County Court Claim Form Received, Gladstones/UK CPM Options

[brentmeister2k]

Hi there,

I have received a County Court Business Centre Claim Form with claimant UK CPM and solicitor Gladstones.

Paperwork was actually sent to my old address but Royal Mail redirect service I signed up for has meant it's found it's way to my new address.

The claim is for circa £250. Original PCN was £100.

Completely green on how to defend this but I understand that there is a way.

The alleged offence was a genuine mistake resulting from a confusing tariff with 2 free hours that I did not exceed and a machine that wasn't operating correctly.

If you need more detail please let me know.

Appreciate any guidance you can provide. If there are articles on here I can read please let me know, bit overwhelmed at present and have liited tme to reply as having received this notice through redirect it's already a week old and so have limited time.

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[Dave65]

Well, what documents have you received?
PPN, Letter from debt collectors etc.

Have you just ignored this so far or replied to any of it?

[brentmeister2k]

When I first got the PCN I sent a letter or email explaining the confusion with tariff, and machine, this was rejected.

I've then ignored everything although not been much, there's been various letters from debt collectors, solicitors etc but I thought they were usual scaremongering.

I received a letter stating that they would take me to court if no reply within 7/14 days probably about 2 months ago, they said they had tracked me to my new address as I moved earlier in the year.

Then nothing for a while and now this has come through, strangely posted to my old address despite them claiming to have tracked me in prior letter

[Half_way]

How have they gone from £100 to £250?
what is the breakdown of costs?

[brentmeister2k]

Yes £100 to circa £250, breakdown as follows £100 for pcn, £60 for contractual costs, £15 interest, £25 Court fee and £50 legal representatives cost.

[ManxRed]

Do you have the paperwork from earlier on in the exchange?

Was the £60 contractual costs ever listed as Legal Costs? Is there any mention on their car park signs of a £60 Contractual Charge?

[brentmeister2k]

I don't have the paperwork anymore and don't know if it's on the sign, I've only ever been to this place the once as its miles away from where I live.

[nosferatu1001]

You have NO paperwork at all? Foolish

What EXACTLY did you tell them in your appeal? Verbatim.

1) ISSUE DATE of the claim form please
2) Go ONLINE and ACKNOWLEDGE THE CLAIM. You MUST do this today. Use the details on the form
Do NOT start your defence. Do NOT contest jurisdiction unless you live in scotland or NI.
3) Get your defence started
MSE FOrum -> Newbies thread -> Post 2. READ IT. Do not rush this.

You will have absolutely no reminder from the court about the date you will be EMAILING your defence to the court by. If you miss this date, you will lose. THats it.

[brentmeister2k]

Update, I've done the aknowledgement and also the SAR as suggested in the guidance thread, I've also written to Gladstones requesting they stop processing any data and put the case on hold.

As I understand it, my next step is to put together a defence and post here for fine tuning/feedback.

This part I'm struggling with and having read some of the defences I am a little concerned about how exactly I can defend my case.

Couple of additional facts that I think may be relevant:

I have none of the correspondence from UKPCM/Gladstones or any one else, only the court claim form. I don't even know the PCN number.

I think that in my very first email appeal to UKPCM after receiving the PCN I identified myself as the driver. I was not and have never been the car owner.

The basis of my appeal was an unclear sign, there were 2 hours free parking and I genuinely didn't realise that I needed to still obtain a pay and dispaly ticket from the machine.

Please let me know if I have a reasonable chance at defending this claim given this info.

I'm hoping that if the SAR works and I get all the documentation then it may throw up some more grounds to base my claim, however due to timings I'm not sure if it will be received in time. It was filed today so until 20th December to wait for this. Claim form is dated 11th Nov so 33 days means defence needs to be filed by 14th November I believe.

Any thoughts or suggested defences given this position?

[nosferatu1001]

Start numbering your bullets, then we can more easily refer. For example, on not having docs - that's bullet 1. Help us to help you.

If you are struggling you've not read carefully enough. You'll notice a commonality amongst defence - signage, standing and sometimes pofa issues. They also cover abuse of process. You must include this if they've added disallowed additional amounts.

- do you have the text of your appeal? Need it. Say yes or no. We've never mentioned owner Keeper and owner are different concepts. Check your v5 next time, notice it explicitly says this isn't proof of owner!

B- get pics of the signs and show them. Obviously this will be a big help to you!

Yes of course you do! If you stayed less than two hours then there is no commercial justification - failing to get a ticket costs them nothing. You complied with the major element of the c tract. Beavis required them to show a commercial justification otherwise the charge was a penalty. You must read beavis.

Were not going to write it for you
You've not read enough. I said. Slowly. For a reason.

[brentmeister2k]

Thanks OK so:

1. No docs, although I'm not sure if I'm likely to receive these following the SAR.
2. I do not have the text of my appeal, the point I was making though was that it was a confusing system, 2 hours free parking, the machine did not respond when I tried to get a ticket without putting money in so I assumed no ticket was needed and there were plenty of others there that assumed the same.
3. I don't have pics of signs and the shopping centre is a long way from where I liev so I will need to make a special trip, will look to get there in the next week but not somewhere I can just go convenientl.


In terms of where I am I have now emailed the landowner, having already filed my acknowledgement and also submitted a SAR to UKCPM and written to Gladstones regarding the SAR.

I think my next step is to get my defence sorted and filed.

I've read some more defences today in order to improve mine and have copied my updated draft defence below, please can I get some feedback or comments on my defence to advise anything that should be removed/added or anything that doesn't look quite right in here please:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________
Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges. There is no prescribed form for such agreement and it need not
necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed the particulars
of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are
known to be serial issuers of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.


Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money
owed £1000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant

(3). The Claimant has not complied with the pre-court protocol.

1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process, especially bearing in mind that the Claim was issued by
their own Solicitors so they clearly had legal advice before issuing proceedings.

On the basis of the above, we request the court strike out the claim for want of a
cause of action.

Statement of Defence


(1). The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

(2). The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim.
The Claimant has therefore disclosed no cause of action.
4. The Particulars of Claim contains no details and fails to establish a cause of action
which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis
the claim is brought.
There is no information regarding why the charge arose, what the original charge
was, what the alleged contract was nor anything which could be considered a fair
exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.
5. On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’
6. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were eficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be
struck out.

(3) The Claimant has not complied with the pre-court protocol.
1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that the Claim was issued by their
own Solicitors so they clearly had legal advice before issuing proceedings.

(4) Withholding any relevant photos of the car, particularly the windscreen and
dashboard, and the signage terms, despite being asked for by the Defendant at the
outset, is against the SRA code as well as contrary to the ‘overiding objective’ in the
pre action protocol.
As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body
and deal with private parking issues every single day of the week there can be no
excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and
asks leave to amend the Defence.
(5). UK Car Park Management are not the lawful occupier of the land. I have the
reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
1. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
3. The Claimant is put to proof that it has sufficient interest in the land or that there are
specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge

(6)
1. The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £100
to £160. This appears to be an added cost with apparently no qualification and an
attempt at double recovery, which the POFA Schedule 4 specifically disallows.
2. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the Notice to Keeper.

(7)
1. The Claimant has sent threatening and misleading demands which stated that
further debt recovery action would be taken to recover what is owed by passing the
debt to a ‘local’ recovery agent (which suggested to the Defendant they would be
calling round like bailiffs) adding further unexplained charges of £25 to the
£100 with no evidence of how this extra charge has been calculated.
No figure for additional charges was 'agreed' nor could it have formed part of the
alleged 'contract' because no such indemnity costs were quantified on the signs.
Terms cannot be bolted on later with figures plucked out of thin air, as if they were
incorporated into the small print when they were not.
2. The Defendant also disputes that the Claimant has incurred £50 legal representative’s costs.
3. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs
to pursue an alleged £100 debt.
4. Not withstanding the Defendant's belief, the costs are in any case not recoverable.
5. The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs".
CPR 27.14 does not permit these to be recovered in the Small Claims Court.

(8). The Defendant would like to point out that this car park can be fully distinguished
from the details, facts and location in the Beavis case. This site does not offer a free
parking licence, nor is there any comparable 'legitimate interest' nor complex
contractual arrangement to disengage the penalty rule, as ParkingEye did in the
unique case heard by the Supreme Court in 2015. Whilst the Claimant withheld any
photos of the signs on site, the Defendant contends these are illegible with terms
hidden in small print, unlike the 'clear and prominent' signs which created a contract
Mr Beavis was 'bound to have seen'.




(9). Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

(10). Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

(11) The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

(12). The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

(13). The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

(14). In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

This post has been edited by brentmeister2k: Thu, 21 Nov 2019 - 21:45

[brentmeister2k]

Ok so I have followed some advice on the MSE forum, and started with Bargepole’s concise defence in the Newbie thread and added abuse of process text from coupon mad’s comments. I’m not going to add anything about my confusion around the whole parking tariff and 2 hours free (but you need a ticket) and the machine wasn’t working as I feel this will contradict the points around unclear signage.

Revised defence below - please let me know what you think:


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

3. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

4. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

9. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

10. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

11. The arbitrary addition of a fixed sum purporting to cover 'recovery 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.

12. 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.

13. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 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.

14. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 '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
15.. 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.

15.1. 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.''

15.2. 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.''

15.3. 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...''

15.4. 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
16. 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
17. 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 60% 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.

17.1. In the Caernarfon Court in Case number FTQZ4W28 (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.''

17.2. 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.

17.3. 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.

17.3.1. 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...''

17.3.2. 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.

17.3.3. 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.
© 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.

17.3.4. 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 this this claim.

17.3.5. 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.''

17.4. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance 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.

17.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expended 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. 1.20 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.''

18. 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.

19. 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.

20. If this claim is not struck out for the same reasons as the Judges cited in the multiple Caernarfon and Southampton cases, then full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.



Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature


Date

[brentmeister2k]

I would really appreciate any feedback on my defence in the post above and also if I should go ahead and file this now given steps so far. (filed acknowledgement, sar, notified Gladstones of sar and written to landowner) or if there's any merit in waiting for response to sar?

[nosferatu1001]

It was a weekend. good grief give people a chance!

If youve copied and pasted then show us what youve changed. Dont make us hunt

Theres no prizes for submitting early, but if you submit late you lose.

I would suggest laying out that the breach appears to be for parking UNDER the 2 hours free limit but not gegtting a ticket - which does nothing as they use ANPR anyway to confirm how long people parked for - isnt a bad iudea.

[brentmeister2k]

Thanks, I do not know that they use ANPR - is it safe to assume that this is the case? OR else any other way to confirm?

[nosferatu1001]

Well youre the one with the NTK, not us

The photos I presume they took - were they taken from an obvious fixed, high up camera, or handheld?
Thats an obvious place to work it out!

[brentmeister2k]

I didn't get a lot of the correspondence as I've moved house, I can't recall seeing this. Only recently got a letter saying they traced me to my new address and the county court forms though sent to my old address happened to be redirected.

[nosferatu1001]

So have you gone there to get your own photos? That would be a good idea if possible - then you know exaxtly whether they use ANPR or not
Have you sent a SAR to the PPC directly? You should do so; it ill give you copies of all documents.

[brentmeister2k]

I have sent an SAR to the PPC yes but no response as yet and not hopeful of getting anything through before the deadline to file my defence.

I think i'll follow your advice and visit the site to take some photos. It's a long way from where I live so had been hoping to avoid but looks like it will be necessary.

[nosferatu1001]

It isnt for the defence, as you have enough info already

Can you get google street view images? Try seeing if tere is a facebook group for that site? Migfht be others with issues.