Parking Eye CCJ issued without knowledge

Coupon-mad

We need to see the back of the PCN too.

Did you ever know about the PCN & appeal?

BadIndian

Coupon-mad said:

We need to see the back of the PCN too.

Did you ever know about the PCN & appeal?

Yes I knew about the PCN and appealed but they rejected it however I didn't know as I was out of the country arranging my mother's funeral and its only when I got back I found out and I contacted them to let them know that due to mitigating curmstances I was unable to appeal via POPLA because the link had expired, but didn't realised that the email bounced until a long time after when the CCJ was issued so missed the opportunity to appeal via POPLA.. 
  

BadIndian

What realistic chance do I have in getting this Squashed? Urgent advice please I had a look at the recommended posts and I dont think they are exactly the same as my scenario. 

Coupon-mad

BadIndian said:

What realistic chance do I have in getting this Squashed? Urgent advice please I had a look at the recommended posts and I dont think they are exactly the same as my scenario. 

None will be exactly the same.

Yours is only different because the Claim Form never arrived but the file was noted to show the right address. So you can't blame the Claimant for missing post.

Might be fairly similar to the older thread by @63realfan and someone a year ago whose name started with S (I think) that 63realfan will recall.

Your case will be argued under CPR 13.3 (court's discretion to allow you a fair chance to defend) so you need to show 2 things:

(a) - acting promptly as soon as you knew

(b) - having good prospects of defence.

You will need to put in a draft defence to support (b) and then it will be down to your Judge to decide. Which court is nearest you?

Have you exhausted CONSENT TO SET ASIDE? Cheaper & easier and ParkingEye will write the Consent Order.

BadIndian

Coupon-mad said:

BadIndian said:

What realistic chance do I have in getting this Squashed? Urgent advice please I had a look at the recommended posts and I dont think they are exactly the same as my scenario. 

None will be exactly the same.

Yours is only different because the Claim Form never arrived but the file was noted to show the right address. So you can't blame the Claimant for missing post.

Might be fairly similar to the older thread by @63realfan and someone a year ago whose name started with S (I think) that 63realfan will recall.

Your case will be argued under CPR 13.3 (court's discretion to allow you a fair chance to defend) so you need to show 2 things:

(a) - acting promptly as soon as you knew

(b) - having good prospects of defence.

You will need to put in a draft defence to support (b) and then it will be down to your Judge to decide. Which court is nearest you?

Have you exhausted CONSENT TO SET ASIDE? Cheaper & easier and ParkingEye will write the Consent Order.

To be  honest with you yes I have exhausted the threads and struggle to find one that matches mine and I feel like I'm going in circles to the point where I'm a little bit confused.  I will take a chance and submit  a N244 under CPR 13.3 with a statement of mitigating circumstances coupled by the fact I live in a block of flats and sometimes mail gets delivered to the wrong flat etc.  

Coupon-mad

BadIndian said:

Coupon-mad said:

BadIndian said:

What realistic chance do I have in getting this Squashed? Urgent advice please I had a look at the recommended posts and I dont think they are exactly the same as my scenario. 

None will be exactly the same.

Yours is only different because the Claim Form never arrived but the file was noted to show the right address. So you can't blame the Claimant for missing post.

Might be fairly similar to the older thread by @63realfan and someone a year ago whose name started with S (I think) that 63realfan will recall.

Your case will be argued under CPR 13.3 (court's discretion to allow you a fair chance to defend) so you need to show 2 things:

(a) - acting promptly as soon as you knew

(b) - having good prospects of defence.

You will need to put in a draft defence to support (b) and then it will be down to your Judge to decide. Which court is nearest you?

Have you exhausted CONSENT TO SET ASIDE? Cheaper & easier and ParkingEye will write the Consent Order.

To be  honest with you yes I have exhausted the threads and struggle to find one that matches mine and I feel like I'm going in circles to the point where I'm a little bit confused.  I will take a chance and submit  a N244 under CPR 13.3 with a statement of mitigating circumstances coupled by the fact I live in a block of flats and sometimes mail gets delivered to the wrong flat etc.  

 No.  My advice above is clear that you must also put in a draft defence.

And we want to see that please.  We want to help.  You only get one shot at removing this CCJ.

BadIndian

@Coupon-mad see below let me know what you think..

IN THE COUNTY COURT

Claim No.: xxxxxx

Between

ParkingEye Ltd

(Claimant) 

- and -  

xxxxxxxxxx                        

 (Defendant)

____________________

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the driver of the vehicle in question, but liability is denied as no parking charge was deemed necessary as no pay kiosk was displayed.

The defendant was not a regular user of the car park nor familiar with the operational procedures as the defendant was only passing and stopped to use the restaurant within the business centre as recommended by a friend. The defendants’ personal details were supplied based on the claimant retrieved the vehicle’s Registered Keeper’s details from the DVLA, and the defendant took it upon himself to appeal the parking charge.

On 5th May 2023 the defendant used the car park briefly (according to the PCN a duration of 36 minutes) which this time only would have extended because we were hungry and decided to eat before setting off, otherwise the duration would have only been 15 minutes at the most.

3. The claimant has put forward an unmeritorious claim of £100 for an error of judgement of not entering the vehicle’s registration into a terminal (not visible) in reception which no arrow on the sign pointed to (lack of clarity).

As Per BPA Code of Practice 18.5 The wording you include on your specific parking terms signage is your decision. However, you should try to use plain and intelligible language in all your signs and information. The Defendant feels that the above isn’t fully compliant.

The defendant feels that the claimant is attempting to extort the defendant for a simple error as a charge of £100, increase and interest does not seem reasonable, it’s no surprise Parking Eye Ltd are under so much scrutiny.

In Enforcing the Private parking Code of Practice, recently the Ministry of Housing, Communities & Local Government also found common views on their consultation and appeals charter that there need to be greater consistency for motorists and ensure proportionality and may consumer groups called for private parking to be aligned with local authority system.

On the basis that the claimant did not incur any loss and started litigation seeking £100, uplift and interest the defendant invites the court to find that this exaggerated claim is dismissed.

 

4.  The Particulars of Claim set out an incoherent statement of case and the amount has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Assumed, claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

Erroneous details in the POC as it states that the PCN was issued on 7/06/2023 however the PCN stated date of issue is 10/05/2023

 

5.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

 

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA'). at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100 (discounted at 60 if paid within 14 days). The claim includes an additional £197, for which no calculation or explanation is given, and which appears to be an attempt at double recovery and an abuse of process

 

 

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new statutory code of practice , given that the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

 

10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

 

 

11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

  

 

 

12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

 

13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed.

 

14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)      Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)     Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii)   Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

 

15.   In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

Abuse of Process:

16.   The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £197 (in this case) constitutes double recovery and the court is invited to find the amount claimed is false and an abuse of process as :

a.  The sum claimed is unreasonable as it’s set above the reasonable level of recovery or operating cosr.

b.  The sum is unconconsionable and unfair as per the Consumer Rights Act 2015

c.  Inflated Claim.

d.   On Evidence of all previous cases involving the claimant it appears that the claimant is using the courts as a debt collection agency because of its easy access of the court system and the fact that most victims of the over zealous tactics dont defend against these aggressive claims.

Refer to the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision stands. Also refer to case (No:G4QZ465V Excel V Wilkinson )Bradford County Court,  Struck out for abuse of process by District Judge Jackson.

 

17.  This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, the earlier ParkingEye Ltd v

Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and

 

In the matter of costs, the Defendant seeks:

18.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of        a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

 

19.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

 

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.

Defendant’s signature:

Date:

 (Not quite sure about 18 though) 

Coupon-mad

That's not the current Template Defence.  Easy to find pinned at the top of the forum.

BadIndian

Coupon-mad said:

That's not the current Template Defence.  Easy to find pinned at the top of the forum.

I will try and find it, it is not easy to find. irrespective of its not the current template what do you think of the contents? I need a steer if im in the right dierction 

Coupon-mad

The forum is very easy to navigate.  You aren't being asked to search for anything.

i post on my phone, everything is easy to see & click on once you know where to click ... and you do know where to click because I've told you - every time I've replied to you!

My signature, under every post I make, tells everyone where to click to get back to page one of the forum in a split second.

Both the NEWBIES thread and the Template Defence thread are pinned Announcement threads, always at the top.

Sorry but you need to start again because the template you found is out of date, and you can't throw (criminal) accusations around like this: "The defendant feels that the claimant is attempting to extort the defendant for a simple error...".

And the Ministry of Housing, Communities & Local Government hasn't been called that for about 18 months. 

I can't begin to read more as I can see it's old.