DBCL Claim Form- Does my defence sound ok ?

Porridge19

Here’s the claim form:

Coupon-mad

Coupon-mad said:

I think you could just use your 2, 3 and 4 as one longish paragraph 3 within the Template Defence.

Yep, standard POC.

Advice above hasn't changed.

Play the game. They'll discontinue by Christmas. 

Porridge19

Coupon-mad said:

Coupon-mad said:

I think you could just use your 2, 3 and 4 as one longish paragraph 3 within the Template Defence.

Yep, standard POC.

Advice above hasn't changed.

Play the game. They'll discontinue by Christmas. 

Ok, thank you.  So I just need to condense my points 2,3 and 4 in to paragraph 3 and just literally copy and paste the rest of the defence template ?

Porridge19

Here’s my paragraphs 2 and 3:

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 and driver.

 

3. On the date of the alleged contravention, the Defendant arrived at the car park managed by the Claimant. The barrier at the entrance to the car park was raised and no ticket was issued or available upon entry.

The Defendant parked their vehicle in the shopping centre’s designated car park for approximately thirty minutes. Upon returning to the vehicle, the Defendant attempted to use the on-site payment machine but found it to be inoperative.

The Defendant sought guidance from a member of staff within the shopping centre, who advised that the barrier system was not functioning and that the Defendant could exit the car park without any payment or further action, due to the equipment fault.

Porridge19

Porridge19 said:

Here’s my paragraphs 2 and 3:

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 and driver.

 

3. On the date of the alleged contravention, the Defendant arrived at the car park managed by the Claimant. The barrier at the entrance to the car park was raised and no ticket was issued or available upon entry.

The Defendant parked their vehicle in the shopping centre’s designated car park for approximately thirty minutes. Upon returning to the vehicle, the Defendant attempted to use the on-site payment machine but found it to be inoperative.

The Defendant sought guidance from a member of staff within the shopping centre, who advised that the barrier system was not functioning and that the Defendant could exit the car park without any payment or further action, due to the equipment fault.

@Coupon-mad  Do you think this sounds ok? 

Coupon-mad

Yes that's fine. You could add this sentence to the end of your paragraph:

The Defendant relies on the doctrine of promissory estoppel.

Remove remove ALL the old stuff about the DLUHC and their draft Impact Assessment. That is several paragraphs to be pruned from para 9 onwards.

Then add this instead of the DLUHC/draft IA paras, with appropriate paragraph numbers:

- 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).

- 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)

- 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 with the added point that the Claimant's own system made the contract void for impossibility, the secondary obligation in the present case is, therefore, a penalty and unenforceable.

Car1980

Sorry to butt in, but could you explain how promissory estoppel applies? Just so we understand a bit more about this new defence addition?

Coupon-mad

This was a promise by an authorised person (a leasehold retailer):

"The Defendant sought guidance from a member of staff within the shopping centre, who advised that the barrier system was not functioning and that the Defendant could exit the car park without any payment or further action, due to the equipment fault."

Therefore the OP was entitled to rely on that instruction. Effectively, the equipment fault had made the usual parking contractual term impossible to perform, so the OP did the right thing, asked the retailer and was offered an alternative verbal contract which they accepted.

Porridge19

Thanks @Coupon-mad

So, paragraphs 4 to 8 on your defence template stay the same and I need to remove numbers 9 to 11 and replace them with what you have said here?

And still include paragraphs 12 to 30 from your template in my defence ? 

Really appreciate your guidance.

Le_Kirk

Porridge19 said:

Thanks @Coupon-mad

So, paragraphs 4 to 8 on your defence template stay the same and I need to remove numbers 9 to 11 and replace them with what you have said here?

And still include paragraphs 12 to 30 from your template in my defence ? 

Really appreciate your guidance.

You got it!