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HELP. Received county court letter re. Parking fine, Civil enforement because of 35min delay in buying ticket
Borolad81
post Fri, 6 Aug 2021 - 23:05
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First time posting here.

Last year I parked in a private car park and decided to get my 4yr old child out of the car and into his pushchair... I started walking to my destination whilst trying to pay for parking via app.. however the app would not load even though my internet was working fine. After 35 mins of trying the app suddenly started working and I paid for the parking ticket for my stay.

However I received parking fine letters from civil enforement which I decided to ignore all along.

Received a county court letter few days back with a issue date of 27th july. Today I have filed a AOS online.

Any help will be much appreciated on how to take it from here.


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DWMB2
post Sat, 7 Aug 2021 - 15:00
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The MSE Forum (second post down) has a template defence that could help with how to word some of the more 'standard' points. You can adapt this and add in the points that are specific to your case (such as the payment issue).


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nosferatu1001
post Sat, 7 Aug 2021 - 15:08
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QUOTE (Borolad81 @ Sat, 7 Aug 2021 - 13:58) *
I only received the letter before claim letter about a week before I received the actual county court letter, I don't know if that makes any difference to the case.

Given it's required to give 30 days for a letter before claim, tell8g. Us when you received it only tells half the story. According to the lbc, when was it ISSUED

If they didn't wait at least 30 days before filing the claim, then you didn't have chance to ignore it, they filed to early.
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hcandersen
post Mon, 9 Aug 2021 - 07:48
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OP, back to the start and pl put in details:

The vehicle entered the site;
The driver parked and left the site;
Some time later a payment was made;
The driver returned to the car;
And found what?
However I received parking fine letters from civil enforement which I decided to ignore all along.

So, what payment was made, covering what period, when exactly was it made?
When you returned you must have found a notice to driver on your windscreen, yes?
If not, then the site is camera controlled and what do their photos show?

If there was a notice to driver then it was issued at a specified time, which was?
If not, then the first communication you received was a Notice to Keeper, yes?
If the claim is based not on you not paying but not paying 'in time', then IMO any court would look at this askance.

But we don't know, we're drowning in PoFA when what's needed is hard facts.
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Borolad81
post Wed, 18 Aug 2021 - 17:16
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im about to send in defence form now as its been about a week since i filled in the moneyclaim online form.

is there a certain way to type out a defence? any template that would help would be much appreciated.

and any other information that would help would be much appreciated

and lastly, do i need to attend northampton county court in person?

Thanks
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DWMB2
post Wed, 18 Aug 2021 - 17:19
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I've already given you a link to a template defence structure. Post #21.

It'll usually be held at your local County Court, although I believe hearings are mostly taking place via telephone currently.

Have you been reading this thread? Posters above have asked a number of questions that you haven't answered.


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nosferatu1001
post Wed, 18 Aug 2021 - 17:58
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What's your deadline to file the defence?
Why are you sending in a form? No ones told you to do that.
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Borolad81
post Wed, 18 Aug 2021 - 18:02
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OP, back to the start and pl put in details:

The vehicle entered the site; 5pm
The driver parked and left the site; 11pm
Some time later a payment was made; 5.35pm
The driver returned to the car;
And found what? Nothing until i received a letter from CIV ENF
However I received parking fine letters from civil enforement which I decided to ignore all along.

So, what payment was made, covering what period, when exactly was it made? the payment made covered the time i was parked
When you returned you must have found a notice to driver on your windscreen, yes? no
If not, then the site is camera controlled and what do their photos show? just picture of car parked

If there was a notice to driver then it was issued at a specified time, which was?
If not, then the first communication you received was a Notice to Keeper, yes?
If the claim is based not on you not paying but not paying 'in time', then IMO any court would look at this askance.

But we don't know, we're drowning in PoFA when what's needed is hard facts.
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TMC Towcester
post Wed, 18 Aug 2021 - 18:07
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OP -you've misunderstood the 2nd question!! That's the time that the driver (in person) left the site, not when s/he drove out. I'm sure you didn't sit in the car for 6 hours!!
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Borolad81
post Wed, 18 Aug 2021 - 18:20
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driver entered car park at 5pm and walked out of the car park at 5.10pm

QUOTE (nosferatu1001 @ Wed, 18 Aug 2021 - 18:58) *
What's your deadline to file the defence?
Why are you sending in a form? No ones told you to do that.



I have only filed AOS so far, this was done about a week ago
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Borolad81
post Wed, 18 Aug 2021 - 18:34
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QUOTE (DWMB2 @ Wed, 18 Aug 2021 - 18:19) *
I've already given you a link to a template defence structure. Post #21.

It'll usually be held at your local County Court, although I believe hearings are mostly taking place via telephone currently.

Have you been reading this thread? Posters above have asked a number of questions that you haven't answered.



Is this the template i need to be using?


IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!)

(Claimant)

- and -

Defendant’s name from N1 claim (can’t be changed to someone else now)

(Defendant)

____________________

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.



The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

^^^ CHANGE THE ABOVE IF NOT TRUE, OBVIOUSLY! ^^^

(Also, continue here in your words, by either also admitting to being the driver, or hirer/lessee, if you were. Alternatively, deny being the driver in #2, but ONLY IF TRUE. If you DON'T KNOW, say so).



3. [REMOVE AND REPLACE THESE NOTES! EXPLAIN WHAT YOU KNOW IN YOUR OWN WORDS]

If you are admitting to driving, you will be talking about what the Defendant saw or didn’t see, in terms of the signs, whether it was dark, whether the signs were obscured by a tree, really small, broken or not lit? etc. Or maybe the signs about inputting your VRM were not conspicuous, or maybe this was a fluttering ticket situation, or maybe the machine made an error in your VRM (never assume the driver made a typo, unless clearly the driver, say, input their other car VRM or something).

If you are only the registered keeper and were not driving, you will be saying when you first heard about this parking charge (by post, months later?) and maybe how harassed you felt by the bombardment of ‘debt recovery’ letters, and you might be taking the point that the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

If this is a residential car park where you live, you will be talking about your rights in your lease (as tenant or as leasehold owner), denying accepting any contract with this third party.



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.

5. 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.

6. 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.

7. 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').

8. 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

9. 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.

11. 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.

12. 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.

13. 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.

14. 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:

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

(ii) 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.



16. 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:
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nosferatu1001
post Wed, 18 Aug 2021 - 19:08
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So the charge is presumably for not paying in time

Is that correct?
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Borolad81
post Wed, 18 Aug 2021 - 19:19
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QUOTE (nosferatu1001 @ Wed, 18 Aug 2021 - 20:08) *
So the charge is presumably for not paying in time

Is that correct?



Correct
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nosferatu1001
post Wed, 18 Aug 2021 - 20:32
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A court is unlikely to consider that worthy of their courts time. I'd be shocked if they entertained such a. Claim


There's only one template over on MSE.
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Borolad81
post Wed, 18 Aug 2021 - 21:40
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ok i have completed the defence template to the best of my ability, is there anyone i can send it to to give it the once over for me before i print it out and submit it?

any help is much appreciated, i hope i can get through this one and not let them win, i will help in this forum as much as i can in future
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nosferatu1001
post Wed, 18 Aug 2021 - 21:48
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Why are you printing it? You're emailing it to the court. Take a photo of your sit, add it to the word doc, and convert to pdf.

How much have you changed? Unless you know what you're doing, only oars 2 and 3 (and by inference, if you need more para than these two left for you, you re number as required ) has your input....
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DWMB2
post Wed, 18 Aug 2021 - 21:51
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QUOTE (Borolad81 @ Wed, 18 Aug 2021 - 22:40) *
is there anyone i can send it to to give it the once over for me

If you put it on here people will be able to advise (as above, if all you've changed is 2 & 3, just post those, we don't need to see the unchanged template sections)


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Borolad81
post Wed, 18 Aug 2021 - 21:53
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The facts as known to the Defendant:
2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

3. I entered the car park at 5pm and chose to pay for parking via the carparks website as i did not hold any cash, i then with my 4 yr old child, left the car and proceeded walking to our destination, however there seemed to be some frustration with their website which made it impossible for me to make payment, after several attempts the website loaded and i was able to make payment which i believe was approx 35 mins after entering the car park.

The total amount I paid for parking was £3 which was sufficient for the duration of 3 hours of parking. I entered the car park at 5pm and exited the car park at 7.30pm which equates to 2.5 hours parking time so effectively i overpaid for the parking. Payment was not an issue for me, the issue was the claimants website was not working even though other web based services on my smartphone were working as normal.

I did call the telephone number on a letter I was sent in order to be able to discuss this matter with the claimant but unfortunately it was an automated number which only gave an option to make a card payment in relation to the parking fine and not actually be able to discuss the matter with a person.

The claimant has also escalated the charge to £182 which I believe is double recovery and abuse of process.
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Borolad81
post Wed, 18 Aug 2021 - 22:03
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QUOTE (nosferatu1001 @ Wed, 18 Aug 2021 - 22:48) *
Why are you printing it? You're emailing it to the court. Take a photo of your sit, add it to the word doc, and convert to pdf.

How much have you changed? Unless you know what you're doing, only oars 2 and 3 (and by inference, if you need more para than these two left for you, you re number as required ) has your input....



ok i will email it, the only thing on the document that i have changed is para 2 and 3, the case number and the claimant and defendants name. the rest of the document is untouched. once you guys think para 2 & 3 are good... i will print off and sign and scan and email
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ostell
post Thu, 19 Aug 2021 - 12:53
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No "I", change it to "the defendant"

Excessive and double recovery should be as a separate paragraph. Consider this and use it to build your defence. reference the case so you can add it to your witness statement. https://www.dropbox.com/s/16qovzulab1szem/G...kinson.pdf?dl=0

Scan your signature, preferable black on very white paper, and insert this in your defence document. Print as PDF and send that to the court.
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nosferatu1001
post Thu, 19 Aug 2021 - 14:30
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Ostell - double recovery is in the template.
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