IN THE COUNTY COURT

Claim No.: xxxxxxxxxx

Between

HX Car Park Management LIMITED (Claimant)

- and -

xxxxxxxxxxxxxxxxxx (Defendant)

_____________________

DEFENCE
_____________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
The points below are within the scope of the Defendant’s own knowledge and honest belief.
Whilst parts of this defence may be familiar to the Claimant and/or their legal representatives,
it would not be right for a litigant-in-person to be criticised for using all relevant resources
available. It is noted in any case, that these Claimants use third party pre-written templates as
standard. This statement was prepared by the Defendant specifically for this matter and
unlike the Claimant’s case, it deals properly and individually with the facts, the alleged
contract, and the quantum. The contents of this defence represent hours of research by the
Defendant, in order to grasp some knowledge of alien concepts of law, codes of practice and
procedures relating to the specific area of Parking Charge Notices (‘private PCNs’).

2. In relation to parking on private land, it is settled law that for any penalty to escape being
struck out under the penalty rule, it must be set at a level which already includes recovery of
the costs of operating the scheme. However, this Claimant routinely claims (as in this case) a
global sum of £160 per alleged PCN. This figure is a penalty, far exceeding the charge in
the ParkingEye Ltd v Beavis [2015] UKSC 67 case and falling foul of the binding authority
in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338. In the 2012 case, the Court
of Appeal held that £135 would be an unrecoverable penalty but a claim for the PCN itself
would not [ref: para 419]. Thereafter, ParkingEye quietly dropped their ‘PCN plus
indemnity costs’ double recovery business model and pursued £85 in the Beavis case, where
it was determined by the Supreme Court that a significant justification for that private PCN
was that it already included all operational costs [ref: paragraphs 98, 193 and 198].

Page 1 of 8
 The Claim is tainted by an abuse of process and should not proceed to trial

3. It is an abuse of process for a Claimant to issue an inflated claim for a sum which it is not
entitled to recover. The above authorities could not be clearer. Parking firms must choose
between a ‘Beavis-level’ charge calculation or loss-based damages. A parking firm cannot
seek to plead their claim in both but this Claimant routinely does - and has done in this case.

4. Where it is clear as a matter of law at the outset that even if a Claimant were to succeed in
proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks,
a trial of the facts would be a waste of time and money, and the Defendant submits that it is
proper that this action should be taken out of court as soon as possible.

5. When considering the Claimant’s case to the extent that is necessary at allocation or local
directions stage, the court is invited to determine as a matter of law that the Claimant is not
entitled to the remedy sought. An exaggerated claim such as this will always constitute an
abuse of process that can be determined by a glance at the Particulars (before any facts and
evidence are even scrutinised) and by applying the court’s duty under s71 of the Consumer
Rights Act 2015 (‘the CRA’) at the earliest opportunity. For the avoidance of doubt and to
demonstrate that this claim is unfair from the outset, the official CMA Guidance on the CRA
clarifies under ‘Disproportionate financial sanctions’ and ‘Indemnities against risk’
[https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450
440/Unfair_Terms_Main_Guidance.pdf ]
‘‘Other kinds of penal provisions which may be unfair are clauses saying that the business
can:
 claim all its costs and expenses, not just its net costs resulting directly from the breach;
 claim both its costs and its loss of profit where this would lead to being compensated twice
over for the same loss; and
 claim its legal costs on an ‘indemnity’ basis, that is all costs, not just costs reasonably
incurred. The words ‘indemnity’ and ‘indemnify’ are also objectionable as legal jargon – see
the section on transparency in part 2 of the guidance...’’ (p87 - 5.14.3);
‘‘Terms under which the trader must be ‘indemnified’ for costs which could arise through no
fault of the consumer are open to comparable objections, particularly where the business
could itself be at fault. The word ‘indemnify’ itself is legal jargon which, if understood at all
by a consumer, is liable to be taken as a threat to pass on legal and other costs incurred
without regard to reasonableness.’’ (p119 - 5.31.7).

Page 2 of 8
6. The Claimant’s claim is entirely tainted by their ‘forum-shopping’ business model which
relies on routine abuse of process and disregard for the protections in the CRA. The
Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the private
PCN are easily identified to be unlawful from the outset, without any need for a hearing to
determine where the truth lies in terms of evidence. The Court is, therefore, invited to strike
out the claim ab initio as an abuse of process, using its case management powers pursuant to
CPR 3.4 and also give serious consideration to Practice Direction 3C, as to whether the level
of similar abusive (and thus, wholly without merit) claims cluttering up the courts may
provide grounds for issuing an Extended Civil Restraint Order to protect consumers in future
from this Claimant and to save the courts time and money.

7. The Claimant’s notices/demands vaguely allude to unidentified sums being claimed ‘on an
indemnity basis’. Such imprecise terms would be considered incapable of binding any person
reading them under common contract law, and would also be considered void pursuant to
Schedule 2 of the CRA. Claims pleaded on this basis by multiple parking firms have
routinely been struck out ab initio in various County Court areas. Recent examples include
multiple Orders from District Judge Fay Wright sitting at Skipton County Court, with similar
Orders seen in the public domain from Deputy District Judge Josephs sitting at Warwick
County Court, District Judge Taylor at the Isle of Wight and Deputy District Judge
Colquhoun sitting at Luton County court in March 2020. All were summarily struck out,
solely due to parking firms falsely adding £60 to inflate the claim.

8. This matter was recently determined by District Judge Grand, sitting at Southampton County
Court on 11 November 2019, where the Claimants sought to have multiple strike out Orders
set aside. The application was dismissed, and a copy of the Approved Judgment is appended
to this defence. No appeal was made in that case, where the learned Judge found that £160
parking claims represented an abuse of process that ‘tainted’ each case. It was not in the
public interest for courts to allow exaggerated claims to proceed and merely disallow the
added £60 at trial on a case-by-case basis. To continue to do so would restrict the proper
protections only to those relatively few consumers robust enough to reach hearing stage.

9. That hearing was attended by BW Legal’s barrister, acting for an AOS member of the British
Parking Association (‘the BPA’) but in February 2020, Skipton County Court refused a
similar application from a barrister for Excel Parking Services Ltd (members of the rival
Trade Body, the International Parking Community -‘the IPC’). Whilst these cases are not
precedents, it is only right that Defendants should use them and expect no less protection and
proactive sanctions against parking firms whose claims happen to fall to other courts.

Page 3 of 8
10. In this situation, it ought not to be left to hardy individuals to raise this issue time and again at
trial, yet other disputing consumers are being so intimidated by the threats in a barrage of debt
demands and the possibility of facing court, that they pay a legally unrecoverable sum to
make it go away. Such conduct has no proper function in the recovery of alleged consumer
debt. To use the words of HHJ Chambers QC [ref: Harrison v Link Financial Ltd [2011] EWHC
B3 (Mercantile) - https://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html ]:
‘‘Whatever the strength of the suggestion that the courts should only be a last resort, there can be no
excuse for conduct of which the sole purpose must have been to make [...] life so difficult that they
would come to heel. In a society that is otherwise so sensitive of a consumer's position, this is surely
conduct that should not be countenanced’’

11. The quantum claimed is unconscionable and the falsely added sum not there at all (or was
buried in small print) on the sparsely-placed car park signs. As such, the Defendant avers that
the charge offends against Schedule 2 of the CRA, where s71(2) creates a duty on the Court
to consider the fairness of a consumer contract. The court’s attention is drawn (but not
limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair and the CMA
Guidance linked earlier, and the Defendant invites the court to find this Claimant in breach.

12. Even if the Claimant had shown the global sum claimed in the largest font on clear and
prominent signs - which is denied - they are attempting double recovery of costs. The sum
also exceeds the maximum amount which can be recovered from a registered keeper as
prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).
It is worth noting that in the Beavis case, even though the driver was known, the Supreme
Court considered and referred more than once to the POFA because it was only right that the
intentions of Parliament regarding private PCNs were considered.

The part played by the (non-regulatory) two conflicting Accredited Trade Associations

13. Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to
their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a clause 'allowing'
added costs/damages. The CoP is a self-serving document, written in the parking firms’
interests. Further, the ‘admin fee’ model was reportedly the proud invention of a member of
the BPA Board, Gary Osner, owner of ZZPS and whose previous firm, Roxburghe (UK)
Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to
renew their consumer credit licence due to ‘unfair and misleading’ business practices.
14. The BPA’s Mr Osner states in an article in the public domain since 2018:
https://parkmaven.com/news/gary-osner-zzps-interview ''I created the model of ‘admin fees’ for debt

Page 4 of 8
 recovery because ticket value was so low that nobody would make any money. Parking is business and
business is about money, after all.'' The Defendant avers that it is clear that the competing ‘race
to the bottom’ ATAs are sanctioning double recovery and both the BPA and the
IPC/Gladstones (who had shared Directors) have engineered a veil of legitimacy to protect
this industry for years. The ATAs operate more like a cartel, not ‘regulators’ and the
conflicting CoPs have failed consumers so badly that the Secretary of State is overseeing a
new regulatory Code, following the enactment of the Parking (Code of Practice) Act 2019.
In contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new
2019 Act is very much consumer-focussed, aiming for: ''good practice...in the operation or
management of private parking facilities as appears to the Secretary of State to be desirable having
regard to the interests of persons using such facilities.''

Pre-action protocol breach and nonsensical Particulars of Claim

15. In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the
Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach
and failed to append the wording of the sign or consumer notice. Further, the stylised
Particulars of Claim are embarrassing and incoherent, lacking specificity re the status of the
contracting parties and failing to detail any contract, conduct or liability that could give rise to
a cause of action. There is insufficient detail to ascertain the nature, basis and facts of the
claim and even the exaggerated quantum has fluctuated, changing with each debt demand
and/or letter of claim over the preceding months.

The facts - lack of prominently displayed contract and no agreement on the charge

16. Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated
above, it is the Defendant’s position that no contract was entered into with the Claimant,
whether express, implied, or by conduct. Therefore, as a matter of contract as well as
consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages
arising from any alleged breach of the purported terms. Whilst there is a lack of evidence
from the Claimant, the Defendant sets out this defence as clearly as possible in the
circumstances, insofar as the facts below are known.

17. After finding a parking place, the Defendant initially stayed inside their car on arrival to the
Claimant’s car park to answer a phone call. The car was not vacated at this stage. After the
phone call, the Defendant tried to understand the confusing terms and conditions on the
signage which directed them to various other signs around the car park. The Defendant then

Page 5 of 8
 joined the queue for the PDT machine and realised payment was only by cash. The Defendant
then searched their car for the correct amount of cash to pay. The Defendant then had to join a
queue at the PDT machine again. On arriving, the PDT machine instructions were confusing.
In the case of 3JD08399 ParkingEye v Ms X (Altrincham 17/03/2014), where the defendant
spent 31 minutes waiting to park, the judge ruled against ParkingEye saying the ANPR data
recorded time in the car park and not the time parked. Additionally, in National Car Parks v
HMRC [2019] EWCA Civ 854 (20/05/19) the Court of Appeal found that the parking
contract was brought into being from the pressing of the button on the PDT machine to issue
the ticket.

18. The Claimant’s PDT machine clock is in no way synchronised with the ANPR machine clock.
This fact, along with the facts in paragraph 17, demonstrate how the Claimant made it look
like the Defendant did not pay for their stay. The Defendant did pay for their stay however, as
the Claimant is well aware. Therefore, there is no cause of action.

19. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would
be considered incapable of binding any person reading them under common contract law, and
would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the
Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

20. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private
PCN, which included all operational costs, and they were able to overcome the real possibility
of the charge being struck out as punitive and unrecoverable. However, their Lordships were
very clear that ‘the penalty rule is plainly engaged’ in such cases. Their decision was specific
to that ‘unique’ set of facts: the legitimate interest argued, the car park location, and the ‘brief
and clear’ signs with the parking charge itself in bold and the largest text. The unintended
consequence is that, rather than persuade courts considering other cases that all private PCNs
are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and
prominent signs) set a high bar that this Claimant has failed to reach.

21. Due to the authority set by their earlier Somerfield case - mentioned at the start of this defence
- it is worth noting that ParkingEye no longer add ‘debt letter costs/damages’ to their private
PCNs and their own claims have escaped any reports of being summarily struck out for abuse
of process. This Claimant has failed to plead their case or to set out their terms or construct
their charges in the same way as in Beavis and the penalty rule remains firmly engaged.

Page 6 of 8
22. Without the Beavis case to prop it up, and no alternative calculation of loss/damage, this
claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if
there is a lack of an overriding legitimate interest in performance extending beyond the
prospect of compensation flowing directly from the alleged breach. The intention cannot be
to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or
unfair/unexpected obligations - and nor can the operator claim an unconscionable sum.

23. Further, in its conduct and signage, this Claimant has failed to comply with the CoP that they
are signed up for, such as it is. Under the Consumer Protection from Unfair Trading
Regulations, it is an unfair/misleading business practice to state that a Trader complies with a
Code of Practice, but in reality, does not. This Claimant’s conduct is also significantly
different from the Beavis case [para 111.] where even the Supreme Court were wrongly
convinced that the CoP was some sort of regulatory framework:
“And, 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.’’

24. A more relevant list of binding Court of Appeal authorities which are on all fours with a case
involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would
include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2,
both leading examples of the ‘red hand’ rule, that an unseen/hidden clause cannot be
incorporated after a contract has been concluded; and
(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of
Appeal held that it was unsurprising that the appellant did not see the sign ''in view of
the absence of any notice on the wall opposite the southern parking space''. In other
cases where parking firm Claimants and/or their legal teams have cited Vine in their
template witness statements, they have misled courts by quoting out of context from
Roch LJ, whose words related to the Respondent’s losing case, and not from the
decision. In fact, Miss Vine won because it was held as a fact that she was not
afforded a fair opportunity to learn of the terms by which she would be bound.

Page 7 of 8
 25. The Claimant is also put to strict proof, by means of contemporaneous and unredacted
evidence of a chain of authority flowing from the Landowner or Lessor of the relevant land to
the Claimant. It is not accepted that the Claimant has adhered to the landholder's definitions,
exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due
to complaints. There is no evidence that the freeholder authorises this particular Claimant
(Companies House lists their company number as 09313114) to issue private PCNs or what
the land enforcement boundary and start/expiry dates are/were, and whether this Claimant has
standing to enforce such charges by means of civil litigation in their own name rather than a
bare licence to issue PCNs ‘on behalf of’ the landowner on an agency basis.

In the matter of costs; if this claim is not struck out, the Defendant seeks:
26. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and (b) that any
hearing is not vacated but continues as a costs hearing, in the event of a typical Notice of
Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and
post-action phases, by this Claimant. Pursuant to CPR 46.5, whilst indemnity costs cannot
exceed two thirds of the applicable rate if using legal representation, the Defendant notes that
LiP costs are not necessarily capped at £19 ph. It is noted that a Defendant may ask in their
Summary Costs Assessment for the court to award their usual hourly rate for the many hours
spent on this case [ref: Spencer & anor v Paul Jones Financial Services Ltd].
27. In summary, the Claimant's Particulars disclose no legal basis for the sum claimed and the
abuse of process taints this Claim. The Claimant knew, or should have known, that an
exaggerated claim where the alleged ‘debt’ exceeds £100 (ATA Code of Practice ceiling for a
private PCN) is disallowed under the CPRs, the Beavis case, the POFA and the CRA. The
Defendant invites the court to find that this exaggerated claim is entirely without merit, and to
bring an end to the case without a hearing.

Statement of Truth
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of
court may be brought against anyone who makes, or causes to be made, a false statement in a
document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature: xxxxx

Defendant’s name: XXXXXXXXXXXX

Date: xx/xx/xxxx

Page 8 of 8
 If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction
will be breached. This is particularly important in relation to any case involving a sexual offence, where the
victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has
been made in relation to a young person
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance
with relevant licence or with the express consent of the Authority. All rights are reserved

IN THE SOUTHAMPTON COUNTY COURT No. F0DP806M

F0DP201T

Courts of Justice
London Road, Southampton

Monday, 11 November 2019

Before:

DISTRICT JUDGE GRAND

B E T W E E N :

BRITANNIA PARKING GROUP LTD Claimant

- and -

(1)

Defendants
(2) CHRIS CROSBY

_________

MR H. MAINWARING (instructed by Messrs BW Law) appeared on behalf of the Claimant.

The First Defendant appeared in person.

MRS REEVES appeared on behalf of the Second Defendant.

[Transcript produced from poor quality audio recording – one channel working out of two]

__________

J U D G M E N T
OPUS 2 DIGITAL TRANSCRIPTION 1
THE DISTRICT JUDGE:

1 I have two applications before me in two sets of proceedings although the applications are
essentially the same. Both sets of proceedings were before District Judge Taylor in May of
this year. They are both claims by Britannia Parking Group Ltd trading as Britannia
Parking, one against Mr Chris Crosby and the other against Mr. Both relate to parking
penalty charge notices issued against the respective defendants and both include in the claim
a claim that is expressed in the claim form as a claim for £60 additional expenses pursuant
to PCN terms and conditions.

2 In response to both matters a defence has been put in – the defences are not identical – and
the matter came before District Judge Taylor in box work for consideration with directions
questionnaires, the matters having been transferred out of the money claims centre. In both
matters he struck out the claims as an abuse of process, the reasons given being that the
claimant claims a substantial charge additional to the parking charge, which it is alleged the
defendants failed to pay; and that the additional charge is not recoverable under the
Protection of Freedoms Act 2012 Schedule 4 nor with reference to the judgment in Parking
Eye v Beavis ; and that it is an abuse of process for the claimant to issue a knowingly
inflated claim for an additional sum which it is not entitled to recover.

3 Of course it also contained a notice pursuant to rule 3.3 that either party has the right to
apply and that is exactly what the claimant has done in both cases. They have applied for
District Judge Taylor’s order to be set aside and for directions to be given. In support of
that, I have the statement of Colin Brown and a second statement from Colin Brown and I
have had skeleton arguments today from Mr Mainwaring, counsel who appears on behalf of
the claimant, and Mrs Reeves who is the lay representative for Mr Crosby.

4 I have heard submissions from Mr Mainwaring, Mrs Reeves, and also very briefly from Mr.
who takes a very different position from Mr Crosby. I think it is probably fair to describe
him today as almost a spectator in that he raised a defence under the Bills of Exchange Act
but does not contest the parking charge and does not really resist the claimant’s application.

5 What I should also mention is that when the claimant submitted its application, it requested
that it be placed in front of a circuit judge. His Honour Judge Hughes QC is the designated
civil judge for this area. He directed that the matter be listed with a time estimate of 30
minutes before a full time district judge which is what it has been, although it has overrun its
time estimate. The skeleton arguments, with which I have been provided, can only be
described as very full.

6 All these parking cases now operate under the shadow of the Supreme Court decision of
Parking Eye v Beavis. Prior to the Supreme Court’s decision in Parking Eye v Beavis there
was litigation going on up and down the country around all sorts of issues which were raised
by defendants but resisted by parking companies. The bringing of the case before the
Supreme Court --- maybe I should not say it was intended to provide a definitive answer to
the issues being raised, but certainly it was the hope that the decisions which were being
made by the courts up and down the country would become very much simpler as a result of
the matter going to the highest court in the land and that court giving a judgment. The
charge in that case (Beavis) was £85. One may say it was disproportionate for such a case
to go to the Supreme Court but the volume of cases and the amounts of money involved
overall, led to that happening. Those challenging parking charges were to be disappointed
OPUS 2 DIGITAL TRANSCRIPTION 2
 by the decision of the Supreme Court which essentially decided that the parking charges
were not a penalty. They did that after careful consideration, and a lengthy case report of the
judgments given was released.

7 So it is against that background that we have this case before us. What the Supreme Court
decided was that the charge of £85 as a parking charge was reasonable and acceptable,
lawful, legitimate and entirely defensible and appropriate within the scheme of the regime of
parking charges.

8 The reason District Judge Taylor gave for striking out the claim in this case is that there is
an additional substantial charge which the claimant in this case is seeking to make. He is
criticised for giving very brief reasons for the strike out but in fact his reasons are
substantially longer than the original particulars of claim which set out the additional
parking charge of £60.

9 It seems to me that there are two issues here; first of all, whether it is appropriate for the
additional charge to be struck out and then, secondly, whether the striking out should take
with it the whole of the claim or whether the court should strike out the £60 charge and
leave outstanding the £100 charge which is within the bounds of what the Supreme Court
considered reasonable in Parking Eye v Beavis.

10 Mr Mainwaring on behalf of the claimant says that this is more a matter for evidence or
substantial consideration at trial whereas Mrs Reeves on behalf of Mr Crosby cites a number
of paragraphs from the Beavis judgment, suggesting that the Supreme Court decided that the
charge of £85 for overstaying in a car park was reasonable but higher charges were not to
be.

11 It is difficult to do justice to absolutely everything which has been put before me in the
skeleton arguments and the submissions today but I will deal with them, I hope, as clearly
and as briefly as I can.

12 Reference is made by the Claimant to the guidance provided by the British Parking
Association (and the British Parking Association code of practice was referred to in the
Supreme Court decision of Parking Eye v Beavis). That judgment also refers to the
statutory instrument which sets out what local authorities may charge by way of parking
charges. It does seem to me that the Supreme Court gives a somewhat uncritical
consideration of the BPA Code of Practice, in that the BPA is an association of parking
companies. The guidance is produced by parking companies for parking companies largely
for their own benefit. They refer to the fact that there is only one such association. So when
the claimant asks me to look at the BPA Code of Practice, which says that a £60 charge is a
reasonable charge to make, I treat it with massive scepticism because it seems to me that it
is entirely self-serving for the British Parking Association to give guidance to parking
companies of what are appropriate additional charges. I have much greater respect as I
should to the Supreme Court decision about what is reasonable.

13 I was taken by Mrs Reeves in her submissions to para.98 of Beavis where it is explained
why the £85 charge is reasonable. It says that it has two main objectives; one is to manage
the efficient use of parking spaces and this was to be achieved by deterring commuters or
other long-stay motorists from occupying parking spaces for long periods. The other
purpose was to provide an income stream to enable Parking Eye to meet the costs of
operating the scheme and make a profit from its services. The judgment goes on at para.193
to say that the scheme also covered Parking Eye’s costs of operation and gave their
shareholders a healthy annual profit.
OPUS 2 DIGITAL TRANSCRIPTION 3
14 And again 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 Parking Eye to
make a profit.

15 It seems to me absolutely clear from the Supreme Court judgment that what they were
determining was what a reasonable charge was in the context of running these parking
schemes. Some people will stay within the rules and will pay nothing or pay a small charge.
Others will overstay and will pay much larger charges which the Supreme Court has found
to be a proportionate and reasonable penalty. The Supreme Court considered a charge of
£85 and determined that that is not an unacceptable charge.

16 What we have here is essentially a charge of £160 for parking although the advertised figure
for the charge on the signage is £100. The £60 is based on the vague additional sentence on
the sign saying that there may be other charges. The particulars of claim then refer to this
almost as an afterthought in that it comes as the last line after reference to the claim for
interest. The claim form says it is £60 for contractual costs pursuant to the PCN and the
terms and conditions. It seems to me that that the £60 charge is quite transparently an
attempt to gild the lily, to garnish the margin of what is provided in the Supreme Court
decision of Beavis as to what is a reasonable charge in the circumstances and, to use District
Judge Taylor’s words, it is an inflated charge.

17 It has been suggested to me by Mr Mainwaring that somehow it is an additional charge for

additional expenses which are caused by people who do not pay. The Supreme Court was
concerned with a case of somebody who did not pay. This was the whole nub of what the
case was about and it does not seem to me that it is appropriate for the parking companies,
having won in the case of Beavis decided by the Supreme Court for the reasons given then
to try to add on an additional charge.

18 It seems to me that it is absolutely clear from the Supreme Court decision that the intention
was not for parking schemes to make charges for overstayers that amount to £160 or for
there be one charge and then another substantial charge. Therefore what the claimant is
seeking to do in this case is to charge far more to somebody who does not comply with the
parking terms than was approved by the Supreme Court in Beavis. It does seem to me that
the additional sum charged is unlawful.

19 I should mention that Mrs Reeves has raised before me the Consumer Rights Act and the
court’s responsibility under s71 to consider potentially unfair terms even if the issue is not
raised by any of the parties. Mrs Reeves sought to take me to the Act and she has identified
to me the three examples in schedule to the Act which she says makes this additional charge
unfair. It is Schedule 2 to the Act which gives the examples of terms which may be
regarded as unfair. Mrs Reeves refers to examples 6, 10 and 14. I have to say that it seems
to me that Mrs Reeves is right to refer to them and even if I had not been with her on the
question of the parking fine it does seem to me that these charges are unfair terms in that
they fit the three examples of unfair terms.. The reference on the signs to charges seems to
me simply to leave entirely to the discretion of the parking company what additional charges
they may levy and is completely against the intention of the Consumer Rights Act
legislation and the question of what terms are fair.

20 Example term 14 says:

OPUS 2 DIGITAL TRANSCRIPTION 4

 “A term which has the object or effect of giving the trader the discretion to decide
the price payable under the contract after the consumer has become bound by it,
where no price or method of determining the price is agreed when the consumer
becomes bound.”

21 That is bang on. It does not say that there will be an additional charge of £60. It just
vaguely refers to further charges.

22 I further say that the charge of £60 on a parking charge of £100 is 60 per cent which is
disproportionate. So, I find that the charge falls foul of the decision of Beavis, it falls foul of
the unfair contract terms provisions of the Consumer Rights Act and it is quite clearly not a
lawful charge.

23 It follows from that that I must come to consider whether striking out the whole claim is
appropriate. The inclusion of the additional £60 charge is an attempt to go beyond the
decision in Parking Eye v Beavis about what is reasonable and so not a penalty. The whole
claim is tainted by it. Even if one treats it as separate from the parking charge, the claimant
should have well known that it is not a charge which is lawful. The very fact that they bring
a claim in these circumstances, it seems to me is an abuse of the process of the court. In
saying that, I observe that with any claim which is put before the court, if a party does not
put in a defence to the claim, then it is open to the claimant to enter a default judgment. I
have no information about the numbers but I do not doubt that many default judgments are
entered in cases containing these additional charges and the claimant then has the benefit of
those judgments, including, as they do, additional charges which I have found to be
unlawful. That reinforces why it is abusive to include unlawful additional charges in these
claims.

24 So I conclude by saying that I dismiss the application to set aside District Judge Taylor’s
order.
__________

OPUS 2 DIGITAL TRANSCRIPTION 5

 CERTIFICATE

Opus 2 International Limited hereby certifies that the above is an accurate and
complete record of the Judgment or part thereof.

Transcribed by Opus 2 International Limited

Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
civil@opus2.digital

** This transcript has been approved by the Judge **

OPUS 2 DIGITAL TRANSCRIPTION 6