is denied" and retained para 2 as is