Need Advice on Defense Document After Court Request

jarq

Hi everyone,

I hope you’re doing well. I recently prepared a defense document and sent it to court. I’m seeking advice on whether there are any areas I should correct or improve. The document is based on information from the forum.

**Claim History:**

- DQ filed by the claimant on 14/06/2024

- You filed a DQ on 15/07/2024

- Your claim was transferred to WILLESDEN on 15/07/2024

I received a letter from Willesden Court requesting a copy of the defense. The court has noted the following:

- Documents referred to in the order below were filed by one of the parties, but those documents are not on the court file.

- The court has undertaken a search, but the documents have not been found.

- The claim cannot progress until the court file is complete.

A notice of transfer (to another county court) has been issued. I must send the required documents by August 27th.

**Questions:**

1. Can I edit the defense at this stage, or should I send an exact copy, even though it appears they couldn’t locate it?

2. I sent the defense to Parking Eye and received a reply.

Initially, Parkingeye would highlight that this defence is a standard and generic template, distributed on online forums to Defendants attempting to avoid paying Parking Charges. Parkingeye has received a large number of identical or near-identical defences. All legal arguments are addressed at the end of the document, and will be referred to within our response when addressing each individual argument included in the Defendants' defence.

  

Does this affect my next steps?

Sorry if this post is a bit chaotic. 

Thank you!

jarq

DEFENCE

1. The parking charges referred to in this claim did not arise from any

agreement of terms. The charge and the claim was an unexpected shock. 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 a breach of any

prominent term and it is denied that this Claimant (understood to have a bare

licence as managers) 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 Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle

and driver.

3. Any breach is denied, and it is further denied that there was any agreement

to pay the Claimant's £125 'Parking Charge Notice ('PCN')'.

4.  At the time of this accusation, the Defendant entered a parking while

waiting for his girlfriend, went to read the signs, attempted to pay for parking

using phone, but the payment attempt was unsuccesful and subsequently left the

car park.

5. The Defendant states that in order to read the Terms and Conditions, any

driver would have to enter the car park, park the car safely, locate by foot the

signage and then make a decision. In the case that the driver would not agree or

cannot comply with the Terms and Conditions within a reasonable time (which is

the case of the Defendant), the ANPR would be used to trigger a charge to the

driver.

6. The Defendant refers to section 13.1 of the BPA (British Parking Association)

Approved Operator Code of Practice which states “The driver must have the chance

to consider the Terms and Conditions before entering into the ‘parking contract’

with you. If, having had that opportunity, the driver decides not to park but

chooses to leave the car park, you must provide them with a reasonable

consideration period to leave, before the driver can be bound by your parking

contract.” The Defendant states that the Claimant has not adhered to this.

7. The allegation appears to be based on images by their ANPR camera at the Lee

Valley Hockey and Tennis Centre . This is merely an image of the vehicle in

transit, entering and leaving the car park in question and is not evidence of

the registered keeper not abiding by the Terms and Conditions or authorisation

outlined by Parking Eye.

8. The allegation appears to be based on the claim that “the signage clearly

displayed throughout BLANK ADDRESS states that this is private land, managed by

ParkingEye Ltd”. This allegation is denied by the defendant.

9. Signage with the Terms & Conditions are within the car park itself. The

Defendant states that an individual would have to enter the car park in order to

read the Terms & Conditions in order to make an informed decision as to whether

they are agreeable to them.

10.  The Defendant states that in order for an individual to review the signage

inside the car park with the Terms & Conditions they would be required to safely

park their vehicle and exit it.

11.  The Claimant states that the Defendants vehicle was in the car park for 12

minutes. Based on the information provided in points 4-6, 9 & 10 this is a fair

amount of time required to take those actions.

12. The facts in this defence come from the Defendant's own knowledge and honest

belief.  To pre-empt the usual template responses from this serial litigator:

the court process is outside of the Defendant's life experience and they cannot

be criticised for using, in part, pre-written wording suggested by a reliable

online help resource. The Claimant is urged not to patronise the Defendant with

(ironically template) unfounded accusations of not understanding their defence.

jarq

Further Points:

13. With regard to template statements, the Defendant observes after researching

other parking claims, that the Particulars of Claim ('POC') set out a cut-and-

paste incoherent statement of case.  In breach of the pre-action protocol for

'Debt' Claims, no copy of the contract (sign) accompanied any Letter of Claim.

The POC is sparse on facts and specific breach allegations, which makes it

difficult to respond in depth at this time; however this claim is unfair,

generic and inflated.

14.  This Claimant continues to pursue a disproportionate fixed sum (routinely

added per PCN) despite knowing that this is now likely to be confirmed as banned

by the Government last year. It is denied that the purported 'damages' or 'debt

fee' sought was incurred or is recoverable. Attention is drawn to paras 98, 100,

193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  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

(sitting at the High Court; later ratified by the CoA) held in paras 419-428

that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

15. This finding is underpinned by the Government, who stated in 2022 that

attempts to gild the lily by adding 'debt recovery costs' were 'extorting

money'.  The Department for Levelling Up, Housing and Communities ('DLUHC')

published in February 2022, a statutory Code of Practice, found here:Link

removed

16.  Whilst the new Code is temporarily stalled for a final Impact Assessment,

it is anticipated that adding false costs/damages or 'fees' to enhance a parking

charge claim is likely to remain banned. In a section called 'Escalation of

costs' the statutory Code of Practice says: "The parking operator must not levy

additional costs over and above the level of a parking charge or parking tariff

as originally issued."

17.  The Code's Ministerial Foreword is unequivocal about abusive existing cases

such as this claim: "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."

18.  The DLUHC consulted for over two years, considering evidence from a wide

range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical

Consultation called for false fees to be scrapped altogether; this despite the

parking industry flooding both public consultations, some even masquerading as

consumers.  Genuine consumer replies pointed out that successful debt recovery

does not trigger court proceedings and the debt/robo-claim firms operate on a

'no win, no fee' basis, seeking to inflate these claims with 'costs/damages' in

addition to the strictly capped legal fees the small claims track allows.

19.  This Claimant has not incurred any additional costs (not even for reminder

letters) because the parking charge more than covers what the Supreme Court in

Beavis called an 'automated letter-chain' business model that generates a

healthy profit.  In Beavis, there were 4 or 5 letters including reminders.  The

parking charge was held to cover that work.

20. The driver did not agree to pay a parking charge, let alone these unknown

costs, which were not quantified in prominent text on signage.

21.  Whilst the new Code and Act is not retrospective, it was enacted due to the

failure of the self-serving BPA & IPC Codes of Practice.  The Minister is

indisputably talking about existing (not future) cases when declaring that

'recovery' fees were 'designed to extort money'.  A clear steer for the Courts

which it is hoped overrides mistakes made in a few appeal cases that the parking

industry desperately rely upon (Britannia v Semark-Jullien, One Parking Solution

v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v

Percy).

22.  Far from being persuasive, regrettably these one-sided appeals saw Circuit

Judges led in one direction by Counsel for parking firms, and the litigant-in-

person consumers lacked the wherewithal to appeal. In case this Claimant tries

to rely upon these, the Defendant avers that errors were made in every case.

Evidence was either overlooked (including signage discrepancies in Wilshaw,

where the Judge was also oblivious to the BPA Code of Practice and the DVLA

KADOE requirement for landowner authority) or the Judge inexplicably sought out

and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds'

emergency stop out of the control of the driver was unfairly aligned with the

admitted parking contract in Beavis. Those learned Judges were not in possession

of the same level of information as the DLUHC, whose incoming statutory Code of

Practice now clarifies such matters as a definition of 'parking' as well as

consideration and grace periods and minor matters such as 'keying errors' or

'fluttering tickets/permits' where a PCN should not have been issued at all, or

should have been cancelled in the pre-action dispute phase.

POFA and CRA breaches

23.  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, even in cases where a firm may have complied with

other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a

properly communicated 'relevant contract/relevant obligation').  If seeking

keeper/hirer liability - unclear from the POC - the Claimant is put to strict

proof of full compliance and liability transferred.

24.  Claiming costs on an indemnity basis is unfair, per the Unfair Contract

Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer

Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence'

of both contract terms and 'consumer notices'.  In a parking context, this

includes signage and all notices, letters and other communications intended to

be read by the consumer.

25.  Section 71 creates a duty upon courts to consider the test of fairness,

including (but not limited to) whether all terms/notices were unambiguously and

conspicuously brought to the attention of a consumer.  Signage must be

prominent, plentiful, well placed and lit, and all terms unambiguous and

obligations clear. The Defendant avers that the CRA has been breached due to

unfair/unclear terms and notices, pursuant to s62 and paying due regard to

examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing

and good faith.

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of

terms)

26.  ParkingEye overcame the possibility of their £85 charge being dismissed as

punitive, however the Supreme Court clarified that ‘the penalty rule is plainly

engaged’ in parking cases, which must each be determined on their own facts.

That 'unique' case met a commercial justification test, and took into account

the prominent yellow/black uncluttered signs with £85 in the largest/boldest

text.  Rather than causing other parking charges to be automatically justified,

the Beavis case facts set a high bar that this Claimant has failed to reach.

27.  Paraphrasing from the Supreme Court, 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 the alleged breach.  The

intention cannot be to punish a driver, nor to present them with hidden terms,

unexpected/cumbersome obligations nor 'concealed pitfalls or traps'.

28.  In the present case, the Claimant has fallen foul of those tests. The

Claimant’s small signs have vague/hidden terms and a mix of small font, and are

considered incapable of binding a driver.  Consequently, it remains the

Defendant’s position that no contract to pay an onerous 'penalty' was seen or

agreed.  Binding Court of Appeal authorities which are on all fours with a case

involving unclear terms and a lack of ‘adequate notice’ of a parking charge,

include:

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

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming 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'' (NB: when parking operator Claimants cite Vine, they often mislead

courts by quoting out of context, Roch LJ's words about the Respondent’s losing

case, and not from the ratio).

29. Fairness and clarity of terms and notices are paramount in the statutory

Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's

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. The introduction of a new ‘Code of Practice for

Parking’ provides a wonderful opportunity to provide clarity and fairness for

motorists and landowners alike."

Lack of standing or landowner authority, and lack of ADR

30.  DVLA data is only supplied to pursue parking charges 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 from the landowner to

issue charges in this place in their own name.  The Claimant is put to strict

proof that they have standing to make contracts with drivers and litigate in

their own name.

32.  The Claimant failed to offer a genuinely independent Alternative Dispute

Resolution (ADR). The Appeals Annex in the new incoming statutory Code shows

that genuine disputes such as this would see the charge cancelled, had a fair

ADR existed.  Whether or not a person engaged with it, the Claimant's consumer

blame culture and reliance upon the industry's own 'appeals service' should not

sway the court into a belief that a fair appeal was ever on offer. The rival

Trade Bodies' time-limited and opaque 'appeals' services fail to properly

consider facts or rules of law and reject almost any dispute: e.g. the IAS

upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).

Conclusion

33.  The claim is entirely without merit. The Defendant believes that it is in

the public interest that claims like this should be struck out because knowingly

enhanced parking claims like this one cause consumer harm on a grand scale.

34. There is ample evidence to support the view - long held by many District

Judges - that these are knowingly exaggerated claims.  For HMCTS to only

disallow those costs in the tiny percentage of cases that reach hearings whilst

other claims to continue to flood the courts unabated, is to fail hundreds of

thousands of consumers who suffer CCJs or pay inflated amounts, in fear of

intimidating pre-action threats.

35.  In the matter of costs, the Defendant asks:

(a) at the very least, for standard witness costs for attendance at Court,

pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs

pursuant to CPR 46.5.

36.  Attention is drawn specifically to the (often-seen from this industry)

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.

Gr1pr

No you cannot alter the defence that was submitted 

Quite a lot are deemed to be missing, hence why you are ordered to submit a copy of the original defence to the local court. It would be an abuse of process to change it, especially as the claimant was given a copy of the original defence by the CNBC at the time you submitted it, so they would object and you could be Found to be in contempt of the court, unreasonable behaviour, not a good idea and could be costly 

If the local court requires a new defence to be submitted, the order will say so

jarq

So basically, just send it as it is. Thank you for your answer.

Gr1pr

jarq said:

So basically, just send it as it is. Thank you for your answer.

Do what the court order tells you to do 

If that court order wanted you to update the defence, it would say so and tell you to submit a copy to the court and a copy to the Claimant 

The new defence would take the old one, strike out unwanted words or sections, leaving them struck out but visible, and add changes and new additions in red font, so you would submit the new version to both parties 

I don't believe that the court has ordered that version, UNLESS you know different 

Losing documents is common at the moment, not following court order's and procedures could cost you dearly 

1505grandad

A heads-up  -  suggest you adjust your schell pecker to English UK  -  no "s" in Defence.

DE_612183

1505grandad said:

A heads-up  -  suggest you adjust your schell pecker to English UK  -  no "s" in Defence.

mmm, that seems to have worked out for you!

Coupon-mad

jarq said:

So basically, just send it as it is. Thank you for your answer.

No.

Search the forum for the words from that letter you got. There's something else the regulars should be advising to attach.  As seen on other threads just like it. Seize the opportunity!

jarq

I did receive this letter in October last year. 

Deputy District Judge Campbell has considered the statements of case and directions questionnaire filed and allocated the claim to the small claims track.

Unless the claimant does by 4.00pm on the 9 June 2025 pay to the court the trial fee of £27.00 or file a properly completed application (i.e one which provides all the required information in the manner requested) for help with fees, then the claim will be struck out with effect from 4 July 2025 without further order and, unless the court orders otherwise, you will also be liable for the costs which the defendant has incurred.

The hearing of the claim will take place at 12:00 PM on the 9 July 2025 at the County Court [address]

[court address] and should take no longer than 1 hour.

This hearing will take place face-to-face - attendance is required

How can I check if they paid a court trial fee?

KeithP

jarq said:

How can I check if they paid a court trial fee?

By phoning the court and asking them if the fee has been paid.