Here is my defence. I have made a number of changes since I posted the PDF version earlier today. I've added a couple of arguments and made the it clearer and easier to understand, I hope. I would be grateful if one of the Site Team could remove the earlier version from post 43.
Defence
This claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.
i. The Unfair Terms in Consumer Contract Regulations 1999 applies
ii. The signage does not offer a contract with the motorist
iii. The Consumer Contracts (Information, Cancellation and Additional Charges)
Regulations 2013 applies
iv. The Claimant has no standing to bring a case
v. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable
penalty
vi. The claimant has failed to meet the ‘notice to keeper’ obligations of Schedule 4 of
the Protection of Freedoms Act 2012
i) The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
2. The European Court of Justice case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);
Article 3(1) of Directive 93/13 must be interpreted as meaning that:
– the concept of ‘significant imbalance’ to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out;
– in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.
3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over free time, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
4. It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force. In the case of ParkingEye v Beavis, a fair charge in the original hearing was judged to be an average of around £18 per ticket issued.
5. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38)
The judge […] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.
6. It is submitted that the European Court of Justice definition of imbalance must take precedence.
7. However, in any case the instant case is not saved from being unfair by Beavis. In this particular location, council charges for overstay are £50 discounted to £25, not £100. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.
8. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.
ii) The signage does not offer a contract with the motorist
9. The claim is for breach of contract. However, it is denied any contract existed.
10. The sign itself says you have to read the other signs for the contractual terms and that means it is not offering a contract but an invitation to treat and that means the driver can fail to accept the terms of the subsequent offer and still park there. The other signs are small and in high locations and not easily readable from any distance. They are not illuminated so may not be legible at night.
11. The large entrance sign does not appear to have a planning consent. A planning search of Sheffield City Council’s planning register could not find a planning consent for signage. Any sign which might be too small to require planning consent, would also be too small to be obvious to a driver entering the car park. A CPR 34.14 application was sent to the claimant asking them to show copies of planning consents relating to signage, but VCS chose not to respond, despite receipt of the request being signed for.
12. The signage is not obvious. While it is accepted there is a large sign at the entrance to the car park, it is on the passenger side of the entrance and is directly opposite a much larger, more colourful sign on the driver’s side which attracts the driver’s attention away from VCS’s sign. VCS’s sign is positioned in such a way that traffic approaching from the Easterly direction, as my car would have been, cannot see the front of the sign until actually negotiating the turn into car park, at which point it would be dangerous to read, even were it seen.
13. The Claimant states, in their Particulars of Claim, that the signage is ‘displayed in prominent locations’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Claimant has not provided a signage map, many of the signs are positioned in such a way as may create ‘entrapment zones’ where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.
14. The driver in this case was completely unaware of the time restrictions at this car park. Since ANPR cameras are, by their nature, automatic it would be reasonable for any user knowing of the time restrictions, to expect to be definitely pursued by VCS for payment. The fact that the car exceeded the time restrictions, especially considering the size of the sum that would be sought, is evidence in itself that the driver did not know of the restrictions. However noticeable the Claimant believes their signs to be, if they genuinely went unnoticed they were, by definition, not noticeable enough.
15. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.
iii) The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
16. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
17. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.
18. The definitions concern themselves with how a contract is commenced (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but commenced in different ways.
19. The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
20. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
21. This is clearly an organised service-provision scheme (for parking). The contract is clearly commenced without the simultaneous physical presence of the trader and the consumer. There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.
22. This is therefore a distance contract.
23. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to commence the contract. Any contract would be formed by parking and walking away.
24. Regulation 13 lists information to be provided before making a distance contract. The alleged contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.
iv) The Claimant has no standing to bring a case
25. The retail outlet’s own sign states that the land is ‘managed by Lambert Hampton Smith’, who are therefore acting as agents for the landowner, Henderson Property Fund. VCS therefore are acting as agents for the agents for the landowner.
26. In the Letter Before Action and the Particulars of Claim, the Claimant’s makes no mention of any contract between them and the landowner. This means that the landlord is unlikely to have assigned to VCS the right to make money from suing people in their own name and VCS have no locus standi in this respect. It is believed the wording on the sign contains shows that the Claimant is acting as a sub-agent of the landowner, not the principal.
27. A CPR 34.14 application was sent to the claimant asking to show copies of their contract with the landowner rather than his agent, but VCS chose not to respond, despite receipt of the request being signed for. It is therefore assumed that no such contract exists.
28. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have an implied clause that, ‘Parking is at the absolute discretion of the Landowner’. There is no consideration from the motorist as parking is free.
29. If VCS deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact with the landowner.
30. Fairlie v Fenton establishes the situation regarding agency.
a. If the agent is acting on behalf of an undisclosed principal, they can sue and be
sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then
they can only sue if they assume the risk; in other words, if they can be sued if
they fail to uphold their part of the bargain.
This case is clearly ©.
31. VCS therefore have no standing to bring this case. Only the landowner has the right to do this.
32. VCS’s main entrance sign says that you agree to be bound by the terms and conditions of the other, smaller, less legible signs if you stay there for more than 10 minutes. That makes this claim a claim for a contractual charge but they are suing for breach of contract, which is different.
v) The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
33. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they would have been in had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss.
34. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.
35. In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. These can therefore be mitigated by VCS taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.
36. The charge for breach of contract may be collected on behalf of the landowner, however, all costs for issuing tickets are borne by VCS. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.
37. The Claimant may rely on the ruling of ParkingEye v Beavis, held in the court of appeal in February 2015. However, the circumstances of that case were materially different. The Beavis case related to a Pay & Display car park where the signs were clear and the private parking company paid £10k a month to be there, so there was a commercial justification for their claims. Each case must turn on its own fact and the facts of that case are very different to this.
38. In ParkingEye v Beavis, the Court of Appeal ruled that if a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than was needed to deter, which was established by comparison with council charges at that site.
39. In ParkingEye v Beavis, the social justification was because the car park was in a town centre near to a railway station and so might be abused by commuters who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. VCS has not established any social justification in this particular case.
40. In this case equivalent council fines are £25 rising to £50 after 14 days. In comparison to this, the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.
41. Additionally the sum is roughly equivalent to a week’s state pension or around two days of take-home pay at minimum wage earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.
vi) The claimant has failed to meet the ‘notice to keeper’ obligations of Schedule 4 of the Protection of Freedoms Act 2012
42. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Such a notice was not received by the defendant within 14 days of the parking event or at any time since and no ticket or communication was left on the windscreen. The Claimant did not give the registered keeper opportunity, at any point, to identify the driver. They are therefore put to strict proof that such a notice was issued, by provided a signature of receipt or a copy of the notice.
43. Similarly, the Claimant has provided no evidence, photographic or otherwise, that the car was parked within the carpark for a period exceeding that requested by their signs. The Particulars of Claim offer no evidence and, in fact, state no parking times at all.
44. It is anticipated that VCS may claim that both photographic evidence and a POFA Schedule 4 Notice has previously been issued, even if it hasn’t been received. A CPR 34.14 application was therefore sent to the claimant asking to show all copies of any early correspondence between them and the Defendant which the Claimant may subsequently refer to in their case, but VCS chose not to respond, despite receipt of the request being signed for. It is therefore assumed that no such evidence or Notice exists.
45. Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that “However keeper information is obtained, there is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”
46. Due to the length of time since the event occurred (around ten months) the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car 10 months later. The vehicle is, at times, driven by other family members. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.
If Judgement is made in favour of the Claimant, I would respectfully point out that the Protection of Freedoms Act, 2012, does not permit the Claimant to recover a sum greater than the amount originally invoiced from the keeper. He cannot recover additional expenses, so the maximum charge should not exceed £100.
STATEMENT OF TRUTH
I confirm that the contents of this Defence are true to the best of my knowledge and recollection.
