Moorside Legal, Court hearing imminent, July 4 2025 (RCP)

Gr1pr

The relevant exhibits like chan and Akande are linked by coupon mad in the newbies sticky thread in announcements 

Coupon-mad

You don't need all those other judgments (remove Wakefield, etc.) just reference the Chan & Akande transcripts that are linked in the Moorside Legal defence example in the Template Defence first post.

Also you can't use Smith or Edward because you were the admitted driver. They aren't applicable.

And if you used the template defence then the entire second half paragraphs of your WS need binning because that's all just repeating what was in your defence, verbatim, which will annoy the judge.

bartos1976

Thanks CM, will get on it later. How detrimental do you think me losing my folder is or do
they always mainly go on case law? Just want to make sure I’m not wasting my time or mess
it up as a result of losing everything.

Am I right to point that out in my WS and request the claimant sends me the evidence they will rely on? 

Coupon-mad

Do you still have the Claim Form? Show us.

Which parking firm?

Which car park?

Can you find pics demonstrating a lack of signs, on Google Streetview? That would be good evidence for you to attach.

They will send evidence with their WS if they proceed to a hearing.

bartos1976

Coupon-mad said:

Do you still have the Claim Form? Show us.

Which parking firm?

Which car park?

Can you find pics demonstrating a lack of signs, on Google Streetview? That would be good evidence for you to attach.

They will send evidence with their WS if they proceed to a hearing.

No, unfortunately not. I’ve searched my house and my mums, weirdly I had it not so long ago at point of Mediation.

Firm is RCP and it was either Bridge Street or Bridge Street 2 in Sheffield. 

I’ll search Streetview and hope it’s not a new as I do know since this alleged contravention new signs have gone in. 

I’m assuming if they rely on the signs they have replaced that I can inject in some way? 

Thanks again CM

Coupon-mad

What year?

If it was Bridge Street 2 then here it is 2 years ago. evidence of no signs at all around the perimeters, nothing on the large white sign to tell drivers it is pay & display or pay by app.

Nothing on these poles:

And here it is a year ago (below).

A lot of vans park here so any low sign can't be seen, let alone read!

New signs but the flash of yellow supposed entrance sign is deliberately or negligently hidden behind a strategically placed blue bin:

Use those as exhibits plus the Beavis sign as a 'landmark case clear signage' comparison, as per the exhibits list in the second post of the NEWBIES thread.

Remove mention of Smith and Edward.

Remove the Wakefield & other ordinary county court cases.

Keep Chan and Akande and provide the link to those two transcripts.

From lower down the Template version you found, I'd remove the stuff about the DLUHC and the draft IA - it's getting old and I will be removing it from the template - and - because they accused the driver of failing to pay a tariff - add and edit this to suit (below) courtesy of @troublemaker22 but these paras will need re-numbering to follow your para where you say you don't recall seeing any terms at all:


1. The breach complained of is that the driver allegedly failed to pay the parking tariff specified in the Claimant’s onsite notice(s). I do not recall seeing any such notices.

2. The Supreme Court considered the application of the rule against penalties in precisely this situation in the leading case of  ParkingEye Limited v Beavis ([2015] UKSC67):

The true test [of whether a term is a penalty] is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (per Lords Neuberger and Sumption at paragraph 32).

3. Although I have never seen the signs at this location, the term at issue in this case seems to be one imposing a secondary obligation to pay £100 for breach of a purported primary obligation to pay an unidentified tariff.

4. The Supreme Court held that the £85 parking charge in Beavis was a secondary obligation that engaged the penalty rule but was saved by the special circumstance of the parking arrangements in that case.

[T]he £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable Parking Eye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. (Lord Neuberger and Lord Sumption at paragraph 98).

In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.

The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. (ibid at paragraph 99)

5. Those purposes are not served by the secondary term in this case. The Claimant charges motorists for parking at this car park, from which it receives an income stream. There is no purpose of deterring motorists from occupying parking spaces for long periods.  On the contrary, the legitimate commercial interests of the operator are served by encouraging motorists to stay, and pay, for long periods. In short, the Beavis exception cannot apply to failure to pay the tariff in a pay-to-park car park and the secondary obligation in the present case is, therefore, a penalty and unenforceable.

6. Further and in the alternative, the Beavis case depended upon the clarity of the notices which their Lordships held were 'bound to be seen' including a large sign at the entrance, warning about the obligation regarding the 2 hour max say which was the key term in that case. I have no access to the Claimant's evidence but looking on GoogleStreetView (independent unequivocal images from various years) there is no entrance sign at Bridge Street because it's at leg height and placed behind a blue street bin (see Exhibit bartos03).

7. The signage at the car park was not compliant with the British Parking Association (BPA) standards and there was no valid contract known, let alone agreed. I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of terms and the risk of a quantified parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.
Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use and this car park fell short of the legal requirement for prominence, set in the Consumer Rights Act 2015.

bartos1976

Wow, amazing, thank you so much CM, again

I'm on it now 

bartos1976

And yeah those images fit in with the timeline, November 23 i think it was 

bartos1976

So, I've edited and reordered it based on the feedback. Be great to get a second pair of eyes glance over it again and then I'll make any further amendments tomorrow evening when i will also submit. I can't submit it Friday as I'll be preoccupied travelling.

Preliminary matter: The claim should be struck out

1.      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 draws to the attention of the allocating Judge that there are two persuasive Appeal judgments - by HHJ Murch at Luton and HHJ Evans at Manchester - to support striking out the claim in these exact circumstances of typically poorly pleaded private parking claims. The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authorities:

2.      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. (Exhibit 01)

3.      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'. (Exhibit 02)

4.      The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

Facts and Sequence of events

5.      It is admitted that on the material date, I was the registered keeper of the vehicle XXXX XXX and vaguely recall using the car park in question.

6.      I do not recall receiving any pre-claim correspondence relating to the PCN in question. The first known correspondence relating to this matter was Moorside Legals Letter of Claim.

7.      I would like to alert the court that on receipt of this claim I was supporting my mother in caring for my sick father and subsequently failed to respond. Sadly, my father passed away in March this year and this has affected on my ability to deal with this matter in a timely and coherent manner.

8.      Subsequently I have been unable to locate evidence and correspondence relating to the matter to aid in preparing this Witness Statement and therefore call on the claimant to provide copies of everything they will rely on.

9.      Still, I can categorically state that I do not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'.

10.   As stated in my defence I did not notice any signage near to where I had parked my vehicle displaying the terms and conditions for use.

11.   The breach complained of is that the driver allegedly failed to pay the parking tariff specified in the Claimant’s onsite notice(s). I do not recall seeing any such notices.

12.   The Supreme Court considered the application of the rule against penalties in precisely this situation in the leading case of  ParkingEye Limited v Beavis ([2015] UKSC67):

The true test [of whether a term is a penalty] is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (per Lords Neuberger and Sumption at paragraph 32).

13.   Although I have never seen the signs at this location, the term at issue in this case seems to be one imposing a secondary obligation to pay £100 for breach of a purported primary obligation to pay an unidentified tariff.
The Supreme Court held that the £85 parking charge in Beavis was a secondary obligation that engaged the penalty rule but was saved by the special circumstance of the parking arrangements in that case.

[T]he £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable Parking Eye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. (Lord Neuberger and Lord Sumption at paragraph 98).

In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.

The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. (ibid at paragraph 99)

14.  Those purposes are not served by the secondary term in this case. The Claimant charges motorists for parking at this car park, from which it receives an income stream. There is no purpose of deterring motorists from occupying parking spaces for long periods.  On the contrary, the legitimate commercial interests of the operator are served by encouraging motorists to stay, and pay, for long periods. In short, the Beavis exception cannot apply to failure to pay the tariff in a pay-to-park car park and the secondary obligation in the present case is, therefore, a penalty and unenforceable.

15.  Further and in the alternative, the Beavis case depended upon the clarity of the notices which their Lordships held were 'bound to be seen' including a large sign at the entrance, warning about the obligation regarding the 2 hour max say which was the key term in that case. I have no access to the Claimant's evidence but looking on GoogleStreetView (independent unequivocal images from various years) there is no entrance sign at Bridge Street because it's at leg height and placed behind a blue street bin (see Exhibit 03).

16.  The signage at the car park was not compliant with the British Parking Association (BPA) standards and there was no valid contract known, let alone agreed. I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of terms and the risk of a quantified parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

 

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use and this car park fell short of the legal requirement for prominence, set in the Consumer Rights Act 2015.

 

Conclusion

17.   The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

18.   The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

Costs

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

(a) 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.

20.   Attention is drawn specifically to the (often-seen from this industry) 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 witness statement 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.

 

Digital Signaure –

 

Date -

Coupon-mad

Remove paragraph 9, as POFA isn't relevant to a driver.

Add in another exhibit talking the judge through the rest of the GSV images (not just the one with a blue bin) and alert the court to the fact that GSV shows that the signs changed a year ago. You can use the words & pictures I provided already.

Add in the Beavis case sign, as I mentioned too!