Received claim form, used to be free parking, lately changed signs - Advice pls!

[lb2k]

To cut a long story short, the keeper was given two private parking tickets at this site. It used to be free parking till late last year (Nov 2020) and lately noticed private parking company erected new signs which is easy to miss as paid parking (with 30mins free parking) and realised early this year (Jan 2021) when received the parking tickets. Being IAS/IPC appeal route, it was advised not to go to appeal till get the claim form as per the other forum's advice.

The keeper was trying to solve the matter with landlord but in vain as the food chain where we go regular at this place was unable to help much to provide the landlord details. I was still chasing on few occasions with the food chain.

On both occasions we never exceed the free parking of 30 mins. Only issue is on the first occasion the driver didn't notice the sign hence not entered car reg on the parking machine to get the free 30 mins parking session ticket.

On the second occasion the keeper was in a hurry and tried to enter the car reg for free 30mins parking but couldn't get it right possibly faulty machine hence emailed bank park assuming that they will cancel the PCN (not followed the appeal process though but a casual email request). Possibly this has resulted in quick claim form assuming that keeper admitted being a driver from the claim form details but not too sure and it's purely my assumption . However the claim form refers to first occasion incident where the defendant was not the driver, so not sure if the keeper needs to admit anything in defence.

Please see the attached original PCN, Reminder notice, LBC and Claim form as below. I have completed the AOS already and requested SAR to DVLA, Bank Park, DCB legal and CPR 31.14 Request letter


ostell - Please advise further steps as your help on this would be much appreciated.

[ostell]

Can't see the docs, only the folders.

[lb2k]

Can't see the docs, only the folders.

Thank you very much indeed ostell - Could you please try the link again?

[ostell]

Edit so that the identity of the driver cannot be inferred

For keeper liability all the requirements of section 9 must be met

They have failed to make the driver liability statement required by POFA 9 (2) (b)
No period of parking as required by 9 (2) (a). Times moving in front of a camera cannot, by definition, be parking

POC is unclear. Is the claimant the owner and manager of the land multiple choice us not allowed. You require proof of authority. Similarly are they taking action against the keeper or the driver.

Thay have added extra charges to increase the amount recoverable. You believe this was an online claim where the charge is £25 not £35

Abuse of process by claiming additional sums, incorporate Excel v Wilkinson in your defence https://www.dropbox.com/s/16qovzulab...inson.pdf?dl=0

[lb2k]

ostell Thank you very much indeed, Please see the reply below from solicitor and suggest any relevant points to be added in the defence statement. I need to submit the defence by 31st August, so bit of running short of time. Yep it's online claim and definitely adding large sum as an abuse of process. I have also attached the draft defence so far. Not sure what's to add for abuse for process, any suggestions?

As usual your help would be much appreciated.

Dear x,

We write in response to your recent correspondence received in our office on 4th and 16th August 2021.

Our Client has correctly issued the Parking Charge Notices. When parking on private land, the contractual terms of the site – namely Oxford Road, x, XXXX XXX - are set out on the prominently displayed signs. By entering and remaining on the site on 5th December 2020 you have agreed to the terms and conditions displayed and therefore entered into a contract with our Client by way of conduct. Parking in breach of these terms - namely failing to pay for parking - constitutes a breach of the terms of contract and has resulted in a Charge Notice being issued. Our client has taken all reasonable steps to ensure such contractual conditions are clearly displayed and it is therefore your responsibility to ensure that these contractual terms are adhered too.

We draw your attention to the attached signs and site plan that display, as requested, such a contract was conveyed by way of signs displayed at the location. The signs outline the fact that you enter into a contract upon entering the car park and clearly display the contractual conditions of parking.

Further to the above, attached are copies of the Landowner's Agreement and Car Park Management Service Agreement that outline the chain of authority providing our Client with the authority to act at Oxford Road, X, XXXX XXX.

Following the outlined breach of contract, our Client applied to the DVLA for the details of the Registered Keeper of the Vehicle. Your name and address were provided. Our Client therefore issued correspondence to you at that address. It is your responsibility, as the Registered Keeper, to ensure the DVLA is kept up to date with your current address at all times.

The Notice to Keeper was issued to you on 15th December 2020. A copy is enclosed. You were afforded the opportunity to; appeal the parking charge, transfer liability to the driver (if it was not you) or make payment. Neither a successful appeal, nor an adequate nomination were received, yet payment remains outstanding.

The Reminder Notice was issued to you on 13th January 2021. A copy is enclosed. This notice reiterated that payment was outstanding and confirmed that legal action may be taken and additional costs incurred if the parking charge was not paid.

If there are any documents that you have requested, but that are not enclosed with this letter, it is because we have deemed the request to be disproportionate and/or not relevant to the substantive issues in dispute. We respectfully draw your attention to paragraph 2.1(c) of the Protocol and remind you that both parties are expected to act reasonably and proportionately.

In light of the above, and in order to prevent this matter from progressing further, we ask that you make payment of £249.53 in full and final settlement of this matter. Payment can be made via bank transfer to our designated client account: -

Account Name: DCB Legal Ltd
Sort Code: X
Account Number: X

You must quote the correct case reference X when making payment. If you do not, we may be unable to correctly allocate the payment. If further action is taken by us as a result of an incorrect reference being quoted, you will be liable for any further fees or costs incurred.

Alternatively, you can contact DCB Legal Ltd on 0203 434 0433 to make payment over the telephone or set up a recurring card payment.
Kind Regards,

[ostell]

Have you read the Wilkinson case? https://www.dropbox.com/s/16qovzulab...inson.pdf?dl=0 might help get the claim thrown out

[lb2k]

ostellpt2537 - Thanks. Please see the below defence and suggest for any amendments.

In a summary the defence points would be,

1. The defendant is not the driver hence no breach of contract as per the POC.

2. The claimant has failed to make the driver liability statement required by Schedule 4 of the Protection of Freedoms Act 2012 (POFA), POFA 9 (2) (b)
No period of parking as required by 9 (2) (a). Times moving in front of a camera cannot, by definition, be parking.

3. Abuse of process, The Original PCN was £100, then added £60 which is not accounted for as I'm not sure?

=====

IN THE COUNTY COURT

CLAIM NO. X

BETWEEN :

Bank Park Management Limited

(Claimant)

AND

X

(Defendant)


DEFENCE


Introduction


Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

The facts as known to the Defendant:

1. It is admitted that the Defendant was the registered keeper of the vehicle in question (X), but liability is denied.

The Claimant has no cause of action against the Defendant on the following grounds:

3. The defendant was not the driver. Multiple drivers are legally entitled and insured to drive the vehicle. Therefore there was no contract created between the claimant and the defendant. With no contract there can be no breach.

The claimant has failed to make the driver liability statement required by Schedule 4 of the Protection of Freedoms Act 2012 (POFA), POFA 9 (2) (b)
No period of parking as required by 9 (2) (a). Times moving in front of a camera cannot, by definition, be parking.

The particulars of claim state that the keeper is liable for the alleged debt. The defendant, as the keeper, cannot be held liable and therefore the claimant is claiming against the wrong party and the claim should be dismissed.

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims. That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued. The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

4. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer
Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The
Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

1. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100,

193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

1. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.

1. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

1. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

1. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.

10. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

1. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

1. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

1. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

1. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

1. Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

1. Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''. In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio. To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

15. Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed: 'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

15. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

In the matter of costs, the Defendant seeks:

17. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

18. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

Statement of Truth

I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature:


Date: X
-.

[lb2k]

ostell - Can you please help on the above (https://legalbeagles.info/forums/for...78#post1588178) defence statement?

[lb2k]

ostell - Could you please check the defence statement at post #7 as I need to submit before the deadline 31/08?

[ostell]

That should do

[lb2k]

That should do

Thank you very much indeed ostell

The other day on exploring the parking site, as any one can enter, easy to miss the signs on the left hand side which is completely missing onsite where as it exists in the solicitor pack. Is it worth mentioning that too please?

Parking sign photo taken 22/8/2021 - There is NO parking sign on the left hand side as you enter the parking site on the below - Should I capture timestamp on the photo too?

https://drive.google.com/drive/folde...tILWOjF5WzrlvB


Solicitor's Pack - Picture taken on 31/03/2021@8.40 - There is a parking sign on the left hand side as you enter the parking site on the below:

https://drive.google.com/drive/folde...tILWOjF5WzrlvB

[ostell]

Yes, if they are saying it exists and you xan show it does not the it casts doubt on their evidence.

So it seems you could park without passing a sign

[lb2k]

Yes, if they are saying it exists and you xan show it does not the it casts doubt on their evidence.

So it seems you could park without passing a sign

Thank you Ostell. The defence had been already submitted.

[lb2k]

ostell , from the conversations, I gathered that PPC (Bank Park) have the contract with letting agent to manage the parking site not directly from the landowner. Does that the prove the chain of authorities in the contact chain and valid to raise claim against the keeper please?

[ostell]

Depends on the contract the letting agent has,