County court - CPM/Gladstones - exhaustion as a defence?

in small claims you can argue you were taking a reasonable grace period merely to comply with the terms, but could not, so you left without accepting any contract. Quote the ATA's CoP on Grace periods.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant is the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant is also a resident in the block of flats immediately adjacent the private passageway where the vehicle was stopped. The vehicle is insured with [XXXXX] with more than one named drivers permitted to use it. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim lack specificity and are non-specific. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. Due to the sparseness of the particulars, the Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

4. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. Accordingly it is denied that:
4.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
4.2. there was any obligation (at all) to display a permit; and
4.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

5. The Defendant maintains that the vehicle was stopped for a short period of time at the entrance of a place of residence, and was not parked. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the leaseholder's right to temporarily stop near the building entrance for loading/unloading/disembarkation.

5.1. It is argued that the Defendant had a right-of-way to enable him to access the property, and that the right to stop for a few moments or minutes to put down passengers or unload awkward items was a necessary incident of this easement. The position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. It therefore seems clear that the Claimant was not in any position unilaterally to override the right of access which the Defendant had bought on purchasing the lease, and that right of access permitted short incidental stops for the purpose of access to her flat.
5.2. The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration. Merely to stop a car cannot be to park it. Any other approach would leave life in the block of flats close to unworkable.
5.3. There may be communal spaces or access roads where parking permission is not granted by the lease or covered by a permit scheme. Communal areas cannot by default, then, be governed only by the operator signage. As demonstrated in Jopson v Homeguard [2016] B9GF0A9E, an easement over the access roads implies a right to stop and load/unload.

6. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party.

7. The Consumer Rights Act 2015 rules that if signage has multiple interpretations, the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply (“Authorised Vehciles Only”). It is submitted that the signs forbid parking to anyone other than one who is authorised. It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.
7.1. Further and in the alternative, the signs refer to 'Authorised Vehicles Only’, and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.
7.2. There are no terms within the Defendant’s property lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.
7.3. The sign, such as it is, is clearly not an open offer to contract to park at first sight. If anything, it only allows authorised parking, and therefore the additional ‘terms and conditions’ apply to those who are authorised to park.

8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

9. The Claimant (who is an accredited operator scheme member of IPC, International Parking Committee) has submitted no evidence regarding a consideration period. A contract to park by conduct cannot be formed unless there is a consideration period to discover, read, understand and accept the contract. To do any of these is impossible if a motorist is not allowed to stop or wait, in direct conflict with the IPC Code of Conduct’s “Considerations & Grace Periods”: “13.1 Motorists must be allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land.”. The Defendant maintains that the car was stopped for a period of time consistent with a consideration period, and was moved from the private land forthwith, thereby signalling that the Defendant has not accepted any contract (if such were to exist and be valid).

10. Due to the passage of time, the Defendant is unable to recall the driver of the vehicle at the material date and time. The Claimant is put to strict proof.
10.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
10.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
10.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
10.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same.
11.1.In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.
11.2. In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking, and this will therefore bring the penalty doctrine back in play. The charge will therefore likely be a penalty and unfair consumer charge unless it is found the charge is a pre-estimate of loss or there is commercial justification. The Supreme Court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company. The Defendant puts the Claimant to strict proof that all costs were actually incurred.
11.3. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context

12. The claimant is put to strict proof they have time stamped and unaltered photo evidence of the event they allege plus evidence of the identity of driver at each event.

13. The signage does not comply with information requirements laid down in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. Clause 13(1) of the act states that a contract (even if such a contract was actually available to enter into) is not binding on a consumer if the correct information is not provided.

14. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional XXXXX, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
14.1. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in ParkingEye v Beavis [2015] UKSC 67, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
14.2. Additionally, the charge of £100 is a penalty and unfair consumer charge. The leading case on this matter is ParkingEye v Beavis [2015] UKSC 67. In that case it was ruled that the penalties rule was engaged but the charge was not unfair because the motorist had the bargain of 2 hours of valuable free parking in exchange for the risk of paying £100 for overstaying. The risk was clearly brought to the attention of the consumer in a huge font. Here, there is no valuable consideration on offer and no bargain for the consumer, and the charge is hidden in small print. It is submitted that this is therefore an unfair consumer term in breach of the Consumer Rights Act 2015.

15. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

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