Residential Parking ticket

The_Deep

Have you considered a counter claim?

Is the space part of your demised property? If so read this.

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

Becks7

Hi The Deep

No I have not considered that and Yes my situation seems similar to the case that you have attached.

I have a share of freehold, my lease does grant me the right to park in any space in the car park as aforementioned in my defence letter (with the relevant SCHEDULE quoted)

There are a few signs scattered around our car park, the first one that one could notice says "Private Residents only", and then a second sign below it says "Warning, private land (with a big "P" sign), Parking restrictions in place, see additional signs for full details", and then elsewhere there are couple of signs that states "XXX Parking only" (where XXX is the name of my block), and finally the sign that has the additional details about "PCN of 100gbp" with the smallest fonts possible.

Unfortunately I am not able to find any transcripts related to Mr Davey's case like most other people who have asked about it in the past. Mr Davey seems to be the landowner (suggested by http:// parking-prankster.blogspot.com/2016/11/residential-parking.html) as opposed to a share of freehold or leaseholder, would that make a difference?

Many Thanks!

Becks7

Hi everyone,

I have amended my defence as follow, I have also added Mr Davey's case as reference in my case reference section. May I ask if the document is too long and if so, where could I cut it down?

I would be much appreciated for any advice/comments/feedback! I am aware that I would need to send my defence soon as the deadline is coming up soon so any help would be much appreciated!

Many Thanks

IN THE COUNTY COURT
CLAIM No:
BETWEEN:
(Claimant)

-and-

(Defendant)

DEFENCE

Background
1. It is admitted that, at all material times, the Defendant was the owner and registered keeper of the vehicle and the owner of one of the flats of the private land in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXX Residential Car Park on dd/mm/yyyy.

2. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.

Authority to Park and Primacy of Contract
3. The Defendant has held a share of freehold of the property. The Lessor has granted his Lessees rights to park based upon the demise, grant and/or easements within the lease for many years before this PCN was issued.

4. It is averred that the Lessee is entitled to rely upon the parking rights granted from the Lessor, and further up that chain of authority, the Lessor is entitled to rely upon his primacy of contract within the lease, in order to grant Lessees an unfettered right to park. Primacy of contract cannot be amended by Private Parking Company signs unless the Lessees have agreed to a variation of the tenancy, which the Lessees have not.
4.1 The Lessee has the right to park a vehicle granted by the Lease, which does not specify the requirement of the display of a permit or to pay penalties to third parties, such as the Claimant, for non-display of same. The Claimant has no consideration to offer the Defendant that the Defendant does not already possess.
4.2 It is stated within the Lease agreement that the Lessees shall “peaceably hold and enjoy the Premises during the Term without any interruption by the Lessor or any person rightfully claiming under or in trust for the Lessor”. The only restrictions upon parking was to ensure that private motor cars “shall at all times be fully taxed and insured and in a roadworthy condition”.
4.3 The relevant paragraphs of the Lease are:
“FOURTH SCHEDULE Clause 2”
The right to use in common with the Lessees and the occupiers of all other Flats and their visitors the gardens drives paths and forecourt to the Building and the separate garden forming part of the Reserved Property subject to the provisions of Part 2 of the Sixth Schedule hereto and to such further rules and regulations for the common enjoyment thereof as the Lessor may from time to time prescribe.

“SIXTH SCHEDULE PART 2”
Any such private motor car parked on the Reserved Property in conformity with the requirements hereof shall at all times be fully taxed and insured and in a roadworthy condition (with current MOT Certificate if one is required due to the age of such private motor car)

“SEVENTH SCHEDULE”
The Lessee paying the rent and performing and observing the covenants on the part of the Lessee contained in the Sixth Schedule hereto the Lessee shall peaceably hold and enjoy the Premises during the Term without any interruption by the Lessor or by any person rightfully claiming under or in trust for the Lessor.

5. Whilst the Lessor is entitled by clause 2 of the Fourth Schedule to introduce “regulations”, these must be reasonable and must relate to the “use of enjoyment” of the Property. The intention and meaning of the clause is not so that they can restrict Lessees’ use and enjoyment of the Property and impose unreasonable obligations upon Lessees. It has also by no means defines that the regulation includes the introduction of a parking permit system.

6. The Claimant is put to strict proof of their due diligence by inspecting the Lease in place and considering the rights of the residents, prior to commencing enforcement. This is a location where Lessees already enjoyed rights that cannot be varied, restricted or charged for, out with a lease variation (Landlord & Tenant Act 1987 applies). Where a majority of the leaseholders agree to any proposed variation, if there are less than 9 leases all or all but one of the parties must consent and if there are more than 8 leases, 75% of the parties must consent, and not more than 10% must not object to the proposed variation. This degree of consensus is notoriously hard to achieve and it is averred the Claimant has simply not bothered, and merely set up some signs and imposed permits upon residents, causing an ongoing private nuisance to those affected.

7. The Defendant, at all material times, kept a vehicle in accordance with the terms granted by the Lease. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. It is denied that the Claimant has standing to bring any claim in the absence of a contract or other lawful authority that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the Lessor to issue parking charge notices, and to pursue payment by means of litigation.

Cases Reference by Defendant
8. The Defendant will rely upon the judgments on:
8.1 R Davey v UKPC (2012) where Mr Davey sued UKPC for trespass for placing tickets on his vehicle which was parked on the private development. He won the case and was awarded £150 damages for trespass and £1280.26 in costs.
8.2 appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and
8.3 appeal of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011 and
8.4 Link Parking Ltd vs J. Parkinson [2016] C7GF50J7
where the Judge, referring to a similar case in In Pace Recovery v Mr Noor [2016] C6GF14F0 [2016] ruled that:
“…the Judge in that case found that the parking company could not amend the terms of the lease agreement to bind a Lessee, but rather that it would have to be the other party to the contract.
8.5 UK Car Park Management Ltd. -v- Miss C [2018] E4GF9T29, before District Judge Trigg, where the Judge ruled that any regulations imposed must be reasonable. It was not reasonable to attempt to penalise a leaseholder who was parking in accordance with the terms of her lease and the sign also did not create any contractual liability, so the claim must fail.

9. Accordingly, using the statutory wording from the Protection of Freedoms Act 2012, Schedule 4 (the POFA) relating to parking charges on private land, it is denied that:
9.1 there was any agreement as between the Defendant and the Claimant, whether express, implied, or by conduct.
9.2 there was any obligation (at all) to display a permit; and
9.3 the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Case Reference by Claimant
10. In correspondence received by the Defendant, the Claimant relies on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances. Furthermore, in the case of Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking.

11. It is denied that the Claimant has any entitlement to the sums sought.

12. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

Claimant's purported costs are wholly disproportionate
13. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
13.1 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
13.2 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.

14. 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. The Claimant has added an additional sum of £60 to the original £100 parking charge, for which no justification has been provided. The Defendant believes that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

15. Apart from the free parking spaces in the “open space” granted by the Lessor, the property management company of the property at question offers Lessees to the have a parking spot in the “underground parking” with an annual fee of £200; this is equivalent to £0.75p per day. The £100 parking charge is out of proportion in comparison.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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, the transcript of which is quoted as:
20.1'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...''

Summary
21. The Defendant avers that there can be no "legitimate interest" in penalising Lessees for using parking spaces, under the excuse of a scheme where ostensibly and as far as the Lessor is concerned, the parking firm is contracted for the benefit of the Lessees. It is contrary to the requirement of good faith and "out of all proportion to any legitimate interest" to fine Lessees or their visitors for using the parking spaces provided.

22. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

23. 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.

24. 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.

25. For all or any of the reasons stated above, the Court is invited to dismiss the Claim of its own initiative, using its case management powers pursuant to Civil Procedure Rule 3.4, and to award the Defendant such costs as are allowable on the small claims track, pursuant to 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 unrealistic costs which they are not entitled to recover. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

26. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

STATEMENT OF TRUTH
I confirm that the contents of the Defence are true.

Name
Signature
Date

Becks7

Hello again,

Bumping this to see if anyone has any further advice/comments/feedback.

Many Thanks!

Becks7

Hi everyone, it's been a while since I submitted my Defence and now I have a date for hearing in a few weeks time. WS to be submitted in a couple of weeks time.

I have received a few letters from the Claimant offering a discount to the original amount but I have not get in touch with them.

Having done some research I have now drafted the WS as follows, also taken into account the section that Coupon-Mad has written with regards to the "abuse of process".

May I ask if you could shed some lights and let me know what needs to be amended in my WS? I am not able to find the transcript for the case {E4GF9T29} (UK Car Park Management Ltd. -v- Miss C [2018]); may I ask if any one possess a copy of it by any chance?

Any help would be much appreciated

I have to split the WS into two posts as it seems to have exceeded the max characters.

IN THE [XXX]

CLAIM No:

BETWEEN:

(Claimant)

-and-

(Defendant)

---

Witness Statement

---

Summary
1. I, [Name], of [Address], will say as follows:

2. I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked A to O to which I will refer.

3. I am the owner of [Address] and I hold a share of freehold of [Property Name], please refer to Exhibit A.

4. Before I describe what happened on the day I parked in the [Car Park], I confirm that the essence of my defence to this claim is that:

a. I did not enter a contract with the Claimant and therefore did not breach the terms and conditions of parking.
b. Residents of [Property] have the right to park their vehicles granted by the Lease, which does not specify the requirement of the display of a permit or to pay penalties to third parties, such as the Claimant, for non-display of same. Evidence of this is contained in the Lease, please refer to Exhibit B.
c. The parking signs set up by the Claimant cannot override the existing rights that I was entitled by the Lease.
d. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.
e. The signs at the car park are not lit at night time, please refer to Exhibit C.
f. 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.

Background
5. On the night of [DATE], I parked my vehicle registration no. [XXX] in the car park. The parking permit has fallen from the windscreen on to the ground of the vehicle without my notice.

6. In the morning of [DATE], I received a parking charge notice issued by the Claimant. The Claimant asserts that I entered into a contract with it; and that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges.

7. Upon receipt of the parking charge notice from the Claimant, I contacted [CLAIMANT] by phone and explained that I am the owner of the above address and that my Lease entitled me to park my vehicle at the car park. The customer service refused to provide any assistance on this matter and asked me to file an appeal with POPLA should I wish to.

8. I subsequently filed an appeal to POPLA knowingly from doing my research that, POPLA stands on the Parking companies’ side almost in all of the cases; and supplied them with the following:
a. Exhibit D shows my ownership of the property;
b. Exhibit E shows my ownership of the vehicle that is registered with the flat
c. Exhibit F is the parking permit issued by the Claimant
d. Exhibit G is the parking charge notice issued by the Claimant

9. As predicted, my appeal has been rejected and the Claimant has elected to pursue this matter via litigation.

10. The following sections of Exhibit B:
a. FOURTH Schedule Clause 2
b. SIXTH Schedule Part 2 and
c. SEVENTH Schedule,
states that Lessees have the right to park at the car park as long as the vehicles are fully taxed and insured and in a roadworthy condition.

There is no statement regarding the requirement to display a parking permit. No restrictions or penalties shall be imposed on Lessees, unless a variation to the Lease, in which case I believe at least 75% of the leaseholders must consent, and not more than 10% object to the proposed variation. This degree of consensus is notoriously hard to achieve and it is averred the Claimant has simply not bothered, and merely set up some signs and imposed permits upon residents, causing an ongoing private nuisance to those affected.

11. The parking sign set up by the Claimant cannot override the existing rights that I was entitled by the Lease and I have repeatedly drawn the Claimant’s attention to it in my Defence.

12. Re Exhibit H is a suite of examples of the letters sent by the property management company and Re Exhibit F is the parking permits issued by the Claimant pre 2016. It is clear that there is no mention of the requirement to display the permit at the windscreen of the vehicle, nor any mention of any penalty that may incur for non-compliance. Since there is no clear instruction on how the parking permit shall be used, therefore one could interpret that the use of the parking permit is merely to proof one’s eligibility to park in the car park, should anyone challenge oneself.

13. Re Exhibit C shows the sign “[Property] Parking” at the car park, during night time, from the view of the driver’s seat. The sign is not lit at night time; it is located close to the ground rather than at driver’s horizontal eyesight and it is clear that the words are not legible to the driver, in particular at the time of driving in to the car park. It therefore fails to serve its purposes, if any.

14. Re Exhibits I show the sign that reads “PRIVATE Residents Only” upon the entrance, which led to residents to believe that they are entitled to park there and that the sign is to deter non-residents.

15. Re Exhibit J is the latest parking permit for 2019, in contrast to [point 12] above, the new permit does states “To be displayed inside the windscreen area of the vehicle”. However, I would like to stress that unless there is a variation made to my Lease, upon agreement between me and the Lessor; the parking permit does not create a contract between me and the Claimant, and such restrictions do not override my lease with the Lessor.

16. Re Exhibit K shows the sign on the exit door, from the underground parking. An annual fee is paid by residents in order to be entitled to park in the basement. It states “all vehicles must be taxed and display a valid parking permit”. In contrast to point [10], this signs is legible to driver on the way to the exit and at least reminds residents to display a parking permit.

Cases of similar issues
17. Re Exhibit L {9GF0A9E} (Appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd [2016]) where HIS HONOUR JUDGE HARRIS QC allowed the appeal as follows:
At para [17]: where Homeguard Services Ltd argued that: “it was not suggested that the parking restrictions could or did override the lease […] they were a modification of the regulations. But Miss Fenwick frankly conceded that there was no appropriate notification.”

And at para [18]: “It therefore seems to me clear that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease, and that right of access permitted short incidental stops for the purpose of access to her flat.”

18. Re Exhibit M {C6GF14F0} (Pace Recovery v Mr Noor [2016]) where DISTRICT JUDGE COONAN dismissed the claim suggesting that an existing contract cannot be unilaterally altered.
At para [3]: “[…]I wanted to clarify with Mr Charman that he is agreeing that there is no express agreement between Affinity Sutton and Mr N that the claimant can impose a fine on Mr N as a resident if he parks in a particular bay without a parking permit. There is agreement on that. The only way, therefore, in which the claimant can succeed is by showing that they can bring a variation within paragraph 6(3) of the tenancy agreement.[…]”
At para [4]: “You will note from looking at clause 4(17) to clause 4(22) that there is no provision here requiring a resident to display a permit. There is no dispute that Mr N is a tenant. He is a resident. Nor is there a provision that, in the absence of such display, a resident can be fined and/or the wheel of his car can be clamped. In order for the claimant to succeed, they would have to show that there was compliance with the procedure under clause 6(3) such that there is included within clauses 4(17) to 4(22) a provision that requires the tenant, Mr N, to display a permit and also that if he fails to do so, he can be fined by the third-party provider, in this case the claimant.”

19. Re Exhibit N {C7GF50J7} (Link Parking Ltd vs J. Parkinson [2016]) where DEPUTY DISTRICT JUDGE METCALF dismissed the case by referring to {C6GF14F0} (Pace Recovery v Mr Noor [2016]).
At para [13]: “I have also considered the reported case relied upon by Mrs Parkinson, which was Pace Recovery v Mr N [2016] {C6GF14F0}. It is not factually identical to this case, and does not in any event bind me. However the case raised similar issues, and the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract, and it seems to me that the same principle applies here. It is Isis (or Home from Home) who ought to have sought to amend the lease, and I have seen no evidence that they have done so.”

20. Re Exhibit O {20003730} (Saeed v Plustrade Ltd [2001]), although the case is not factually identical to this case, where Plustrade Ltd infringed its legal rights in preventing the resident from parking on an area that was previously specified as reserved for parking, nonetheless LORD JUSTICE AULD, LORD JUSTICE ROBERT SLADE and SIR CHRISTOPHER SLADE commented in para [34]: “[…]In my judgment this attitude represents a breach of the well-known and well-established principle that a grantor shall not derogate from his grant. […]

21. {E4GF9T29} (UK Car Park Management Ltd. -v- Miss C [2018]) where the defendant was a leaseholder and her lease grants her right to park, subject to vehicles being taxed and roadworthy. UKCPM were brought in to operate a permit scheme later on and issued ticket for non-display of parking permit. The District Judge ruled that any regulations imposed must be reasonable. It was not reasonable to attempt to penalise a leaseholder who was parking in accordance with the terms of her lease and the sign also did not create any contractual liability, so the claim must fail.

Becks7

Abuse of process

22. I would also like to draw the Court’s attention to the recent court case {F0DP201T} (District Judge Taylor; Southampton Court, 10th June 2019) in which the claim is struck out as an abuse of process. It is ordered that:

“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 not with reference to the judgement in parking eye 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”

23. I have 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 'recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs 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.

24. 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.

25. 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
26. 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.

27. 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''. And at para [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

28. 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.''

29. 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...''

30. 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
31. 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
32. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

33. In the Caernarfon Court in Case number {FTQZ4W28} (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

34. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

35. In Claim numbers {F0DP806M} and {F0DP201T} - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

36. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''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 the Beavis case. 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...''

37. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

38. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
a. The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras [4(5)] and [4(6)].
b. The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras [98], [193], [198] and [287].
c. The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paras [6], [10] and [14].

39. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paras [6], [10] and [14]. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

40. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

41. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

42. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

43. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out another parking ticket claim. The Judge mentioned the POFA 2012 and the Beavis case, and determined 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.'' Further, in issuing his Order without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

44. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is my 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

45. I am of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

46. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

47. It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.

48. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

Signature
Date

Coupon-mad

I am not able to find the transcript for the case {E4GF9T29} (UK Car Park Management Ltd. -v- Miss C [2018]); may I ask if any one possess a copy of it by any chance?

If it's not linked by the Parking Prankster and you only read about the case, then there is probably no transcript. I'd remove it and stick with the cases that you have transcripts for, and make sure the Judge knows that Jopson is a APPEAL case, so it it persuasive (can't just be ignored by the county court!).

Re your #43, change it to 'multiple claims' being summarily struck out by DJ Joseph, including one from Premier Pxxk (!). We've had two reports so far and one was your Claimant...!

Becks7

Thanks Coupon-Mad! Much appreciated

I have removed made the following amendments.

Cases of similar issues
17. Re Exhibit L {9GF0A9E} (Appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd [2016])

This is an appeal from Deputy District Judge Wright’s decision on 26 January 2016 to award the claimant £175.42 plus costs in respect of its claim for a sum of money said to be due for parking for a period of time without displaying a parking permit.

HIS HONOUR JUDGE HARRIS QC allowed the appeal as follows:

At para [17]: the respondent Homeguard Services Ltd argued that: “it was not suggested that the parking restrictions could or did override the lease […] they were a modification of the regulations. But Miss Fenwick frankly conceded that there was no appropriate notification.”

At para [18]: “It therefore seems to me clear that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease, and that right of access permitted short incidental stops for the purpose of access to her flat.”

At para [27]: “I am satisfied that the decision of the district judge was wrong.”

Abuse of process
21. I would also like to draw the Court’s attention to the recent court cases below:
Re Exhibit Q {E8GF1V7V} (UKCPM v Esplanade Ltd [2018]) in which District Judge Grand dismissed the claim as an abuse of process. It is ordered that:

“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 judgement in parking eye 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 Rule 3.3(4) of the Civil Procedure Rules 1998 {…}”

Similarly, in claim number {F0DP201T} where BW Legal acts on behalf of their client, the claim is again struck out as an abuse of process by District Judge Taylor on 10th June 2019 at the Southampton Court.

Re Exhibit P {F2QZ4W28} (Vehicle Control Services Ltd v Davies [2019]) on 4th September 2019, District Judge Jones-Evans struck out the claim as an abuse of process at the Caernarfon Court.

Re Exhibit R {F5DP2D6Y} (PREMIER PARK LIMITED v Mr J) in which the claim is again struck out as an abuse of process by Deputy District Judge Joseph on 5th December 2019. It is ordered that:

“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 judgement in parking eye v Beavis, which expressly approved the parking charge because it included costs of administration.
Additionally, S71(2) of the Consumer Rights Act 2015 requires the Court to consider the fairness of a contract terms and the provision for additional charges falls into examples 6, 10, and 14 of the indicative list of unfair terms in Schedule 2 of that Act. 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.

This order has been made by the Court of its own initiative without a hearing pursuant to Rule 3.3(4) of the Civil Procedure Rules 1998 {…}”

As I will be away few days before the deadline of submission, I am quite keen to send the pack off by the end of the year. Any further comments are welcome!

Coupon-mad

Looks good and at WS stage you need to cover everything, so it would be quite long.

Becks7

Thanks so much for everyone's help
I have afew more questions hopefully you will be able to answer!

1. In the letter from the client's solicitor in which they offered a discount, at the back they also wrote me a few points which is their argument against my defence. Something along the line like my defence is largely just copy and paste exercise, it is out of your own knowledge zone and also photo of my car on the day to show non display of parking permit. Do I need to do anything with this letter?

2. May I ask what happen on the day of hearing? Do I need to verbally go through the whole Witness Statement? As Coupon-Mad mentioned, it is very long.

3. Below is my list of exhibits. I have printed them out (6 copies, 3 to send out (Court, Claimant, Solicitor), 3 to be distributed on the day of hearing). They are quite a big pile!
Are the Court expecting this and will they read everything prior to the hearing?

A. Share Certificate
B. A copy of lease (up to certain pages only)
C. Photo of signage from car at night time
D. Ownership letter from Solicitors
E. V5C to show owner ship of car and registered address
F. Parking permit (2010-2015)
G. PCN
H. Management Company’s parking permit letters
I. “PRIVATE Residents” only sign
J. 2019 parking permit
K. Underground parking signs
L. {9GF0A9E} (Appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd [2016])
M. {C6GF14F0} (Pace Recovery v Mr Noor [2016])
N. {C7GF50J7} (Link Parking Ltd vs J. Parkinson [2016])
O. {20003730} (Saeed v Plustrade Ltd [2001])
P. {E8GF1V7V} (UKCPM v Esplanade Ltd [2018])
Q. {F2QZ4W28} (Vehicle Control Services Ltd v Davies [2019])
R. {F5DP2D6Y} (PREMIER PARK LIMITED v Mr J [2019])
S. CRA 2015 Schedule 2 'the grey list' with paras 6, 10 and 14

Again, thanks so much for your help and advice in advance!