private "ticket" from North West Parking Ltd, pursued by DCBL. Won court case.

skuther

Draft defense statement:

IN THE COUNTY COURT

Claim No.:  xxx

Between

Northwest Parking Management Ltd

(Claimant) 

- and -  

xxx

 (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.

 

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. On the evening of 28th December 2023, the Defendant took her family and house guests (a total of four adults and two children, spread between two cars) on an unplanned trip to a restaurant called Sheesh Mahal in Hartlepool Marina for an evening meal.

4. The Defendant drove down the side of Hartlepool marina turned right down what appeared to be public road, known on Google Maps as Navigation point and parked in a parking space to the side of the road, opposite the restaurant.

5. Given the time of year it was pitch black. There one large visible sign stating “Hartlepool Marina Car Park Tariff” with a list of prices, but nothing about private land, use of cameras, or any terms or conditions mentioning any £100 penalty clauses were seen

6. Likewise, no other signs were seen by the defendant (or any of the other adults in the party – who have all agreed to provide witness statements confirming this) about private land, use of cameras, or any terms or conditions mentioning any £100 penalty clauses.

7. The defendant’s disabled mother (who has a blue badge) parked her mobilty car in the disabled space adjacent to restaurant. Due to lack of signage to the contrary, she believed parking was free for her and took the children inside to the restaurant. She was also pursued for £100 by the claimant.

9. The defendant and all the other three able-bodied adults from both cars wondered around in the dark for upto nearly 5 minutes trying to find a way to pay. There were no machines to pay for parking. There was no apparent telephone number to ring either.

10. Eventually the defendant found a small green sign suggesting that payment had to be by a smartphone app – “yourparkingspace”.

11. The parking space is on a sliver of land between Hartlepool marina and the North Sea. There was very poor mobile signal. The defendant did not have enough of a mobile signal to be able to download the app so was incapable of making any kind of payment. There was no other apparent means to pay.

12. The defendant’s husband on a different mobile network was eventually able to download the app and register an account - however it took over 15mins due to poor signal. The defendant’s husband paid for 2hours of parking (cost of £2) – with the intention of staying for less than that.

13. The client then sent out a letter demanding £100 for alleged breech of contract.  This was disputed by the defendant.

14. The Defendant’s husband as a goodwill gesture paid client for £1 (the disputed underpayment) and an overpayment of an additional  £10 (total £11). The claimant still chose to pursue this matter further – first via DCBL Debt recovery services, and later via DCBL legal services.

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.

The clients inappropriate use of “POFA 2012, Schedule 4”.

17. The location of the alleged parking charge is Hartlepool Marina, a site covered by The Tees and Hartlepool Harbour Byelaws 1977 & 1985 ('the byelaws'). The plan attached to the end of the byelaws shows that the Hartlepool Marina development and thus the site of the car park in the Particulars of Claim ('POC') sits within the boundary to which the byelaws apply. https://www.pdports.co.uk/wp-content/uploads/2024/06/PD-Teesport-Harbour-Byelaws-1977-1985.pdf

18. There is no evidence that the byelaws or the boundary at this location have changed since the 1985 revision and there is no evidence they have been repealed. In any case the onus is on the private parking company or the landowner to show that the byelaws no longer apply. Among other things the byelaws cover, in Part VII - Vehicles, vehicular activity within the boundary and failing to pay for parking is not a byelaws offence. The byelaws are given statutory force by The Tees and Hartlepools [sic] Port Authority Act 1966. As a result, the location is not “relevant land” as defined by Schedule 4 of the Protection of Freedoms Act 2012 ('POFA'), which states:

3 (1) In this Schedule “relevant land” means any land (including land above or below ground level) other than—

(a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);

(b) a parking place which is provided or controlled by a traffic authority;

(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

 

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

.... (rest is same as template response - which all looks appropriate to this situation as far as I can see).

(NB. ammended with Coupon-Mad + 1505grandad corrections, thanks)

skuther

I would be grateful for everyone comments about this defence (not defense) draft.

I think I may have strayed too far in witness / evidence rather than pure defence - but I was trying point out the slight variations in this case.

Does the fact that the defendent could not pay themselves due to lack of machine, telephone + reliance on an app in an area with poor signal -  make any different legally?

thanks

Coupon-mad

Looks fine.  I think you need that detail.

But you've missed a "no" here:

"There was apparent telephone number to ring either."

And missed "not have" here:

"The defendant did enough of a mobile signal to be able to download the app so was incapable of making any kind of payment."

skuther

Coupon-mad said:

Looks fine.  I think you need that detail.

But you've missed a "no" here:

"There was apparent telephone number to ring either."

And missed "not have" here:

"The defendant did enough of a mobile signal to be able to download the app so was incapable of making any kind of payment."

Changes made thanks.

1505grandad

 Para 7  -  typo  -  " She was also pursed for £100 by the claimant."

skuther

1505grandad said:

 Para 7  -  typo  -  " She was also pursed for £100 by the claimant."

thanks, change made

skuther

So defence submitted and acknowledged. Request for N180 received (deadline for returning is 15th November).

I have drafted the form (on behalf of my wife) - but I don't want to go overboard and irritate the judge, so just want a sense check please.

C. Track. C1

Yes

D. Suitability for determination without a hearing

NO - "Given the Claimant is a firm who complete cut & paste parking case paperwork for a living, having this case heard solely on papers would appear to put me at an unfair disadvantage.
After months of intimidating demands from this aggressive parking firm and their agents, I strongly feel I need a voice at an attended hearing and a chance to to expose their inappropriate and misleading behaviour in front of the court."

E2. Are there any dates within the next 3 months when you will not be able to attend your mediation appointment?

YES. "High risk pregnancy - due date 2nd March 2025. We have been advised to block out all of Feb25 + Mar25."

E4 Do you believe you are vulnerable in any way or require any additional support that the mediator needs to consider?

YES. "The harassment from the claimant and their agents (for a "debt" that does not exist) has caused damage to my mental health (requiring support and medication from my GP).
It has also been a major risk factor to me having a miscarriage. I am currently pregnant again and this is being treated by the hospital team as a high risk pregnancy.
I request that my husband (xxx) is present for any telephone calls."

F. About the hearing

F1. At which County Court hearing centre would you prefer the small claims hearing to take place and why?

Local court - anyone have any experience of any of the courts in County Durham Area. Do I get any choice or do I just pick the closest?

F2. Are you asking for the court’s permission to use the written evidence of an expert?

NO

F3. How many witnesses, including yourself, will give evidence on your behalf at the hearing?

4 (four)

(2 in person, 2 others will provide written statements).

F4 Are there any days within the next nine months when you, an expert or a witness will not be able to attend court for the hearing?

Yourself - All of February 2025 + all of March 2025

F6. Do you believe you, or a witness who will give evidence on your behalf, are vulnerable in any way which the court needs to consider?

"The harassment from the claimant and their agents (for a "debt" that does not exist) has caused damage to my mental health (requiring support and medication from my GP).
It has also been a major risk factor to me having a miscarriage. I am currently pregnant again (due date 03/03/2025) and this is classed by the hospital team as a high risk pregnancy.

I request that my husband xxx (also a key witness and who has helped write the defence) be allowed to accompany me and when possible speak on my behalf."

As I would be grateful for feedback - as initial version might be a bit to ranty, which is theurpeutic for me to say outloud but I don't want to irritate the judge.

I did initially have the word "scam" mentioned a few times throughout - but took it out as sounded a bit too aggressive.

Thanks

Gr1pr

You shouldn't be using anything like scam or fraud 

Spurious, mendacious, unwarranted etc

Coupon-mad

F4 Are there any days within the next nine months when you, an expert or a witness will not be able to attend court for the hearing?

All of February 2025 + all of March 2025

Surely more unavailable dates?

Think about the Easter holidays. Think about the Summer.  When do you tend to go on holiday? Assume you will book the usual weeks off. When are some close family birthdays? Her birthday? Children?  Does she really want a court claim hearing in April with a newborn?

Le_Kirk

Just pick your local court, the one that suits YOU best.  Regarding witnesses, they only want to know so they can allocate a suitably sized room.