County Court - Euro Car Parks £1,924. Parking at work

Rorythoperr

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 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'.

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):

link

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 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

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: 27 Sep 23 

Rorythoperr

xavian1234 but won't let me upload here as I'm a newbie)

Is there anything you would add or change?

Thanks again for all your help.

Half_way - I've emailed the CEO at total fitness, I'm going to report them to the ICO for the data breach/lack of compliance and I've demanded (again) that they get these fines cancelled.

GrumpyDil

I'll leave others to comment on the defence but one minor point is that these are not fines, they are speculative invoices. 

Coupon-mad

Stop admitting what is NOT STATED IN THE POC.  Don't list the dates they failed to list!

You are missing the point of the HHJ Murch judgment.  Don't fill in the gaps for them.

Half_way

Rorythoperr said:

xavian1234 but won't let me upload here as I'm a newbie)

Is there anything you would add or change?

Thanks again for all your help.

Half_way - I've emailed the CEO at total fitness, I'm going to report them to the ICO for the data breach/lack of compliance and I've demanded (again) that they get these fines cancelled.

Please do not call these " fines" as they are nothi9ng of the sort, refer to them as spurious parking charge notices issued by their agents, then  un regulated parking company Euro car parks

Rorythoperr

Thanks again everyone for saving me from my own ignorance. I promise no more fines or extra information

Please find amendments here (the rest of the letter is the same as per your advice @Coupon-mad to use the example by andyl3004 and xavian1234):

3.

Background
It is admitted that at all material times the Defendant is the registered keeper and probable driver of vehicle registration mark XXX which is the subject of these proceedings.

It is admitted that the Defendant's vehicle was almost certainly parked at Elms Square Whitefield because this was the defendant’s workplace, where they were de facto authorised to park a roadworthy vehicle.

Frustration of Contract

The defendant worked at this gym and parked in this carpark for 10 years. The defendant worked 6 days a week – Monday-Friday 6am-8pm and Saturday 7am-1pm. The defendant’s car was parked in this car park during these times. This equates to 3,120 days the defendant parked in this car park.

There is a VRM staff exemption list at this location. As a member of staff for 10 years the defendant was on this exemption list from 2011-2021. During this time the defendant was assured by the landowner (as per their agreement with the defendant’s workplace) that they would never receive a spurious parking charge notice issued by their agents, the then unregulated parking company Euro car parks.

The defendant was first made aware of these speculative invoice’s months later. The defendant alerted the general manager of the gym who confirmed: "I'm unsure as to why this has happened and it has happened to a few staff members since returning. [...] totally agree you should not have got a ticket." A copy of this email will be provided to the court, together with witness evidence that the defendant was a member of staff at this time and therefore on the exemption list.

The defendant knows of at least 4 other staff members who incorrectly received speculative invoices during this time: Mike , John , Remy  and Angela . None of the other staff members have been pursued through the courts by the unregulated parking company Euro Car Parks.

Clearly there is no 'legitimate interest' supporting these enhanced speculative invoices in these circumstances and also no reason for the Claimant to sit on their hands for 4 years hoping to profit even further from exaggerated interest calculations.

Authority to Park and Primacy of Contract

It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked. The Defendant avers that there was an absolute entitlement to park deriving from the fact the defendant was a member of staff at this time, which cannot be fettered by any alleged parking terms. The terms provide the right to park a vehicle in the relevant parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle. Witness evidence will be provided to the Court that prior permission to park had been given.

Accordingly it is denied that:
- there was any agreement as between the Defendant or driver of the vehicle and the Claimant
- the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
-  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable'

B789

Your defence is reading like War & Peace. There is no need for any level of detail that is not asked about in the PoC! You have added waffle such as:

"The defendant knows of at least 4 other staff members who incorrectly received speculative invoices during this time: Mike Robinson, John Botham, Remy Longdon and Angela Lameria. None of the other staff members have been pursued through the courts by the unregulated parking company Euro Car Parks."

What has that got to do with defending your claim? What if ECP decide that you're the first they're going to try it on with?

All you need to do is mention the very basics of why you were parked at the location. Almost everything else will be expanded on should it progress to a hearing and you need to do a WS.

Also, the very next bit must be the HHJ Murch appeal judgment and asking the court to dismiss this at allocation stage.

Every paragraph needs to be numbered sequentially. Check your formatting.

Rorythoperr

B789 said:

Your defence is reading like War & Peace. 

Thanks very much. I've tried to cut the waffle (but please do let me know if I need to be more ruthless - I'm trying to follow examples but conscious I've never done this before so not sure how much is too much/little):

(the rest of the letter is the same as per your advice @Coupon-mad to use the example by andyl3004 and xavian1234) -

@b@B789 the bit immediately following this is HHJ Murch

 

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').

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 of the vehicle registration mark xxx.

3. It is admitted that the Defendant's vehicle was almost certainly parked at Elms Square Whitefield because this was the Defendant’s workplace of 10 years.

4. There is a VRM staff exemption list at this location. As a member of staff for 10 years the Defendant was on this exemption list from 2011-2021. A witness statement will be provided to the court to confirm the Defendant was a member of staff at this time and therefore on the exemption list.

5. Months later, the defendant was first made aware of this spurious parking charge notice issued by their agents, the then unregulated parking company Euro car parks. The Defendant alerted the General Manager of the workplace who confirmed: "I'm unsure as to why this has happened and it has happened to a few staff members since returning. [...] totally agree you should not have got a ticket." A copy of this email will be provided to the court.

6. Clearly there is no 'legitimate interest' supporting these enhanced speculative invoices in these circumstances and also no reason for the Claimant to sit on their hands for 4 years hoping to profit even further from exaggerated interest calculations.

7. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked. The Defendant avers that there was an absolute entitlement to park deriving from the fact the defendant was a member of staff at this time and on the exempt list, which cannot be fettered by any alleged parking terms.
Accordingly it is denied that:
- there was any agreement as between the Defendant or driver of the vehicle and the Claimant
- the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
- the Claimant has suffered or incurred any 'damages or indemnity costs if applicable'

8. The Defendant did not receive initial communication from the Claimant until the present Claim was submitted despite the fact that the Government's new statutory Code (linked later in this defence) requires a fresh Notice to be served at the original rate, and appeal to be made available, in cases where the first Notice was not received.

9. 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.

Coupon-mad

Paragraph 8 can't be true (remove it) because earlier, you say you complained to your supervisor about the PCN letters!

And remove 'then' from this sentence as the parking industry remains unregulated in 2023:

"the then unregulated parking company Euro car parks."

Are you showing the actual transcript by HHJ Murch (you should) and then continuing with the rest of the Template Defence, all paragraphs re-numbered of course.  You'll have maybe 40 paragraphs.

Rorythoperr

Thank you. 

Removed both!

Yes, I have continued with the rest of the template defence. 16 pages and nearly 40 paragraphs (just need to renumber)

Would you advise submitting the defence asap in the hope it gets dismissed quickly?