ParkingEye discontinue two cases over criminal offence of non-permitted signage

ParkingEye has now withdrawn two claims, one in Bury and the other in Cambridge where the following defence has been used.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