told not to worry about payment and enjoy the day by the staff

So you suggest it is better to do the defence via email rather than the online service (is it something to do with the copy/confirmation that may be lost if not able to log in? - i will follow the advice anyway but just curious).

I also tried to talk to BW Legal, simply because of stress to just settle the case but - as everywhere noted, that resulted with nothing but advice to go to court (so if whoever thinks to maybe call to settle - this is another evidence that it doesn't work as they don't care).

IN THE COUNTY COURT

CLAIM No: ********

BETWEEN:

KBT Cornwall Ltd (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

DEFENCE

1. The Defendant denies that the Claimant is entitled to [STRIKE]the claim made.[/STRIKE] relief in the sum claimed, or at all.


2. It is admitted that the Defendant is the registered keeper and driver of the vehicle in question, registration XXXXXX and the PCN (xxxxx) was issued on 2xth of May at 21:xx in St Ives in xxxx location. [STRIKE]The PCN states £60 in first 28 days and £100 thereafter. [/STRIKE]


3. It is denied that the Defendant was in breach of any 'relevant obligation' or 'relevant contract' either by way of a breach of contract, trespass or other tort, as defined in the Protection of Freedoms Act, 2012 (the POFA) where Schedule 4 sets out the will of Parliament, relating to the legality of parking charges on private land.


4. The Defendant does not dispute the fact that he did not pay and display, however, an alternative verbal agreement was made with the Claimant's staff member who when asked for change for the machine, waived payment and repeatedly assured the Defendant ''not to worry'' about payment on this occasion.


5. The Defendant feels a fool for trusting the Claimant's rogue employee, who misled the Defendant, watched him leave then placed on his car, a parking charge notice (PCN) demanding £60 for early payment and £100 thereafter. Under the circumstances, it is reasonable to expect the Claimant's employee who issued the PCN (whose name and number must be known to them within the PCN data) to attend the trial as a witness to explain his conduct when acting on behalf of this Claimant.


6. Being the victim of a deliberate scam by the Claimant's employee does not cause the Defendant to be liable for, or to have 'agreed' to pay, the extortionate and unconscionable £100 penalty. The Defendant had the honest belief, from the Claimant's employee's promise, that he had a verbal licence to park and that he had done everything he could with goodwill and effort, to comply with the Claimant's terms and instructions. The Defendant argues that the usual 'pay & display' obligation was expressly waived, thus the penalty charge is void under the doctrine of promissory estoppel.


7. The facts are that the Defendant made every reasonable endeavour to pay the tariff after parking. The Defendant only had notes and a card, which one would reasonably expect in this day and age, would be allowed by the Claimant's machine. The Defendant was frantically going backwards and forwards within the car park to read other signage to find ways to pay, until talking to the Claimant's employee in his car to ask if that person had any change, which he said he did not.

7.1. At that time the Defendant had no idea the person in the unmarked car was a member of the car park staff. The employee, by then having donned a uniform/card with the Armtrac (KBT Cornwall Ltd) logo, chased the Defendant a few minutes later, having seen the Defendant trailing round with his daughter still struggling to pay. This was when he instructed the Defendant that, due to the remote spot where a lack of change could not be addressed, ''not to worry'' and to go off and ''enjoy the day''. The Defendant was thankful for the help, but asked him twice if he was sure. This must surely be viewed as an alternative verbal contract.


8. The Defendant was horrified by the unfair PCN and despite having been tricked by the Claimant, he went through the motions to appeal (now known to be a sham, as exposed in Parliament - ref Hansard 2.2.18 - during the reading of the new Private Parking (Code of Practice) Bill). The Defendant co-operated with all the requests to identify himself; this was done with some hesitation but willingly in the honest hope that this matter could be resolved and that the Claimant or their Trade Body would be just as horrified by the conduct of their employee as the Defendant was, and that they would ask their landowner client to check the CCTV to confirm what happened.

8.1. All pleas for reason resulted with standard responses and none of the Defendant's concerns were addressed at all, not even at so-called 'Independent Appeal Service' which is run by the parking firm's Trade Body, who the Defendant expected to investigate his allegations of misconduct. The Defendant is worried that this practice of deliberately misleading drivers, to extort money by way of penalties is a common practice with IPC member firms, or at least with this Claimant, since nothing was looked into at all at any stage.


9. The Defendant would like to point out that he was prepared to pay the tariff at all times, and would not raise this defence case if he did not believe in justice and wish the Court to hear how he was the victim of wrongdoing, not only by the person who initially misled him about not paying, but also as a victim of a very biased and futile 'appeal' process sham.


10. The Claimant is a member of the International Parking Community and committed to follow that Trade Body's Code of Practice ('the IPC CoP'). The Defendant puts the Claimant to strict proof of full compliance with the IPC CoP in all respects. It is the Defendant's case that this Claimant is known for predatory PCNs and unclear signage/contracts and this case goes further and exposes what a reasonable man would describe as fraudulent conduct.


11. This case can be distinguished from ParkingEye Ltd v Beavis (2015) UKSC 67 ('the Beavis case') the Court held that a parking operator cannot lawfully issue PCNs purely to punish and must have an overriding legitimate interest in charging the driver a sum far in excess of any loss (a pound or two tariff, in this case). In fact, the Court of Appeal stage confirmed that pay & display car parks are 'completely different' from the complex nature of a free retail car park, and this statement was not changed in the final decision.


11.1. The Beavis case confirmed that there must also be a relevant obligation and contract agreed and it is up to the party who is trying to impose a provision to make it clear what will happen if the primary obligation is breached, and ensure that there is a legitimate business interest such as the one demonstrated by ParkingEye. The Beavis case was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the Trade Body's CoP was paramount and held to be 'effectively regulation'.

11.2. By contrast, no 'legitimate interest', CoP compliance or clear unambiguous contract argument can save this claim from being struck out or dismissed. The Defendant avers that the Supreme Court findings confirm the assertion that this charge is unconscionable and breaches the consumer law doctrines of good faith and open dealing, given the facts. To quote from the decision in the Beavis case:

11.2.1. Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

11.2.2. Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

11.2.3. Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''


12. This case meets none of the high bars set by the Supreme Court, and indeed relies upon (to quote the Supreme Court's words) a 'concealed pitfall or trap' by allowing an employee to verbally renegotiate the terms to to trick a driver into believing the tariff was waived. This falls foul of trite law in the form of Lord Dunedin's guidelines in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd otherwise known as 'the penalty rule' which their Lordships held is 'engaged' in all parking charge cases.


13. Further and in the alternative, the Claimant is put to strict proof that it had proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue PCNs and to pursue payment by means of litigation in its own name. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs on behalf of a landowner. Any authority they may have would certainly not allow for penalties against drivers who have been tricked and told that the tariff is waived, in clear breach of the IPC CoP.


Costs on the claim - disproportionate and disingenuous
14. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

15. Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

16. The Claimant cannot reasonably recover an additional three figure sum variously described as 'damages' or debt collection/legal costs which is more than the alleged parking charge, a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters. Those same letters cannot be charged for again (double recovery) by adding £60 on top.

17. Any purported 'legal costs' are also made up out of thin air. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste robo-claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

18. In summary, the Claimant's particulars disclose no legal basis for the sum claimed from this Defendant and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law. The Claimant's conduct from the outset has been misleading, arguably fraudulent and vexatious and their claim lacks any merit.

19. The Court is invited to dismiss the claim in its entirety due to there being no real prospects of success, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking note of the wholly unreasonable conduct of this Claimant.


Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature


Date

harnas wrote: »

I just filed the defence with MCOL.