Disputed Parking Charge Britannia Parking Represented by BW Legal

flooredDesign

Thank you so much for all this, I have copied the above Skeleton argument and added the paragraph from the WS..I'll Post now and make sure its right.

flooredDesign

Defendant's Skeleton Argument

The defendant files this document to assist the court with the legal arguments raised. The questions for the court appear to the defendant to be as follows:

1. Is the right to keeper liability invoked in law and within the Claimant's Statement of Case?

1.1 Paragraph 4(1) of Schedule 4 of the Protection of Freedoms Act 2012 ("POFA") gives the creditor a right to recover any unpaid parking charges from the keeper of the vehicle. However, that right is not absolute. Paragraph 4(2)(a) requires, in order for that right to apply, that the conditions in paragraphs 5, 6, 11, and 12 (so far as applicable) are met.

1.2. Paragraph 6(1)(b) requires that a Notice to Keeper is given accordance with paragraph 9.

1.3. Paragraph 9(2)(b) of Schedule 4 requires that the notice must inform the keeper that … the parking charges have not been paid in full.

1.4. Although the Notice to Keeper states that the the driver is "required to pay this parking charge in full", this is not the same as informing the keeper that the parking charges have not, in fact, been paid in full.

1.5. Paragraph 9(2)(e) of Schedule 4 requires that the notice must: 

"state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper (i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver".

1.6. The Notice to Keeper does not state that the creditor does not know both the name of the driver and a current address for the driver.

1.7. Nor does the Notice to Keeper invite the keeper to pay the unpaid parking charges or to notify the creditor of the name and address of the driver, if they were not the driver.

1.8. As the Notice to Keeper has not been given in accordance with paragraph 9, it does not meet the condition in paragraph 6(1)(b), and therefore the right of recovery in paragraph 4(1) does not apply.

1.9. The explanatory notes to POFA explain that, pre-POFA:

1. “any parking contract will be between the driver of a vehicle and the parking provider”;
2. “any tort is committed by the driver of the vehicle”; and 
3. “accordingly, the keeper may not be liable in law for the charges incurred if he or she was not the driver at the time.” 

1.10. Where the right to recovery under paragraph 4(1) does not apply, the position is as it was before Schedule 4 existed and there is no other mechanism by which to hold the keeper liable.

1.11. Even if the court is unconvinced by those prescribed wording omissions, the more glaring omission is that the Particulars of Claim ('POC') - particularly poorly drafted in this case - only refer to driver liability.

1.12. The Defendant's case is that she was not driving, yet a POFA-based cause of action has not been made out. Even if they were unaware of the fact she was not driving, if a Claimant wants to bring a legal claim it must be a claim recognised by law. It also needs to be framed in a way that the Defendant (and the court) can understand it, in terms of the basis of pleaded liability.

1.13. When those prerequisites are not met:

• defendants cannot prepare their defence as they should, because the claim is not clear;
• courts will not be sure of the case which it must decide.

1.14. Pursuant to the Civil Procedure Rules, a Claimant must state "all the facts necessary for the purpose of formulating a complete cause of action against the Defendant". Statements of Case mark out the parameters of each party’s case.

1.15. It is surely fatal to the claim that the Claimant failed to mention the POFA or 'keeper liability' as the basis of claim against this Defendant, a mere passenger in the vehicle on the material date.

1.16. A witness statement is not a Statement of Case. If they now have causes of action or material facts to add to the dispute, the Claimant must formally apply to the court to amend their Statement of Case rather than dropping them into a witness statement. CPR 2.3(1) defines Statements of Case as:

1. a claim form & particulars of claim
2. defence
3. reply to defence
4. counterclaim, and
5. defence to counterclaim.

1.17 In this case, the POC are embarrassing and the court is invited to dismiss the claim in its entirety on this basis alone.

1. Is the purported 'landowner authority' single sheet adequate?

1. The Claimant has appended a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?). It is clear, that two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent. 16. In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...'’

1. Was both (a) the signage lighting and (b) the placement of the 'VRM exempting tablet' fair and prominent, given the weather outside and the position of the tablet inside?

3.1. The legal 'test of fairness' is required and engaged. The Defendant's position is that the terms and consumer notices were unfair, unseen and unenforceable.

3.2. s71 of the Consumer Rights Act 2015 ('CRA 2015')places a duty on the courts to make a complete determination of prominence, legibility and overall fairness of terms and consumer notices (which in any private parking claim includes scrutiny of messages about any 'relevant obligations' such as the prominence of a working keypad/tablet to exempt a vehicle from an onerous term), "whether a party raises the matter or not."

CRA 2015 -Requirement for transparency

(1)A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2)A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

3.3. Further, the CRA 2015 introduced a new "prominence" requirement (not previously in the older UTCCRs) which mandates that key contractual terms must be brought to the consumer's attention. If hidden, these terms - and all 'consumer notices' - lose their exemption and become subject to the legal test for fairness.

3.4. Both the signs and the tablet itself are 'consumer notices' as defined in the CRA 2015. The tablet is shown in the Claimant's evidence as tucked away on the bar behind the cash register. Not only is that 'consumer notice' facing away from the public (thus it cannot possibly pass the tests of prominence and fairness) but it is the Defendant's case that patrons who come for food do not approach the bar. They were with a dog and were ushered by staff straight to a suitable table, never seeing the bar, let alone a tablet.

3.5. The headline information outside is also no fair warning of the risk or VRM obligation, with the only large legible words saying: 'Patrons Only'. The defendant was a passenger in the vehicle and a patron.

3.6. In the Supreme Court authority of ParkingEye Ltd v Beavis [2015] UKSC 67 ('Beavis') was heard just before the CRA 2015, so there was no 'test of prominence' in play. But in that case there was no small print and their Lordships scrutinised the clarity and fairness of the signage and noted with importance that all words were in the largest font with the terms deemed 'bound to be seen'.

3.7. Mr Beavis' experience did not involve a hidden unexpected 'keypad/tablet' with an onerous risk and nor did his visit occur in poor visibility conditions at dusk/in fog. The extant case demonstrates exactly the type of 'concealed pitfall or trap' that their Lordships remarked would have been unfair. The tablet was not 'bound to be seen' so the Supreme Court authority is fully distinguished.

4. Is the quantum excessive, according to the Supreme Court authority and/or the keeper liability provisions in the POFA?

4.1. The Claimant has improperly added a false 'recovery fee' which is excessive, unrecoverable and constitutes 'double recovery' of the same heads of cost.

4.2.This is unreasonable conduct under CPR 27.14(2)(g).

4.2.1. re POFA:

Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA') the claim exceeds the maximum sum and is unrecoverable: see Explanatory Note 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))'.

4.3. There is no keeper liability for added 'fees/costs' (except fixed court fees) and the POFA specifically states that 'double recovery' is not allowed at 4(6):

"Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery)."4.3.1. re Beavis:

The binding Supreme Court judgment in Beavis held that an £85 parking charge more than covered 'all the costs' which (at the initial Cambridge 'test case' hearing) HHJ Moloney had specifically listed (at para 2.6) as the letter-chain of demands which followed a £2.50 DVLA look-up, culminating in a LBC. All covered by the PCN itself, see also 3.4:

"Parking Eye's sole or main income stream is derived from the sums it receives from over-stayers: £50 if paid within 14 days; £85 if paid thereafter (less of course its operating costs including the costs of enforcement)."

4.3.2. The full HHJ Moloney Beavis case transcript is available below, sourced from a link in a publicly available 2015 official Supreme Court blog about Beavis:

https://www.parkingcowboys.co.uk/wp-content/uploads/2014/11/Judgment_1905-OCRD_2.pdf

4.3.3. The court should also note that HHJ Moloney referenced and relied upon the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) where HHJ Hegarty held in paras 419-428 that 'costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the very minor cost of a letter-chain and 'would appear to be penal' (his judgment was later ratified by the Court of Appeal).

4.4. The same heads of cost cannot lawfully be counted twice. Exaggerated claims for impermissible sums are good reason for judges to intervene.

4.5. In any event, the POC pleads 'recovery costs £0' and thus the Claimant only seeks the parking charge itself, which in all the premises, is unrecoverable.

Signed:

Date:

Dont know why but some of the numbering has altered on the copy & paste…obviously I need to attach claim details etc at the top. This is to be filed to both the court and claimant?

Gr1pr

Its usually, court, and claimants lawyers ( not the actual claimant. )

Coupon-mad

Add the bit that @Castle said.

Then email it off late this afternoon, to give BW Legal only a few days to digest it.

flooredDesign

At which point should I add what @Castle said?

Coupon-mad

At the relevant point…you can see which bit it fits in!

flooredDesign

Just checking as I don't want to get anything else wrong at this stage!

So replace 1.10 with this from @Castle and modify numbers accordingly?

Coupon-mad

I didn't say to replace anything and the missing landowner agreement point by @Castle quite clearly doesn't go in para 1.

I want you to understand all the points which is why I'm not telling you where to add it (that's not what I do). I want you to know those skelly questions inside out.

There's only one about landowner agreement.

Coupon-mad

And of course, after your wife signing & dating it, she'll save it as a PDF ready to attach to a short email to the local court and cc in BW Legal, with the Claim number & date & time of hearing in the subject line along with:

URGENT - DEFENDANT'S SKELETON ARGUMENT

She sends it. Not you.

flooredDesign

https://forums.moneysavingexpert.com/discussion/comment/82046921#Comment_82046921

I was getting confused with this post and @Castle. My apologies, its hard to keep up sometimes.

The October 2022 "land agreement" refers to a services agreement dated 1st January 2007 which they haven't included probably due the fact that the Claimant "Britannia Parking Group Limited" wasn't incorporated until August 2012, some 5 years after they apparently signed the original agreement.

I have attached this to 2.2 one the skelly. I am hoping that is now correct.

As far as I understand that the post from @cooldude255220 has been included into the Skelly in para.1.