Parking double dip - claim form issued

[curiouspanda]

Hi there,

I have recently received a claim form from the county court business center from an alleged parking offence nearly a year ago. Long story short, this is a classic double dipping scenario and I do not owe them a penny!

I am not familiar with this process at all. I have attached a draft copy of my defence and I have attached a copy of the claim form. I would really appreciate any thoughts you have on my defence (which is mostly an amalgamation of many hours of reading/researching/piecing parts together that make sense).

Thanks in advance!

Claim Form: 0PEAKHX.png

My defence:

1. The defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare license as managers) has standing to sue or to form contracts in their own name at the location.

1. 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.

Preliminary matter: The claim should be struck out

1. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal). The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

1. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript attached as Appendix 1), the Court should strike out the claim, using its powers pursuant to CPR 3.4.

Claimant’s non-compliance with CPR 16.4

1. By way of general comment, the Claimant has failed to properly plead its case in accordance with CPR 16.4(1)(a) for the following reasons:
   1. the Particulars of Claim:
      1. states that a contract was agreed between the Claimant and the Defendant but fails to explain how or where the Contract was entered into;
      2. states that the driver was in breach of the Contract but fails to provide any description or details as to what term(s) of the Contract the Defendant has supposedly breached that had given rise to the PCN(s);
      3. refers to PCN(s) which implies that there are, or may be, multiple parking charges which the driver and/or the registered keeper are liable to pay. The pleadings fail to provide any adequate explanation as to:
         1. the number of PCN(s) that the Claimant is seeking to claim against the Defendant together with an itemisation list of charges related to those PCN(s); and
         2. whether the PCN(s) (if more than one) were issued for the same breach of parking conditions at the same location or that the PCN(s) relate to different locations or both; and
      4. the Particulars of Claim alleges that the Defendant is liable as the registered keeper of the vehicle but fails to provide any reasons on which the Claimant relies upon to prove such liability;
      5. the Particulars of Claim state, at para. 3, that the Defendant is 'pursued as the driver of the vehicle for breach' and at para. 4, 'in the alternative the defant is pursued as the keeper pursuant to POFA 2012, Schedule 4'. They also refer to a breach of terms, but do not specify which term(s) are alleged to have been breached. The Claimant is required to provide a concise statement of facts relied upon, not a menu of choices, and the Court is invited to strike out the claim for this reason, using its powers pursuant to CPR 3.4.
   2. It is well established that the Claimant must provide adequate pleadings and include all essential ingredients of the cause of action so as to enable the Defendant to understand the case against them. The Particulars of Claim, as drafted, are inadequate and discloses no cause of action for the reasons described in paragraph 2 of this Defence. The Claimant has merely provided a series of generalised statements which in turn makes it difficult for the Defendant to respond as he does not know or understand the basis of the Claimant’s case.
   3. Further, the Defendant is surprised by the poor drafting of the particulars given that the Claimant is represented professionally by a firm of solicitors who specialise in dispute resolution and so the lack of compliance with the CPR 16.4(1)(a) to formulate proper particulars cannot be excused. Accordingly, the court is invited to consider its general case management powers pursuant to CPR 3.1 to:
      1. make an order that unless the Claimant files and re-serves an amended Particulars of Claim compliant with CPR 16.4(1)(a) within 14 days of said order, then the claim shall be struck out and judgment entered in favour of the Defendant; or
      2. if the court considers it appropriate, to strike out the claim in whole or in part, as the basis that the claim discloses no reasonable grounds for a cause of action; and
      3. exercise any other case management powers the court sees fit.
   4. Without prejudice to the foregoing paragraphs, the Defendant intends to respond to the allegations raised in the Particulars of Claim as best he is able to do so.

The facts as known to the Defendant

1. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The Defendant was not the driver on the material date.

1. The facts in this defence come from the Defendant’s own knowledge and honest belief. The Defendant should not be criticised for using some pre-written wording from a reliable source. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed this defence after full research and having read this defence several times, because the court process is outside of their life experience. This claim was an unexpected shock.

1. With regard to template statements, the Defendant observes after researching other parking cases, that the Particulars of Claim set out a generic and incoherent statement of case. Prior to this - and in breach of the pre-action protocol for 'Debt' claims - no copy of the contract (sign) was served with a Letter of Claim. The POC is sparse on facts about the allegation, making it difficult to respond in depth at this time.

1. The Claimant pursues a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this is now banned. It seems they have also calculated 8% interest on that false sum. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that admin costs inflating it to £135 'would appear to be penal'.

1. This finding is underpinned by Government intervention and regulation. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/public...de-of-practice

1. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."
2. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."
3. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents ot the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'. Genuine customer replies pointed out that successful debt recovery does not trigger court proceedings and the debt-recovery/robo-claim law firms operate on a 'no win, no fee' basis; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.
4. This Claimant has not incurred any additional costs (not even for alleged reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a health profit.
5. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.
6. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.
7. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appear further. In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.
8. It is acknowledged that the Code and Act was temporarily withdrawn pending a further consultation and impact assessment. It should be noted that the Code and Act, and parts mentioned in this Defence, are based on sound legal reasoning, as explained in the Introduction.

POFA and CRA Breaches

1. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance.
2. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notice, letters and other communications intended to be read by the consumer.
3. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6,10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

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

1. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that 'the penalty rule is plainly engaged' in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.
2. 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 a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with concealed pitfalls/traps, hidden terms or unfair/unexpected obligations.
3. In the present case, the Claimant has fallen foul of those tests. The Claimant's small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains the Defendant's position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours wiht a case involving unclear terms and a lack of 'adequate notice' of a parking charge, include:
   1. Spurling v Bradshaw [1956] I WLR 461 ('red hand rule') and
   2. Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and
(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space" (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent's losing case, and not from the ratio).

1. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, 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."

Lack of landowner authority evidence and lack of ADR

1. DVLA data is only supplied to pursue parking charges if there is an independently signed landowner agreement (ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, hours of operation, any extended grace period or exemptions (whatever these definitions were) nor that this Claimant has authority from the landowner to issue charges at this place or for the reason given. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents for a principal, as some parking firms do.
2. Further, the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The rival Trade Bodies provided 'blink and you've missed it' time-limited appeals services which failed to consider facts or rules of law properly and unfairly rejected disputes: e.g. despite using legally qualified but anonymous Adjudicators, the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report). The Appeals Annex in the new Code shows that genuine disputes such as this, even if made late, would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and any reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer.

1. In the matter of costs, the Defendant asks:
   1. for standard witness costs for attendance at Court, pursuant to CPR 27.14, and
   2. that, in the event of a late Notice of Discontinuance (due to parking firms using and abusing the court process as a cheap - indeed lucrative - form of debt collection) the hearing continues as a costs hearing. CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) but this does not normally apply to claims allocated to the small claims track (r.36.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rules as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonable (r.27.14(2)(dg))."

The Defendant may seek a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

Conclusion

1. With the DLUHC's ban on additional costs, there is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only dismiss extortionate costs in the tiny percentage of cases that reach hearings, whilst allowing other such claims to continue to flood the courts unabated, is to fail undreds of thousands of consumers every year, who suffer CCJs or pay inflated amounts due to intimidating tactics at pre-action stage. The Defendant believes that knowingly enhanced parking claims cause consumer harm on a grand scale and it is in the public interest that claims like this should not be allowed to continue. The Defendant invites the court to dismiss the false 'costs' element at least, and to consider whether an appropriate sanction is to resume the policy of striking out parking claims altogether, where the POC include a vague but fixed sum in 'damages/costs'.
2. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and further wasting that of the Defendant.

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.

[R0b]

I think I have seen that defence posted before over on the Money Saving Expert forum, and with all due respect to those who provide their assistance over there and are well versed in the parking rules and laws, in my opinion at least half of the template is nonsense.

What has been provided as a template is not a defence, it is largely full of legal argument with references to case law and other things. For example, there is a reference to the DLUHC Parking Code of Practice but that has been revoked June 2022 so in other words, it doesn't exist and has no legal effect. The Parking Eye v Beavis section should also be scrubbed because that has not been mentioned in the Particlars of Claim and is something to argue about at the hearing, not a defence.

I could mention a number of other things but I'll leave it there. Appreciate the folks over at MSE are trying to ensure everyone at least gets a fair chance of defending themselves but I just don't think this is the right way to go, by throwing the kitchen sink at it and then leaving it up to the individuals on the day of the hearing to fend off questions from a judge if they decide to query the contents of the defence. Most of the time a defendant will not need to say much, but including codes of practice that no longer exist or have any legal force behind it is just dangerous and could affect your credibility when trying to persuade the judge.

I have a template defence which I will attach here and you are free to use as much or as little as you like, combine it with what you have or simply submit the MSE version, it's entirely your choice. It is a work in progress so it is not fully complete but is a one-size fits all, and you just need to remove or update things that are or are not relevant to your dispute. Do read it through thoroughly so you at least understand what is being said, and I can answer any questions you may have about it.

[curiouspanda]

I think I have seen that defence posted before over on the Money Saving Expert forum, and with all due respect to those who provide their assistance over there and are well versed in the parking rules and laws, in my opinion at least half of the template is nonsense.

What has been provided as a template is not a defence, it is largely full of legal argument with references to case law and other things. For example, there is a reference to the DLUHC Parking Code of Practice but that has been revoked June 2022 so in other words, it doesn't exist and has no legal effect. The Parking Eye v Beavis section should also be scrubbed because that has not been mentioned in the Particlars of Claim and is something to argue about at the hearing, not a defence.

I could mention a number of other things but I'll leave it there. Appreciate the folks over at MSE are trying to ensure everyone at least gets a fair chance of defending themselves but I just don't think this is the right way to go, by throwing the kitchen sink at it and then leaving it up to the individuals on the day of the hearing to fend off questions from a judge if they decide to query the contents of the defence. Most of the time a defendant will not need to say much, but including codes of practice that no longer exist or have any legal force behind it is just dangerous and could affect your credibility when trying to persuade the judge.

I have a template defence which I will attach here and you are free to use as much or as little as you like, combine it with what you have or simply submit the MSE version, it's entirely your choice. It is a work in progress so it is not fully complete but is a one-size fits all, and you just need to remove or update things that are or are not relevant to your dispute. Do read it through thoroughly so you at least understand what is being said, and I can answer any questions you may have about it.

Hi R0b, thank you very much for your reply. I agree with you and your template is excellent.

Please can I ask - in my situation, the driver was charged for double dipping. How would you phrase this in a defence?

Additionally, the PCN only shows the vehicle entering and leaving (timestamped, taking the first entry and the second exit, ignoring the middle entry and exit). It does not show the vehicle parked. It is my gut feeling that this should also be in the defence but I don't know how best to include it. What do you think? If you think it should be included, I would appreciate any guidance on how you would phrase this.

Thanks again

[R0b]

Hi

Double dipping is the one point I haven't really covered yet but is something I intend to include in my template. There's various strands of evidence you could rely on for double dipping so it will be fact specific, but I suppose you could start with something below which I have quickly mocked up so feel free to tweak as appropriate as it's not perfect but should get you started.

1. The basis of the claim appears to be that the driver of the vehicle had parked at the site in question between [start time] and [end time], a total of [number] hours and thus overstaying the allotted time. The Defendant will say that the claim has no foundation or merit because this is a case of what is known in the parking industry as "double dipping". The Defendant will rely on the following points in support of [his/her] position:

(a) The phrase "double dipping" occurs when the parking company utilises automatic number plate recognition ("ANPR") cameras to monitor vehicles entering and exiting the site by recording the time of entry and the time of exit. However, it is recognised that ANPR cameras are prone to failing to record vehicles that enter and exit the site on multiple occasions and instead the ANPR camera simply records the initial time of entry and the last time of exit. The result of that failure means the ANPR camera assumes the vehicle has parked on the site for a lengthy period of time, often far in excess of the allowed period of parking.

(b) In respect of this claim, the ANPR camera has recorded the vehicle as having parked on site for a period of [number] hours. Giving that the site in question was a supermarket car park, it is highly improbable for any person to spend [number] hours shopping, particularly in this instance where the supermarket is relatively small in its size. It is therefore obvious that this is a double dip case.

(c) Further or alternatively, the Defendant will provide evidence at trial verifying the vehicle's whereabouts during the period of the alleged parking. Specifically:

(i) [Provide points of evidence to support where the vehicle was parked if elsewhere. For example:

- if it was at a place of work can you mention that without implication yourself if you were in fact driving?
- Do you have any tracking information that you could use to support where the vehicle was during the alleged period of parking, such as google maps or iPhone or Android tracking etc.
- Any CCTV you can obtain that puts the vehicle in a different location to where the vehicle was supposedly parked.]
- Are you prepared to implicate yourself by claiming you were the driver at all times in order to provide evidence? Consider whether you could partially implicate yourself as the driver during the allowed period of parking if the vehicle was elsewhere.. that would prove that the vehicle was not there at all times and so their claim should fail on that basis alone.