Link Parking Claim

Savosmee

Hi all,

I have received a Claim form from Link parking for parking on the visitor spot on my development where I live and I have followed the template Defence to reply to the claim form.

The reason why Link issued a ticket in the first place is that they have put a rule in place (on their sign) that there was a limit of 24 hours parking with no return within 48 hours on the visitor parking spot. There is however no way to account for these 24 hours parking at all, you don't register the parking session online or over the phone or app or anything at all. 

On the other hand, on my lease there is no such thing as "no return within 48 hours" but only a limit of parking for a consecutive period of 24 hours which did not happen. The car was on the bay for a few minutes on Day 1 then left and the following day it was parked for 20 minutes and then again left. Their parking officer took a picture of the car on Day 1 at like 11:15 am and then a second picture of the car on Day 2 at 13:20 to claim. Then Link claimed that I did not follow the parking rules there. On the only two pictures they are providing as evidence you can see that on each day the car is parked in a different way so that it has moved since the first picture was taken. So whilst using the Defence template I have also used my leasehold section which relates to the visitor parking spot and the terms of use. This lease was signed before we moved in and at the time the spot in question did not even exist as the site was still in construction so Links' signage was inexistent. 

The problem I am having at the moment is that Links have used a wrong address on the claim form, we live in a house in the development but they've added a flat number on the address. So basically something like instead of putting "10 Downing Street" they have put "Flat 10, 10 Downing Street". Although there are no flats at 10 Downing Street there are flats at number 11, so I know for a fact that some letters went to "flat 10, 11 Downing Street" on some occasions. I have informed them of that a letter of Claim stage in my reply that the address they were using the wrong address and what my correct address was but they totally ignored my letter, they did not reply to it nor did they amend my address in their system. I also informed the Court in my Defence.

Now they have just sent off their completed Directions Questionnaire still to my wrong address but it must mean that the Court have already sent that and I should have received my own copy which I didn't. So I am assuming that there is an issue with the address used by the Court and that maybe they haven't amended the address in their system and that their letter got lost or went to the wrong place. I have emailed them and I am trying to contact them by phone but they are not picking up.

What should I do now especially when I cannot contact the Court?And what to do if the deadline to complete the Directions Questionnaire has passed?

Thanks to anyone able to help.

fisherjim

Something I have always pondered over these no return cases is this:

A VRN is only a route to the keeper if the driver has not identified themselves, (they cannot actually charge the vehicle anything that's daft) however what if another driver made visit 1 and the the keeper made visit 2 totally independently how does that pan out with these dimwits scam?

But apart from that your lease trumps a parking companies new money making scam.

Debszzzz2

Have you emailed the DPO at Links Parking and whichever solicitor (if any) they are using to instruct them to rectify your address for service of documents to your correct address and for them to erase the incorrect address? If not, you must do this immediately. It would be wise to also do the same with the court.

In the meantime, you can just download your own N180DQ and email it as a PDF attachment to ccbcaq@justice.gov.uk, the PPC or their solicitor (if they're using one) and to yourself. You must receive an auto response from the CCBC, almost immediately, or your N180 will not have been received by them. If you cannot get an auto response, try using a different email agent to send your N180.

Savosmee

Thank you, will do that now

Castle

Are Links Parking any relation to Link Parking?

Savosmee

@Castle sorry it is Link Parking Limited (not Links...)

@Debszzzz2 Link Parking did use my correct address and when replying to my subject access request it was confirmed that they hold only the correct address. Somehow it is their solicitor BW Legal that somewhere in the process decided to change the address and add a flat number. I have requested that they correct this in my reply to their letter of claim (and I believe in other correspondence but I am not sure). I have also informed the court at the time of acknowledgment of service and I have emailed them again. Do I need to contact their solicitor again?

Coupon-mad

The fact that BW Legal has sent you their DQ does NOT mean that the CNBC has sent them out.  They haven't.

Your MCOL History won't yet show DQs posted out.

Please show us:

- the Particulars of Claim

- your exact defence

Savosmee

Hi all,

Please see my whole Defence below:

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 claim should be struck out:

2. The Claimant has sent different letters to the Defendant’s address using the address “XXX” but recently it seems they changed it to “Flat XX XXX”. The Defendant’s address has always been “XXX” since the time the alleged breach occurred and where the vehicle xxx has been registered with DVLA at all times the Defendant was the registered keeper of the vehicle. This was the only address known or used by DVLA. The Defendant has also used that same address in their reply dated 16 October 2023 to the Claimant’s solicitors Letter of Claim, specifically confirming her address as “XXX”. In her reply to their Letter of Claim, the Defendant also provided the Claimant and their solicitors with her personal email address on top of confirming her postal address which they ought to know. Surprisingly, the Claimant has nonetheless used a different address when it seems completing the claim form using “Flat XX XXX” for the Defendant’s address for absolutely no valid reasons as the Defendant has not changed address since then nor did the Defendant informed the Claimant or their solicitors about a change, quite the opposite as in her reply dated 16 October 2023 the Defendant confirmed her address in full twice. As a result of the use of the wrong address by the Claimant on both their Letter of Claim and their claim form, the Letter of Claim did not arrive to the Defendant’s address initially, but to a neighbour’s address. The Defendant was extremely lucky that the neighbour provided the letter to the Defendant but only a few days before the deadline to respond to that letter. Similarly, the Defendant only found out about the Claim being issued against her through an email from the Claimant’s solicitors dated 04 December 2023 informing her that a Claim has been issued against her. As the Claimant did not include the Claim Form in that email at all, where they could have, and the Defendant did not agree to the service of proceedings by email in any case, the claim should be struck out as it is invalid. The Defendant then had very little time to file an acknowledgment of claim, with barely any information about the claim as none was provided by the Claimant’s solicitors other than the Claim number.

The Defendant argues that the claim should be struck out as the wrong address for the Defendant has been used and considering the Claimant had the Defendant’s valid address at all times there are absolutely no valid reasons for the Claimant to have used a different address on the claim form. This is further supported by the fact that the Claimant’s solicitors have emailed the Defendant on 04 December 2023, which confirms the fact that they received the Defendant’s letter of reply dated 16 October 2023, from their Letter of Claim, as this is the only letter where the Defendant has provided their email address to them. This Letter from the Defendant confirmed her postal address in full that is “XXX” only and twice, which has never been different since the alleged breach occurred.

The facts known to the Defendant:

3. The facts in this defence come from the Defendant's own knowledge and honest belief.  The Claimant failed to provide to the Defendant their Particulars of Claim as they did not provide any Claim Form at all to the Defendant. 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 xxx is recognised and it is admitted that the Defendant was the registered keeper at the time. 

4. The Claimant did not follow the Pre-action Protocols as, following the service of its Letter of Claim, and the subsequent reply by the Defendant in a timely manner, the Claimant and their representatives failed to respond to the Defendant at all and completely ignored that reply and all the various information and requests in the Defendant’s letter. The Claimant then proceeded to directly issue its claim against the Defendant, albeit using a wrong address as well. As a result, the Defendant requests that the Claimant be ordered to pay additional costs resulting from his failure, that other sanctions be applied and that no legal costs be awarded to the Claimant in any event.

 

Authority to Park and Primacy of Contract

5. 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 by the current occupier and leaseholder of XXX, whose leaseholder agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease 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. A copy of the leasehold agreement will be provided to the Court, together with witness evidence that prior permission to park had been given.

6. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

 

7. As per the terms of the lease of the Defendant, the Defendant had a right to park as follows:

“The right to use the Visitor Car Parking Spaces on the basis that:

(i) they are solely for the use of visitors to the Property for the parking of one motor vehicle only

(ii) they are used on a “first come first served” basis

(iii) they are used on a temporary basis only and no vehicle may remain parked for a consecutive period of more than 24 hours

(iv) It is agreed and declared between the parties that this clause does not grant an exclusive right to use the Visitor Car Parking Spaces”

The Defendant denies that the vehicle with registration number xxx from which the Defendant was the registered keeper has been parked for a consecutive period of more than 24 hours. The Claimant has failed to evidence that the vehicle was parked for a consecutive period of more than 24 hours. The photographs that the Claimant has produced of the vehicle at two different dates clearly evidence that the vehicle is parked in a different manner on the parking spot on each picture therefore evidencing that the vehicle has moved from the parking spot before parking again since the first picture was taken. It therefore further supports the Defendant’s claim that the vehicle in question was not parked in the Visitor Car Parking space for more than a consecutive period of 24 hours.

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, in addition to evidence there must also 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.

Savosmee

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 LINK

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:  LINK

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 +£60 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 +£60, 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

23. 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): LINK

24. 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.

25.  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

26.  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.  

27. 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''. 

28.  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

29. 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.

30. 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

31. 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.

32. 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. 

33.  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))." 

Coupon-mad

Particulars of Claim?

Savosmee

The Particulars of Claim are:
The claim is of r£100.00 due from the Defendant for an unpaid parking charge following a contractual breach which occurred on XXX in the private car park/land at XXX by the driver of XXX registration mark XXX. The private land was lawfully occupied by the Claimant. The displayed terms and conditions offered the driver a contractual licence, which were accepted upon entry by the driver, and subsequently breached. Driver's Breach: Exceeded the maximum stay period despite demands, the parking charge remains unpaid. The Claimant also claims £60.00 recovery costs as set out in the terms and conditions and in the Industry Code of Practice".