my initial defence:
1. The Defendant denies any liability whatsoever to the Claimant.
2. The Claimant alleges in the Particulars of Claim (Para 3) that the signs that were displayed in the car park constituted an offer to drivers that the Defendant accepted. The Defendant denies that she accepted any contract with the Claimant.
3. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant denies that signs were clear and visible. The Defendant asserts that were no signs at the entrance to the car park. The British Parking Association Code of Practice issued only one month after the alleged event states that entrance signs must be present. The Defendant has the reasonable belief that, as a member of the association, the Claimant would have already been aware of this requirement. The Defendant further asserts that the car park was dark and unlit. Any other signs were not visible and, in any case, would have been illegible. The Defendant refers the court to Excel Parking Services Ltd v Cutts that was decided in favour of the Defendant because the content relied on by the Claimant could not be read by a driver entering the car park.
4. The Claimant states that the company is contracted to manage the car park. As a mere contractor, the Claimant cannot possibly be entitled to damages for trespass as claimed in Alternative #3. The Claimant is also 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 required in the British Parking Association’s Legislation Guidance to Operators. As a third party agent, the Claimant may not pursue any charge (ParkingEye v Sharma 3QT62646 Brentford County Court) and (ParkingEye v Rickard 3JD10678 Aylesbury County Court).
5. Even if any contract had existed, the Claimant sent a Notice of Assignment letter dated 22 January stating that it had assigned all but £16-25 of the alleged debt to Debt Enforcement & Action Ltd who would recover the full sum. The Claimant itself cannot therefore recover any payment from the Defendant
6. The Claimant has stated that, as a result of the Defendant’s conduct, a charge was incurred. The Claimant has not however given any indication of the nature of the conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action to enable the Defendant to understand how a charge might have arisen.
7. The Claimant states that the claim results from a contract with the Defendant. The Defendant denies that she would have agreed to pay £130 to perform the alleged but undisclosed conduct.
The Defendant refers the court to the Unfair Terms in Consumer Contracts Regulations 1999 and, in particular :
Schedule 2(1)(e) Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.
Regulation 5(1) A contractual term which has not been individually negotiated shall be regarded as unfair, if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer.
The Defendant refers the court to the European Unfair Terms Directive 93/13/EEC for guidance how the regulation should be interpreted
8. The Defendant disputes the Claimant’s statement that any sign constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to Civil Enforcement Ltd v McCafferty (Luton court appeal) that was decided by Mr Recorder Gibson QC in almost identical words.
9. The Claimant’s claim for Breach of Contract and Damages confirm that the sum is not a contractual term or a genuine assessment of pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law
The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to decisions involving similar facts to the present case :
O.B. Services v Thurlow (Worcester County Court 2011)
Excel Parking Services v Hetherington-Jakeman (2008)
The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company. The Defendant draws the court’s attention to S.34(6) that a sum larger than £100 requires its approval. The Defendant puts the Claimant to proof that the Association approved the sum. ParkingEye v Heggie 3JD04791 (Barnsley County Court) has ruled that even this amount is not a genuine pre-estimate of a loss.
The Defendant asserts that the Claimant has also ignored the clear Department for Transport Guidance on the Recovery of Parking Charges :
Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.
For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.
VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs.
The Defendant submits that the amount demanded (£130) cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has provided no explanation how the sum has been calculated or the conduct that gave rise to it.
10. The Claimant has disclosed no cause of action and has previously confirmed that it has assigned the alleged debt to a third party. The Claimant has also acted in bad faith by bringing the claim with no warning. The Defendant has the reasonable belief that the claim is vexatious and has no purpose other than to alarm the Defendant into making a payment that is not owed. The Defendant invites the court to strike out the claim as having no prospect of success and order the Claimant to explain its action