CCJ I didn’t know about!

Jamesingram1

Johnersh said:

The claim form makes clear particulars are to follow. I agree that this means that default judgment could not be obtained on the claim form and incomplete wording therein IF it really is the case no particulars were filed. Cpr 15.4 creates the obligation to do a defence when PoC are served. 

In fact, if it's 4 months since the claim form was served, it can be argued that they have failed to particularise and it needs to be set aside and struck out.

The court don't do default judgment of their own volition. It needs to be requested. That means the claimant requested it. They have either requested when not entitled or the court counter staff have made a mistake. Both options are possible. 

Now this is listed for 10 august is there anything I should take to court with me? Proof I moved out I suppose is one of them I assume 

Umkomaas

Jamesingram1 said:

Johnersh said:

The claim form makes clear particulars are to follow. I agree that this means that default judgment could not be obtained on the claim form and incomplete wording therein IF it really is the case no particulars were filed. Cpr 15.4 creates the obligation to do a defence when PoC are served. 

In fact, if it's 4 months since the claim form was served, it can be argued that they have failed to particularise and it needs to be set aside and struck out.

The court don't do default judgment of their own volition. It needs to be requested. That means the claimant requested it. They have either requested when not entitled or the court counter staff have made a mistake. Both options are possible. 

Now this is listed for 10 august is there anything I should take to court with me? Proof I moved out I suppose is one of them I assume 

I thought it was today ....

Application to set aside being heard on 10 July 

??

Jamesingram1

Sorry my mistake - to confirm it’s 10 August 

Jamesingram1

Anyone? ??

Coupon-mad

What else do you need to know?  If this is a CCJ set aside hearing you will learn far more by just reading recent completed set aside threads.

Jamesingram1

Set aside successful, 12 days to to a defence though
Link to car park https://maps.app.goo.gl/kGj3UvKARb5V7TE68?g_st=ic

as @Coupon-mad points out, the signs I took a photo of are different to how they appear in GSV. Because I don’t have time to SAR I cannot know which signs were there in June 2022.

Jamesingram1

Current signage. 

Also worth noting that you can access this car park and park there without seeing any signs whatsoever 

Coupon-mad

Great news about the CCJ set aside.

Email OPS for a SAR this weekend anyway.  It will come before the hearing and you can then add a WS and evidence bundle. 

As for the first step of Defence, use the Template Defence next week (but of course nothing gets sent to the CCBC, it goes to your local court and a copy to the C's legals). 

Do show us your draft defence but do the SAR first.

Jamesingram1

Thanks @Coupon-mad here is the draft 

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. 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:

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

As heard in the application to set the original claim aside, the defendant has no prior knowledge of the claim.

Although Judge Marsden found that the defendant should be able to understand from the particulars of claim what the Claimant is claiming for, the defendant cannot formulate a more intricate defence because the Claimant failed to submit further POC’s to the court. 

Issues in formulation of a defence arise from the fact that a google street view image will show in May 2022 that the site signage was different than August 2023. As the defendant has no paperwork, and the claimant failed to file further particulars of claim within the 14 days as they said they would, the defendant therefore cannot be sure of any relevance of particular sections of the defence to the claim, unless the claimants solicitor provides such information voluntarily before this document is filed. 

The defendant shall defend the alleged contractual element of the claim based on the presentation of the site as of August 2023.

Access to the site is possible by entering through Pye Street. There is no signage at any part of the site here, and nothing to indicate it as a designated exit. 

The site is in poor condition and has had abandoned vehicles and trailers left in it, there is no demarcation of where Portsmouth City Council land ends and private land begins, the defendant avers that gives the appearance that the site is PCC land and is confusing in nature 

Even if the signage is to be believed as adequate, which is denied. Its nature (as of August 2023) is forbidding as it only makes an offer to those with permits. Without a contract capable of agreement, the vehicle can only be held to be trespassing (which is denied) and the Judges at the Supreme Court  in Beavis v ParkingEye confirmed that ParkingEye could not pursue a charge that was a penalty nor one that fell under the tort of trespass, as they were not in possession of the land. 

Again, should it be that there was an offer of contact, which is denied, the defendant submits that the persuasive case law is 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was not deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports the defendants  argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking. The defendant puts this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, the defendant requires this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. The defendant submits that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely. the Defendant observes after researching other parking claims with the same POC that this claim sets out a cut-and-paste incoherent statement of case.  The POC is sparse on facts and specific breach allegation, making it very difficult to respond. The Defendant avers that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages.

The alleged 'core debt' from any parking charge cannot have exceeded £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 thus requires further and better particulars, and

(ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest has been calculated, which looks to have been applied improperly on the entire inflated sum, as if that figure was overdue on the day of the alleged parking event.  

This Claimant routinely pursues a disproportionate fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce disproportionate 'Debt Fees'.  This case is a classic example where adding exaggerated fees encourages the 'numbers game' of inappropriate, out of control bulk litigation of weak/archive parking cases.  MoJ statistics of bulk litigators reveal that there are hundreds of thousands of parking claims every year with some 90% causing default CCJs adding up to 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') first published a statutory Parking Code of Practice in February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice.       in which the Ministerial Foreword was 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." 

8.  Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn') a draft Impact Assessment (IA) to finalise it was published on 30th July 2023. The Government's analysis has exposed what they state are industry-gleaned facts about supposed 'Debt 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 suggest that the parking industry has informed the DLUHC that the true minor cost of what the parking industry calls debt recovery or 'enforcement' ( = pre-action) stage totals a mere £8.42 per recovery case (not per PCN).

With that sum in mind, it is clear that the extant claim has been enhanced by an extreme amount, disingenuously added as a 'fee'.  This is believed to be routinely retained by the litigating legal team and in this Claim it is additional to the intended 'legal representatives fees' cap set within the 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' and the Defendant takes that position.

The new draft IA now demonstrates that the unnecessarily intimidating letter-chains actually cost 'eight times less' (says the DLUHC analysis) than what may be viewed as a 'price-fixed' £70 per PCN. This causes consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent.  This abusively enhanced 'industry standard' Debt Fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies which were suddenly aligned in 2021 on adding £70, influenced by a Board of parking operators and debt firms who stood to gain from it. 

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 ('the Beavis case').  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 later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal'.

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.  If seeking keeper liability  (unclear from the POC) the Claimant is put to strict proof of POFA compliance. 

The defendant notes that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, the defendant believes this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, the defendant is of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

Jamesingram1

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed non existent in some areas.  They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

The terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. 

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.'' 

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, one would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.