ParkingEye has now withdrawn two claims, one in Bury and the other in Cambridge where the following defence has been used. The defence centres on ParkingEye’s failure to obtain planning permission and advertisement consent and that no man should profit from his crime; it being a crime not to have advertisement consent.
It seems that PE prefer not to have this defence tested
In the [ ] County
Court
Claim Number [
]
Between
ParkingEye Limited
40 Eaton Avenue, Buckshaw Village
Chorley PR7 7NA
Claimant
And
[ ]
of
[
]
Defendant
_________________________________________________________________________
DEFENDANT’S DEFENCE
_________________________________________________________________________
This
Defence is filed and served on behalf of the Defendant
References
in Defence to “Beavis” are references to the judgment in Cavendish Square
Holdings
BV v Talal El Makdessi; ParkingEye Limited v Beavis
[2015] UKSC 67.
References
to paragraphs in Beavis are in the form Beavis/x with x being the paragraph
number
in the Judgment.
References
in this defence to RTA are references to RTA (Business Consultants) Limited V
Bracewell
[2015] EWHC 630 (QB) (12 March 2015).
References
to the 2008 Regulations means the Consumer Protection from Unfair Trading
Regulations
2008 as amended by the 2014 Regulations.
Reference
to the 2014 Regulations means the Consumer Protection (Amendment) Regulations
2014.
References
to any documents in the Defendant’s bundle are in the form B/x with x being the
document
number in the lever arch file containing the bundle.
1.
Matters to be determined
1.1
The Claimant relies on its signs and Beavis to justify all elements of its
claim. However,
Beavis
was concerned with settling the matter of damages only and not any liability
for
a
breach of contract. Liability had been agreed between the parties in Beavis at
an
earlier
hearing. The Court in Beavis helpfully explained how the contractual
arrangements
between a motorist and a parking enforcement company were created
such
that it must now be accepted that in this action there was a contract between
the
parties
albeit arguably void at common law or otherwise unenforceable for reasons
explained
in paragraph 2 below.
2.
Criminal Conduct
2.1
The Claimant places reliance on its provision of signage at the site and upon
the content
of
that signage. However, the Claimant is under a duty to the Court to provide
full and
fair
disclosure by informing it of all relevant issues. The Claimant has failed to
advise
the
Court that a criminal offence was being committed by the display of its
signage. At
B/2 there is a copy of an email from the Planning Authority
confirming that the signs
did
not benefit from any advertisement consent such that, at the time the Defendant
parked
at [
] a criminal offence was being committed in
order
to create a contract with the Defendant. The Defendant’s Witness Statement
(B/8)
includes additional evidence to show that the Claimant is fully aware that a
crime
is
being committed by the Claimant at some of its other car parks. The signage at
[ ] is
classified in planning law as an advertisement. By virtue of
Regulation
30 of the Town and Country Planning (Control of Advertisements)
(England)
Regulations 2007 (as amended) it is a criminal offence to display this kind of
advertisement
in contravention of the Regulations. The penalty on conviction for the
offence
is at level 4 on the standard scale (current maximum £2,500) plus £250 for each
day
that the offence continues.
2.2
The Claimant has since made application for advertisement consent under the
2007
Regulations
but, at the present date, consent has not yet been granted. However, the
2007
Regulations make no provision for any future consent to be backdated such that
a
consent
that may be in place by the time that this case is heard will only apply going
forward
from the date of such consent. Consent cannot and will not grant authority and
legality
for display of the signage prior to the approval date so that the crime being
committed
when my car was parked will remain a crime for all time. The Court’s
attention
is drawn to the email at B/9 from the [ ] Council's Senior Planning
Enforcement
Officer in which he confirms that there will never be any consent for the
signs
prior to the date on which any consent may be granted. The fact that the
Planning
Authority
has chosen not to prosecute is irrelevant. Planning Authorities are governed
by
government guidance on these matters. The crime committed in this case remains
with
all of the characteristics of a “crime” and, it is submitted, has to be
appropriately
regarded
with all the gravity society gives to crimes.
2.3
The Court’s attention is drawn to the case of Andre Agassi v S Robinson (HM
Inspector of
Taxes),
(B/3). Whilst not wholly aligned to the issues in this case it has been
produced because
of
the principle it extols that no one should profit from their unlawful conduct.
The Court’s
attention
is drawn in particular to paragraph 20 of the Transcript of that case “It is
common
ground
that, whatever costs may be recoverable by a litigant in respect of
professional
services
such as those provided by Tenon to the appellant, they cannot include the cost
of
any activities which are unlawful”. Paragraph
28 continues - “cannot on any view
recover
the cost of activities performed by Tenon which it was not lawful for them to
perform.” In this case it was not lawful for the Claimant to have in
place its signs upon
which
it relies for the formation of an asserted contract with the Defendant.
2.4
The Judge’s attention is also drawn to RTA (B/1). This case is drawn to
the Court’s
attention
for the purposes of evidencing paragraph 34 in which the Judge discusses the
relevance
of the public law principle going back well over 200 years that no man should
profit from his crime; it is submitted that this is particularly relevant in
this action. The Judge cited Lord Mansfield CJ to explain that:
“The
principle of public policy is this; ex dolo malo non oritur actio. No Court
will lend
its
aid to a man who founds his cause of action upon an immoral or an illegal act.
If,
from
the plaintiff's own stating or otherwise, the cause of action appears to arise
ex
turpi
causa, or the transgression of a positive law of this country, there the Court
says
he
has no right to be assisted. It is upon that ground the Court goes; not for the
sake of
the
defendant, but because they will not lend their aid to such a plaintiff. So if
the
plaintiff
and the defendant were to change sides, and the defendant was to bring his
action
against the plaintiff, the latter would have the advantage of it; for where
both
are
equally in default, potior est conditio defendentis.” In this claim there has been a
transgression
of a law (the 2007 Regulations) and it is submitted that the Court should
not
“lend its aid” to this Claimant “who founds his cause of action upon
an illegal act”.
2.5
It seems to follow from paragraphs 2.1 to 2.4 that, if there was a contract
between the
Claimant
and the Defendant, it was illegal at its formation because it was incapable of
being
created without an illegal act (the erection of the un-consented signs stating
the
terms
and conditions relied on by the Claimant). Where a contract is illegal when
formed,
neither party will acquire rights under that contract, regardless of whether or
not
there was an intention to break the law; the contract will be void and treated
as if it
had
never been entered into. As such, the asserted contract cannot be enforced.
Further,
it is submitted, it must be contrary to public policy for a court to enforce
such a
contract
whereby a party may profit from its criminal conduct.
2.6
To add weight, rather helpfully, the Defendant also cites from ParkingEye v
Somerfield
Stores
(B/4) which concerns an alleged illegal contract. Whilst the facts of
that case are
not
relevant, the Judge’s comments at paragraph 29 of the Transcript of the
Somerfield
case
are of importance: “At common law, historically, a distinction has been
drawn
between
cases where the guilty party intended from the time of entering the contract
unlawfully
and cases where the intention to perform unlawfully was only made
subsequently”. As has already been stated, in this case the problem arose at
the
formation
of the contract and was not in relation to any subsequent act. Laws LJ, in
Somerfield,
concluded that ParkingEye did not have an intention, when creating that
contract,
to deliberately break the law so the contract was upheld. Differently in this
case,
the Claimant did deliberately break the law by erecting the parking signs that
stated
their contractual terms, without first having in place the mandatory prior
consent
required
by law. Thus a crime was committed then. The illegality in this action was
not
merely incidental to the creation and part of the performance of the contract
as in
Somerfield
but, as indicated in the Claimant’s Particulars of Claim, it was central to it.
Somerfield
guides us that where there was a chance to remove the illegality from future
performance
the contract could remain in force. On the other hand, there was less
scope
to rectify a one-off contract so it was more likely to be held unenforceable.
In
this
action the illegality of the Claimant’s signage that existed on the day of the
Defendant’s
parking cannot be undone, even by any subsequent grant of advertisement
consent.
At paragraphs 65-74 of the Somerfield transcript Laws LJ set out three
factors
which need to be considered in a defence of illegality. The Defendant submits
that
the key issues in this action are that:
2.6.1
the commission of an illegal wrong being present at the time of entering the
contract
means that the Claimant will not be able to enforce the contract.
2.6.2
the illegality is central to the contract and is not merely a minor aspect thus
it
should
not be held to be too remote so as to render the contract enforceable.
2.6.3
the nature of the illegality: in this case it was a crime and not merely a
civil
tort
as in Somerfield. The gravity of the illegality is therefore far greater.
2.7
None of these issues were argued in Beavis.
3. British Parking Association Code of Practice and its
Relationship with Consumer
Protection
Laws
3.1.
Beavis/96 draws our attention to the Code of Practice of the British
Parking Association
Limited.
At Beavis/111 the Judge helpfully comments that “while the Code of
Practice is
not
a contractual document, it is in practice binding on the operator since its
existence and
observance
is a condition of his ability to obtain details of the registered keeper from
the
DVLA.
In assessing the fairness of a term, it cannot be right to ignore the
regulatory
framework which determines how and in what circumstances it may
be enforced.”
(Defendant’s
emphasis of the key point). Paragraph 2.4 of the Code sets out how and in
what
circumstances a term may be enforced. It states: “All AOS members must be
aware of
their legal obligations and implement the relevant legislation
and guidance when operating their
businesses.” Broadly, the Code of
Practice obliges the Claimant to comply with the law in creating and in
enforcing its contract with a motorist and in communicating the terms of that
contract. The Claimant failed to do so in several respects.
3.2
At paragraph 2 above the Court’s attention has been drawn to the failure of the
Claimant
to
ensure that the relevant legislation had been complied with, thereby resulting
in criminal
conduct
in their operation of parking enforcement. This is a clear breach of paragraph
2.4 of
the
Code of Practice. If there is any liability argued on the part of the Defendant
then, in
considering
paragraph 2.2 above, it is submitted that a contractual term cannot be fair if
the
requirements
of the Code of Practice are disregarded and a crime has been committed to
create
that term and/or the contract between a motorist and the parking enforcement
company.
3.3.
By virtue of Regulation 3 of the 2008 Regulations a commercial practice is
unfair if it
contravenes
two requirements. The first strand concerns the requirements of professional
diligence;
the second is that a failure of professional diligence materially distorts or
is likely
to
materially distort the economic behaviour of the average consumer with regard
to a
“product”.
(For “product” refer to para 3.4 below). By virtue of Regulation 5 of the 2008
Regulations
a breach of Regulation 3 is an offence. The Office of Fair Trading guidance on
the
2008 Regulations (B/5) at paragraph 10.1 indicates that “Regulations
3(1) and 3(3) of the 2008 Regulations set out the general prohibition on unfair
business to consumer commercial practices, also known as the general duty not
to trade unfairly. This prohibition allows enforcers to take action against
unfair commercial practices, including those that do not fall into the more
specific prohibitions of misleading and aggressive practices, or into the very
specific banned practices. This means it acts as a safety net. It is designed
to ‘future-proof the protections in the CPRs, by setting standards against
which all existing and new practices can be judged”. Paragraph 10.4 of the
OFT Guidance indicates that professional diligence should evidence “(a)
honest market practice in the trader’s field of activity, or (b) the general
principle of good faith in the trader’s field of activity”.
The
Defendant submits that the first strand of Regulation 3 applies as a result of
the criminal conduct involved in the Claimant’s parking enforcement. The second
strand begs the question: “Would a consumer be likely to make a different
decision about payment of
damages
if he were told that a crime had to be committed to eventuate in a demand for
that
payment?”.
It is averred that a car park operator who fails to secure, or that its client
fails to
secure,
the relevant mandatory advertisement consent required by law before managing
the
car
park and thereby commits a crime, will be acting in contravention of Regulation
3 of the
2008
Regulations. For having done so the Claimant fell below the standards of a
reasonably
competent
professional having regard to the standards normally expected in its profession
with
particular regard to the Code of Practice. Further, by failing to advise the
Defendant,
and
this Court, of the criminal conduct associated with its parking enforcement
when
demanding
damages for an alleged breach of contract, it is averred that the Defendant has
also
been acting with a lack of professional diligence.
3.4.
On the 1st October 2014, the 2014 Regulations came into force and extended the
definition
of “product” provided by the 2008 Regulations. It now includes after the 1st
October
2014 the settlement (rather than the demand) of actual or purported liabilities
such as those that the Claimant is seeking to recover from the Defendant by way
of alleged damages (see regulation 2(9) of the 2014 Regulations. Therefore,
taking a decision to settle damages falls within Regulation 3 of the 2008
Regulations. It is submitted that it is incumbent upon the Claimant to show
that it was acting with professional diligence.
3.5.
Regulation 5(3)(b) of the 2008 Regulations indicates that it is a misleading
action where
there
is any failure by a trader to comply with a commitment contained in a code of
conduct
that
the trader has undertaken to comply with. The Claimant had, in respect of the British
Parking
Association’s Code, undertaken, as a condition of entitlement to operate
private land parking enforcement, to comply with the law but has clearly failed
to do so. Regulation
5(3)(b)
provides a defence in any civil claim.
3.6
The Consumer Rights Act 2015 came into effect on the 1st October 2015, around 5
months
after the parking contract in this action. However, the test for 'unfair terms'
in the
2015
Act is the same as that in the 1977 Unfair Contract Terms Act: it provides that
a term is "unfair" if "contrary to the requirements of good
faith, it causes a significant imbalance in
the
parties' rights and obligations to the detriment of the consumer". It is submitted that, as
the
Defendant was misled by [ shop visited]
as to the availability of his goods for immediate
collection,
he was delayed by [shop visited] from
returning to his car. It is also submitted that the Claimant provides its
parking enforcement services for the benefit of [shop visited] and others such
that, in interpreting the terms of the contract, if they are actually
enforceable, it must in all of the circumstances be contrary to good faith to
pursue this claim. If it were otherwise, the parties who benefit from parking
enforcement may be allowed to create a situation whereby a motorist can be the
unwitting victim of deliberate delays by some or all of the parties benefitting
from that parking enforcement in returning their vehicles.
4.
Original Judgment in this Action
4.1
The Defendant suffers from a disability arising from head and brain injuries
sustained in
an
accident many years ago since when he receives disability benefits by virtue of
his
restricted
mental capacity. He has tendencies to be forgetful and is confused in some
circumstances.
His impairments may have been evident to the Judge in the hearing of 19th
February
2016. For these reasons, as is evidenced in the Defendant’s witness statement
the original court papers were put aside and forgotten. There was no deliberate
intention to avoid dealing with those papers. The Defendant apologises to both
the Court and the Claimant in this regard.
5.
Witness Statements of the [shop visited] Manager and the Defendant
5.1
With this defence there is filed a witness statement by the Manager of the [shop visited] store at the Retail Park (B/7) and by
the Defendant (B/8). The statement of the [shop visited] Manager corroborates the long delay in serving the
Defendant with his ordered goods following his reasonable expectation that they
would be immediately available for collection when he first arrived. They also
indicate that that delay resulted in the alleged over-stay at the car park and that,
had the goods been ready for collection as promised there would not have been
an overstay.
5.2
It is submitted that the Claimant was acting at all times on behalf of, as
agent for, or for
the
benefit of, the occupiers of the various shops at the [ ] Retail Park. In this case it
appears
that a “Principal” did not and does not desire that a valued and regular
customer
should be penalised in these particular circumstances. Indeed [shop visited] did try to have the charge
withdrawn but, it appears, it needed certain documents to move that request forward
but which the defendant did not possess. It is submitted that [shop visited] should have been aware of
the parking restrictions and that its conduct could cause these kinds of difficulties
for the Defendant. The Court is requested to have regard to the content of
these witness statements.
5.3
In any event there is no certainty as to the duration of the Defendant’s
vehicle having
been
parked and, regardless of that, if it had not been for [shop visited] unforeseen and
substantial delay there would not have been a breach of the car park terms and
conditions (insofar as they may be deemed to be applicable and/or enforceable).
6.
Level of Damages
6.1
The Court is reminded that in Beavis the Claimant argued that a reasonable
charge for an infringement is £85. The nature of the enforcement operation in
Beavis is the same as at
[ ] Retail Park with ANPR cameras
recording vehicle movements relayed back at the Claimant’s HQ. Thereafter all
work is undertaken from that base. The Claimant has not
produced
any evidence to justify why it now runs with a different argument to that in
the
Court
of Appeal. The Court of Appeal determined that £85 was reasonable and that it
was
neither
exorbitant nor unconscionable. The Court of Appeal gave no view as to whether
£100 would tip a charge into being exorbitant. It is submitted that, in the
absence of evidence in this action to justify the £100 sum, which is in excess
of £85, the Claimant cannot be permitted to pursue a different argument in this
Court to that submitted to the Court of Appeal such that it may not recover the
£100 claimed. If there is an actual liability it should be limited to £85.
7.
Costs
7.1.
The Claimant may seek costs for this hearing. The Claimant may seek to rely
upon Shaw v Nine Regions as authority for being able to recover costs in
a Small Claims action on a contractual basis. The Defendant draws attention to
the detailed consideration of this
relationship
between the special costs regime of the Small Claims Court and contractual
provisions
for costs that took place in the Southend County Court decision Graham v
Sand
Martin
Heights Residents Company 0BQ 12347 unrep. (B/6).
It was held at paragraph 6(b):
“The
absence of jurisdiction (to award costs in the Small Claims Court) is
not affected or
cured
by the existence of a provision in the contract relied on, purporting to
entitle the party
to
his costs of the proceedings”. The
Claimant elected Small Claims Track in its Allocation
Questionnaire.
It would accordingly be wholly wrong and a breach of Article 6 of the Human
Rights
Act to award contractual costs contrary to the cost protection elected by
allocation to
the
Small Claims Track.
8.
Conclusion
8.1 For the reasons given above I submit that this
action should be dismissed and that it be ordered that the Judgment against the
Defendant be formally removed from the register of County Court Judgments
Statement
of truth
I believe that the facts stated in this defence are
true
Signed
Name and address
Dated
Happy Parking
The Parking Prankster
