UKCPM Parking Charge Notice Issued - Neither App nor Phone Number Allowed Payment

A_Seagull

Another Albion fan - hurrah! :beer: I've recently discovered a thread on North Stand Chat, where I think you can also be found...



Just as an update - I complained to JustPark, and asked them to confirm if their systems were operative on the day in question, and it seems that they were. Apparently no parking spaces were available in the car park on the day of the incident - the driver has informed me that this was not the case, however, and that there were lots of spaces, and lots of people wandering round the car park wondering why they weren't able to pay. Hmm.


Anyway - I sent the keeper appeal letter, and got proof of posting (UKCPM don't have the option to appeal online). I haven't heard anything back yet regarding this. However, today I received a "Formal Demand" letter, saying that payment is overdue, and raising the amount to £100.


I'm assuming that I ignore this letter, and wait for a response to me appeal - would that be correct?

Coupon-mad

Yes wait for them to reject, then ignore UKCPM until LBCCC or claim from Gladstones.

Just as an update - I complained to JustPark, and asked them to confirm if their systems were operative on the day in question, and it seems that they were. Apparently no parking spaces were available in the car park on the day of the incident - the driver has informed me that this was not the case, however, and that there were lots of spaces, and lots of people wandering round the car park wondering why they weren't able to pay. Hmm.

Send JustPark a SAR asking for all data held about your car that day and ask for disclosure of the daily records of the system working/failing that day. tell them if they do not include details of the latter, you will reserve the right to add JustPark as a party to any court case and force them to attend and explain the issue that day that they keep denying, and to evidence the system records.

You will have to include a copy of your V5 to show you are the keeper of the car and thus, are entitled to make a subject access request about that car.

A_Seagull

Hi - it only took them a year and a bit, but I recently received the Gladstones claim form relating to the PCN outlined originally in this thread. It was dated 8th August, and I've already filed the AoS.


I've drafted a defence based on several others, and including the latest stuff about Abuse of Service, and have pasted it below. It feels very long and unwieldy to me, so I'd appreciate any feedback on what can be safely pruned from it, or anything glaring that I've missed out. Thanks in advance for your help!



I am XXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at Brighton Met College, 1A Pelham Street, Brighton, BN1 4FA. The PCN stated the contravention as “Vehicle Not Registered or Exceeded Allowed Time.”

3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant on XX/XX/2018.
b. There was any agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums.
e. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

4. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim

6. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
a. Payment for parking was attempted multiple times via app and telephone, using the automated system provided by JustPark and advertised in the car park.
b. The Defendant followed the JustPark instructions exactly as shown on their signage in the car park, only to receive the same ambiguous error message every time, meaning that payment was impossible. c. There was no additional information in the car park, either on the JustPark signage, or the Parking Company terms and conditions, stating what course of action should be followed if payment was impossible.
d. The failure of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.


No contract offered

7. The Defendant did not enter into any agreement on the charge, no consideration flowed between the parties and no contract was established.

8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.


Costs on the claim - disproportionate and disingenuous:
10. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
a. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.
b. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.
c. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.
d. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
e. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.
f. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
g. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.
h. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.
i. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.


Non-disclosure of reasonable grounds or particulars for bringing a claim:
11. UK Car Park Management are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is 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 a third party agent, the Claimant may not pursue any charge
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘The driver of the vehicle with registration XXXXXXX (the'Vehicle') parked in breach of the terms of the parking stipulated on the signage (the 'Contract') at BRIGHTON MET COLLEGE 1A PELHAM STREEET BRIGHTON EAST SUSSEX BN1 4FA, on XX/XX/2018 thus incurring the parking charge (the 'PCN'). The driver of the vehicle agreed to pay the PCN within 28 days of issue yet failed to do so. The Claimant claims the unpaid PCN from the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. The CLAIMANT CLAIMS £100 for the PCN, £60.00 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £15.09 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.04 per day.’

13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
It just states “parking charge” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

15. The Defendant has researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

16. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

17. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Defence Statement are true.

Umkomaas

I don't critique defences in detail, but on a scan, 15, 16, 17 and 18 are pure rants. I'm not sure what you're hoping the Judge will do, because none of it provides any defence to whether you are, or are not, liable for the alleged debt.

Leave them out and give the Judge a more focused defence to deal with.

Have you read legally qualified contributor bargepole's advice on 'concise defences' (with examples) with specific advice about paragraph numbering? The NEWBIES FAQ sticky, post #2 is the relevant place to look.

KeithP

With a Claim Issue Date of 8th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 10th September 2019 to file your Defence.

That's a little over a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

Coupon-mad

OK fellow Seagull, I will take a look at your pm and reply tomorrow.

:T

A_Seagull

Hi - just wondering if you got a chance to have a look at my defence? I need to send it off by lunchtime today, as I'll be out this afternoon.

A_Seagull

Several months further down the line, and I was due to be attending court next Thursday.  A couple of days ago, however, I received a phone call from Gladstones asking if I wanted to settle (my reply:  "Er...no"), and the following day an e-mail with a Notice of Discontinuance attached.  So, game over.  Many thanks to anyone on the boards who gave help over the last 18 months.

I sent identical bundles of documents to the court and to Gladstones just before the "two-weeks-before-the-hearing" deadline expired, containing my Witness Statement, a Supplementary Witness Statement (as outlined on the "Abuse of Process" thread), some associated documents to back those up, and a Schedule of Costs.  We'll never know precisely what got them to discontinue, but I'll post the two parts of the Witness Statement and the cost schedule below, in case they're helpful to someone else.  Good luck!

A_Seagull

In the County Court at Brighton, 1 Edward Street, Brighton, East Sussex, BN2 0JD

Claim No. XXXXXXXX

Between

XXXX CAR PARK SCAMMER (Claimant)

and

XXXXX ME (Defendant)


WITNESS STATEMENT

I, XXXNAMEXXX, of XXXXADDRESSXXXX, will say as follows:

1. I am the Defendant in this matter. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

2. Exhibited to this Witness Statement are the following documents which I wish to rely upon;

i) Extract from itemised mobile phone statement (AS1)

ii) JustPark signage (AS2)iii) Sample UKPCM signage (AS3)

3. Before I describe what happened on the day I parked in the Brighton Metropolitan College car park, I confirm that the essence of my defence to this claim is that:
a. I did not breach the terms and conditions of parking;
b. All reasonable attempts to pay for parking were made, and it proved impossible to do so;

c. The claimant's addition of “costs” is an abuse of process;

d. The claimant has not disclosed reasonable grounds or particulars for bringing a claim.

4. On 5th May 2018 I parked my car in the Brighton Metropolitan College car park at 9.20am. A sign at the car park entrance made me aware that payment for a whole days parking should be made by contacting the JustPark on the phone or by the JustPark app.

Having parked my car, I attempted to pay for parking I downloaded and installed the JustPark app on my phone (as can be seen on from the 27.99MB download shown on Exhibit AS1, the itemised phone bill), and followed instructions to make payment, only to receive a message that “Parking is not available at this location”. I then tried to make payment using the phone number on the JustPark sign (as can again be seen on the phone bill), only to receive the same ambiguously worded message. Attempts to pay were then made repeatedly, by myself and my partner, only for the same message to be received.

The ambiguity arose from the fact that parking quite clearly WAS available at this location, as there were multiple empty spaces.

The car park was busy as it was the day of the Children's Parade, and the drop off point for children was close by. A large group of people formed around the JustPark sign, as they also attempted (and failed) to pay for parking. Assurances were sought from a parade steward with regard to the parking situation, but they were not employed by the car park and were thus unable to offer them. It was generally agreed that we had all tried repeatedly to pay, and there wasn't anything else that we could do. Nevertheless, during the time my car was parked, I unsuccessfully made multiple additional attempts to pay using the JustPark app.

I received a Parking Charge Notice from UKPCM on 21st May 2018 (16 days after the alleged offence), at which time I contacted JustPark, asking then to confirm if there was an error with their system that day, which might have prevented payment. The response from JustPark stated that “if you were unable to make a booking on our system for Brighton Metropolitan college, it is because the car park fully booked and we cannot accommodate anymore drivers. If there are spaces available in the car park, it is because drivers who have booked spaces are due to arrive in the next hour. On May 5th that particular car park was fully booked for the whole day, meaning you were parking in another drivers space that was prebooked.” There was no information on either the JustPark or UKPCM signage , or indeed from the automated messages on the App and phone line, to indicate that this was the case.

5. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms. I believe that reasonable endeavours WERE made.

6. I refer the Court to Exhibit AS2 which is a photo of the JustPark signage taken on the day, and AS3 which is a photo of a UKCPM sign similar to that in the car park (the car park is now closed, so no photo of actual signage is available). They demonstrate that the car park had no clear signage in order to form a contract. I invite the Court to compare this with the Court of Appeal judgement by Lord Justice Moore-Bick on the ParkingEye -v- Beavis (2015) which stated “Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.” And that “a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor”. I say the Claimant took advantage of mine and others' lack of familiarity of the terms of the car park. I therefore say no contract was either agreed or in place with the Claimant.

7. The additional £60.00 charges have been added with no breakdown nor explanation other than a vague description of being “contractual costs pursuant to the Contract” as stated in the Particulars of Claim. These additional charges are nowhere to be found on the Claimants signage, which they say forms the details of the Contract and have come out of thin air. These charges are an abuse of process and an attempt at double recovery. They are also in breach of the Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) – which states that the maximum sum that may be recovered from the keeper is the amount stated on the Notice to Keeper - in this case £60.

I wish to direct the Judge’s attention to two recent rulings involving similar Claims from the Claimants Solicitors (Gladstones) and a further two on abuse of process:-

In Hertford county court - Claim No. F1GF9J4G:

Gladstones freely ADMITTED that the extra charges are FALSE and the Judge dismissed the case entirely.

In Mayor's and City of London Court on 6th January 2020 before District Judge Shanti Mauger:

The case was dismissed. The Judge ruled that extra charges (in this case £60) were not lawful and when questioned by the Judge, the Gladstones representative then said they would no longer seek it.

I also wish to direct the Judge’s attention to these rulings regarding an “Abuse of Process”.

Southampton Court Claim No. F0DP201T on 10th June 2019 before District Judge Taylor

The Judge ruled: “IT IS ORDERED THAT: The claim is struck out as an abuse of process”

Warwick County Court Claim No. F5DP2D6Y on 6th December 2019 before Deputy District Judge Josephs:
The Judge ruled: “CLAIM STRUCK OUT: REASON: ABUSE OF PROCESS”

I refer the Court to my Supplementary Witness Statement (and additional documents) which gives more detail.

8. I hold the Claimant to strict proof that they have the required authority from the Landowner giving them the right to form contracts with drivers/keepers of vehicles using the car park and to make legal claims for alleged breaches of said contracts in their name.

9. I invite the Court to dismiss this claim in its entirety, to condemn the vexatious litigant conduct of the Claimant and their Solicitors and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14. I refer the Court to Exhibit AAA_009 for the full schedule of my costs.

Statement of Truth:

I believe that the facts stated in this Defence are true.


Name XXXXXNAMEXXXXX

Signature


Date XX/XX/XX

A_Seagull

Supplementary Witness statement part 1: 

In the County Court at Brighton, 1 Edward Street, Brighton, East Sussex, BN2 0JD.

Claim No. XXXXXXXX

Between

XXXX CAR PARK SCAMMER (Claimant)

and

XXXXX ME (Defendant)


SUPPLEMENTARY WITNESS STATEMENT

The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

1. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

2. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

2.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
3. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

3.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

3.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

3.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

3.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and 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 ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim
4. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.