Euro Car Parks, DCBL, CNBC court paperwork received TK Maxx overstay

Scubanutta

So, I’ve been chatting to ChatGPT over the weeks, to understand each point in the template defence. This way I can inform my partner (the defendant), so he knows what he’s signing. 

Cgpt has offered a further point to raise in the defence. I mentioned that the signage has since been changed at the site in question. I believe, as does my partner, that the allowable maximum stay has been increased since the alleged contravention (from 90 mins to 2 hours, possibly more). Cgpt suggests adding this to para 3:

“The Defendant notes that the site signage and permitted stay duration have since changed, indicating potential inadequacies or unfairness of the original terms. The Claimant is put to strict proof that the signage at the material time in 2022 complied with all applicable codes and gave adequate notice of any parking charge.”

I’d be interested to hear your thoughts 💭 

Scubanutta

I asked ChatGPT, for clarification, in which part of the defence the burden to evidence that a NTK, and any further correspondence had been sent and that POFA had been followed. It directed me to para 18. 

CGPT stated that the paragraph did a great job of raising the point, but that it lacked the following:

—————————-

“What it does not do explicitly:

• Mention the Notice to Keeper (NTK).
• Address whether it was served within required timeframes.
• Ask them to prove that the full POFA procedure was followed, including:
  
• Delivery of the NTK within 14 days (or 56 days if no windscreen notice).
• Contents of the NTK being POFA-compliant.
• Whether a Notice to Driver was issued first.
• Debt collection steps not being excessive or unfair.

Suggested Improved Version of Paragraph 18:

18. The Defendant avers that the Claimant has not met the requirements to hold a registered keeper liable under Schedule 4 of the Protection of Freedoms Act 2012 (POFA). The Defendant has no recollection of receiving any Notice to Driver or Notice to Keeper in relation to this matter, and puts the Claimant to strict proof that:

(a) a POFA-compliant Notice to Keeper was served within the prescribed timescales,

(b) it contained the mandatory information required under paragraph 9(2) of Schedule 4, and

(c) all procedures leading up to the claim — including any debt collection letters — were conducted in accordance with the principles of fairness, transparency, and statutory guidance.

Absent strict proof of full POFA compliance, the Defendant cannot be held liable as keeper.

Purpose of this change:

• Forces them to prove they sent the charge notice in time.
• Challenges the entire chain of letters and compliance.
• Prepares the ground for dismissing the claim if the paperwork was late or defective.
• Clarifies that your partner never received a proper Notice of Charge — which makes keeper liability invalid under POFA.”

————————

Before finalising my partner’s defence, I’d be interested to read your thoughts. 

Please understand that this is not to undermine, or criticise what is already a wealth of valuable information. I’m autistic and have a need to understand. So I question and clarify. Since ChatGPT can be a useful tool, when used correctly and with caution, I thought these suggestions might be of some use. I have no issue with them being rejected, I have no meat in the game so to speak. 

Coupon-mad

The added paragraph about the new time limit on signs is good to add.

The one above this post you don't need to change (too much detail for defence stage) and this one would just benefit from the word 'new' being removed:

para 16 states the “new Labour Government” and “a public consultation within weeks”. Does this require updating to be current?

You could remove some paragraphs about the DLUHC and their 'Draft Impact Assessment' because that IS old news (and yes a Public Consultation is indeed coming in weeks).

Making a tenner offer at mediation is done without admission, in the interests of avoiding a hearing that's all.

Scubanutta

Scubanutta said:

So, I’ve been chatting to ChatGPT over the weeks, to understand each point in the template defence. This way I can inform my partner (the defendant), so he knows what he’s signing. 

Cgpt has offered a further point to raise in the defence. I mentioned that the signage has since been changed at the site in question. I believe, as does my partner, that the allowable maximum stay has been increased since the alleged contravention (from 90 mins to 2 hours, possibly more). Cgpt suggests adding this to para 3:

“The Defendant notes that the site signage and permitted stay duration have since changed, indicating potential inadequacies or unfairness of the original terms. The Claimant is put to strict proof that the signage at the material time in 2022 complied with all applicable codes and gave adequate notice of any parking charge.”

I’d be interested to hear your thoughts 💭 

@coupon-mad Should I make this 3.1, or put it in with 3 or 3.1?

Coupon-mad

Don't faff about with weird numbering. Remove the DLUHC paragraphs and stuff about the draft IA and then renumber the lot properly with sequential numbers.

Scubanutta

Also, in this case (since the signs have been changed), can the statement here be assumed. And is the paragraph correct/appropriate in its entirety?:

19. 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').

Coupon-mad

Yes that para doesn't need changing.

Scubanutta

Coupon-mad said:

Don't faff about with weird numbering. Remove the DLUHC paragraphs and stuff about the draft IA and then renumber the lot properly with sequential numbers.

So remove this in its entirety?:

13. 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. 

And these?:

9. 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." 

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

11. 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). 

If so, would you like me to post it here after renumbering, so that you can use it as the template with these amendments/omissions? 

Coupon-mad

Yes please.

I'd like to see what we're left with!

Scubanutta

Coupon-mad said:

Yes please.

I'd like to see what we're left with!

3, 4 and 5 are bespoke to my partner’s defence (simply numbered, as you suggested. So no “3.1” etc. The rest are template, with DLUHC paragraphs and para 13 removed, and all paragraphs re-numbered.

Please let me know if this is the correct standard now, updated. Ill then print, sign and email the defence.

1. The Defendant denies that the Claimant is entitled to the sum claimed, or to any sum at all. It is denied that any conduct by the driver amounted to a breach of any terms.

Furthermore, it is denied that the Claimant has the requisite legal standing to bring this claim. It is understood that the Claimant operates under a bare licence as an agent of the landowner, which does not confer the authority to offer contracts or to litigate in their own name. The Claimant is put to strict proof of their legal standing.

Liability is denied, whether or not the Claimant is seeking to rely on ‘keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012, which is unclear from the vague and generic Particulars of Claim (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, but not the driver.

3. Referring to the POC: paragraph 1 is denied. The Defendant is not indebted to the Claimant. Paragraph 2 is denied. The Defendant does not accept that a contravention occurred on 23/11/2022, as alleged.  Whilst the Defendant is the registered keeper, paragraphs 3 and 4 are denied. The Defendant is not liable and has seen no evidence of a breach of prominent terms. The quantum is hugely exaggerated (no PCN can be £170 on private land) and there were no damages incurred whatsoever.

4. The Defendant is the registered keeper of the vehicle, but was not the driver on the day in question. It is understood that the driver was a legitimate customer of TK Maxx, and made purchases totalling £169.76 on 23/11/2022.  The Defendant is prepared to supply a copy of the receipt to support this.

5. The Defendant notes that the site signage and permitted stay duration have since changed, indicating potential inadequacies or unfairness of the original terms. The Claimant is put to strict proof that the signage at the material time in 2022 complied with all applicable codes and gave adequate notice of any parking charge. 

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. 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

12. 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.

13. 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.

14. 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 Government said that it is addressing 'market failure' and in 2025, the 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. 

15. 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.

16. 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'.

17. 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

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

19. 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.

20. 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

21. 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.  

22. 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

23. 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. 

24. 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.

25. 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

26. 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 claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.

27. 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. 

28.  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: