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Hi - Any feedback would be appreciated on the below defence for a Court Claim for an unpaid drop off charge at an airport where no PCN was received. The registered keeper was not the driver in this instance.
POC:
The Claim is for £100 due from the Defendant for an unpaid parking charge following a contractual breach which occurred on __/01/2023 in the private drop off zone at _____ by the driver of _______. Signage displayed upon approach to the drop off zone wanted that charges apply. The terms and conditions displayed at the drop off zone, being managed by the Claimant, offered the driver a contractual license, which were breached. The Defendant as the driver and/or registered keeper of the vehicle is liable to pay the PCN. Despite demands, the parking charge remains unpaid. The Claimant also claims £70 recovery costs as set out in the terms and conditions and in the ATA AoS Code of Practice.
The facts known to the Defendant:
2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond.
3. The vehicle is recognised and it is admitted that the Defendant was the registered keeper but not the driver. The Defendant can evidence as such that they were not the driver.
4. The Defendant was not in receipt of the PCN noted in the POC. The Defendant made a request under the provisions of CPR 31.14 for the PCN on receipt of the Claim Form but this request was not responded to.
5. The Claimant will be aware that they cannot use the provisions of the Protection Of Freedoms Act 2012 as ______ Airport is not relevant land and therefore there is no keeper liability. The Defendant reserves the right not to identify the driver and cannot be held liable under any applicable law.
6. The Terms and Conditions of the alleged contract are not visible to the driver until the drop off zone has been entered. This makes it the imposition of a contract term and in breach of the BPA CoP on 3 counts:
(i) lack of a consideration period.
(ii) lack of adequate notice.
(iii) lack of clarity about the terms and how to pay.
7. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:
(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and
(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.
8. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.
POC:
The Claim is for £100 due from the Defendant for an unpaid parking charge following a contractual breach which occurred on __/01/2023 in the private drop off zone at _____ by the driver of _______. Signage displayed upon approach to the drop off zone wanted that charges apply. The terms and conditions displayed at the drop off zone, being managed by the Claimant, offered the driver a contractual license, which were breached. The Defendant as the driver and/or registered keeper of the vehicle is liable to pay the PCN. Despite demands, the parking charge remains unpaid. The Claimant also claims £70 recovery costs as set out in the terms and conditions and in the ATA AoS Code of Practice.
The facts known to the Defendant:
2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond.
3. The vehicle is recognised and it is admitted that the Defendant was the registered keeper but not the driver. The Defendant can evidence as such that they were not the driver.
4. The Defendant was not in receipt of the PCN noted in the POC. The Defendant made a request under the provisions of CPR 31.14 for the PCN on receipt of the Claim Form but this request was not responded to.
5. The Claimant will be aware that they cannot use the provisions of the Protection Of Freedoms Act 2012 as ______ Airport is not relevant land and therefore there is no keeper liability. The Defendant reserves the right not to identify the driver and cannot be held liable under any applicable law.
6. The Terms and Conditions of the alleged contract are not visible to the driver until the drop off zone has been entered. This makes it the imposition of a contract term and in breach of the BPA CoP on 3 counts:
(i) lack of a consideration period.
(ii) lack of adequate notice.
(iii) lack of clarity about the terms and how to pay.
7. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:
(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and
(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.
8. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.
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