County Court claim from Gladstones (on behalf of Horizon Parking Ltd) defence

LookAtTheBrightSide

I also received this one afterwards and another one on 25 Feb 2024 for £80

Coupon-mad

Reminders are not relevant.   

LookAtTheBrightSide

Coupon-mad said:

You can see it's non-keeper liability because of the last lines on the front page. Easy to spot!

Ok, thanks a lot! I'm just hoping it will be enough to have the claim struck out. I'll keep you posted 🙃

Castle

The court claim is for a £80 PCN, whilst the actual PCN was only £70.

Coupon-mad

Castle said:

The court claim is for a £80 PCN, whilst the actual PCN was only £70.

Good spot. We had another Horizon one last week, with the same error.

LookAtTheBrightSide

Yes, because in their 'final reminder' they've raised the amount to £80. Should I mention it somewhere in my defence? I'm sending it today after 9am as I believe the deadline is on Monday 14th July.
Should I cc Gladstones in the email or no need?

Coupon-mad

Yes you MUST mention that discrepancy but don't send it yet. Wait for the new template defence later today! I'm massively changing it and we are telling people to put their defence in using MCOL, so it will be far shorter.

LookAtTheBrightSide

Ok, I haven't sent it yet. 
Please let me know when the new template is ready, my date of service was on 16/06 (issue date 11/06).
Many thanks in advance!Coupon-mad said:

Yes you MUST mention that discrepancy but don't send it yet. Wait for the new template defence later today! I'm massively changing it and we are telling people to put their defence in using MCOL, so it will be far shorter.

Ok, I haven't sent it yet. 
Please let me know when the new template is ready, my date of service was on 16/06 (issue date 11/06).
Many thanks in advance!

Coupon-mad

Tis ready. 

LookAtTheBrightSide

Could someone please skim my defence draft to reassure me where it needs tweaking as it's based on the new template and I believe it's slightly too long (1215) so some bits will have to go, but which ones? I will greatly appreciate as the deadline is on Monday...

DEFENCE

1.  The Claimant’s sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable to understand with certainty the allegation or the heads of cost. The Defendant denies liability for the inflated sum claimed, or at all. There is a discrepancy between the original £70 PCN and the £80 PCN claimed in the POC. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

2.  It is difficult to respond, on the basis of the POC, but these facts come from the Defendant's own knowledge and honest belief. To form a contract, there must be a prominent offer, acceptance, and valuable consideration. It is neither admitted nor denied that the driver breached any term. Section 71 of the Consumer Rights Act 2015 (‘the CRA’) creates a statutory duty upon Courts to consider the test of fairness. The CRA introduced new requirements for prominence of terms and 'consumer notices'. Pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Sch2 and the duties of fair/open dealing and good faith, the Defendant avers that this Claimant generally uses unclear and unfair terms/notices. On the limited information available, this case appears to be no different. The Claimant is put to strict proof with contemporaneous photographs and the Defendant reserves the right to amend the defence if details of the contract are provided. However, the court is invited to strike this claim out using its powers pursuant to CPR 3.4.

3. The Defendant chose to ignore the PCN as it appeared to be non-POFA compliant and delivered by post on 7th January 2024 - three weeks after the alleged contravention. The Defendant was not the driver and couldn’t name the driver on the date stated on the PCN, therefore denies liability. The Defendant couldn’t have noticed any “terms of parking stipulated on the signage (the ‘Contract’)” therefore did not enter into ‘the Contract’. The defendant denies liability as a keeper because the Notice to Keeper failed to meet the requirements to include the mandatory keeper liability warning outlined in 9(2)(f) of Schedule 4 of the Protection of Freedoms Act (POFA) 2012 and was not served within the 14-day timeframe from the end of the parking period, as required by paragraph 9(5) of Schedule 4. This was de facto a non-POFA NTK in wording and date served.

4. 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. 

4.1. 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

5. DVLA registered keeper data is only supplied on the basis of prior written agreement from the landowner. The Claimant is put to strict proof of their standing to sue under a landowner contract and the terms/scope and dates/details of the parking management service, including the contract itself, all updates and schedules and a map of the site boundary as set by the landowner (not an unverified Google Maps mock-up).

6.  In order to impose a parking charge, as well as proving that the driver breached an obligation, there must be: (i) a strong 'legitimate interest' extending beyond mere compensation for loss, and (ii) 'adequate notice' of any relevant obligation(s) and of the charge itself. None of these requirements have been demonstrated and this charge is a penalty. ParkingEye v Beavis [2015] UKSC67 is fully distinguished. Attention is drawn to paras 98, 100, 193, 198 of Beavis and also to ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) a finding unaffected by Beavis. In Somerfield, HHJ Hegarty (whose decision was ratified by the CoA) held in paras 419-428 that 'admin costs' further inflating a £75 (discounted to £37.50) parking charge to £135 was disproportionate to the minor cost of template letters and 'would appear to be penal'.

7. On 11th July 2025 a Public Consultation by the Ministry of Housing, Communities and Local Government (‘MHCLG’) began. The Parking (Code of Practice) Act 2019 will finally curb the unjust enrichment of the parking industry and debt recovery agents (DRAs). Banning DRA fees (mirroring the approach of the last Government, which called DRA fees ‘extorting money from motorists’) appears likely. The MHCLG have identified that the added sums are not part of the parking related charges: “profit being made by DRAs is significantly higher than the profits reported by parking operators” and “the high profits may be indicative of these firms having too much control over the market, thereby indicating that there is a market failure”.

 8. The claim exceeds the current Code of Practice £100 maximum parking charge without justification or explanation. Pursuant to Schedule 4 of the Protection of Freedoms Act 2012 ('POFA') it also exceeds the ‘maximum sum’ recoverable; the explanatory notes to s4 (5) and (6) state at para 221: ‘’The creditor may not make a claim against the keeper [...] for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (para 4(5)).’’

9.  The Claimant is put to proof of POFA and Code of Practice compliance. It is denied that any DRA sums are due, nor interest (the delay lies with the Claimant and interest should be disallowed).

10.  The delay in litigation has made retrieving material documents/evidence impossible for the Defendant, which is highly prejudicial. The Defendant seeks standard witness costs (CPR 27.14) and a finding of unreasonable conduct by the Claimant, opening up further costs (CPR 46.5).

11. The court’s attention is drawn to the common outcome in bulk parking claims, of an unreasonably late Notice of Discontinuance. Whilst a Claimant is liable for a Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply 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))."