DCBL Final Reminder / PCN from Euro Car Parks Limited / Astle Retail Park.

Coupon-mad

OK, so as per the Order, you must amend your defence or tell the court that your existing defence stands.

NewAppeal34

I might have to change what I wrote under paragraph 2 in "Facts known to the defendant". Since they have now given me more information, I assume I can't state anymore:

"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."

Also, not sure what to write under paragraph 3, as previously I stated:

The Defendant has not received the PCN issued on 27/03/2022 and any exact details of the happenings on that day are unclear to the Defendant due to the aged nature of the date of the parking charge notice. However, after some research, the Defendant can confirm that he drove the car with the license plate XXXXXX and parked at Astle Retail Park on 27/03/2022 as a Parking ticket for 2 hours was purchased on that day. Due to the aged nature of the parking date, the Defendant cannot recall having overstayed this time. 

Now, since they provided photos, do I need to incorporate the new information?

Also, do you think there is any need to amend the standard defence besides the details mentioned above. I previously haven't included signage and just used the standard defence. 

Many thanks

Coupon-mad

The standard defence includes a whole section on signage: Consumer Rights Act, Vine v Waltham forest, Spurling v Bradshaw, etc.!

"Now, since they provided photos, do I need to incorporate the new information?"

Did they prove when the payment for 2 hours was made? What are the minutes either side of that timed session?

NewAppeal34

Payment made for 2 hours based on the system extract, which they have attached: 11:54
Car entered based on the CCTV picture: 11:45
Car left based on the CCTV picture:14:02

Hence, counting from the entry it's 17 mins overstayed. Counting from the payment, it's 8 mins overstayed. 

Coupon-mad

NewAppeal34 said:

Payment made for 2 hours based on the system extract, which they have attached: 11:54
Car entered based on the CCTV picture: 11:45
Car left based on the CCTV picture:14:02

Hence, counting from the entry it's 17 mins overstayed. Counting from the payment, it's 8 mins overstayed. 

No overstay at all, then.

Your amended defence should state that the new POC shows no contravention at all, had ParkingEye allowed the consideration / observation period at the start (to drive in, park, read the signs, download an app? and pay) that THEY USED TO OFFER:

https://www.britishparking.co.uk/news/good-car-parking-practice-includes-grace-periods

... before the BPA disingenuously changed their self-serving Code, which now says - astonishingly - that no standard consideration period time (at all) is allowed for people who pay.

Then cite:

- HMRC v NCP (the 'green button' finding):
https://vlex.co.uk/vid/national-car-parks-ltd-803033705
.

And 

- the DLUHC CODE 2022 and the correct definitions of 'parking period' and 'consideration period' according to the will of Parliament, pursuant to the test of fairness in the Consumer Rights Act 2015.

 

NewAppeal34

Hi All,

I will look at updating the defence tomorrow. Since this has gone to the Dudley Court now, I assume the defence has to be submitted to enquiries.dudley.countycourt@justice.gov.uk instead of the CNBC (ClaimResponses.CNBC@justice.gov.uk)? I couldn't find another email address. 

Many thanks

NewAppeal34

Coupon-mad said:

NewAppeal34 said:

Payment made for 2 hours based on the system extract, which they have attached: 11:54
Car entered based on the CCTV picture: 11:45
Car left based on the CCTV picture:14:02

Hence, counting from the entry it's 17 mins overstayed. Counting from the payment, it's 8 mins overstayed. 

No overstay at all, then.

Your amended defence should state that the new POC shows no contravention at all, had ParkingEye allowed the consideration / observation period at the start (to drive in, park, read the signs, download an app? and pay) that THEY USED TO OFFER:

https://www.britishparking.co.uk/news/good-car-parking-practice-includes-grace-periods

... before the BPA disingenuously changed their self-serving Code, which now says - astonishingly - that no standard consideration period time (at all) is allowed for people who pay.

Then cite:

- HMRC v NCP (the 'green button' finding).

And 

- the DLUHC CODE 2022 and the correct definitions of 'parking period' and 'consideration period' according to the will of Parliament, pursuant to the test of fairness in the Consumer Rights Act 2015.

 

Hi Coupon Mad,

So when referencing HMRC v NCP, this should indicate that the contractual agreement would have started when the ticket was purchased, which in my case reduces the overstay to 8 mins. Is it now an issue that the BPA has changed the wording and no fixed limits are given for the grace period at the end?

In my explanations of the facts of the day I will add that I was reading the signage, downloading the app (I checked it was first time use of the app) and entering the details, which certainly takes time. Also, I found that I was there with my son, who at that point was still 3 years old. The time it takes to get him ready to leave certainly can add to my case that no sufficient time was given before enforcement took place. 

Many thanks

Coupon-mad

Just add what I typed.

This is how you do an Amended Defence:

Take your original defence.

Strike through sentences, phrases or words you now want to replace or delete.

Add any new bits in red.

Re-sign & date under a statement of truth.

NewAppeal34

Coupon-mad said:

Just add what I typed.

This is how you do an Amended Defence:

Take your original defence.

Strike through sentences, phrases or words you now want to replace or delete.

Add any new bits in red.

Re-sign & date under a statement of truth.

Thank you Coupon Mad,

below the amended standard template with struck out parts. I have coloured new parts in red in the original, but you will see by the deviation of the standard defence which parts I have added. (Paragraphs 1-14)

Could I please ask you to have a quick look if this is fine and / or if you would recommend striking out other parts? Any help would be appreciated. 

IN THE COUNTY COURT

    Claim No.:  xxxxxx

Between

EURO CAR PARKS LIMITED

(Claimant)

- and -

xxxxxxxxxxxx

(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. The Defendant has not received the PCN issued on 27/03/2022. and any exact details of the happenings on that day are unclear to the Defendant due to the aged nature of the date of the parking charge notice. However, after some research, the Defendant can confirm that he drove the car with the license plate xxxxxx and parked at Astle Retail Park on 27/03/2022 as a Parking ticket for 2 hours was purchased on that day. The Defendant has also found two tickets booked related to that time frame, which show him and his son attending Inflata Nation adjacent to the mentioned car park. Looking at the purchase history on the parking app used by the Defendant to book their parking, this had been the first time the Defendant had used this app. After arriving at the car park, the defendant had to familiarise himself with the signage, find instructions to download the app, download the app, enter all necessary details and proceed with the payment. After attending Inflata Nation with his son, the Defendant went on getting his son ready to leave and left the parking lot. Due to the aged nature of the parking date, the Defendant cannot recall having overstayed this time.

4. The Defendant denies that any contravention happened. The Claimant is claiming that the Defendant has overstayed for 17 minutes after the paid ticket for two hours expired. The Claimant has failed to allow a sufficient grace period and observation period for the Defendant for both entry and exit based on the BPA Code of Practice.

5. Due to the conditions at the car park at the time, the Defendant was unable to purchase a ticket straightaway. The Defendant had to familiarise himself with the signage and conditions first, then download the app, enter all the details and proceed to payment, all while taking care of his 3-year-old son. The time stamps of the Entry ANPR camera picture and the ticket purchased show a 9-minute time difference.

6. The Claimant has ignored both the initial (arrival)’observation period’ as well as the final ‘grace period’ after the expiry of the purchased parking ticket.

9. A BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs ( https://www.britishparking.co.uk/news/good-car-parking-practice-includes-grace-periods), who this Claimant is well aware of, is saying: “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park.  Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” As well as:”No time limit is specified.  This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” He continues:” The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

10. Notwithstanding the BPA advise, relevant contract law also dictates that consumers must be given the opportunity to consider terms and conditions before entering a consumer contract. In a Court of Appeal decision in the case between NCP(Appellant) and HMRC (Respondent) it was made clear that the offer and acceptance of a parking contract can only take place once the payer has inserted payment into the machine and pressed the green button to obtain a ticket. (EWCA Civ 2019 854, 20 May 2019).

11. It is clear from this decision that a contract cannot possibly begin upon driving into the car park, not least because at that point the driver has not had the opportunity to read the terms and conditions of the contract that may or may not be entered into.

12. Furthering this line of thought. Please refer to the DLUHC CODE 2022 and the correct definitions of 'parking period' and 'consideration period' according to the will of Parliament, pursuant to the test of fairness in the Consumer Rights Act 2015.

13. The Claimant has ignored the Parking (Code of Practice) Act 2019 first published by the DLUHC in February 2022, due to be finalised after a Judicial Review delay engineered by the parking industry, who did not object to the following clause which remains unchanged: 

14: Clause 2.24 defines a parking period as: "the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired ... This is not the period between a vehicle being recorded as entering and departing controlled land." 

The Claimant has failed to acknowledge the “consideration period” that is required to ensure a driver has enough time to drive into a car park, find a space and read the signs before a contract has started. 

15. 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.

16. 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.

- to be continued-

NewAppeal34

- Here I have only amended the conclusion -

Exaggerated Claim and 'market failure' currently being addressed by UK Government

17. 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.

18. 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.

19. 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).

20. 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." 

21. 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

22. 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).

23. 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.

24. 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. 

25. 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'.

26. 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).

27. 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'.

28. 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.

29. 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'.

30. 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

31. 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

32. 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.

33.  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

34.  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.  

35. 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''. 

36.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO 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

37. 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.

38. 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

39. 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.  Additionally, taking into account the guidelines set by the BPA, the outcome of HMRC v NCP (the green button) and the DLUHC CODE 2022 in relation to the  “parking period” and “consideration period”, the court might find that there has not been a contravention at all. 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.

40. 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. 

41.  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: