Gladstones and old address - 1 unknown CCJ, 1 unknown Claim

duckieb

Thank you very much for your responses. Le_Kirk, the hearing is 29th June 2021. My apologies, I meant that I filed the defence in October 2019 but have yet to file the WS. I had however prepared one as I thought the hearing was last year. Below is my defence that I have already filed:

DEFENCE

1.     The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 

2.     It is admitted that the Defendant is the registered keeper of the vehicle in question.

 

3.     The Defendant was at work elsewhere on the day in question and as such cannot have been the driver of the vehicle. 

 

4.     The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

 

5.     The driver has not been evidenced on any occasion. 

 

6.     There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

 

7.     This claim form has not been served at the Defendant’s current address and the Defendant became aware of the claim incidentally. The Defendant understands that this Claim was served at an old address (XXX)). However, the Defendant moved to a new address in January 2017. In support of this, the Defendant can provide confirmation from XX County Council showing the updated details for the purposes of paying Council tax.

 

8.     The Defendant has also not seen any previous documentation from the Claimant in this matter and thus was never able to properly challenge the Claimant’s claim.

 

9.     The claim form has not been served at the Defendant’s current address despite the Claimant having become aware of the Defendant’s new address. This demonstrates sharp practice and no attempt to ensure the Claim was properly served, as well as an abuse of old address in an attempt to obtain a default CCJ.

 

10.  The court papers refer to three alleged PCNs but contain no details of the alleged incident(s), two of which apparently occurred on the same day. The Defendant denies all alleged contraventions. The Claimant is put to strict proof of two incidents on the same day.

 

11.   If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. The Defendant submits that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle. 

 

12.  A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since the Defendant has not received any documentation from the Claimant prior to finding out about the claim, the Defendant submits the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against the Defendant as the Registered Keeper in any case.

 

13.  The Claimant allegedly sent the Defendant a letter purporting to be a 'letter before claim' but it did not include essential information including details of what the alleged breach was, any photographs taken, what time it occurred and for how long, and proof that a breach actually occurred. This amounts to a failure to comply with Practice Direction 6 (a). This claim is being made over 2 years after the alleged breach took place, and after all this time without adherence to Practice Direction 6. The expectations of the court outlined in Practice Direction 3 have not been met.

 

14.  The Particulars of Claim (PoC) do not specify what are the terms breached by the driver of the vehicle. As such, the Claim fails to meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms were and how they were breached.

 

15.  It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

 

16.   In addition, the Claimant has failed to provide evidence of the alleged contravention. The Particulars of Claim lists the location as ‘Clement Danes & Holborn House -W12’ with no road name, which returns no clear results when searched on Google. The Defendant has made attempts to identify this location; however with the lack of specific information, the Defendant has been unable to ascertain where the parking event was. 

 

17.  Should Parking Control Management (UK) Ltd provide evidence to substantiate their claim then it is denied that the driver was properly informed about any parking charge, either by signage or by a CN. Therefore, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. 

 

18.  Alternatively, even if there was a contract, the provision requiring payment of £689.22 is an unenforceable penalty clause.

 

19.  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 landowner to issue parking charge notices, and to pursue payment by means of litigation.

 

20.  The claim includes interest charge but does not include dates used for calculation. As such, this is in breach of Civil Procedure Rule 16.4 (2).

 

21.  The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. This claim includes an additional £417.66 total, for 'contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest' which appears to be an attempt at double recovery.

 

22.   Overall the costs on the claim are disproportionate and are an abuse of process. 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.

 

23.  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.

 

24.  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.

 

25.  It is trite law that non-existent and untrue 'legal costs' are also unrecoverable. 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.

 

26.  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.

 

27.  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.

 

28.  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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firms claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, 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 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...''

 

29.  That is not an isolated judgment striking out a parking claim out for repeatedly adding sums they are not entitled to recover. In the Southampton Court on 27th September 2019, Judge Giddins struck out two claims by BW Legal for abuse of process (case numbers F4DP5264 & F4DP5279). 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 v 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.''

 

30.  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.

 

31.  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.

 

32.  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 attempting to claim fanciful costs which they are not entitled to recover.

Statement of Truth:
I confirm that the contents of this statement are true to the best of my knowledge and belief

duckieb

This is my WS and supplementary WS:

............................................................................................

WITNESS STATEMENT (not yet filed):

I am XXX and I am the defendant in this matter. This is my supporting statement to my application dated 4th October 2019.

CLAIM FILED AT OLD ADDRESS

1.     I understand that the Claimant filed a claim against me as the Defendant. However, this claim form has not been served at my current address and I thus was not aware of any previous documentation; I came across the claim form incidentally following an earlier issue relating to mail. I understand that this Claim was served at an old address (XXX). However, I moved to a new address in January 2017. In support of this I can provide a solicitor’s completion statement showing the date of completion, and confirmation from XX Borough Council showing my updated details for the purposes of paying Council tax. Both are attached as Exhibit 1.

 

2.     I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim. Had I been in receipt of any of the prior documentation, I would have responded promptly. 

 

3.     On 20/08/2019 I attempted to contact the Claimant using information given to me by County Court. I was informed that all prior documentation had been sent to my old address. I was not supplied with photos or details relating to the alleged contraventions, two of which allegedly occurred on the same day, despite a subject access request.

 

4.     I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added that “In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

 

5.     On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing their prior charges and ultimately a claim.

 

ORDER DISMISSING THE CLAIM

 

6.     I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

 

7.     I am the registered keeper of vehicle in question; however I was at work elsewhere on both the dates in question and as such cannot have been the driver of the vehicle.

 

8.     The Particulars of Claim lists the location as ‘Clement Danes & Holborn House -W12’ with no road name, which returns no clear results when searched on Google. I have never visited this location and although I have tried to identify the location, due to sparsity of information I have been unable to ascertain where the parking event was. Despite a subject access request, I was not provided with further details of location, or indeed other details of the alleged three contraventions.

 

9.     If the Claimant has obtained details of the vehicle for which I am the keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

 

10.  If the Claimant can evidence that the alleged incident relates to a vehicle for which I am the keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered leaser of a vehicle. 

 

11.  A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me.

 

12.  I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

12.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

 

12.2 No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to UK Parking Control Management Ltd.

 

13.  On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

 

14.  The Court is invited to dismiss this Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

 

15.  In summary, and to stress the point that there is growing anger at the dubious practices of private car parking companies of which I believe I the Defendant has fallen foul of, I would also like to draw the attention of the court to a debate in Parliament on 21st March 2017 that focussed on the relationship between the DVLA and private car parking companies, and the latter’s access and (mis)use of data. In the debate the Rt Hon Steve Double MP commented that “We need to look at the relationship the firms have with the DVLA. In my view, they are abusing their privileged relationship and their access to drivers’ information.”

The Rt Hon Kevin Foster MP surmised that “We got rid of the cowboy clampers in the last Parliament. The suspicion is that the cowboy clampers have now become the cowboy finers and cowboy invoicers. Although they may wish to leave their spur marks on car parks across the country, I hope the Minister will be clear what action will be taken to ensure that they have to ride off into the sunset for good.”

 

16.  On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

Statement of Truth:

duckieb

I have a supplementary WS which is apparently too long to post. But below is Gladstones' WS, in response I presume to the defence I filed:

I, XX, OF XXX WILL SAY AS FOLLOWS:

1.     I am the Employee of the Claimant Company (‘my Company’) and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. 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 at ‘GSL1’ are the following documents which my Company wishes to rely upon;

i) The Agreement authorising my Company to manage parking on the relevant land (as

described therein and hereinafter referred to as ‘the Relevant Land’);

ii) The Sign (‘the Contract’);

iii) The Site Plan;

iv) Notices;

v) Photographs of the incident.

 

3.     The Defendant is liable for the below parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charges;

 

1 The Defence

 

4.     The defendant has been issued with the above charges owing to the fact her vehicle was on the date referred to above recorded as being parked in a manner that did not comply with the parking regulations at ‘XXX. This was owing to the fact the vehicle was parked without a valid permit.

 

5.     Attached to this statement at exhibit GSL1 is a copy of the signage from the land which sets out the terms of parking as follows:

 “Vehicles must park wholly within the confines of a marked bay fully displaying within the

windscreen a

 Valid PCM keyworker permit

 No parking on roadways, paved or yellow lined areas at any time”

 

Nature of the Offence:

6.     My Company were instructed to operate a parking management and enforcement scheme at the above location. At all material times we acted with the authority of the Managers of the Land pursuant to an agreement dated the 11/07/2017, contained at exhibit GSL1. The same having chosen to restrict parking on the land that they manage and enforce parking on the land in question. A copy of this agreement is attached herewith.

 

7.     The terms of parking as set out above make it explicitly clear what is permissible by way of parking. To park at the above location, you are required to be parked with a valid PCM permit. The attached photographs taken of the Defendant’s vehicle ‘XXX’ which are duly date and time stamped are evident that the defendant’s vehicle was parked without the display of such permit.

 

8.     As such and owing to the above, the Defendant parked in a manner that did not adhere to the parking regulations. Parking was not valid and the charges were correctly issued to the Defendant’s vehicle.

 

Breach of Contract:

9.     The rules of interpretation require simply that the parties knew of their obligations to oneanother.

The Defendant was offered to use the Land and thereafter either follow the rules and

park for free or in breach of the rules agree to pay £100. The rules here just so happen to be as

set out above at paragraph 5.

 

10.   In the case of Alder v Moore (1961) The court concluded that one should consider the obligations imposed by the agreement, not the terminology used i.e. the agreement’s substance, not form.

 

11.  The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye case, as the particular parking rules were different, the rule breached was that motorists must leave the site within 2 hours, whereas here the rule was as set out above. In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein.

 

12.  The Court may conclude that the Land is managed as follows; the Claimant grants a contractual license to all; this license allows anyone permission to be on the Land. This is inferred by the nature of the land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all the motorists) was offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and incur a £100 charge. The acceptance was at the point the Defendant decided to park, having read the sign, and his consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. The Claimant’s consideration is the provision of parking services.

 

13.   I refer the Court to Judge Hegarty’s comments in ParkingEye v Somerfield (2011) that “If this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty, even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park”.

 

 

14.   Alternatively; it could be concluded that, any person can use the Land provided they do not exceed the licensed activity as set out on the sign and in failing to comply with the license granted to them, they in turn agree to the Claimant’s entirely distinct offer from that license which is ‘to park otherwise than in accordance with the license for a charge of £100’.

 

15.  The signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage location, size, content and font has been audited and approved by the International Parking Community (“the IPC”). The site plan attached to this statement at exhibit “GSL1” evidences that there are sufficient signs on the Relevant Land, these are marked by way of the ‘x’ indicators as shown on the plan attached. The terms of parking were readily made available to all motorists using the land.

 

16.  It is the driver’s responsibility, to check for signage, check the legality and obtain any

authorisation for parking before leaving their vehicle. The signage on site is the contractual

document. By parking in the manner in which the Defendant did, the charges were properly

incurred.

 

Defendant’s Defence:

17.  The defendant has filed a defence, defending the claim. He has raised various grounds of defence which I will now address in turn under the following headings.

 

Registered Keeper/ Driver:

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18.   The defendant admits to being the registered keeper of the vehicle, but alleges that she was “at work elsewhere on the day in question” and therefore denied being the driver.

 

19.  Firstly, the defendant refers to “day” in question but is asked to note that she has been issued with three charges as listed above. Therefore she is asked to clarify which particular day she refers to.

 

20.  Secondly, with regards to the issue of the Defendant not being the driver, at the time the charges were issued to the vehicle my company applied to the DVLA electronically for details of the keeper. In response the DVLA confirmed that the Defendant was listed as the keeper at the address of “XXX”.

 

21.  Subsequent to which the defendant was issued with notification of the charge, in respect of each charge as follows:

 

22.  Further to the above, the notices provided the defendant with the opportunity to transfer liability had she not been the driver. The reverse of each notice contained a section titled “tell us if you were not the driver of the vehicle”. However, no response or driver nomination was forthcoming in respect of any notices.

 

23.  As the charges still remained unpaid, my Company instructed Gladstones Solicitors Ltd to seek

recovery of the same. The Defendant failed to nominate who was driving prior to these

proceedings being issued (which is required under the paragraph 5(2) of the Act).

 

24.  Notwithstanding the above, the Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

 

25.  The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.

 

26.  In the alternative, if the Court is not able to infer that the Defendant was, in fact, the driver then the Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 (‘the Act’) which states: “The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.”

 

27.  It is denied that no evidence has been provided to the defendant regarding the charges.

Attached are a copy of all notices that were sent to the Defendant at her last known place of

residence and this being the address as provided by the DVLA.

Claim form and Service:

28.   It is the Defendant’s obligation to ensure their details are correct and up to date with the DVLA and my company cannot be prejudiced if this information was incorrect. It is noted that the Defendant states the claim form was not served at her current address, she has not provided any evidence which would support that the address confirmed by the DVLA was incorrect.

 

29.  I submit that we acted accordingly based on the information we had at the time proceedings were issued. Prior to proceedings being issued, Gladstones Solicitors conducted an Experian trace search which returned with the possibility of a different address. A copy of the letter before claim initially sent to ‘XXX’ was further sent to ‘XXX on the 30/07/2019. This being the address the defendant confirmed for herself as her current address now, however no response was forthcoming.

 

30.  The defendant states within her defence that she moved addresses in “January 2017” but has failed to provide any evidence in support of the same. If indeed this was the case, it was her duty to ensure this information was validly updated with the DVLA and my company cannot comment on this.

 

31.  Therefore, the Claim Form was served on the Defendant at their last known place of residence pursuant to CPR 6.9, this being the information as provided by the DVLA. If indeed the defendant was residing at the latter address she is asked to clarify why she did not acknowledge the letter before claim, it was owing to no response that my company then proceeded to litigate and issue Court proceedings.

 

Particulars of Claim

32.  The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:-

i) The date of the charge;

ii) The vehicle registration number;

iii) The Parking Charge Notice number;

iv) The amount outstanding;

v) That is relates to parking charges; and

vi) That it is debt.

 

33.  I refer to paragraph 5.2A of Practice Direction 7E which states that “the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form”.

 

34.   Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge which is the subject of this claim.

 

35.  The original charges provided the Defendant with a period of 28 days to either pay or appeal the charge. Should the Defendant have been unsure as to the details and nature of the parking charge, the Defendant could have got in touch with my Company at this point to enquire further information. The full procedure to contact my company was set out in the correspondence. It is noted that nothing was received from the Defendant.

 (TBC.....)

duckieb

(Gladstones' WS cntd...)

Authority to enforce charges

1.     It is maintained the details of the contract by which the Claimant company has been instructed to manage the Relevant Land are not relevant to the Defendant’s breach of contract with the Claimant company, for the sake of completeness, a copy of the aforementioned contract is attached with this statement.

 

2.     As the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Relevant Land on behalf of the Landowner.

 

3.     Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186

1. “The Upper Tribunal’s reasoning on this part of the case was that since VCS did not have

the right under its contract with the car park owner to grant a licence to park, it could not

have contracted with the motorist to grant such a right. In my judgment there is a serious

flaw in this reasoning.

2. The flaw in the reasoning is that it confuses the making of a contract with the power to

perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.

If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock

market it is commonplace for traders to sell short; in other words to sell shares that they

do not own in the hope of buying them later at a lower price. In order to perform the

contract the trader will have to acquire the required number of shares after the contract

of sale is made. Moreover, in some cases a contracting party may not only be able to

contract to confer rights over property that he does not own, but may also be able to

perform the contract without acquiring any such right. Thus in Bruton v London and

Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held

to have validly granted a tenancy of the land to a residential occupier. The tenancy would

not have been binding on the landowner, but bound the two contracting parties in

precisely the same way as it would have done if the grantor had had an interest in the

land.

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Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on

the question whether VCS had the power to enter into a contract. Having the power to

enter into a contract does not, of course, mean that VCS necessarily did enter into a

contract with the motorist to permit parking”.

 

4.     I trust the above clarifies to the Defendant the charge was issued to the Defendant with the correct and valid authority, any argument from the Defendant to suggest otherwise is simply rejected.

 

Maximum can recover is on Notice to Keeper (“NTK”):

5.     The Defendant avers the maximum amount recoverable is £100.00. The Sign does indicate the applicable charge for failing to comply with the terms of the sign is £100.00, however, the sign is clear that enforcement action may incur additional costs for which the Defendant will be liable on an indemnity basis. Further, the Letter Before Claim also highlights the amount due may increase in respect of costs and interest if a claim has to be issued.

 

6.     "The Accredited Trade Association (the IPC), of which my Company is an Accredited Operator;

states in its code of practice -"parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/or other documentation.

Where a parking charge become overdue a reasonable sum may be added. This sum must not

exceed £60.00 (inclusive of VAT where applicable) unless Court Proceedings have been initiated.”

 

7.      In view of the Defendant not paying the charges within the 28 days allowed or the further 28 days allowed after the Notice to Keeper was sent, the Parking Charge has become overdue and a reasonable sum of £60.00 has been added in respect of each. The Defendant was offered the opportunity to pay a discounted sum, however the Defendant refused to do so.

 

Charge is excessive:

8.      The charges sought are industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. The same is merely a reflection of the loss incurred by the Claimant as a result of the Defendant’s breach of contract and subsequent pursuit of the outstanding agreed charge owed by the Defendant which remained unpaid.

 

9.     In the case of ParkingEye v Beavis 2015 it was held that an £85.00 charge was neither

extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is not, therefore, excessive.

 

10.   The recent decision of the Supreme Court also made it clear that the charges are not penal nor do they have to be reflective of the parking operator’s loss. Furthermore, they are they are entitled to be at a level that provides a deterrent effect.

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11.   Whilst the Defendant is of the view that the charge in this matter are excessive, her opinion does not prevent her liability towards payment of the same. Furthermore the original charge that was issued on the day of the incident provided the Defendant with the opportunity to pay a reduced charge with regards to settlement. This was open to the Defendant for a period of 14 days, no response was received from the Defendant. The Defendant may feel as though the charges have been “inflated”, in light of the above it is clear that the charge has correctly been issued and as a result of the Defendant failing to address the same sooner, the charges have rightly so increased.

 

Costs:

12.   My Company has included a claim for costs as is its right on issuing proceedings. The costs claimed are in accordance with CPR 27.14 and CPR 45. We are entitled to claim recovery of legal costs pursuant to CPR 27 and CPR 45, in addition to the debt incurred by the Defendant as a result of their non-payment of the charge.

 

Abuse of Process:

13.   Having considered the Defendant’s defence, it is noted that the Defendant has invited the Court to strike out the claim, based on “an abuse of process.

 

14.   Arguments raised by the Defendant were each considered in the unreported appeal of Britannia Parking Group Ltd v Matthew Semark-Jullien [County Court at Southampton] [16 July 2020] (the “Britannia Appeal”), where HH Judge Richard Parkes QC found at paragraph 35 (in relation to striking out Claims) the following:

“35. … it is wrong in principle to strike out a claim as an abuse of process on the footing

that the claimant knows it to be inflated and unlawful, when there is no evidence that the

claimant knows anything of the kind, and no proper basis on which such a state of mind

can be inferred. As Vos LJ said in Alpha Rocks, litigants should not be deprived of their

claims unless the abuse relied on has been clearly established, and the court cannot be

affronted if the case has not been satisfactorily proved.”

 

15.   Further, in relation to whether or not the additional charge falls foul of the decision made by the Supreme Court in the Beavis Case, HH Judge Richard Parkes QC in the Britannia Appeal found at paragraph 36 the following:

“36. … the debt recovery charge does not fall foul of the decision of the Supreme Court in

Beavis. The court was not considering debt recovery charges in that case.”

 

16.   In relation to whether or not the inclusion of the term for costs is an ‘unfair term’ for the purposes of the Consumer Rights Act 2015, HH Judge Richard Parkes QC in the Britannia Appeal found at paragraph 37 the following:

“whether or not the term is an unfair one, so that the charge is irrecoverable, cannot be

determined simply on the basis that the term ‘fits’ the examples given at paras 6, 10 or 14

of Schedule 2: those are simply examples of terms that may be unfair. Whether or not the

term is in fact unfair depends on the factors stated at s62(4) and (5), but the judge did not

refer to that section or take those matters into account.”

 

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17.   Finally, even if the Court should conclude the term is unfair for the above purposes (where the Claimant opposes this view), HH Judge Richard Parkes QC in the Britannia Appeal found at paragraph 38 the following:

“even if it had been right to regard the debt recovery charge as unlawful, the effect of s67

of the 2015 Act is in principle that the contract otherwise continues to have effect. In

other words, the claim for the £100 PCN did not necessarily fail as a result. However, the

judge appeared not to have considered s67.”

 

18.   In view of the above, the Claimant’s position is that issuing its Claim with contractual costs included is not sufficient reason for its Claim to be struck out. In addition, as the contractual costs were not considered in the Beavis Case, the Defendant cannot rely upon the same. Finally, the Claimant submits that the term is not an unfair term for the purposes of the Consumer Rights Act 2015 and that even should the Court conclude the same (which is opposed), this is not sufficient for those charges accepted by the driver upon parking to also be struck out.

 

The Current Debt

19.   In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.

 

20.  My Company is an Accredited Operator of the International Parking Community (IPC) who prescribes a maximum charge of £100. The Code of Practice states:

"Parking charges must not exceed £100 unless agreed in advance with the IPC. Where

there is a prospect of additional charges, reference should be made to this where

appropriate on the signage and/ or other documentation.

Where a parking charge becomes overdue a reasonable sum may be added. This sum

must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have

been initiated."

 

21.   In view of the Defendant not paying the charge within the initial 28 days allowed or the further 28 days allowed after the Notice to Keeper has been sent, the parking charge has become overdue and a reasonable sum of £60 has been added.

 

22.  The Sign states the prescribed charge for failing to comply with the terms is £100, however it also specifies where a parking charge becomes due an application may be made to the DVLA for the keeper’s details. Non-payment will result in additional charges which will be added to the value of the parking charge and for which the keeper will be liable on an indemnity basis”. Further the Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued. Due to the Defendant not paying the charge the matter was passed to my Company's legal representatives, Gladstones Solicitors Ltd, who were instructed to commence legal proceedings. The potential additional costs mentioned above are now sought.

 

The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

Le_Kirk

I think you should put your strongest point first.  As this is in support of your defence and, in that defence you stated you were at work elsewhere on the date of the event, you should start with that and explain what proof you are going to show, e.g. letter from employer, time sheet, Google Maps time line etc.

Coupon-mad

Don't do a supplementary WS and don't use Britannia v Crosby (the Southampton case).  This is way out of date   

Read more recent WS like the one by @jrhys

jrhys

This is my witness statement that leaned heavily on @robertcox999 's one. Please don't just submit it. Take inspiration from it.

https://drive.google.com/file/d/10_T0OSPwcewp5MrODOIvxFOa1GSKa7Oz/view?usp=sharing

Umkomaas

jrhys said:

This is my witness statement that leaned heavily on @robertcox999 's one. Please don't just submit it. Take inspiration from it.

https://drive.google.com/file/d/10_T0OSPwcewp5MrODOIvxFOa1GSKa7Oz/view?usp=sharing

Once again, thanks for helping with this @jrhys. 🙂

duckieb

Thank you so much all. Thank you at @jrhys - I will have a look and see what bits I can adapt/change to fit my case. I will revise the witness statement and post a redo here in case anyone has time to look at it! At Le_Kirk - that is a very good point and I don't know why I hadn't thought of obtaining that evidence. I have my rota from the time but have contacted my employer at the time to see if they can give me something too. 

duckieb

Hi all - I have contacted the courts and it seems like my hearing will be in-person, although they will tell me just beforehand if it will change to a telephone hearing. The uncertainty is annoying but what can one do. They also told me they won't print any bundle over 50 pages, and so I will drop it into Wandsworth County Court. My question is whether I still email the whole bundle to Gladstone's? Or just my witness statement (they already have my defence). I was thinking about emailing the bundle to court anyway and Gladstone's at the same time, but didn't want to confuse things with them having 2 bundles and giving the judge the wrong one.