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  • FIRST POST
    • loopy81
    • By loopy81 4th Jan 20, 7:11 PM
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    loopy81
    CEL PCN retail park, Court documents received
    • #1
    • 4th Jan 20, 7:11 PM
    CEL PCN retail park, Court documents received 4th Jan 20 at 7:11 PM
    Hello Everyone,

    I have received and ignored a PCN from CEL relating to a retail park in Manchester. It is now at the court stage (date of issue 24th Dec 2019) and I would really appreciate help putting my defence together. I have submitted the acceptance of service on 27th Dec and submitted a SAR on the same date. I have since also received a particulars of claim document from CEL.

    The details of the case are that the driver entered the car park on the day at 13.31 and left at 16.49. The car park apparently has a maximum stay of 3 hours. ANPR cameras took photographs of the vehicle entering and exiting the car park. During the time in the car park the driver also used the drive through McDonalds so was not parked for the entire time. It was not realised that this time would also form part of the time parked.

    I have started to put a defence together and would appreciate any direction which can be given.

    Thanks
Page 1
    • loopy81
    • By loopy81 4th Jan 20, 7:13 PM
    • 8 Posts
    • 3 Thanks
    loopy81
    • #2
    • 4th Jan 20, 7:13 PM
    Defence beginings
    • #2
    • 4th Jan 20, 7:13 PM
    DEFENCE
    1. I, the defendant, am the registered keeper of the vehicle in question at the time of the alleged incident at XXXX Retail Park in XXX when the Parking Charge Notice (PCN) was issued. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all for the following reasons;

    2. It is admitted that the Defendant is the registered keeper of the vehicle in question.
    No Contract
    3. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

    (i) the driver has not been evidenced on any occasion.

    (ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
    Inadequate Signage
    4. Signage visible on road leading up to retail park shows clearly in large bold font ‘FREE PARKING’. Any further wording is in much smaller font and is not legible from the road on approach therefore cannot be deemed to form part of contract.
    5. No further signage was seen in the car park regarding cost to the consumer. Therefore this case can be distinguished from Parking Eye Vs Beavis on account of any charge to be made not being obvious to the driver.
    No Grace Period
    6. The PCN was issued for an alleged overstay. The Claimant, who is the member of the International Parking Community (IPC), has failed to comply with Clause 15 of the IPC’s Code Of Practice’s General Condition with regards to grace periods that state:

    “15.1 Drivers should be allowed a sufficient amount of me to park and read any signs so they may make an informed decision as to whether or not to remain on the site.
    15.2 Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired”.

    The defendant does not believe that the Claimant allowed a sufficient amount of time that could be deemed “a reasonable grace period” to enter and exit said carpark. 17 minutes should not be deemed a reasonable amount of time to read.

    7. The driver on the day stated on the claim had also driven through the drive through McDonalds inside the car park during the period between entering and exiting the retail park entrance. During said time the vehicle was not parked in a bay or indeed inside the car parking area and cannot therefore be considered to be parked within the car park. Therefore the charge for overstay is invalid.

    The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

    In the event the claim progresses, then as an unrepresented litigant in person, the defendant reserves the right to alter, vary and add to this defence or reply to any further particulars of claim/documents that the claimant may provide.

    Statement of truth
    The defendant believes the facts stated in this defence to be true
    • Redx
    • By Redx 4th Jan 20, 7:19 PM
    • 26,776 Posts
    • 35,033 Thanks
    Redx
    • #3
    • 4th Jan 20, 7:19 PM
    • #3
    • 4th Jan 20, 7:19 PM
    If this is indeed CEL , then they are BPA members , not IPC members

    The BPA CoP clause #13 covers grace periods (two)

    You have a couple of weeks to get the defence finalised and submitted
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • loopy81
    • By loopy81 4th Jan 20, 7:22 PM
    • 8 Posts
    • 3 Thanks
    loopy81
    • #4
    • 4th Jan 20, 7:22 PM
    • #4
    • 4th Jan 20, 7:22 PM
    Thanks Redx, I shall look that up and amend straight away.
    • KeithP
    • By KeithP 4th Jan 20, 7:40 PM
    • 19,593 Posts
    • 24,988 Thanks
    KeithP
    • #5
    • 4th Jan 20, 7:40 PM
    • #5
    • 4th Jan 20, 7:40 PM
    It is now at the court stage (date of issue 24th Dec 2019). I have submitted the acceptance of service on 27th Dec.
    Originally posted by loopy81
    With a Claim Issue Date of 24th December, and having filed an Acknowledgment of Service on 27th December, you have until 4pm on Wednesday 22nd January 2020 to file your Defence.

    That's over two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


    When you are happy with the content, your Defence could be filed via email as suggested here:
    1. Print your Defence.
    2. Sign it and date it.
    3. Scan the signed document back in and save it as a pdf.
    4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
    7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are trying to keep you under pressure. Just file it.
    8. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
    Last edited by KeithP; 18-01-2020 at 7:40 PM.
    .
    • Coupon-mad
    • By Coupon-mad 5th Jan 20, 2:11 AM
    • 80,692 Posts
    • 95,221 Thanks
    Coupon-mad
    • #6
    • 5th Jan 20, 2:11 AM
    • #6
    • 5th Jan 20, 2:11 AM
    This bit makes no sense and you need to SPLIT the 17 minutes:
    The defendant does not believe that the Claimant allowed a sufficient amount of time that could be deemed ''a reasonable grace period'' to enter and exit said carpark. 17 minutes should not be deemed a reasonable amount of time to read.
    So maybe:
    The Defendant does not believe that the Claimant allowed a sufficient amount of time that could be deemed 'a reasonable grace period' to enter and later, to exit this large retail car park. 17 minutes should not be deemed a A reasonable amount of time is required on entry, to drive in, find a space, park and then to read the terms and decide whether to stay, and this action (known as the 'observation period' in British Parking Association 'BPA' articles) might take some drivers five minutes in small car parks but ten minutes or more in others, depending on the site, circumstances, how busy the car park was and how easy the terms are to locate and read on the signage, which was sparsely positioned high up on poles, with terms only in small print at this location. In addition, the BPA Code sets another (mandatory) concluding 'grace period' to leave any car park after allowed parking contracts end, and that is stated to be 'at least' ten minutes and in one article where the BPA resolved to increase it, 'at least 11 minutes'. Thus, it can be said that it (quite reasonably) took the driver 7 or 8 minutes after passing the car park threshold camera, to weave through the site, park and have the opportunity to read the signs on arrival, and no more than ten minutes were taken to leave, once the 4 hours parking contract ended. Both are allowed, according to the BPA Code of Practice, and due to the use of a Drive-thru section as well, on the balance of probabilities the car was not actually 'parked' and left in a bay for more than 4 hours on the material date.
    It also needs a paragraph number. All paragraphs must be numbered, and capital initials for Claimant & Defendant throughout, looks better.

    You now need to add in a point about no proprietary interest as the Claimant is not the landowner (see any other defence on the forum and get this from any of them!).

    And you need to add the long 'ending' section about the false added 'costs/damages' that I wrote in post #14 of the Abuse of Process thread by beamerguy, but change £60 to £82 if this is the usual claim by CEL where they try to add £82 to get the same costs twice.
    Last edited by Coupon-mad; 16-01-2020 at 3:19 AM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • loopy81
    • By loopy81 15th Jan 20, 10:17 AM
    • 8 Posts
    • 3 Thanks
    loopy81
    • #7
    • 15th Jan 20, 10:17 AM
    • #7
    • 15th Jan 20, 10:17 AM
    Thanks Coupon mad.

    I have had a go at making the changes suggested. Can you let me know if I have done this correctly.

    DEFENCE
    1. I, the Defendant, am the registered keeper of the vehicle in question at the time of the alleged incident at XXXX Retail Park in XXX when the Parking Charge Notice (PCN) was issued. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all for the following reasons;

    2. It is admitted that the Defendant is the registered keeper of the vehicle in question.
    No Contract
    3. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

    (i) the driver has not been evidenced on any occasion.

    (ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
    No Proprietary interest – the penalty rule remains engaged
    4. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.


    5. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location - Civil Enforcement unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.


    6. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.


    7. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

    8. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge.
    Inadequate Signage
    9. Signage visible on road leading up to retail park shows clearly in large bold font ‘FREE PARKING’. Any further wording is in much smaller font and is not legible from the road on approach therefore cannot be deemed to form part of contract.
    10. No further signage was seen in the car park regarding cost to the consumer. Therefore this case can be distinguished from Parking Eye Vs Beavis on account of any charge to be made not being obvious to the driver.
    No Grace Period
    11. The Defendant does not believe that the Claimant allowed a sufficient amount of time that could be deemed 'a reasonable grace period' to enter and later, to exit this large retail car park. A reasonable amount of time is required on entry, to drive in, find a space, park and then to read the terms and decide whether to stay, and this action (known as the 'observation period' in British Parking Association 'BPA' articles) might take some drivers five minutes in small car parks but ten minutes or more in others, depending on the site, circumstances, how busy the car park was and how easy the terms are to locate and read on the signage, which was sparsely positioned high up on poles, with terms only in small print at this location. In addition, the BPA Code sets another (mandatory) concluding 'grace period' to leave any car park after allowed parking contracts end, and that is stated to be 'at least' ten minutes and in one article where the BPA resolved to increase it, 'at least 11 minutes'. Thus, it can be said that it (quite reasonably) took the driver 7 or 8 minutes after passing the car park threshold camera, to weave through the site, park and have the opportunity to read the signs on arrival, and no more than ten minutes were taken to leave, once the 4 hours parking contract ended. Both are allowed, according to the BPA Code of Practice, and due to the use of a Drive-thru section as well, on the balance of probabilities the car was not actually 'parked' and left in a bay for more than 4 hours on the material date.

    12. The driver on the day stated on the claim had also driven through the drive through McDonalds inside the car park during the period between entering and exiting the retail park entrance. During said time the vehicle was not parked in a bay or indeed inside the car parking area and cannot therefore be considered to be parked within the car park. Therefore the charge for overstay is invalid.

    Inflation of the parking charge and double recovery

    13. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.

    14. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. Civil Enforcement Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

    15. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

    The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

    In the event the claim progresses, then as an unrepresented litigant in person, the defendant reserves the right to alter, vary and add to this defence or reply to any further particulars of claim/documents that the claimant may provide.

    Statement of truth
    The defendant believes the facts stated in this defence to be true
    • Coupon-mad
    • By Coupon-mad 16th Jan 20, 3:23 AM
    • 80,692 Posts
    • 95,221 Thanks
    Coupon-mad
    • #8
    • 16th Jan 20, 3:23 AM
    • #8
    • 16th Jan 20, 3:23 AM
    Remove #14 and #15 as that's old stuff about the legal costs, and that's not something that is likely to man anything, as the CPRs allow £50 legal costs, and case law supports that including companies with in-house legal teams.

    Search the forum for drive-thru as a keyword, including the hyphen and no gaps. There is a more up to date defence from yesterday that another poster is working on an I recommend you grab some chunks of theirs, to copy.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • loopy81
    • By loopy81 18th Jan 20, 6:07 PM
    • 8 Posts
    • 3 Thanks
    loopy81
    • #9
    • 18th Jan 20, 6:07 PM
    • #9
    • 18th Jan 20, 6:07 PM
    Thanks again, I have read the post suggested and altered the defence. Should I number with second level headings i.e. 11.2, 11.3 etc or is it ok to just have a new number for each paragraph?

    DEFENCE
    1. I, the Defendant, am the registered keeper of the vehicle in question at the time of the alleged incident at XXXX Retail Park in XXX when the Parking Charge Notice (PCN) was issued. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all for the following reasons;

    2. It is admitted that the Defendant is the registered keeper of the vehicle in question.
    No Contract
    3. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

    (i) the driver has not been evidenced on any occasion.

    (ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
    No Proprietary interest – the penalty rule remains engaged
    4. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.


    5. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location - Civil Enforcement unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.


    6. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.


    7. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

    8. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge.
    Inadequate Signage
    9. Signage visible on road leading up to retail park shows clearly in large bold font ‘FREE PARKING’. Any further wording is in much smaller font and is not legible from the road on approach therefore cannot be deemed to form part of contract.
    10. No further signage was seen in the car park regarding cost to the consumer. Therefore this case can be distinguished from Parking Eye Vs Beavis on account of any charge to be made not being obvious to the driver.
    No Grace Period
    11. The Defendant does not believe that the Claimant allowed a sufficient amount of time that could be deemed 'a reasonable grace period' to enter and later, to exit this large retail car park. A reasonable amount of time is required on entry, to drive in, find a space, park and then to read the terms and decide whether to stay, and this action (known as the 'observation period' in British Parking Association 'BPA' articles) might take some drivers five minutes in small car parks but ten minutes or more in others, depending on the site, circumstances, how busy the car park was and how easy the terms are to locate and read on the signage, which was sparsely positioned high up on poles, with terms only in small print at this location. In addition, the BPA Code sets another (mandatory) concluding 'grace period' to leave any car park after allowed parking contracts end, and that is stated to be 'at least' ten minutes and in one article where the BPA resolved to increase it, 'at least 11 minutes'. Thus, it can be said that it (quite reasonably) took the driver 7 or 8 minutes after passing the car park threshold camera, to weave through the site, park and have the opportunity to read the signs on arrival, and no more than ten minutes were taken to leave, once the 3 hours parking contract ended. Both are allowed, according to the BPA Code of Practice, and due to the use of a Drive-thru section as well, on the balance of probabilities the car was not actually 'parked' and left in a bay for more than 3 hours on the material date.
    Free parking time was no exceeded

    12. The driver on the day stated on the claim had also driven through the Drive-thru McDonalds inside the car park during the period between entering and exiting the retail park entrance. During said time the vehicle was not parked in a bay or indeed inside the car parking area and cannot therefore be considered to be parked within the car park. Traversing along a 'Drive-thru' is not parking, it involves moving traffic with the engine running and that conduct is not a 'parking event' as defined in the POFA 2012, Schedule 4. Parking firms cannot issue parking charges for moving traffic contraventions and it is a fact that the car was not actually parked for longer than the parking licence on offer on the sparse signage. Therefore the charge for overstay is invalid.

    Inflation of the parking charge and double recovery

    13. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.
    14. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

    15. The Defendant has the reasonable belief that the Claimant has not incurred an additional £80.46 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

    16. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £80.46 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
    The Beavis case is against this Claim
    17. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

    18. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at 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''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

    19. In the Beavis case it was said at 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.''

    20. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

    21. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''
    The POFA 2012 and the ATA Code of Practice are against this Claim
    22. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the Claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.
    The Consumer Rights Act 2015 ('the CRA') is against this claim
    23. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 80% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

    24. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

    25. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

    26. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

    27. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

    28. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

    29. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
    (a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
    (b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
    (c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

    30. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

    31. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the Claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the Defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

    32. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

    33. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

    34. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

    35. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

    36. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

    37. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

    38. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.


    In the event the claim progresses, then as an unrepresented litigant in person, the defendant reserves the right to alter, vary and add to this defence or reply to any further particulars of claim/documents that the claimant may provide.

    Statement of truth
    The defendant believes the facts stated in this defence to be true
    • Castle
    • By Castle 18th Jan 20, 6:29 PM
    • 2,468 Posts
    • 3,502 Thanks
    Castle
    With a Claim Issue Date of 24th December, and having filed an Acknowledgment of Service on 27th December, you have until 4pm on Monday 27th January 2020 to file your Defence.
    Originally posted by KeithP
    If the AOS was done on 27th December; the 28 days starts then and the 24th January, (which is a Friday), would be last date for filing a defence.
    • KeithP
    • By KeithP 18th Jan 20, 6:47 PM
    • 19,593 Posts
    • 24,988 Thanks
    KeithP
    If the AOS was done on 27th December; the 28 days starts then and the 24th January, (which is a Friday), would be last date for filing a defence.
    Originally posted by Castle
    But 27th December was a non-working day for the courts so the AoS would not have been accepted until Monday 30th December.

    Perhaps the OP should check his claim history on MCOL for a definitive answer on when the AoS was accepted or play safe and file a Defence on (or before) the Friday.
    .
    • loopy81
    • By loopy81 18th Jan 20, 7:16 PM
    • 8 Posts
    • 3 Thanks
    loopy81
    AoS states

    A claim was issued against you on 20/12/2019
    Your acknowledgment of service was submitted on 27/12/2019 at 13:54:37
    Your acknowledgment of service was received on 30/12/2019 at 01:23:57

    Does this mean I've missed the deadline? I thought there was 5 days from date of on papers before the 28 days began?
    • loopy81
    • By loopy81 18th Jan 20, 7:19 PM
    • 8 Posts
    • 3 Thanks
    loopy81
    Sorry for error of original post, it was received on 24th Dec.
    • KeithP
    • By KeithP 18th Jan 20, 7:39 PM
    • 19,593 Posts
    • 24,988 Thanks
    KeithP
    A claim was issued against you on 20/12/2019
    Your acknowledgment of service was submitted on 27/12/2019 at 13:54:37
    Your acknowledgment of service was received on 30/12/2019 at 01:23:57
    Originally posted by loopy81
    That first line means that you do indeed have less time that was once thought.

    With a Claim Issue Date of 20th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 22nd January 2020 to file your Defence.

    I have adjusted post #5 above to match.
    .
    • loopy81
    • By loopy81 18th Jan 20, 7:57 PM
    • 8 Posts
    • 3 Thanks
    loopy81
    Phew! Thanks, although this is less time, I had a sudden panic that the deadline was 28 days from the 20th therefore yesterday for a moment. I'm hoping I am almost there with the defence though. Any other adjustments???
    • Le_Kirk
    • By Le_Kirk 19th Jan 20, 10:24 AM
    • 8,009 Posts
    • 9,072 Thanks
    Le_Kirk
    Thanks again, I have read the post suggested and altered the defence. Should I number with second level headings i.e. 11.2, 11.3 etc. or is it ok to just have a new number for each paragraph?
    Simple numbering is preferred, that way it is less confusing in court when referring to paragraph 10, rather than paragraph 8, sub-paragraph 4, line 6........... if you see what I mean.
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