ParkingEye - Hoults Yard (Newcastle) - [Hearing Stage]

Coupon-mad

But the OP showed us a defence.

StephenCNE

Coupon-mad said:

 I guess the ship to pay for the fine has since sailed. So I can only take this as an up hill battle or say I quoted the term used in this forum "spray and pray".

That phrase has never been said on this forum?  And it's not a fine.

We can't review that defence as you haven't used the Template Defence.  I advise you to re-read the 2nd post of the NEWBIES thread.

But if you are at DQ stage you are already well past defence stage.  Is that what you put in as your defence response to the claim form?  If not please show us the defence, verbatim.

@Coupon-mad apologies, I must have misunderstood some of the discussion on there. I sincerely apologise as fighting this parking fine has been extremely stressful with lots of things happening in the background. 

The Defense is based on the Template of this Forum. 

I am at WS & Evidence stage, however, I am unable to change the Thread topic name to reflect that. Thank you @Castle for pointing this out. 

Please see the following Defense: (Only points 3, 4 and 5 are customised to my circumstances the rest of just the Template Defense in this forum)

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').

The facts known to the Defendant:

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 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, 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.

3. The Defendant and his young family were visiting Proven Goods Co., Mailing Court, Hoult Yards, Newcastle upon Tyne on 23/06/2023 with another friend to get doughnuts.

4. The Defendant parked at the very end of Mailing Court, adjacent to elite: Newcastle. The car park was exceptionally busy and packed with on-site company vans/lorries, visitors’ SUVs and family cars. 

5. The Defendant was not aware that a parking tariff was applicable and did not observe any parking signage erected along the walking path where the Defendant parked his car and the long queue formed by the customer who visited Proven Goods Co. 

6. Following the alleged POC raised by the Claimants against the Defendant, the Defendant has revisited the site. The Defendant found the so-called parking terms and conditions claimed by the Claimant include highly suggestive sentences and illustrate an ambiguous parking tariff that is not easily comprehended. 

7. Furthermore, the sum claimed under purported 'contract' is disproportionately exaggerated by £20 which was not on the signs. The Defendant takes the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

8. 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.

9. 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

10. 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.

11. This claim is unfair and inflated and it is denied that any sum is due 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.

12. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

13. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: 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." 

14. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's 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

15. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

16. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

17. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with 90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

18. It is denied that the added 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 PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

19. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

20. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

21. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

22. 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. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

23. 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's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

24. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, 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

25. 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 (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

26.  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

27.  Unlike in Beavis, the penalty rule remains engaged. 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.  

28. 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').  This 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''. 

29.  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

30. 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.

31. 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 (ref: 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 satisfy Judges that a fair appeal was never on offer.

Conclusion

32. 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 poorly pleaded claims like this should be struck out.

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 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.

Coupon-mad

Ok. Good.

Can you show us your draft WS again (statement of truth changed, to call it a WS not a defence)? It didn't look like it included much (or any) of the a-f suggested exhibits in the NEWBIES thread?

It's also now on the previous page so make a few changes and please show us a new draft.

StephenCNE

For completeness, this is what ParkingEye responded to with my defence.

See the attached link.

Feels like that has countered many of the points raised in the Defense Template. 

Coupon-mad

As you were there for an hour & 25 mins, but only the first hour is free, I think you will struggle unless you can show shockingly bad lack of prominent signs.

You also ignored the PCN without engaging with them (Judges don't like that).

Maybe make an offer of £40 to settle it out of court, pointing out that this has value to ParkingEye, who cannot get +£20 extra for issuing a LBC because it didn't appear on any sign and that work is what the capped £50 legal fees covers already.

Point out that settling now saves them hundreds - hearing fee plus c£200 for a legal rep to attend, which the Defendant is not liable for - only to (at best) get £100 plus fees.  Further, there was no POPLA fee nor staff time wasted on this case and the tariff potentially owed (if they win at the hearing) was £1.  Thus a £40 offer - without prejudice save as to costs - is valuable to resolve the matter.

StephenCNE

@Coupon-mad thanks for the advice. I have depreciated my previous comment on WS & Defense and moved it to this to ensure a good flow of development. 

Coupon-mad said:

Ok. Good.

Can you show us your draft WS again (statement of truth changed, to call it a WS not a defence)? It didn't look like it included much (or any) of the a-f suggested exhibits in the NEWBIES thread?

It's also now on the previous page so make a few changes and please show us a new draft.

Please see the following for my WS and evidence. This can based on the skeleton WS by VincentVega (link).

The addition to this example is to argue against the ambiguous language used on the parking site. 

I appreciate it if anyone could have a look at this draft. Any feedback will be much appreciated. Thank you.

Please note that the Claimant for this case is PE.

I, , ... of .. will say as follows:

1. I am the Defendant in this matter. 

1. Unless where stated to the contrary, the contents of this witness statement are within my own knowledge and belief and are true. 

1. Where any matters are not within my knowledge and belief, the source of the information is given. 

Facts and Sequence of Events

1. The Defendant young family and him visited Proven Goods Co., Unit 1 Mailing Court, Hoult Yards, Newcastle upon Tyne on 23/06/2023 with another friend to get doughnuts.

1. The Defendant had parked his vehicle at the very end of Mailing Court, adjacent to elite: Newcastle. As this occurred on a Sunday, the section of this car park was exceptionally busy and packed with vans/lorries (from local companies), visitors’ SUVs, and large sedans. 

1. The Defendant family and the Defendant walked to their destination  - Proven Goods. Co after they parked and exited their vehicle. Their route is marked on Exhibit 01. Furthermore, due to the shop’s popularity, there is a long queue in front of the shopfront. See the photo taken after 23/06/2023 in Exhibit 02.

1. The Defendant and his family left the car park after finishing his meals/snacks at Proven Goods Co. No payment where made because no legible Parking Signage can be observed at the section where the Defendant parked his vehicle. 

1. The Claimant sent a couple of Parking Charge Notices (PCN) a few weeks after the Defendant visited Proven Goods Co on the 23/06/2023.

1. The Defendant acknowledged he has not responded to any of the PCNs as the letters exhibit strong language requesting payment but offer limited channels to appeal or dispute against the PCN. 

1. The Defendant later revisited the site and took a few photos when the car park was in its similar conditions as the 23/06/2023. As can be observed from Exhibit 03 there are vans/lorries (from local companies) that appear to be obstructing the Parking Signage where the Defendant parked his car. 

1. In addition, the Defendant has also taken a photo facing the direction where the “Wall-installed” Main Signage is installed with a vehicle parked in front. See Exhibit 04. The photos clearly show that the Main Signage is barely legible at the viewing distance when there is a vehicle parked between the Main Signage. Let alone from the footpath (Exhibit 01) taken by the Defendant to avoid his young child getting hit by reversing and moving vehicles.

1. The Defendant does not admit that a Parking Signage was seen during his visit on 23/06/2023. Instead, the evidence shown in Exhibit 04 demonstrates the lack of legible parking terms by the Defendant.

1. The Defendant highlighted that the site known as Hoults Yard is notoriously infamous for its customer complaints on Parking Charge. Out of the 29 Google Reviews 9 have rated it with 1 star with 6 citing parking fine issues. (See Exhibit 05). The Defendant is not the only person affected by this unfair practice, many of the Newcastle upon Tyne residents have fallen victim to this scheme but have mostly sought an easy way out by paying for their parking charges

1. Due to this unique circumstance, the Defendant believe such a matter can only be ligated through a legal route to seek justice. 

The Civil Enforcement v Ming Tak Chan Judgment is against this Claim 

1. 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 the case. The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond.

1. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44 would indicate that POC fails to comply with Civil Procedure Rule (CPR) 16.4 and the Practice direction to Part 16. On the 15th of 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 Exhibit 06)

1. Similarly, at 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 Exhibit 07)

1.  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 Exhibit 08)

1. Furthermore, at Manchester District Judge McMurtie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lack of clarity, detail, and precision. As stated in the Reply to Defense (See Exhibit 09) below, the Claimant’s handler argues that it is due to the lack of character space that limits their elaboration on the POC. The Defendant strongly believe that it is just a cover-up for their reliance on robo-letters and illegitimate practices to generate thousands of automated POC.

1. The Defendant believes the Claim should be struck out at the Allocation stage and should not have been accepted by CNBC due to the practice of the Claimant’s parking firm that knowingly breaching basic CPRs.

The Fairlie v Fenton Case against this claim

1. Unlike in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67, there is no sentence in the Parking Signage that offers or attempts to create a contract between this Claimant and a driver. A parking management firm could use wording to make themselves personally liable on the contract and they could make a contractual offer themselves by saying ‘by parking at this site, you, the driver, are entering into a contract with us’ (or words to that effect) but there is no such contract on the signs. In fact, at no point is a driver told that they are entering into any contractual relationship. (See Exhibit 10 for the Parking Signage)

1. Furthermore, the Claimant claimed that there are 48 signs erected along Hoults Yard Business Centre. Out of the 48 signs, 43 are the Specific parking-terms signage denoted as Main Signage. However, when counted against Car Park Signage Layout Plans 1 and 2 only 40 of the Main Signage can be observed.

1. The Claimant shows no evidence to prove that the Main Signage are erected accurately based on the Car Park Signage Layout Plans 1 and 2 on-site. The indicators (IE the arrow attached to the numerically coded block) in the Signage Layout Plan 1 and 2 appear to show that some of the “Wall-installed” Main Signage was erected in the middle of the road, inside a building, in the middle of a parking space etc. 

1. The Claimant has failed to demonstrate that the Main Signage is legible at its actual implementation on site especially when the car park is busy and is packed with vans/lorries (from local companies), visitors’ SUVs, and large sedans. 

1. As demonstrated in Exhibits 03 and 04, the Parking Signage at the section of the car park where the Defendant parked his car is neither conspicuous nor legible. As the Defendant did not see the parking terms during his visit on 23/06/2023, he was involuntarily subjected to a contract that is not transparent to him. Therefore, the basis of this claim that relies on the formation of a contract between the landowner/agent and the car park user does not hold. The Defendant does not consent to the parking terms that were not legible to him. Therefore, the defendants denied any subsequent parking charge subjected to this claim.

1. In addition, the Claimant has illustrated the supply agreement between Hoults Limited and ParkingEye Limited (See the Claimant’s Hoults Yard Signed Agreement). However, this does not form the basis that a binding contractual agreement was established between the Defendant and the Claimants due to the reasons outlined above.

Wood v Capita Insurance Services Case against this claim

1. The Supreme Court in Wood v Capita Insurance Services has reasserted the importance of considering the wording of a contract in its context ([2017] UKSC 24). 

1. The Claimant's Main Signage is read as follows: (See Exhibit 04)

Parking tariffs Apply [...] Tariffs [...] 1 hour Free (No ticket required) [...] 2 additional hours £1.00 [...] 3 additional hours £2.00 [...] Day rate (7 AM - 7 PM) £4.00 [...] Overnight rate (7 PM - 7 AM) [...] You can purchase additional time (if required) at the payment machines or by phone before leaving) [...] Parking tariffs apply 24 hours a day, 7 days a week [...] Motorists must enter their full, correct vehicle registration when using the payment machine [...] Blue Badge holders only in marked bays Tariffs apply [...] Parking tariffs not applicable to permit holders [...] Failure to comply with terms & conditions will result in a Parking Charge of £100 [...]

1. Hypothetically, should the Defendant even read the Parking Signage terms and conditions, the language written is not easily intelligible by the Defendant.

1. The Defendant would like to highlight when the terms “2 additional hours £1.00” and “You can purchase additional time (if required) at the payment machines or by phone before leaving)” are read back to back, the Defendant perceives that: if the Defendant requires 2 full additional hours of parking presumably on top of the first free 1 hour then £1.00 payment of parking charge will be required. None of the language used in the Main Signage implies that a fraction or a part of those 2 additional hours will require any payment. 

1. The Defendant would like to stress that the Contra Proferentem Rule prevail in this case. When ambiguity arises from the Claimant's so-called contract that forms the basis of this claim is to be resolved against their terms.

2. As the Defendant did not require 2 additional hours of parking, therefore no payment was made. 

1. This complies with terms set out by the Parking Signage “You can purchase additional time (if required) at the payment machines or by phone before leaving)” and “2 additional hours £1.00”.

1. The Claimant’s ANPR camera timestamp clearly shows that the Defendant had parked 1 Hour 25 Minutes at the car park. The Defendant has not breached any of the parking terms and conditions as the Defendant had not parked a full 3 hours. Hence, the Defendant would like to question the Claimant on what contractual terms have they based this claim on. 

StephenCNE

[continued from above]

[Back to example WS]

Exaggerated Claims and 'market failure' are currently being addressed by the UK Government

1. 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.

1. This claim is unfair and inflated and it is denied that any sum is due 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.

1. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

1. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

1. 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." 

1. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's 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

1. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

1. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

2. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with 90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

1. It is denied that the added 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 PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

1. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

1. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

1. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgement.

1. 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. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

2. 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's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

1. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, 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

1. 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 (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

1. 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 Case against this Claim

1. Unlike in Beavis, the penalty rule remains engaged. 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.  

1. 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 the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This 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''. 

1. 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." 

Conclusion

1. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court’s time and that of the Defendant

1. The Defendant asks the judge to read the persuasive Judgement from HHJ Judge HHC Murch (August 2023) and deliver the same outcome given this the Claimant filed a similar vague POC. In the Civil Enforcement v Chase case, full costs were awarded to the motorist and the claim was struck out.

1. With the DLUHC’s ban on the false ‘costs’ there is ample 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 is embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

1. In the matter of costs, the Defendant asks:

1. The time the Defendant used to prepare for this case was 15 hours * £20 at a total cost of £300

2. Standard witness costs for attendance at Court, pursuant to CRP27.14, and

3. For a finding of unreasonable conduct by the Claimant, seeking costs pursuant to CPR 46.5

1. Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance, Whilst, CPR r.38.6 states that the Claimant is liable for the Defendant’s cost 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.

StephenCNE

Coupon-mad said:

As you were there for an hour & 25 mins, but only the first hour is free, I think you will struggle unless you can show shockingly bad lack of prominent signs.

You also ignored the PCN without engaging with them (Judges don't like that).

Maybe make an offer of £40 to settle it out of court, pointing out that this has value to ParkingEye, who cannot get +£20 extra for issuing a LBC because it didn't appear on any sign and that work is what the capped £50 legal fees covers already.

Point out that settling now saves them hundreds - hearing fee plus c£200 for a legal rep to attend, which the Defendant is not liable for - only to (at best) get £100 plus fees.  Further, there was no POPLA fee nor staff time wasted on this case and the tariff potentially owed (if they win at the hearing) was £1.  Thus a £40 offer - without prejudice save as to costs - is valuable to resolve the matter.

Hello @Coupon-mad and @Castle, 
 
Apologies I have not seen your updated post as I started restructuring my WS after reading your comment. 

So essentially I need to convince PE that a £40 will be a better net income than going down the Court Hearing track. 

Can I please confirm what is LBC? I don't quite get the:
get +£20 extra for issuing a LBC because it didn't appear on any sign and that work is what the capped £50 legal fees covers already.

Just to confirm Max claims that they were successful in this case, IE the best scenario that they can get is £100 + their Legal Fee (IE the Small Claim Fee that they paid). As the Defendant I wouldn't be liable for their Legal Rep fee (present on hearing, which is in the region of £200+ and they will be out of pocket because this is a Small Claim Track, right?

In addition, I have not raised a POPLA and hence no fee and staff time they put in.

What does the tariff potentially owe (if they win at the hearing) was it £1 means?

Apologies, I need to get the statement straight as it is not clear in my mind now.

Coupon-mad

Copy my wording.

StephenCNE

@Coupon-mad got it. Thank you for the advice. 

I have sent the out-of-court settlement offer to PE. 

Let's see what they come back. 

Anyway, just in case they don't bite the bite. Where can I find all the Proceedings for:

1. Similarly, at 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 Exhibit 07)

1.  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 Exhibit 08)

1. Furthermore, at Manchester District Judge McMurtie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lack of clarity, detail, and precision. As stated in the Reply to Defense (See Exhibit 09) below, the Claimant’s handler argues that it is due to the lack of character space that limits their elaboration on the POC. The Defendant strongly believe that it is just a cover-up for their reliance on robo-letters and illegitimate practices to generate thousands of automated POC.
   
   

I scanned through the Newbie thread several times but can't seem to find any transcript link. Maybe I didn't look hard enough.

Found the Civil Enforcement Limited v Chan transcript though.