PCN for stopping at Liverpool Airport - help with defence

Stripy_Jim

I confess, after a long day at work I had rather run out of brain power and patience for this stupid charade. Nevertheless, it is one that I need to get right, so I thank you for your patience and the effort you all put into assisting others.  It's nothing short of a scandal the way these people are allowed to get away with using the court to try and extort money from drivers, or in my case, vehicle owners.  

Coupon-mad

That's fine. Use the template without removing chunks (or any of it).

Stripy_Jim

Good evening, I'm confused about a couple of points in the template defence:

Para 10 says: Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023.  

Para 9 contains a link to the private parking code of practice, but on opening the link the site says temporarily withdrawn pending a review

Is the new code live?  If so when did it take effect?  A bit of research seems to indicate there is a new code it came into effect 1 Oct 2024.  My case pre-dates that, but anxious that my defence contains up to date detail

Can someone please clarify? 

Coupon-mad

"Live" doesn't mean it was enacted. The word just means it was revived and is in hand.  It is not yet finalised due to the change in Government but the project is proceeding.

You could change the wording to 'revived by' if you wish.

OMG there is NOT A NEW STATUTORY CODE YET.  The one you found is the fake one.  

Stripy_Jim

Good grief, I need to stop overthinking this thing. Fake code...??? what the heck!

Coupon-mad

https://www.thisismoney.co.uk/money/cars/article-13575617/amp/Car-park-firms-bring-watered-code-practice-no-cap-rip-charges.html

The rogue parking industry blocked the real Code in 2022 then re-wrote their own false (massively watered down) version and misled the press.

The press fell for it until the AA & RAC and the RACF spoke up and called it out.

The work on the real Code continues. I'm on the Steering Group. It is happening.

Stripy_Jim

Here goes, formatting has gone a bit wonky but take three:

IN THE COUNTY COURT

Claim No.: 

Between

Vehicle Control Services 

- and -  

xxxxx

_________________

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.

3.       It is admitted that the vehicle was in the vicinity of Liverpool John Lennon Airport on the date in question, but it is denied that the vehicle was stopped in a zone where stopping is prohibited.  The driver had mistaken the location of the car park and the vehicle was being turned around, the driver having no choice but to do so as the road in question leads to a dead-end. 

4.       The original parking charge and Particulars of Claim fail to state the start and end time of the parking or stopping event and despite the Defendant’s requests during the so-called appeal process, the Claimant has failed to provide any evidence that the vehicle was parked or stopped.

5.       It is denied that the Defendant was the driver at the material time.  The vehicle is insured for other named drivers and the Claimant will be aware that it cannot be assumed that the keeper was also the driver (VCS v Edward 2023).  As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed they are pursuing this claim against the keeper of the vehicle. 

6.       Each of the ‘debt recovery’ letters sent by the Claimant in the last 12 months clearly state: “the driver of the vehicle at the time this charge was issued is responsible for payment of the charge.  However, in certain circumstances set out in the Protection of Freedoms Act (2012), liability for the payment of the parking charge may be transferred to the keeper of the vehicle.  This applies to tickets issued in England and Wales and only if certain conditions have been met.”

7.       The land in question is covered by Liverpool John Lennon Airport Byelaws 2022 and as such is not relevant land as defined in paragraph 3, Schedule 4 of Protection of Freedoms Act 2012.  It is not accepted, therefore, that the conditions for transfer of liability to keeper have been met.

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, 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.

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.

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: https://www.gov.uk/government/publications/private-parking-code-of-practice.

14.  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." 

15.  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

16.  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).

17.  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.

18.  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. 

19.  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'.

20.  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).

21.  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'.

22.  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.

23.  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'.

24.  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

25.  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):

26.   https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

27.  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.

28.  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

29.  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.  

30.  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''. 

31.  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

32.  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.

33.  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

34.  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.

35.  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. 

36.  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:

Stripy_Jim

Coupon-mad said:

https://www.thisismoney.co.uk/money/cars/article-13575617/amp/Car-park-firms-bring-watered-code-practice-no-cap-rip-charges.html

The rogue parking industry blocked the real Code in 2022 then re-wrote their own false (massively watered down) version and misled the press.

Plenty of papers fell for it until the AA & RAC and the RACF spoke up and called it out.

The work on the real Code continues. I'm on the Steering Group. It is happening.

Still begs the question of how these people get away with issuing parking charge notices for events that nobody would construe as parking, i.e. stopping and then trying to enforce them through the courts under some twisted interpretation of contract law.  It's absurd and seemingly with the blessing of the DVLA, which reminds me, I need to pick up again on that complaint once this is out of the way.

Coupon-mad

All looks good as long as this denial is the truth:

" It is denied that the Defendant was the driver at the material time. "

Stripy_Jim

Coupon-mad said:

All looks good as long as this denial is the truth:

" It is denied that the Defendant was the driver at the material time. "

other half was driving, I was a passenger on this occasion