Court Claim - Elms Legal & Excel Parking

Snacker

https://forums.moneysavingexpert.com/discussion/comment/82118755#Comment_82118755

That's a very good point that I'd not considered. Unfortunately I didn't keep the ticket so I have no proof of the time it was purchased, however 3-4 minutes to drive into the site, find a space, park, walk to the machine, enter the vehicle reg, select the time and insert the money seems realistic to me, maybe even on the conservative side, especially if you were to park on the opposite side of the site to to where the two machines are located. That would reduce the overstay to around 13 minutes.

Or could I just use the parking firm's own initial 5 minute grace period here, reducing the overstay to 12 minutes?

Gr1pr

You could still use the argument, because its a valid legal argument

Snacker

My third (and hopefully final) defence draft if someone would be kind enough to have a read of it? It's pretty long but from what I read, the word/line limit no longer applies if I'm emailing it as a PDF rather than submitting it online via MCOL.

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'. Further, the Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including an LBC. The same heads of cost cannot lawfully be counted twice and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

2. The Particulars of Claim are sparse and fail to set out with sufficient particularity the precise terms said to have been breached, the location and content of the signage relied upon, the basis of any additional sums beyond the original parking charge, or the Claimant’s standing. The Defendant reserves the right to amend this Defence if fuller particulars are provided.

3. At the material time the signage at the car park was sparse. The sign at the entrance was partially obscured by vegetation (photographic evidence will be produced). Entrance signs are required by the applicable code of practice to be clear and unobstructed so that a motorist is put on notice, before or upon entry, that controlled parking terms apply.
The ‘Privacy Notice’ must be located at the car park entrance to prominently warn of camera surveillance before a driver crosses the boundary of the site. At the material time its actual location was affixed above the sign located next to the payment machines, located towards the middle-left of the site as viewed from- and parallel to- the line of sight from the main entrance.

3.1. The Defendant acknowledges that the sign located next to the payment machines was unobstructed and that a ticket was purchased within 5 minutes of arrival.
However, the overall sparsity of signage and the defective entrance sign mean that the terms were not brought to the attention of a reasonable motorist with the prominence required by ParkingEye Ltd v Beavis [2015] UKSC 67 and the relevant code of practice. The Claimant is put to strict proof of the exact content, size, positioning and legibility of all signs on the date in question.

3.2. Further and in the alternative, the signage on which it is stated that ‘Excel Parking Services Ltd will be entitled to charge a collection fee of £70 on an indemnity basis for costs incurred as a result of debt and/or legal recovery’. The Claimant is put to strict proof of the costs incurred.
This indemnity statement also refers to ‘the payment terms detailed on the Parking Charge’, which did not exist at the time the contract is alleged to have been made.

3.3. Further and in the alternative, any technical overstay of approximately 12 minutes (allowing for arrival and departure grace periods) was caused by circumstances beyond the Defendant’s reasonable control. The Defendant was accompanied by a person who has rheumatoid arthritis. That person suffered a sudden and severe flare-up whilst away from the vehicle, requiring significant practical assistance to return to the vehicle safely. The delay was short, unintended and directly caused by the medical episode.

3.4. The signage fails to provide any mechanism for persons with 'protected characteristics' and their carers (who are also protected by law) to claim that time extension. The Defendant's legal position relies on the Equality Act 2010 and the EHRC statutory EA Code of Practice for Service Providers and Public Functions, which sets out the fact that fixed time limits and inflexible policies from Service Providers are illegal (see the 'Tours' example in the statutory EA Code). There is no justification by the Claimant saying they 'did not know' about the passenger's needs because the illegality here is indirect discrimination of the disabled population 'at large' (not direct discrimination of a known person). The Defendant will rely on photographic evidence of the signage and supporting medical evidence if required.

4. It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case). The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.

5. DVLA keeper data is only supplied on the basis of prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope and dates of the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).

6. To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from ParkingEye v Beavis [2015] UKSC67.

7. Attention is drawn to (i) paras 98, 100, 193, 198 of Beavis (an £85 PC comfortably covered all letter chain costs and generated a profit shared with the landowner) and also to (ii) the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as the only parking case law that deals with costs abuse. HHJ Hegarty held in paras 419-428 (High Court, later ratified by the CoA) that 'admin costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the minor cost of an automated letter-chain and 'would appear to be penal'.

8. The Parking (Code of Practice) Act will curb rogue conduct by operators and their debt recovery agents (DRAs). The Government recently launched a Public Consultation considered likely to bring in a ban on DRA fees, which a 2022 Minister called ‘extorting money from motorists’. They have identified in July 2025: 'profit being made by DRAs is significantly higher than ... 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'.

9. 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))'. Late fees (unknown to drivers, not specified on signs) are not 'unpaid parking related charges'. They are the invention of 'no win no fee' DRAs. Even in the (unlikely) event that the Claimant complied with the POFA and CoP, there is no keeper liability law for DRA fees.

10. It is worth the judge noting that, In July 2026, the UK consumer protection law Regulator - the Competition and Markets Authority ('the CMA') - has weighed in. The CMA has just published open letters to the parking industry and government on what they believe are actions that potentially breach consumer law:

Open letter to private parking operators

10.1. Paragraph 28 requires Operators to ensure that all substantive correspondence sent to consumers directs them to the Private Parking Sector Single Code of Practice ('the CoP') in order to allow consumers to make better informed decisions on whether to pay, ignore or dispute a PCN. 'Substantive correspondence' includes the Notice to Keeper ('NTK') which in the extant case, fails to direct the consumer to the CoP. The CMA consider that this is a failure to provide material information, ref: section 227(2) of the Digital Markets, Competition and Consumers Act 2024.

10.1.2. The same criticism - a failure to provide material information - can also be made of the NTK's failure to describe the circumstances in which the requirement to pay the parking charges arose. This is equally true of the woeful POC, which fails to particularise the alleged breach or the term, and nor does it properly identify the private land location.

10.2. With the CMA's Open Letter in mind, the Defendant avers that there is a lack of good faith in this Claimant (led by a solicitor and legal team) continuing to churn out boilerplate POC followed (as ever) by a premature, prolix Witness Statement, which this Defendant will not be intimidated by. Exaggerated claims for impermissible sums and template statements of case which fail to comply with Part 16 are good reasons for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

MrJenkinsEsq

Candidly, I've a bit of a vendetta against VCS (Excel sharing Mr Renshaw-Smith). I think there are some bits that could be tightened and alternatives added. In particular Beavis could be more greatly distinguished. Let me have a crack at it.

MrJenkinsEsq

I should admit to having begun working on this since my first comment in the thread. I'm not entirely sure if you've identified the driver so I've not done so. Please check it all, make sure you include the authorities in your submissions & fill it the VRM, and format it nicely. There's a request for costs for unreasonableness which will require a costs schedule for your litigant in person costs. I hope Mr Renshaw-Smith likes it :)

SUMMARY OF THE DEFENCE

For the assistance of the court, the Defence is arranged as follows:

(a) Paragraphs 1 to 2.2: the claim as pleaded is defective. It fails the particularity requirements of CPR Part 16; it adds an unrecoverable £70 'fee' amounting to double recovery; and it pleads 'registered keeper and/or driver' when the two routes to liability are mutually exclusive positions of fact between which the Claimant must elect.

(b) Paragraphs 3 to 3.10: the facts. A 2-hour ticket was duly purchased within 5 minutes of entry (3). The signage was sparse, the entrance sign partially obscured, and the onerous £100/£70 terms lacked the prominence required for incorporation (3.1 to 3.5). On the proper construction of the Claimant's own sign, no charging event occurred at all (3.6). After the mandatory 10-minute grace period, any chargeable overstay was at most approximately 12 to 17 minutes (3.7); it was caused by a disability-related medical emergency for which the Equality Act 2010 required a reasonable adjustment over and above the grace period (3.8 to 3.9); and the Claimant's entire financial interest in the disputed period was a £2.50 tariff differential (3.10).

(c) Paragraphs 4 and 5: no fair or properly incorporated contract term supports the charge, and the Claimant's standing to sue is not admitted.

(d) Paragraphs 6 to 7: the charge is an unenforceable penalty. ParkingEye v Beavis is distinguished on both limbs of its reasoning - legitimate interest and fairness - at paragraphs 6.1 to 6.5, and the costs-abuse authorities are addressed at paragraph 7.

(e) Paragraphs 8 to 9.1: the added 'fee' is contrary to the direction of Government policy and, insofar as keeper liability is relied upon, irrecoverable under the Protection of Freedoms Act 2012 in any event.

(f) Paragraphs 10 to 10.3: the Competition and Markets Authority's July 2026 intervention in this sector; the court is invited to strike out the claim.

(g) Paragraph 11: the court's own duty under s.71 of the Consumer Rights Act 2015 to assess the fairness of the terms relied upon.

(h) Paragraph 12: costs.

Apparently it's too long…

MrJenkinsEsq

Continued…

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'. Further, the Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including an LBC. The same heads of cost cannot lawfully be counted twice and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

2. The allegation(s) are vague and liability is denied for the sum claimed, or at all. The delay in bringing proceedings lies with the Claimant, making retrieving material evidence difficult, which is highly prejudicial. The Defendant has little knowledge of events, save as set out below and to admit that they were the registered keeper.

2.1. The Particulars of Claim are sparse and fail to set out with sufficient particularity the precise terms said to have been breached, the location and content of the signage relied upon, the basis of any additional sums claimed beyond the original parking charge, the basis and calculation of any interest claimed, or the Claimant's standing to sue. Indeed, the Particulars identify the location only as 'the Copeland Street' - Copeland Street being a public highway over which the Claimant has no authority - and do not name or identify the private land relied upon; nor do they state the times of the alleged parking event or any breakdown of the sums claimed. The Defendant reserves the right to amend this Defence if fuller particulars are provided.

2.2. Further, the Particulars plead that 'at all material times the Defendant was the registered keeper and/or driver'. That is not a permissible alternative pleading: it is a position of fact, not of law. Either the Claimant knows both the name of the driver and a current address for service for the driver, or it does not. If it does, its cause of action in contract lies against that known driver and there is no right to pursue the keeper. If it does not, its only route to liability against the Defendant as registered keeper is the strict statutory regime in Schedule 4 of the Protection of Freedoms Act 2012, the first condition of which is precisely that state of ignorance: that the creditor 'does not know both the name of the driver and a current address for service for the driver' (Sch 4, para 5(1)(b)). The two routes are mutually exclusive and turn on the Claimant's own state of knowledge, which is a matter of fact within its sole gift; the 'and/or' pleading demonstrates that the Claimant has not elected between them and does not know the facts necessary to found either cause of action. The Defendant is under no obligation to identify the driver, and there is no presumption in civil proceedings that a registered keeper was the driver: see Excel Parking Services Ltd v Smith (Manchester County Court on appeal, claim no. C0DP9C4E, HHJ Smith, June 2017), a decision against this very Claimant, in which the court rejected the bare assumption that the keeper was the driver and held that a keeper not shown to have been driving cannot be held liable outwith the POFA. If keeper liability is asserted, the Claimant is put to strict proof of full compliance with every applicable condition of Schedule 4 of the POFA.

3. The facts, so far as they are known to the Defendant, are as follows. On 31/05/2025 the driver parked the vehicle [VRM] at the site described on the Claimant's own signage as the 'Copeland Street 24 Hour Pay on Entry Car Park'. The Claimant's ANPR records are understood to show the vehicle entering at 16:04:18 and exiting at 18:31:23. A ticket for 2 hours of parking (£2.00) was duly purchased at the payment machine within 5 minutes of arrival, in accordance with the displayed terms.

3.1. At the material time the signage at the car park was sparse. The sign at the entrance was partially obscured by vegetation (photographic evidence will be produced). Entrance signs are required by the applicable code of practice to be clear and unobstructed so that a motorist is put on notice, before or upon entry, that controlled parking terms apply.

3.2. Further, the only entrance signage legible to an entering motorist - the large welcome board - displays a welcome message, the parking tariff ('0-2HRS £2.00 / 2-12HRS £4.50') and the instruction 'PAY ON ENTRY'; it makes no mention of any £100 Parking Charge, any £70 'collection fee', or any of the other terms now relied upon. Those terms appear only in dense small print on separate terms boards, including the partially obscured board at the entrance referred to above, which cannot be read from a vehicle entering the site. The Particulars of Claim plead that 'the sign was the offer and the act of entering private land was the acceptance of the offer'. On the Claimant's own pleaded case, therefore, the only terms communicated with any prominence at the point of the alleged acceptance (entry) were the parking tariffs. The £100 charge and £70 fee, being onerous and unusual terms, required the highest degree of prominence to be incorporated into any contract (Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433; Beavis, paras 100 and 108), and that prominence was absent.

3.3. The applicable code of practice and ICO guidance require a 'Privacy Notice' at the car park entrance, prominently warning of ANPR camera surveillance before a driver crosses the boundary of the site. At the material time the only Privacy Notice on site was affixed above the terms sign next to the payment machines, towards the middle-left of the site and mounted parallel to an entering driver's line of sight from the main entrance; it was therefore incapable of being read before or upon entry.

3.4. The Defendant acknowledges that the sign located next to the payment machines was unobstructed and that a ticket was purchased within 5 minutes of arrival. However, the overall sparsity of signage and the defective entrance sign mean that the terms were not brought to the attention of a reasonable motorist with the prominence required by ParkingEye Ltd v Beavis [2015] UKSC 67 and the relevant code of practice. The Claimant is put to strict proof of the exact content, size, positioning and legibility of all signs on the date in question.

3.5. Further and in the alternative, the signage states that 'Excel Parking Services Ltd will be entitled to charge a collection fee of £70.00 on an indemnity basis for costs incurred as a result of debt and/or legal recovery'. The Claimant is put to strict proof of the costs actually incurred. This indemnity statement is also expressed to be triggered by non-compliance with 'the payment terms detailed on the Parking Charge', a document which did not exist at the time the contract is alleged to have been made, so no such payment terms were ever communicated to, or capable of being agreed by, any motorist on entry.

3.6. Further and in any event, no breach arises on the proper construction of the Claimant's own signage. The sign lists the matters said to trigger a £100 Parking Charge Notice, and every one of them describes an act or omission of the driver: 'Failure to make payment within 5 minutes following entry to the car park/private land'; 'Not registering the full & accurate vehicle registration mark (VRM) of the vehicle on site when making payment'; 'Failure to park wholly within the lines of a single marked bay'; 'Parking one of the following vehicles: lorry, HGV, bus/coach, caravan, caravanette, mobile home or trailer'; 'Using a disabled bay without clearly displaying a valid disabled blue badge'. Read in that context, 'Parked after the expiry of time and/or date in a pay car park' likewise describes an act: the act of parking a vehicle after purchased time or date has expired, or without any valid time purchased at all. On that reading, the condition precedent to the charge is not paying for the parking event. That is not this case: the act of parking was undertaken within, and paid for by, a valid 2-hour ticket purchased within 5 minutes of entry, so the vehicle was not 'Parked after the expiry'; what followed was, at most, a briefly delayed departure. If (which is denied) the words could equally bear the meaning for which the Claimant contends, then the term is ambiguous, and section 69(1) of the Consumer Rights Act 2015 provides that where a term in a consumer contract or a consumer notice could have different meanings, 'the meaning that is most favourable to the consumer is to prevail'; the common law contra proferentem rule is to the same effect. Nor can the Claimant invite the court to imply the wider charging trigger for which it contends where none is explicit on the sign: a term will only be implied where it is necessary to give the contract business efficacy or is so obvious that it goes without saying, and neither is the case here - the tariff itself performs the function of charging for time (Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2015] UKSC 72). The court construes the words the Claimant itself chose rather than rewriting them to its advantage (Arnold v Britton [2015] UKSC 36), and the Claimant cannot rely on a term that was not displayed (Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163).

3.7. As to the alleged overstay: the Private Parking Sector Single Code of Practice (in force since 1 October 2024; Version 1.1, effective 17 February 2025, applying at the material time) requires operators to allow a 'consideration period' on arrival (clause 5.1) and a grace period of a minimum of 10 minutes at the end of the parking period, during which 'a parking charge must not be issued' (clause 5.2 and Annex B, Table B.1). The Claimant's own terms allow 'a maximum period of 5 minutes ... to purchase the required parking tariff' following entry, so the 2-hour period paid for ran from the time of ticket purchase, not from the ANPR entry time. Further, ANPR cameras record only the times at which the vehicle crossed the site boundary, not the period for which it was actually parked. Even taking the Claimant's case at its very highest - time running from the moment of ANPR entry, with no allowance for the purchase period at all - the period beyond the paid 2 hours was some 27 minutes, of which at least 10 minutes was mandatory grace: a chargeable overstay of at most approximately 17 minutes, and of the order of only 12 minutes once the paid period is correctly computed from the time of ticket purchase. The Claimant is put to strict proof of the time the ticket was issued, the 'paid until' time relied upon, and its application of the consideration and grace periods required by the Code.

3.8. Further and in the alternative, any technical overstay of between approximately 12 and 17 minutes (allowing for arrival and departure grace periods) was caused by circumstances beyond the Defendant's reasonable control. The Defendant was accompanied by a person who has rheumatoid arthritis. That person suffered a sudden and severe flare-up whilst away from the vehicle, requiring significant practical assistance to return to the vehicle safely. The delay was short, unintended and directly caused by the medical episode. Further time was then necessarily spent assisting that person into the vehicle before it could leave, so the ANPR exit time in any event overstates the parking period itself.

3.9. The signage fails to provide any mechanism for persons with 'protected characteristics' and their carers or companions to claim that time extension. The signage's only references to disability are the statement that the 'PARKING TARIFF APPLIES TO BLUE BADGE HOLDERS' and a requirement that marked disabled bays be used only by valid blue badge holders: the Claimant's terms are rigid and offer no concession or extension of time of any kind for disability. The Defendant's legal position relies on the Equality Act 2010. The passenger is a disabled person within s.6 and Sch 1 (rheumatoid arthritis being a long-term, fluctuating physical impairment), to whom the Claimant, as a service provider, owed the anticipatory duty to make reasonable adjustments (ss.20-21 and s.29(7)) and duties not to discriminate because of something arising in consequence of disability (s.15) or by the operation of a provision, criterion or practice which puts disabled persons at a particular disadvantage (s.19). The Defendant, as that person's companion and carer, is protected in their own right against 'associative' discrimination (s.13; Coleman v Attridge Law (Case C-303/06)) and against indirect discrimination by association (s.19A, in force since 1 January 2024). The EHRC statutory Code of Practice on Services, Public Functions and Associations confirms that fixed time limits and inflexible policies operated by service providers can amount to unlawful discrimination and a failure of the anticipatory duty (see the 'Tours' example in the statutory EA Code). There is no justification by the Claimant saying they 'did not know' about the passenger's needs, because the anticipatory duty and the prohibition on indirect discrimination protect the disabled population 'at large' (not only a known person). A short delay caused by a disability-related medical emergency is precisely the situation in which the law requires a reasonable adjustment: a modest extension of time or the waiver of a charge. Since the 10-minute grace period mandated by the industry Code of Practice is the baseline afforded to every motorist alike, it cannot itself constitute a reasonable adjustment for disability; any reasonable adjustment necessarily operates in addition to, and after deduction of, that grace period. Any residual overstay was therefore precisely the period which a lawful reasonable adjustment would have accommodated, and a charge levied in respect of it is unenforceable, alternatively unfair within s.62 of the Consumer Rights Act 2015. The Defendant will rely on photographic evidence of the signage and supporting medical evidence if required.

3.10. Finally on the facts, the value of the parking time in question is fixed by the Claimant's own tariff: the difference between the 2-hour tariff paid (£2.00) and the 2-12 hour tariff (£4.50) is £2.50, for which sum the vehicle could have remained on site for up to twelve hours. A demand for £170 - inflated in these proceedings to £255 - in respect of any such delay of minutes, caused by a medical emergency, is exorbitant and unconscionable, and is wholly disproportionate to any legitimate interest. The contrast with Beavis is addressed at paragraphs 6.1 to 6.5 below.

4. It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case as regards the additional charges now sued upon). The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.

5. DVLA keeper data is only supplied on the basis of prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope and dates of the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).

6. To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from Beavis.

6.1. The Defendant avers that Beavis is distinguishable on both limbs of its reasoning: (i) the 'legitimate interest' which saved the £85 charge from the penalty rule, and (ii) the finding of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 (now the Consumer Rights Act 2015).

6.2. As to the first limb: in Beavis the car park was free, and the landowner's interest - securing the turnover of free customer parking spaces for the benefit of the adjoining retail outlets - had no monetary value: ParkingEye 'lost nothing by the unauthorised use' (para 97). Critically, the charge was the sole source of revenue of the scheme: ParkingEye's 'revenues [were] wholly derived from the charges for breach of the terms' (para 97); the charge existed 'to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services' (para 98); and it 'underpinned a business model which enabled members of the public to park free of charge for two hours' (para 107) - free parking 'effectively paid for by the minority of defaulters' (HHJ Moloney QC, cited with approval at para 199). In economic terms, the charge in Beavis was therefore the price of the parking facility, and the Supreme Court observed that 'once it is resolved to allow up to two hours free parking, it is difficult to see how else those objectives could be achieved' (para 98).

6.3. None of that reasoning is available to this Claimant, which operates a commercial pay-per-period car park. The site is not free; the operation is funded by the tariff income; there is no interest in the rapid turnover of spaces, because stays of up to twelve hours are expressly offered for sale at £4.50; and no surrogate finding of 'price' is necessary or possible where an actual price is displayed on the Claimant's own tariff board. The Claimant's entire interest in the period in dispute was, at its very highest, the £2.50 tariff differential identified at paragraph 3.10 above. A charge of £100, inflated to £170 and pursued at £255, is 'out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation' (Beavis, para 32) and is 'exorbitant or unconscionable' on the test stated by Lord Hodge at para 255 (endorsed by Lord Toulson at para 293). It amounts to the very thing Beavis prohibits: 'The innocent party can have no proper interest in simply punishing the defaulter' (para 32).

6.4. As to the second limb (fairness): the finding in Beavis rested upon features which are absent here. First, the terms 'could not have been briefer, simpler or more prominently proclaimed' (para 108), the charge being 'prominently displayed in large letters at the entrance to the car park and at frequent intervals within it' (para 100); by contrast, at this site the entrance signage was partially obscured by vegetation and no charge or restriction was displayed legibly to an entering motorist (paragraphs 3.1 and 3.2 above). Secondly, the Supreme Court expressly relied upon the regulatory framework within which the charge would be enforced: the operator's appeals procedure, which 'provides a degree of protection for any overstayer, who would be able to cite any special circumstances as a reason for avoiding the charge', and the industry Code of Practice grace period, the Court holding that 'in assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced' (para 111). The current regulatory framework - the Private Parking Sector Single Code of Practice - mandates a grace period of at least 10 minutes; the Claimant is put to strict proof that it applied that grace period, and its rigid terms and processes made no allowance for the disability-related 'special circumstances' pleaded at paragraphs 3.8 and 3.9 above. Both of the protections upon which the fairness finding in Beavis depended therefore failed in this case, and the standard of good faith approved in Beavis at para 205 (Director General of Fair Trading v First National Bank plc [2002] 1 AC 481, per Lord Bingham: fair and open dealing, terms containing 'no concealed pitfalls or traps', with 'appropriate prominence ... given to terms which might operate disadvantageously to the customer') was not met.

6.5. Finally, Beavis decided only that the particular term in Mr Beavis's particular contract - formed at that site, under that signage, on those facts - was neither a penalty nor unfair. It laid down no general rule that £100 parking charges (still less added 'fees') are enforceable, and it did not bless any operator's 'scheme' in the abstract. The Supreme Court held that the penalty question 'turns on the construction of the contract' (para 99), and that fairness must be assessed 'by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract' (Regulation 6(1), set out at para 103 of Beavis; now s.62(5) of the Consumer Rights Act 2015). Each contract said to arise between this Claimant and each individual driver must therefore be assessed on its own terms, signage, site and facts; and on the terms, signage, site and facts pleaded above, the alleged contract in this case fails both assessments.

7. Attention is drawn to:
(i) paras 98, 100, 193, 198 of Beavis (an £85 PC covered all costs and generated a huge profit shared with the landowner); the court should also read paragraph 3.4 of the original judgment by HHJ Moloney in Beavis, confirming what that authority means by 'costs of the operation', and
(ii) the binding judgment in ParkingEye v Somerfield Stores [2011] EWHC 4023 (QB) which remains unaffected by Beavis and stands as the only parking case law that references costs abuse. HHJ Hegarty held in paras 419-428 (his judgment later ratified by the CoA) 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'. The court should note that HHJ Moloney referenced this case in Beavis.

8. The Parking (Code of Practice) Act will curb rogue conduct by operators and debt recovery agents (DRAs). The Government launched a Public Consultation likely to herald a ban on double recovery 'fees', which the relevant 2022 Minister called ‘extorting money from motorists’. Both the previous and present Governments found that the high profits may be indicative of firms having too much control 'indicating that there is a market failure'.

8.1. In July 2025 the Ministry of Housing, Communities and Local Government's consultation ('Private Parking Code of Practice', opened 11 July 2025) found that 'the level of profit being made by debt recovery agencies is significantly higher than the profits reported by parking operators themselves'.

9. 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))'. There is no keeper liability for added false fees and the POFA specifically states that 'double recovery' is not allowed if a creditor uses any other remedy.

9.1. Late 'fees' (not part of the parking tariff, and not incorporated with the prominence the law requires for onerous terms) are not 'unpaid parking related charges'; they are the invention of 'no win no fee' DRAs. Even in the (unlikely) event that the Claimant complied with the POFA and the applicable Code of Practice, there is no keeper liability law for DRA fees.

10. It is worth the court noting that in July 2026 the UK consumer protection law Regulator - the Competition and Markets Authority ('the CMA') - weighed in, publishing open letters to the parking industry and to government on what the CMA believes are actions that potentially breach consumer law, including an 'Open letter to private parking operators'.

10.1. Paragraphs 27 and 28 of that letter state that Operators should make any necessary changes to ensure that all substantive correspondence sent to consumers directs them to the Private Parking Sector Single Code of Practice (which the letter calls the 'Industry Code') and to the Appeals Charter, in order to allow consumers to make better informed decisions on whether to pay or appeal a PCN. 'Substantive correspondence' expressly includes the Notice to Keeper ('NTK') which, in the extant case, fails to direct the consumer to the Code. The CMA consider that a failure to provide such material information engages section 227(2) of the Digital Markets, Competition and Consumers Act 2024 (paragraph 27 of the letter). The letter also records the CMA's concerns about operators' handling of appeals (paragraphs 29-30) and their reliance on potentially unfair terms when seeking to recover additional fees on top of the parking charge (paragraphs 35-42, citing s.62 of and Schedule 2 to the Consumer Rights Act 2015) - the very regulatory protections whose presence underpinned the fairness finding in Beavis (paragraph 6.4 above) and whose absence or failure is pleaded in this case.

10.2. The same criticism - a failure to provide material information - can also be made of the NTK's failure to describe the circumstances in which the requirement to pay the parking charges arose. This is equally true of the woeful POC, which fails to set out the precise term relied upon, and nor does it properly identify the private land location.

10.3. With the CMA's Open Letter in mind, the Defendant avers that there is a lack of good faith in this Claimant (led by a solicitor and legal team) continuing to churn out boilerplate POC followed (as ever) by a premature, prolix Witness Statement, which this Defendant will not be intimidated by. Exaggerated claims for impermissible sums and template statements of case which fail to comply with Part 16 are good reasons for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

11. For completeness, the court is reminded that by s.71(2) of the Consumer Rights Act 2015, in proceedings relating to a term of a consumer contract 'the court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it'. That duty is the court's own and arises whenever, as here, sufficient legal and factual material is before it (s.71(3)). Every term the Claimant relies upon in this claim - the £100 charge, the £70 'collection fee', the 'indemnity' provisions and the rigid time terms - must therefore be assessed for fairness under s.62 of the 2015 Act, whether or not the Claimant engages with that issue.

12. The Defendant seeks fixed costs (CPR 27.14) and a finding of unreasonable conduct and further costs (CPR 46.5). Parking cases now make up a third of all small claims which has overburdened HMCTS, causing the most CCJs of all sectors yet almost invariably discontinuing defended cases before hearings, which indicates a deliberate business model of systemic abuse and makes Claimants liable for costs (r.38.6(1)). Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: '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)(g))'.

MrJenkinsEsq

I think the incorporation of terms, or rather lack of, could be written more clearly. I can redo that tomorrow and anything anyone else flags.

Le_Kirk

To the OP, what is wrong with using the standard defence template? To @MrJenkinsEsq will all that fit in the defence box on MCOL?

MrJenkinsEsq

@Le_Kirk is email submission no longer an option? If not, what's the limit?

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/82120546#Comment_82120546

It won't fit, which would mean it would have to be emailed as a PDF, signed & dated under a statement of truth.

It is very good though, so might be worth it!

But remove this - below - as this bit is only about CEL claims:

"10.3. With the CMA's Open Letter in mind, the Defendant avers that there is a lack of good faith in this Claimant (led by a solicitor and legal team) continuing to churn out boilerplate POC followed (as ever) by a premature, prolix Witness Statement, which this Defendant will not be intimidated by."