Urgent help required Defending County Court Claim for M1 Services Parking fine

Zak111

Gr1pr said:

Too late for any appeals, that ship sailed long ago,  you are going to be defending a small claim as the defendant by submitting a defence,  as seen in the defence template thread above the newbies thread in the thread listing 

But its too big to fit in the MCOL start defence box, plus doing so destroys the formatting,  so it will need suitable editing in order to fit it online,  2 quirks of the outdated system they currently use

You still haven't named the Parking company claimant or their lawyers,  despite me asking earlier 

CP plus Ltd and DCB Legal

Zak111

Coupon-mad said:

Zak111 said:

Gr1pr said:

Try clicking on Categories,  Motoring, Parking tickets, fines and parking,  getting away from the large welcome newbie screen shown above 

Thanks for this. These are various cases where the appeal has been succeful ordered. Would basing the appeal that "The Operator has not demonstrated that theyhave authority to issue parking charge notices" work?

No there aren't.

Why are you reading the wrong thing? You aren't appealing a PCN!

YOU ARE DEFENDING A CLAIM FORM,

DO NOT PUT IN AN APPEAL!

Read the TEMPLATE DEFENCE thread and just use the first half of the one linked in the FIRST POST for ParkingEye/DCB Legal cases.

It'll take you about ten minutes to add your own facts as paragraph 6.

Do it now. Do nothing else.

Is this ok?

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').

Preliminary matter: The claim should be struck out

2. 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:

3. 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. 

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'. Transcripts for both cases are linked below to assist the Court to deal with this failure promptly and the two authorities will also be exhibited later, if the claim is not struck out at allocation stage:

Link to the two authorities: Chan_Akande

The facts known to the Defendant:

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

6. 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.

7. 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

8. 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.

9. 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.

10. 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).

11. 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.

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." 

12. Despite legal challenges delaying the Code (temporarily withdrawn) a draft Impact Assessment (IA) was published on 30th July 2023. The then 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

13. 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).

14. 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. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

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

15. 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. 

16. The heads of alleged loss or purported 'contractually agreed' sums are unspecified and not adequately broken down, but it is denied that the added costs / damages sought were incurred. In this industry, debt collectors charge nothing when failing to collect parking charges.

17. A typical private PCN model comprises a series of demands that the Supreme Court called an 'automated letter-chain' and the parking charge itself is already inflated to generate a healthy profit. In Beavis, there were 4 pre-action letters/reminders and the £85 PCN was held to more than cover the minor costs of the operation. This is less about genuine 'parking management' and more of a PCN-generating scheme, where debt demands are part of the regime.

18. Whilst the new Code is 'on hold' and not retrospective, the new MHCLG Secretary of State must still introduce a statutory Code of Practice according to the legislation already enacted. It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure' and in 2025, the new Labour Government has pledged to resurrect the statutory Code with a Public Consultation expected within weeks. Statutory regulation will soon replace the BPA & IPC Code, so the clauses in the (temporarily stalled) February 2022 Code should bear significantly more weight than the industry's own self-serving version. 

19. 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'. That judgment was unaffected by Beavis and remains binding as the only authority covering the clear abuse of parking firms routinely adding imaginary 'admin /debt recovery' fees to further enhance a large parking charge.

20. 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 they are relying upon 'keeper liability'.

21. 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 even meet the basic signage requirements in the current BPA & IPC Joint Code of Practice, which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breach - lack of prominent terms

22. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not.

23. 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 adequately positioned where terms are bound to be seen) and all terms must be unambiguous and contractual obligations clear.

24.  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

25.  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.  

26. 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''. 

Lack of standing or landowner authority, and lack of ADR

27. DVLA registered keeper data is only supplied on the basis that parking operators who do not own the land must hold prior written agreement from the landholder. Should the Claimant try to rely upon the finding in One Parking Solution v Wilshaw in this regard, it is averred that this appeal judgment was misguided and plainly wrong. The DVLA rules and requirements that relate to private parking operators are a fundamental set of rules specific to parking on private land and regrettably, HHJ Simpkiss was not appraised about the 'KADOE' requirement for written landowner authority. Even the BPA & IPC's questionable industry Code gets this right: absent written landowner authority, there is no 'reasonable cause' to obtain DVLA data nor to issue PCNs. 

28. It is not accepted that this Claimant (an agent of a principal) had written authority from the landowner to offer and form contracts with drivers at this site, in their own right. Many parking operators merely act as agents (contracted to put signs up and issue charges 'on behalf of' the site landowner) and this Claimant is put to strict proof of their standing to litigate.

29. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). 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 average 5% of decided cases (ref: recent Annual IAS Reports). An impartial, fair appeals service was never on offer.

Conclusion

30. 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 Government IA analysis shows (from data from this industry) that the usual letter-chain costs eight times less than the sum claimed for it. The claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.

31. 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. 

32.  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.

Zak111

Really appreciate the help in getting this submitted.

Zak111

MCO only allows upto point 17 of the defence even after formatting. Any ideas how can get all the defence included on MCO website? May be submit online followed by fuller version via post?

Coupon-mad

I already explained what to do.

Gr1pr

As did I, plus mcol only because today was the deadline for submission  ( no email,  no post either   )

Zak111

ok so added para 6 defending each point per POC and used first half of the paras of the re DCB Legal/Parking Eye defence.

Many thanks for you help.

Coupon-mad

Zak111 said:

ok so added para 6 defending each point per POC and used first half of the paras of the re DCB Legal/Parking Eye defence.

Many thanks for you help.

Great! Is it safely in?

Zak111

Coupon-mad said:

Zak111 said:

ok so added para 6 defending each point per POC and used first half of the paras of the re DCB Legal/Parking Eye defence.

Many thanks for you help.

Great! Is it safely in?

Yes all submitted. Let's hope for the best. Many thanks for your help!

Coupon-mad

Zak111 said:

Coupon-mad said:

Zak111 said:

ok so added para 6 defending each point per POC and used first half of the paras of the re DCB Legal/Parking Eye defence.

Many thanks for you help.

Great! Is it safely in?

Yes all submitted. Let's hope for the best. Many thanks for your help!

Now it's in you are at step 4 or 5 of the 12 steps in the Template Defence thread, so don't take your eye off the ball (and pleeease don't show us the first letters).