Please check my draft defence! Parallel Parking LTD

Money_Savvy

YankeeBrit said:

An NtD is a windscreen ticket. Once they have the V5C details, they send an NtK by post.

In that case; no NTD was issued. The first correspondence I received was a NTK.

Money_Savvy

Hi all,

I am preparing to send my Defence and have pasted it in full below to check I am sending the correct version.. please can you tell me if I am on the right track with it? Thank you all so much.

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 Defendant 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 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 and driver of the vehicle.

3. The Defendant parked in an unmarked area off a public road to drop off their passengers (children) to a fitness class. The timings from the 'ticketer' are not accepted (such data being editable on a phone and parking firms using unregulated 'self ticketers' have been caught exaggerating timings).  The Claimant is put to strict proof of their timings and any breach of terms.  The car was left for what the Defendant estimates was 5 to 10 minutes for the purposes of assisted alighting, which the predatory lurking ticketer must have watched.

4. This brief stop for the sole purpose of setting down passengers and escorting them to adjacent premises is not a 'parking' event.  No grace period was allowed before PCN photos were taken behind the Defendant's back.

5. The Defendant denies seeing any parking restriction signs or notices when pulling up to the area or stopping the vehicle. The area in question seemed to the Defendant to be of mixed use with clearly marked parking bays on the opposite side of the road. However, the area where the Defendant parked had no parking bays or indeed any boundary marks. Upon receiving a parking charge notice the Defendant went back to the area to examine the notices; there were yellow and black signs with minuscule text attached to what seemed to the Defendant a derelict building.

 

6. The signage on the building in question is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding.

7. 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.

8.  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.  

9.  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.

10.  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." 

 

11.  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

12.  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).

13.  With that sum in mind, 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.

14.  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. 

15.  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'.

16. 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.

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

18.  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).

19.  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.

20.  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.

21.  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.

22.  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

23.  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.

24.  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. 

25.  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.

26.  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.  

27.  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''. 

28.  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." 

 

Money_Savvy

Lack of standing or landowner authority, and lack of ADR

29.  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.

30.  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

31. 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.

32.  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.  

33. 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. 

34.  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

35. 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.

Slainte1

If the driver didn’t get a windscreen ticket do you know if they have caught the car on CCTV cameras. Have you been given copies of photographs they are relying on of the vehicle stopped. If so have you gone to the site to look for cctv and any potential (lack of) signage alerting the driver to such. I’m sure the others will comment on the rest of your statement.  

I’ve just been given notice of my court hearing. 😳

Coupon-mad

The statement of truth doesn't need a number.

The rest is fine but I made a few tweaks to the Template Defence these past few days.

There is now a sub-heading about Inflated Claim and 'market failure' (please add it where the Template shows) and this sentence has changed as shown:

(understood to have a bare licence as agents)

Fruitcake

I've only skim read it, but have you got Jopson v Homeguard in there? This was an appeal case where the judge stated that dropping off/picking up is not parking. Being an appeal case it is persuasive on the lower courts.

The transcript is available on line, but you only need to quote the case number, the judge's name, and the relevant few lines from the judge around paras 19/20. 

Money_Savvy

Coupon-mad said:

The statement of truth doesn't need a number.

The rest is fine but I made a few tweaks to the Template Defence these past few days.

There is now a sub-heading about Inflated Claim and 'market failure' (please add it where the Template shows) and this sentence has changed as shown:

(understood to have a bare licence as agents)

Thank you, all checked and updated.

Is it allowed to add a digital signature to the document or is it best to print, sign and scan it back in?

Money_Savvy

Fruitcake said:

I've only skim read it, but have you got Jopson v Homeguard in there? This was an appeal case where the judge stated that dropping off/picking up is not parking. Being an appeal case it is persuasive on the lower courts.

The transcript is available on line, but you only need to quote the case number, the judge's name, and the relevant few lines from the judge around paras 19/20. 

Thank you, I had a look at this case and appeal. I decided not to use it as I thought it left too many arguments for the claimant to raise on how my case was different. I would be happy to be educated otherwise though!

Money_Savvy

Slainte1 said:

If the driver didn’t get a windscreen ticket do you know if they have caught the car on CCTV cameras. Have you been given copies of photographs they are relying on of the vehicle stopped. If so have you gone to the site to look for cctv and any potential (lack of) signage alerting the driver to such. I’m sure the others will comment on the rest of your statement.  

I’ve just been given notice of my court hearing. 😳

I have copies of the photos that are used as evidence to issue the PCN but not sure if CCTV was used. There are cameras in the area but unsure if they are owned by the owner of the building to which the signs are attached. There were no cameras attached to the building in question.

Money_Savvy

Slainte1 said:

If the driver didn’t get a windscreen ticket do you know if they have caught the car on CCTV cameras. Have you been given copies of photographs they are relying on of the vehicle stopped. If so have you gone to the site to look for cctv and any potential (lack of) signage alerting the driver to such. I’m sure the others will comment on the rest of your statement.  

I’ve just been given notice of my court hearing. 😳

Hope you get the win!