Registered Users Only on PRIVATE LAND

UserD

Fruitcake said:

It is not a fine.

Plan A is always a complaint to the landowner and your MP, and it is never too late to do this.

Defence is spelt with a  "c". This is not me being picky. The law is a pedant, so you must use the correct terminology when dealing with the courts.

Now to answer your questions. 

I think you have until the 21st of February to submit your defence, but hopefully forum regular @KeithP will be along soon to confirm this.

For your defence, use the whole of the template defence from the sticky Announcement of the same name. Show us your draft, but only the parts you have amended.

I don't think the particulars of claim are adequate because they do not set out a specific cause of action. It does not specify what contract breach is alleged. Instead it only says, Registered Users Only, but does not claim that the defendant was not a registered user. In my opinion the CEL v Chan case should be cited, and the transcript included in your defence, but see what more court savvy regulars say. This was an appeal case so is persuasive on the lower courts.

MET Parking taking me to court N1 received Help! - Page 4 — MoneySavingExpert Forum

In any case, the term, Registered Users Only is a forbidding term, means it does not offer anything of value to a non-registered user. Without an offer, there can be no consideration, and without either, there can be no agreement. You cannot agree to do something that is forbidden.

On top of that, dropping off/picking up is not parking as determined in Jopson v Homeguard, case number B9GF0A9E, where the judge stated that collecting or delivering (of goods or people) is not parking. This was also an appeal case so is persuasive on the lower courts.
The transcript is available online, and the judge's comments can be found around paragraphs 19 and 20.


Yes, it is acceptable to have an entrance sign that refers to terms and conditions on signs inside the car park. You should go back and get photos of the site and signage, on foot! You need to determine if the signs state how user can become registered. If they don't, then it is also an unfair contract term as defined by the Consumer Rights Act 2015.

Thank you Fruitcake for all your comments , i do appreciate it.
Just to note that i did pick that spelling correction up and changed some of them but need to more consistent i suppose but the spell checker on the forum website does highlight the spelling defence as a correction , which means that the forum website spell checker and i think in the American English and not British English which should also be corrected.

You are correct about the deadline defence date as KeithP  said the same ,thank you.
I will go through all this and the other amazing advise and post the template and see if i can get the sign inside as you suggested .Great stuff!!

KeithP

UserD said:

Just to note that i did pick that spelling correction up and changed some of them but need to more consistent i suppose but the spell checker on the forum website does highlight the spelling defence as a correction , which means that the forum website spell checker and i think in the American English and not British English which should also be corrected.

My internet browser, Opera, allows me to choose whether I use English(United Kingdom) or English(United States).
Microsoft Edge also offers that choice.
Does your browser not offer that choice in Settings?

Windows itself also allows this choice to be made.

Fruitcake

UserD said:

Fruitcake said:

It is not a fine.

Plan A is always a complaint to the landowner and your MP, and it is never too late to do this.

Defence is spelt with a  "c". This is not me being picky. The law is a pedant, so you must use the correct terminology when dealing with the courts.

Now to answer your questions. 

I think you have until the 21st of February to submit your defence, but hopefully forum regular @KeithP will be along soon to confirm this.

For your defence, use the whole of the template defence from the sticky Announcement of the same name. Show us your draft, but only the parts you have amended.

I don't think the particulars of claim are adequate because they do not set out a specific cause of action. It does not specify what contract breach is alleged. Instead it only says, Registered Users Only, but does not claim that the defendant was not a registered user. In my opinion the CEL v Chan case should be cited, and the transcript included in your defence, but see what more court savvy regulars say. This was an appeal case so is persuasive on the lower courts.

MET Parking taking me to court N1 received Help! - Page 4 — MoneySavingExpert Forum

In any case, the term, Registered Users Only is a forbidding term, means it does not offer anything of value to a non-registered user. Without an offer, there can be no consideration, and without either, there can be no agreement. You cannot agree to do something that is forbidden.

On top of that, dropping off/picking up is not parking as determined in Jopson v Homeguard, case number B9GF0A9E, where the judge stated that collecting or delivering (of goods or people) is not parking. This was also an appeal case so is persuasive on the lower courts.
The transcript is available online, and the judge's comments can be found around paragraphs 19 and 20.


Yes, it is acceptable to have an entrance sign that refers to terms and conditions on signs inside the car park. You should go back and get photos of the site and signage, on foot! You need to determine if the signs state how user can become registered. If they don't, then it is also an unfair contract term as defined by the Consumer Rights Act 2015.

Thank you Fruitcake for all your comments , i do appreciate it.
Just to note that i did pick that spelling correction up and changed some of them but need to more consistent i suppose but the spell checker on the forum website does highlight the spelling defence as a correction , which means that the forum website spell checker and i think in the American English and not British English which should also be corrected.

You are correct about the deadline defence date as KeithP  said the same ,thank you.
I will go through all this and the other amazing advise and post the template and see if i can get the sign inside as you suggested .Great stuff!!

If the gates are locked shut, then get photos of that as well because it implies a motorist can't enter unless they are an authorised (registered) user.

UserD

Hi All, please comment on my draft below:

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

UKXX

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (Defendant)

_________________

DEFENCE

 

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 and driver.

Preliminary matter: The claim should be struck out

3. The driver went to pick his daughter up as his daughter was visiting a person that is living in the block of flats. The driver did not park and also did not get out his vehicle and left as soon as his daughter was in the car.In the Jopson v Homeguard, case number B9GF0A9E, the judge stated that collecting or delivering (of goods or people) is not parking.

The driver did not see the terms of the contract at the entrance of the estate as the main sign refers to the terms being inside the estate and when the driver was picking his daughter up ,did not see any terms displayed there either.

(photo of sign under this paragraph)

Furthermore , 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(1)(e) and Practice Direction Part 16.7.5. 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 same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

(transcript of proceedings of the case mentioned above under this paragraph)

 

4. 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.

5. 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

6. 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.

7. 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.

8. 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).

9. 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." 

10. 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

11. 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).

12. 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.

13. 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 c90% 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. 

14. 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'.

15. 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).

16. 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'.

17. 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.

18. 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'.

19. 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

20. 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

21. 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.

22.  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

23.  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.  

24. 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''. 

25.  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

26. 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.

27. 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

28. 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.

29. 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. 

30.  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:

 

 

UserD

@fruitcake - Thanks , I did get a photo ,but do i add that on with my defence claim form ? i can add the photo to this message if you like ,it does have the road name on it though ?

UserD

KeithP said:

UserD said:

Just to note that i did pick that spelling correction up and changed some of them but need to more consistent i suppose but the spell checker on the forum website does highlight the spelling defence as a correction , which means that the forum website spell checker and i think in the American English and not British English which should also be corrected.

My internet browser, Opera, allows me to choose whether I use English(United Kingdom) or English(United States).
Microsoft Edge also offers that choice.
Does your browser not offer that choice in Settings?

Windows itself also allows this choice to be made.

@KeithP - Thank you i have changed my chrome language setting and has done it.
 

fisherjim

To support the comments by others on here it's not a fine you received an invoice, but the sign says REGISTERED USERS ONLY, if you weren't a registered user you were trespassing a third party cannot charge you for trespass, the landowner would have to take legal action (which is complicated) not a two bit parking company.

In addition to this as private parking management is covered by contract law and no contract has been offered they also state NO PAID FOR PARKING so how can they issue you with an invoice for parking!

Coupon-mad

The first paragraphs are in the wrong order:

"Preliminary matter: The claim should be struck out"

What you then say under that heading makes no sense.  And there should not be a para 2 before that heading etc.

Put your paragraphs in the same order as in the hharry100 defence.

Fruitcake

UserD said:

@fruitcake - Thanks , I did get a photo ,but do i add that on with my defence claim form ? i can add the photo to this message if you like ,it does have the road name on it though ?

Nothing should be added to the defence. Photos and other evidence goes with the witness statement much later in the proceedings.

UserD

@Coupon-mad
I have removed that line and should be fine now for the paragraphs to flow.Thanks
@fisherjim
 i have added that trespassing comment.Thanks

Here is the amended portion :

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

UKXX

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (Defendant)

_________________

DEFENCE

 

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 and driver.

3. a)The driver went to pick his daughter up as his daughter was visiting a person that is living in the block of flats. The driver did not park and also did not get out his vehicle and left as soon as his daughter was in the car.In the Jopson v Homeguard, case number B9GF0A9E, the judge stated that collecting or delivering (of goods or people) is not parking.

b)The driver did not see the terms of the contract at the entrance of the estate as the main sign refers to the terms being inside the estate and when the driver was picking his daughter up ,did not see any terms displayed there either.

c)Furthermore , 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(1)(e) and Practice Direction Part 16.7.5. 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 same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

(transcript of proceedings of the case mentioned above under this paragraph)??

d)The sign says REGISTERED USERS ONLY, If the driver was not registered then the driver was  trespassing and hence a third party cannot charge the driver for trespassing, the landowner would have to take legal if required.