Appeal help please

Hrobbo84

Gr1pr said:

Stick to paragraphs 1 & 2 & 3 from the template and then add the rest of the example by coupon mad above ,  then renumber to suit , dont add the rest of the template or paragraph 3.1, based on her advice above 

She will be replacing the template defence in due course,  hence this new advice 

So as below ?

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 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 24/06/2023, 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 .

4. The breach complained of is that the driver of the Defendant allegedly failed to pay the parking tariff of £[] specified in the Claimant’s onsite notices for a stay of up to [] [minutes][hour(s)].

5. 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).

6. The term at issue in this case is the one imposing a secondary obligation to pay £70 for breach of the primary obligation to pay the tariff.

7. 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)

8. Those purposes are not served by the secondary term in this case.  The Claimant charges motorists for parking at this commercial 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. 

Hrobbo84

With the info updated for paragraph 4.

Coupon-mad

No because I made a typo here and also, you didn't edit it yet, to add the relevant detail:

4. The breach complained of is that the driver of the Defendant allegedly failed to pay the parking tariff of £[] specified in the Claimant’s onsite notices for a stay of up to [] [minutes][hour(s)].

My typo is in bold. Apologies! I meant 'driver of the vehicle'.  You can work out the detail that's missing; you know the tariff and hours (we don't). Clearly you don't leave it at the above with empty boxes!

Also I did NOT say only remove paragraph 9.

I said remove ALL the old stuff about the DLUHC and their draft Impact Assessment. That is several paragraphs to be pruned.

Coupon-mad

Also add a point first as para 4 (before the bit I suggested you add, that can then be re-numbered) that there were conflicting tariffs on the signs and the one by the machine had different information and did not state a different rate for different days.

And of course ALL the quotes from the Beavis case must be in italics (as I showed it in my reply). You should also indent them and/or use a different font script for the quotes, so that they are clearly noticeable as quotes from judges and not your words!

Hrobbo84

Coupon-mad said:

Also add a point first as para 4 (before the bit I suggested you add, that can then be re-numbered) that there were conflicting tariffs on the signs and the one by the machine had different information and did not state a different rate for different days.

And of course ALL the quotes from the Beavis case must be in italics (as I showed it in my reply). You should also indent them and/or use a different font script for the quotes, so that they are clearly noticeable as quotes from judges and not your words!

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').

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 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 24/06/2023, 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 .

4. Photographic evidence can be supplied of misleading signage and conflicting tariffs that have since been changed . 

5. The breach complained of is that the driver of the vehicle allegedly failed to pay the full parking tariff of £3.50 specified in the Claimant’s onsite notices for a stay of up to 4 hours for parking Friday- Sunday . Instead a Tarrif of £3.30 was registered as paid in line with a stay of upto 4 hours for parking Monday- Thursday.

6. 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).

6. The term at issue in this case is the one imposing a secondary obligation to pay £70 for breach of the primary obligation to pay the tariff.

7. 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)

8. Those purposes are not served by the secondary term in this case. The Claimant charges motorists for parking at this commercial 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. 

Hrobbo84

Ignore the quote numbers I forgot to change . Sorry its all a little confusing  , I think I've done much of it now I'm just trying to work out what other paragraphs (if any) I will add on to the above? I've tried to read through the original post but is all jargon to me 😩

Hrobbo84

Help please 🙏