PCN on Free car park at GP surgery during appointment as a patient

Smellopee

Definitely relying on you for the PCN aspect, it is more for advice on the counterclaim for harassement aspect and hoping to find a no win no fee solicitor. They are so many vulnerable patients that have been affected by this at that surgery, if I am in a position to bring them down I want to do that. The advice I am getting from AI is to state at the defence stage that it expects the counterclaim to exceed £10,000 as 'A credible counterclaim that exceeds the threshold — which yours very plausibly could — would push this case onto the fast track, where the Claimant faces exposure to your legal costs if it loses.'

Do you have any threads on how to fill counterclaims? Does this happen after the defence stage? thank you

Coupon-mad

Absolutely DO NOT try to claim four figures. No chance and you do not want the pressure or costs risk of Fast Track.

Smellopee

Can you clarify whether the counterclaim should be filed at the same time of the defence or wait for the court's decision on the defence first?

I saw other posts where you advised on counterclaim and amount, are you able to advise on counterclaim under the Protection from Harassment Act 1997:

Sustained psychological distress from 9+ letters over 2.5 years, 2 'letter before action' received 12 months apart with no communication in between, all despite proof of appointment provided,

Loss of approximately 80 hours of time spent researching rights and drafting replies,

Loss of access to GP surgery and disruption to my preventative care pathway I was receiving active post-operative wound care at the surgery during the period of pursuit, and have subsequently left the surgery as I no longer felt safe to attend and was forced to break my continuity of care.

Thank you

Coupon-mad

CCs are put in at the same time as defence, and you pay a fee.

The example by @ellaro9 is worth reading as they did a successful counterclaim for £1000 plus costs which was based mainly on the PFH Act (and Equality Act in their case).

Also there are arguments about DPA 2018 breach (data abuse), so read other winning claim/counterclaim examples, such as those shown in threads by:

@Nosy

@pinkelephant12  

@dxbcc  

You just do it in the 'counterclaim' box on MCOL after putting in the defence. Not sure if that box then lets you calculate & pay your fee for the CC online. Probably does.

Smellopee

Uploaded claim for reference. Feeling really overwhelmed and trying to understand the legal lingo.

• Why does it state due date 20/04/26 (bottom left) but issue date is 21/04/26? Is it a mistake I can use against them?

• Contacted Contestor Legal and they advise to wait for the court decision on the claim before filing a counterclaim without much knowledge of the case, what are your thoughts on this?

• Would really appreciate if you could review my defence below and point out any mistakes or missing arguments, and should the additional charge under 5.2 be 102.75?

1. Procedural deficiencies and standing

1.1 The Claimant's Particulars of Claim fail to comply with CPR 16.4 and Practice Direction 16 paragraphs 3 and 7, and do not state all facts necessary to formulate a complete cause of action. The Defendant invites the court to consider striking out the claim pursuant to CPR 3.4.

1.2 The Claimant is put to strict proof of: (a) a valid, subsisting landowner contract in force on 23 November 2023 conferring authority to issue and enforce charges at the site; (b) written landowner authority to access DVLA keeper data under the KADOE contract, without which that data was unlawfully obtained; and (c) a site boundary map confirmed by the landowner, not an unverified aerial image. DVLA keeper data is supplied solely on the basis of prior written landowner authority. If the Claimant cannot establish valid landowner authority, it has no standing to bring this claim.

1.3 The Claimant's delay in bringing proceedings has caused evidential prejudice to the Defendant. Contemporaneous evidence of the signage as it appeared on 23 November 2023, including its legibility from specific parking positions, is now materially harder to obtain. The prejudice arising from that delay lies entirely with the Claimant.

2. No contract was formed: signage was unreadable from the Defendant's parking position

2.1 Private parking charges are contractual in nature. A valid contract requires offer, acceptance, and consideration. The offer is communicated through signage. Where signage does not effectively communicate its terms to the motorist at the point of parking, no contract capable of acceptance by conduct is formed: Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163; Parker v South Eastern Railway Co (1877) 2 CPD 416.

2.2 At the location where the Defendant parked on 23 November 2023, the signs purporting to require number plate registration could not be read. The signage was not visible or legible from the Defendant's parking position. No contractual offer was communicated. No contract was formed and no enforceable obligation arose.

2.3 Further, the screen for number plate registration was concealed around a corner from the patient arrival screen at the surgery entrance. A patient registering their arrival in the expected manner had no reason to know a separate registration screen existed. This arrangement was incapable of constituting effective or transparent notice of any contractual term and constitutes precisely the kind of concealed pitfall or trap that distinguishes this case entirely from ParkingEye Ltd v Beavis [2015] UKSC 67.

2.4 The BPA Code of Practice requires signs to be placed throughout the site so that drivers may read them at the time of parking. The Claimant is put to strict proof, with contemporaneous photographs, that the signage met this standard on 23 November 2023.

2.5 The Consumer Rights Act 2015 section 71 imposes a mandatory fairness duty on courts and sets a high bar for the prominence of terms and consumer notices. Section 62 requires terms to be fair, transparent, and not contrary to good faith. Schedule 2 (examples 6, 10, 14 and 18) identifies terms that may be regarded as unfair. On the facts, the terms were insufficiently prominent and transparent to satisfy the Act. A sign that cannot be read from the parking position fails the transparency requirement entirely.

3. No breach: the Defendant was an authorised user

3.1 The car park is a free-of-charge patient car park provided for patients of the GP surgery. The Defendant attended on 23 November 2023 for a post-operative nurse appointment following a preventative bilateral mastectomy. She was precisely the category of person for whose benefit the car park exists and was in every meaningful sense an authorised user.

3.2 The Defendant provided the Claimant with proof of her appointment following receipt of the charge notice. The Claimant was on express notice that the Defendant was an authorised patient. No commercially rational construction of any terms applicable to a patient car park could result in such a patient being in breach: Arnold v Britton [2015] UKSC 36.

4. No recoverable sum: no legitimate interest, no loss, and double recovery

4.1 Even if a breach were established (which is denied), the charge is not recoverable unless it satisfies the test in Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67. The charge must be a genuine pre-estimate of loss or protect a legitimate interest proportionate to that interest.

4.2 The car park is free to use. There is no revenue stream. A patient attending an appointment causes the Claimant zero financial loss. A charge bearing no relationship to any actual or anticipated loss is not a genuine pre-estimate of it: Dunlop Pneumatic Tyre Co v New Garage and Motor Co [1915] AC 79.

4.3 As to legitimate interest: the interest here, ensuring the car park is used by patients, was not threatened by the Defendant, who was a patient. Penalising her serves no legitimate purpose and is the precise opposite of the outcome the regime was created to achieve.

4.4 The additional sum of £32.75 constitutes impermissible double recovery. The Supreme Court in Beavis confirmed at paragraphs 98, 100, 193 and 198 that a parking charge more than covered all costs of enforcement, including DVLA data retrieval and an automated letter chain. The same heads of cost cannot be charged twice. This is reinforced by ParkingEye v Somerfield Stores [2011] EWHC 4023(QB), affirmed by the Court of Appeal, where HHJ Hegarty held at paragraphs 419-428 that adding letter-chain costs to an already-profitable charge was disproportionate and would appear to be penal. The Claimant is put to strict proof of any sum above the face value of the original charge notice.

5. POFA 2012: keeper liability and maximum recoverable sum

5.1 The Defendant puts the Claimant to strict proof of full compliance with Schedule 4 of the Protection of Freedoms Act 2012, including that any Notice to Keeper was issued within 14 days of 23 November 2023 and contained all prescribed statutory wording. Strict compliance is required: any failure means keeper liability does not arise.

5.2 Further, POFA Schedule 4 paragraph 4(5) expressly caps the sum recoverable from a keeper at the amount of the parking charge as it stood when the Notice to Driver was issued. Explanatory Note 221 confirms the creditor may not claim more than that amount from the keeper. The additional £32.75 was not part of the original charge and is not recoverable under POFA. The claim as pleaded exceeds the maximum sum recoverable by statute and is to that extent unenforceable.

6. Interest and costs

6.1 No principal sum is owed and no interest arises. The court is invited to decline to exercise its section 69 discretion given the Claimant's conduct in pursuing a medically vulnerable patient for over two years after receiving proof of her appointment.

6.2 The Defendant seeks a finding of unreasonable conduct under CPR 27.14(2)(g) and an award of costs accordingly. Should the Claimant discontinue, the Defendant will seek costs on the same basis, noting the White Book annotation to CPR 38.6 that costs may be awarded on discontinuance where a party has behaved unreasonably.

Thanks so much for your help.

Coupon-mad

I don't understand why it looks like you've created a defence. We already advised you to use the Template Defence version for CEL in-house claims. It's already written!

• Why does it state due date 20/04/26 (bottom left) but issue date is 21/04/26? Is it a mistake I can use against them?

No that's just about interest.

• Contacted Contestor Legal and they advise to wait for the court decision on the claim before filing a counterclaim without much knowledge of the case, what are your thoughts on this?

Yes you could do that if you prefer.

Smellopee

I was trying to make sure it was specific to my case and used help from AI to write the part I needed to write myself. As you know this is highly stressful for people like me who are not wise with the law and those companies make sure of that with their language. I found several defence statements on the forum with bits that seemed relevant in each and didn't know what to choose. I don't understand it all and was worried some of it might contradict the counterclaim. Is the defence I have pasted in previously wrong?

I don't really want to do it separately, it is just making me doubt that I have grounds for a counterclaim.

Coupon-mad

Just use the forum version already written for CEL in-house claims, not AI.

You seem to have missed that with these claims where no breach is specified, there are no parts to write yourself. It's linked twice in the Template Defence thread.

Doesn't need checking or re-writing,

Smellopee

Sorry I am confused, isn't the breach specified as 'breach of contract terms/conditions' on the claim form?

So instead of writing paragraph 3 myself I am using the one from this post stating Civil Enforcement Limited v Chan (Ref. E7GM9W44) and Car Park Management Service Ltd v Akande (Ref. K0DP5J30)https://forums.moneysavingexpert.com/discussion/comment/81571257/#Comment_81571257 making the defence as per below?

1. The Claimant’s sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to 'state all facts necessary for the purpose of formulating a complete cause of action'. Further, the Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including a LBC. The same heads of cost cannot lawfully be counted twice and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

2. The allegation(s) are vague and liability is denied for the sum claimed, or at all. The delay in bringing proceedings lies with the Claimant, making retrieving material evidence difficult, which is highly prejudicial. The Defendant has little knowledge of events, save as set out below and to admit that they were the registered keeper.

3. With regards to the POC in question, two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the Chan case, HHJ Murch held: 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and the Defendant trusts that the Court should strike out the extant claim, using its powers pursuant to CPR 3.4. The second recent persuasive appeal judgment also held that typical private parking case POC (like this) fail to comply with Part 16. On the 10 May 2024, in CPMS v Akande, HHJ Evans held: 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim'."

4. It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case). The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.

5. DVLA keeper data is only supplied on the basis of prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope and dates of the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).

6. To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from Beavis.

7. Attention is drawn to:

(i) paras 98, 100, 193, 198 of Beavis (an £85 PC covered all costs and generated a huge profit shared with the landowner); the court should also read paragraph 3.4 of the original judgment by HHJ Moloney in Beavis, confirming what that authority means by 'costs of the operation', and

(ii) the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as the only parking case law that references costs abuse. HHJ Hegarty held in paras 419-428 (his judgment later ratified by the CoA) that 'costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the very minor cost of a letter-chain and 'would appear to be penal'. The court should note that HHJ Moloney referenced this case in Beavis.

8. The Parking (Code of Practice) Act will curb rogue conduct by operators and debt recovery agents (DRAs). The Government launched a Public Consultation likely to herald a ban on double recovery 'fees', which the relevant 2022 Minister called ‘extorting money from motorists’. Both the previous and present Governments found that the high profits may be indicative of firms having too much control 'indicating that there is a market failure'.

9. Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA') the claim exceeds the maximum sum and is unrecoverable: see Explanatory Note 221: 'The creditor may not make a claim against the keeper ... for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (para 4(5))'. There is no keeper liability for added false fees and the POFA specifically states that 'double recovery' is not allowed if a creditor uses any other remedy.

10. The Defendant seeks fixed costs (CPR 27.14) and a finding of unreasonable conduct and further costs (CPR 46.5). Parking cases now make up a third of all small claims which has overburdened HMCTS, causing the most CCJs of all sectors yet almost invariably discontinuing defended cases before hearings, which indicates a deliberate business model of systemic abuse and makes Claimants liable for costs (r.38.6(1)). Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: '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

"isn't the breach specified as 'breach of contract terms/conditions' on the claim form?"

Obviously that's not specific!