County Court Letter

Peach321

Everything I have done, has been done through my dad’s accounts, but I am the one doing it as I am the one who advised him not to pay the ticket. 

I could send someone back to the car park to take a picture of the sign to see how much it was for two hours (it’s a different city to where I currently am).

Coupon-mad

What few words went in as his defence?

This is something of a disaster - absolutely not what to do - (sorry) and could lose the case if there is no defence there.

Peach321

Coupon-mad said:

What few words went in as his defence?

This is something of a disaster - absolutely not what to do - (sorry) and could lose the case if there is no defence there.

The signage for the car park was not clear. The parking fee for
one hour was 80p (£0.80) and the amount paid on this day by myself
was £1.50. I assumed a ticket for 2 hours had been printed. I was
not returned the extra £70p (£0.70).
However, upon return to my car an attendant was issuing a ticket.
I was shocked, as in my mind, I had paid the full amount for two
hours and I was well within that allotted time.



If i as to send my full defense by email would this supersede this one?

B789

Peach321 said:

Coupon-mad said:

What few words went in as his defence?

This is something of a disaster - absolutely not what to do - (sorry) and could lose the case if there is no defence there.

The signage for the car park was not clear. The parking fee for
one hour was 80p (£0.80) and the amount paid on this day by myself
was £1.50. I assumed a ticket for 2 hours had been printed. I was
not returned the extra £70p (£0.70).
However, upon return to my car an attendant was issuing a ticket.
I was shocked, as in my mind, I had paid the full amount for two
hours and I was well within that allotted time.



If i as to send my full defense by email would this supersede this one?

Unfortunately not. You can ask but you will probably receive a response that confirms you would have to pay a £108 fee to amend your defence which would probably not be recoverable even if you won.

Your defence about the signage is about the only bit that you can rely on and is a powerful defence if you can really build on that in your WS stage. The only other saving grace you may have is if you can rely on the Consumer Protection Act which doesn't have to have been mentioned in your defence in order to be able to rely on it.

It will depend on how strongly you feel about defending this claim from a serial scammer and whether you want to submit a full defence out of principle. I'm pretty sure that @coupon-mad or one of the other more experienced contributors could advise with a bit more clarity.

Coupon-mad

Peach321 said:

Coupon-mad said:

What few words went in as his defence?

This is something of a disaster - absolutely not what to do - (sorry) and could lose the case if there is no defence there.

The signage for the car park was not clear. The parking fee for
one hour was 80p (£0.80) and the amount paid on this day by myself
was £1.50. I assumed a ticket for 2 hours had been printed. I was
not returned the extra £70p (£0.70).
However, upon return to my car an attendant was issuing a ticket.
I was shocked, as in my mind, I had paid the full amount for two
hours and I was well within that allotted time.



If i as to send my full defense by email would this supersede this one?

The Defendant is stuck with that and only that, plus arguments supported by the Consumer Rights Act about fairness of the terms and signs.  The court has a duty to consider that.

Unless the D qualifies for Help with Fees, in which case they can (free of charge, possibly, if their income is low) make a N244 application asking for permission to amend the defence.

Peach321

IN THE COUNTY COURT

 

Claim No.:  xxxxxx

 

Between

 

Full name of parking firm Ltd, not the solicitor!

 

(Claimant)

 

- and - 

 

Defendant’s name from N1 claim (can’t be changed to driver now)                       

 

 (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 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 boilerplate text in the Particulars of Claim ('the POC').

 

 

 

The facts known to the Defendant:

 

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

 

3. The defendant parked his vehicle in the Allison Street car park on Sunday 30/10/2022 and proceeded to use the ticket machine to buy the ticket. The defendant intended to buy a ticket for two hours and paid £1.50 to the ticket machine. There was no change given by the machine. The ticket machine printed a ticket for only one hour and the defendant unknowingly placed this ticket in the car windscreen.

Upon return to the car, the defendant loaded his grandson’s pushchair into the car and then noticed that a parking attendant had issued a ticket and was just leaving. The defendant was surprised to see this and upon inspection of the ticket, noticed that the machine had only issued a ticket for one hour and not two hours. Had the machine initially issued the change due, the defendant may have noticed that the ticket was for one hour and not two hours.

 

 

4. 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.

5.  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. 

 

6.  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.

 

7.  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

 

9.  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).

 

10.  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.

 

11.  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.

 

12.  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'.

 

13. This Claimant has not incurred any additional costs because the parking charge more than covers what the Supreme Court in the Beavis case called an 'automated letter-chain' business model that generates a healthy profit.  In Beavis, there were 4 or 5 letters in total, including pre-action reminders.  The £85 'PCN' was held to cover the costs of the operation.  The DLUHC's IA suggests it appears to be the case that the parking charge itself more than covers the very minor costs of pre-action letters, even if and when the Government reduces the PCN level.

 

14.  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/hirer liability - unclear from the POC - the Claimant is put to strict proof of POFA compliance.

 

15.  The Defendant avers that the Government's analysis now overrides mistakes made in appeal cases that the parking industry desperately rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).

 

16.  Far from being persuasive, regrettably these one-sided appeals saw Circuit Judges led by Counsel for parking firms against litigant-in-person consumers who lacked the wherewithal to appeal. The Defendant avers that errors and plainly wrong presumptions were made in each case.  Evidence was either overlooked (including major evidence discrepancies in Wilshaw, where the Judge was also oblivious to the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the parking contract in Beavis.

 

17.  Those learned Judges were not in possession of the same level of information as the DLUHC, whose incoming statutory Code now clarifies such matters as a definition of 'parking' as well as 'consideration and grace periods' and minor human oversights such as 'keying errors' or 'fluttering tickets/permits' where the Government says a PCN should not have been issued at all.

 

18.  Whilst the DLUHC Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and the 2022 iteration stands to become a creature of statute to replace the self-serving BPA & IPC Codes of Practice.  More than once in the draft IA, the Secretary of State mentions they are addressing 'market failure' a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

 

19.  For the avoidance of doubt, the Defendant avers that there was no agreement to pay a parking charge, let alone added fees which the Defendant believes were not quantified in bold, prominent text (if at all). This Claimant failed to ensure the presence of well-placed, plentiful and readable signs on a par with the large yellow & black warning signs seen in the Beavis case, and unlike the signage requirements set out in the DLUHC Code which reflects the requirements of the Consumer Rights Act 2015 (the 'CRA').

 

 

 

CRA breaches

 

20.  Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and communications intended to be read by consumers.

 

21.  Section 71 creates a statutory duty upon Courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  Signage must be prominent, plentiful, well-placed (and 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). 

 

 

 

Peach321

ParkingEye v Beavis is distinguished

 

23.  Unlike in Beavis, the penalty rule remains engaged in this claim due to the unconscionable added 'Fee'.  The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a late-added Fee is not the core parking price term and neither was it prominently proclaimed on the signs. 

 

24.  Paraphrasing from the Supreme Court, 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 the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'.  In the present case, the Claimant has fallen foul of those tests. Their small signs have vague/hidden terms and minuscule text, 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 stand unchallenged and are supported by the BPA & IPC.  In November 2020's 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. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."

 

 

 

Lack of standing or landowner authority, and lack of ADR

 

26.  DVLA data is only supplied to pursue parking charges 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 in their own name.

 

27.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in 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).  The Claimant's consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the DLUHC, who have in the IA criticised the lack of transparency or independence) should lead Judges to realise that a truly fair appeal was never on offer.

 

 

 

Conclusion

 

28. 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 because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

 

29.  There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than the sum claimed in almost every case. 

 

30. 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.

 

31.  Attention is drawn specifically 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.

 

 

 

Signature:

 

Date:

Peach321

Coupon-mad said:

Peach321 said:

Coupon-mad said:

What few words went in as his defence?

This is something of a disaster - absolutely not what to do - (sorry) and could lose the case if there is no defence there.

The signage for the car park was not clear. The parking fee for
one hour was 80p (£0.80) and the amount paid on this day by myself
was £1.50. I assumed a ticket for 2 hours had been printed. I was
not returned the extra £70p (£0.70).
However, upon return to my car an attendant was issuing a ticket.
I was shocked, as in my mind, I had paid the full amount for two
hours and I was well within that allotted time.



If i as to send my full defense by email would this supersede this one?

The Defendant is stuck with that and only that, plus arguments supported by the Consumer Rights Act about fairness of the terms and signs.  The court has a duty to consider that.

Unless the D qualifies for Help with Fees, in which case they can (free of charge, possibly, if their income is low) make a N244 application asking for permission to amend the defence.

I have taken the format for a proper defence and edited it so I may be able to try and update it as per your advice. Hopefully the application should work if all is correct.

Umkomaas

Did your father qualify for Help with Fees?  Has the court given permission to submit an amended Defence?  Please confirm that the above Defence is being submitted in your father's name?

KeithP

Paragraph 3 of that Defence starts "3. The defendant parked his vehicle...".

So why doesn't paragraph 2 say  "2. It is admitted that the Defendant was the registered keeper and driver of the vehicle"?