MET Parking taking me to court N1 received Help!

Coupon-mad

No it isn't.  See threads by

@andyl3004

@xavian1234

hharry100

Thank you for pointing me in the right direction guys, i have done a rough start on my Defence which i have stitched together from the great defence letters i have seen on MSE Forum, great work!
please see my defence below

hharry100

DEFENCE

 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 license 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:

1. The facts in this defense 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 appears to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver

2. The Defendant and his family had gone shopping in the Asda Superstore and parked in the car park outside the store, The Defendants young son required the use of a bathroom urgently therefore the defendant parked as quickly as possible in a parking bay close to the store entrance, Upon returning to his vehicle the defendant noticed he had received a Parking Charge Notice (PCN).

3. The Defendant had not noticed any signage close to the where the Defendant parked, showing the terms and conditions for use, the Defendant was a not aware of any restrictions that applied in the car park due to obscure signage which was impossible to read from where the defendant had parked. The small signage was not suitable to alert a motorists. Due to the age of the alleged offense which is nearly 5 year old the Defendant is unable to recall the exact reason for the PCN. 

4. The facts in this defence come from the Defendant's own knowledge and honest belief. To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticized for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronize the Defendant with (ironically template) unfounded accusations of not understanding their defence.

5. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of the case. Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim. The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated. 

Failure to comply with Civil Procedure Rules

1. Recent persuasive Appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44, attached) would indicate the PoC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16.  In the cited case HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'.  The Defendant asserts that this Claim is based upon an agreement by conduct.  The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the PoC.

2. The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

hharry100

I understand i should also add a list of examples showing cases that have been successful, do i need to attach images now to support my initial defence, or am i able to add the images at a latter date?

Coupon-mad

Get rid of 4 (completely) as it repeats 1.

Why has your PC put 'defense' and 'offense' ?   Both are horrible Americanisms and  ot actually words in British English!

Don't use that wording about the HHJ Murch judgment.  That's not how we say it should read.

You obviously add the images, otherwise your allocating Judge won't know what the CEL v Chan case is about.

See the recent defence by @Rorythoperr

hharry100

Defence

 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 license 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:

1. The facts 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 appears to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver

2. The Defendant and his family had gone shopping in the Asda Superstore and parked in the car park outside the store, The Defendants young son required the use of a bathroom urgently therefore the defendant parked as quickly as possible in a parking bay close to the store entrance, Upon returning to his vehicle the defendant noticed he had received a Parking Charge Notice (PCN).

3. The Defendant had not noticed any signage close to the where the Defendant parked his vehicle,showing the terms and conditions for use, the Defendant was not aware of any restrictions that applied in the car park due to obscure signage which was impossible to read from where the defendant had parked.The small signage was not suitable to alert a motorists. Due to the age of the alleged offence which is nearly 5 years old the Defendant is unable to recall the exact reason for the PCN. 

4.  The Particulars of Claim ('POC') appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case is being pursued.  The POC are entirely inadequate, in that they fail to particularize:

(a) the contractual term(s) relied upon;
(b) the details of any alleged breach of contract (there is just a date range - only two dates stated - and no specifics whatsoever);
(c) how many 'PCNs' are being pursued in this claim, exactly when the alleged conduct occurred (dates and times) and how much each of these charges were;
and
(d) how the purported and unspecified extra 'monies relating to the parking charges' arose and the breakdown of the extortionate quantum of almost two thousand pounds. 

4.1.  The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

4.2.  The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant POC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based on the following persuasive authority.

Failure to comply with Civil Procedure Rules

5. In addition to these facts, a recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The Defendant asserts that this Claim is based upon an agreement by conduct. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the POC. See below.

6. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. See below.

7.  Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. See below.

hharry100

8. Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices, As stated in the final image below, the Claimant’s solicitors - DCBLegal - confirmed they would not file an amended POC

9. The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

10. 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.

11. 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

12. 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.

13. 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.

14. 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).

15. The Department for Leveling 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." 

16. 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

17. 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).

18. 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.

19. 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, which 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. 

20. 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'.

21. 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).

22. 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 regulated 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'.

23. 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.

24. 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.

25. 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

26. 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

27. 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.

28.  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

29.  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.  

30. 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''. 

31.  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

32. 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.

33. 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 canceled, 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

34. 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. 

35. 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. 

36.  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))."   

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:

hharry100

Thanks coupon-mad

"Why has your PC put 'defense' and 'offense' ?"      My Google Doc settings were set to American

i have used the  threads by

@andyl3004

@xavian1234

@Rorythoperr 

please let me know if there are any further corrections i could make

thank you all for your help

1505grandad

".....bare license....."  -  that spelling is not in the exemplar  -  don't usually have to check that and other pre-written paras (so I have not).

Coupon-mad

You still have the word 'offence' and it's not one.  Wrong word.