Trace Letter - Is it too late to ask the landowner

Coupon-mad

You mean too many characters to show us?  Just put it across two replies (minus your ID).

You know from our instructions and the court hearing directions that you also have to send your WS and evidence to the claimants solicitor of course.  You did that too?

nick325i

No, not yet. Was about to. I guess I now could not change now I sent to court?

nick325i

IN THE COUNTY COURT

 

Claim No.: (Removed by Forum Team)

 

Between

Parking Charge Limited

(Claimant) 

 

- and -  

 

(Removed by Forum Team)

 (Defendant)

 

BUNDLE – TABLE OF CONTENTS

 

Contents	Page(s)
Witness Statement	2 – 8
POFA and CRA breaches	5
ParkingEye v Beavis	5
Lack of landowner authority evidence and lack of ADR	6
Costs	7
Conclusion	7
Statement of truth signed	8

 

IN THE COUNTY COURT

 

Claim No.: (Removed by Forum Team)

 

Between

Parking Charge Limited

(Claimant) 

 

- and -  

 

(Removed by Forum Team)

 (Defendant)

 

 

WITNESS STATEMENT OF DEFENDANT

 

 

1.           I am (Removed by Forum Team) and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.          In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Sequence of events:

3.          I am familiar with this car park and have used it for many years, as I coach the youth football team at this ground. I am aware of the restrictions and signage and I always pay to park.

4.          On the day in question I did the usual thing and park in an allocated spot and proceeded to make payment at the payment machine in the reception of the leisure centre. Quite often the machine crashes or is out of service but the usual protocol would be to give your number plate to the receptionist who just amends the system accordingly when it is back up and running. The cost is £1 so there is no reason for me not to pay but the fact is there is no other way of paying. Every effort was made for me to pay, even offering to pay the receptionist behind the counter.

5. The moment the notice came through I called the Leisure centre and a helpful lady said she will get the issue addressed. I was receiving more letters from BW Legal and wasn’t sure what to do as everything was shut due to lockdown. I had no way of contacting the leisure centre. I have never had an issue them taking my registration plate before.

6.  I would like to know who produced the document for the 87 other people deemed to have paid that day. Is it fully verified from all machines? I find it hard to believe that only 87 people attended the car park in the whole day as there are 6 teams alone that train on the pitches in the hour I am there. There are a number of netball teams in that hour too, not to mention the leisure facilities themselves. On Street, if a payment machine is faulty then parking enforcements are suspended. The evidence produced is not sufficient.

7. The Consumer Rights Act 2015 (the CRA) requires that the doctrines of good faith, transparency and fairness must underpin consumer contracts.  Car park operators have a duty of care and due diligence to keep the machines in order if they are going to demand charges from customers, and it is reasonable to expect that the parking operator takes responsibility for equipment maintenance by carrying out routine inspections to ensure that equipment is correctly functioning. 

8. Car parking operators can tell from their remote monitoring, when a system is not working and as such, ANPR enforcement should cease if there is no way for drivers to pay at the machine, as was invited when they entered the site.  Schedule 2 of the CRA includes paragraph 18 as an example of a term that is likely to be unfair: ''A term which has the object or effect of obliging the consumer to fulfil all of the consumer’s obligations where the trader does not perform the trader’s obligations.''

 9. My view that this was an unfair term because it was impossible for me to perform my part of the bargain due solely to their system failure, is in line with the view of Parliament with regards to the new Private Parking (Code of Practice) Act 2019.

10. The Code has now been published and I refer to it in more detail later, but In February 2018 during the first debate in the House of Lords about the new Bill, its sponsor, Sir Greg Knight MP, stated: ''If there are a number of payment machines and one of them is not working, that is not an excuse, but if there is only one machine or all the machines are out of order, that ought to be a perfect defence. The company operating the car park has in effect invited the motorist on to the car park to park the car on payment of a fee, and if it is not going to facilitate payment, it should not be able to extract a penalty. Rip-offs from car park cowboys must stop. Most parking operators have nothing to fear from the Bill, but we must stop unscrupulous operators who are undermining the whole sector with their bad practices.''

 

11. The facts in this defence come from the Defendant's own knowledge and honest belief.  The Defendant should not be criticised for using some pre-written wording from a reliable source.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed it after a great deal of research, after adding facts and reading the defence through several times because the court process is outside of their life experience and this claim was an unexpected shock.

12.  With regard to template statements, the Defendant observes after researching other parking cases, that the Particulars of Claim ('POC') set out a generic and incoherent statement of case.  Prior to this and in breach of the pre-action protocol for 'Debt' Claims, there were no photos nor a copy of the contract (sign) enclosed with any Letter of Claim.  The POC is sparse on detail or facts about the alleged breach, making it difficult to respond in depth at this time.  

13.  The quantum and interest has also been enhanced.  It is denied that the sum sought is recoverable and a significant chunk of this claim represents a penalty, per the authority from two well-known ParkingEye cases.  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC

14. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet here, the learned Judge also considered added 'costs'.  The parking charge was set at £75 (discounted to £37.50 for prompt payment) then 'admin costs' inflated it to £135.  At paras 419-428, HHJ Hegarty sitting at the High Court (decision ratified by the CoA) found that adding £60 to enhance the sum sought to £135 'would appear to be penal', i.e. unrecoverable.  

15.  The Defendant's stance regarding this punitive add-on is now underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators must comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

nick325i

16.  Adding 'debt recovery' costs, damages or fees (however described) on top of a parking charge is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

17.    This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs.  The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 or £70 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking.  Clearly an abuse of the court process.

18.  The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue.  According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'.  This despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and exposed as fact, in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis and are effectively Trade Body Board member colleagues passing motorists' data around electronically and inflating parking charges.  This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

19.  The Ministerial Foreword to the new Code is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

20.  These are now banned costs which the Claimant has neither paid nor incurred, and were not quantified in prominent lettering on signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists, and came far to late.  The driver did not agree to it.

21.  Whilst the new Code is not retrospective, it was brought in due to the failure of the previous two competing (self-serving) BPA & IPC codes of practice and the Ministerial Foreword is indisputably talking about existing cases when declaring the add-on to be 'designed to extort money'. A clear steer for the Courts from now on.

22.   This overrides the mistakes and presumptions in the appeal cases that the parking industry had been relying upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive or assisting with clarifying the law, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in niche private parking law and where the litigant-in-person consumers had no financial wherewithal to appeal further.

23.   In case this Claimant tries to rely upon those old cases, significant errors were made.  Evidence - including unclear signage and Codes of Practice -was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC.

 

POFA and CRA breaches

24.  Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with the other requirements (e.g. adequate signage, correct wording and dates of Notice to Keeper, and the existence of a relevant contract/relevant obligation that was properly communicated).  The Claimant is put to strict proof of full compliance, if seeking keeper/hirer liability under the POFA, because liability is not accepted by the Defendant. 

25.   Claiming unexpected ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the official Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA goes further than the UTCCRs, introducing a requirement for 'prominence' of both contract terms and 'consumer notices' (i.e. signage and any other notices/communications, including the timely service of any PCN in parking cases).

26.   Section 71 provides for the duty of court to consider the test of fairness. This includes whether all terms and notices were unambiguously and conspicuously brought to the attention of the consumer.  In the case of letters/the PCN, this means such communications must have been served.   In the case of signage, this must be prominent, plentiful, well placed and lit, and the terms clear and unambiguous.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and having regard to the requirements for transparency and good faith and as guidance, examples 6, 10, 14 & 18 of Schedule2.  

 

ParkingEye v Beavis is distinguished

27.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 PCN and overcame the possibility of it being dismissed as punitive.  However, their Lordships were clear that ‘the penalty rule is plainly engaged’ in these cases.  Their decision mentioned a 'unique' set of facts including the legitimate interest, site location and prominent, clear signs with the parking charge in the largest/boldest text.  The unintended consequence is that, rather than persuading Judges that these charges are automatically justified, the Beavis case facts (and in particular, the brief and conspicuous yellow/black warning signs) set a high bar that this Claimant has failed to reach.

28.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

24.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests.

29.   The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding any person reading them.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

30.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.  The CoA held that it was unsurprising that Miss Vine did not see the sign, due to "the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in statements, they have misled courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio.  

31.  Fairness and clarity of terms and 'consumer notices' are paramount in the new statutory Code and this stance is supported by the BPA & IPC Trade Bodies.  In the November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed:  "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." 

 

Lack of landowner authority evidence and lack of ADR

32.  DVLA registered keeper data is only supplied to pursue parking charges issued on private land, where there is an independently signed landowner agreement (this is part of the KADOE rules for AOS BPA or IPC members).  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, etc. and there has been no evidence that the freeholder authorises this Claimant to issue PCNs at the place where the vehicle was and/or for the reasons given.  Nor is it known what the land enforcement boundary and start/expiry dates are or were.  The Claimant is put to strict proof of same and that they have standing to enforce charges by means of civil litigation in their own name.

33.  The Defendant further avers that the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR).  Both the rival parking Trade Bodies provided 'appeals services' which reportedly fail to consider facts and rules of law properly, and find in favour of parking firms most of the time: e.g. despite purporting to be decided by legally qualified Adjudicators, the IPC's version upheld appeals in just 4% of decided cases, as reported in their 2020 Annual Report.  Both POPLA and the IAS will be replaced by the DLUHC's new Appeals Service as soon as possible and looking at the Appeals Annex in the new Code, disputed cases such as this would very likely have been cancelled without the need for court, had a proper ADR existed.  The fact is, there was no fair ADR on offer and - whether or not a defendant engaged with it - the Claimant's reliance upon it is not something that should sway the court into a belief that a fair process was followed before litigation.

 

34.   In the matter of costs, the Defendant asks:

(a) for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that, in the event of a late Notice of Discontinuance (which the Defendant is aware happens where parking firms use and abuse the court process as a cheap form of debt collection) any paid-for hearing is not vacated but continues as a costs hearing. The Defendant may seek a finding of unreasonable conduct by this Claimant, and may seek costs pursuant to CPR 46.5.  CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))." 

 

Conclusion

35.  The abusive conduct by parking firms operating under previous Codes (described by several District Judges as 'self-serving') has caused consumer harm on a grand scale.  The Defendant believes that knowingly inflated claims such as this should not be allowed to continue, and invites the court to dismiss the false 'costs' element at least, and to consider whether an appropriate sanction is to resume the policy of striking out enhanced parking claims altogether.  With the DLUHC's ban on additional costs, there is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCS to only deal with the tiny percentage of cases that reach hearings and to allow such claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers every year, who suffer inflated CCJs or pay more than they should at or before Letter of Claim stage.

36.   The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant. 

 

 

Statement of Truth

Signature:

 

Date: 11/04/22

 

Coupon-mad

You'll have to amend it if you failed to add the statement of truth wording under the heading 'statement of truth'.  See NEWBIES thread 2nd post.

I didn't see any exhibits mentioned?   You aren't appending any evidence then?

Also looks like you copied a defence in the second half, not ricky balboa's WS? I'm sure he had some Exhibits.

This is why we wanted to check it first.

Jenni_D

And please edit the above posts to remove the claim number and other personal/identifiable details!

(Act in haste, repent at leisure)  

nick325i

I dont suppose I can now retract?
I cant believe I just rushed this. Its causing me so much stress I think it may be better to come to an agreement and pay no?

go-on-then

No,  you do not pay but please slow down and check things.  Your personal info must be removed, the world can see it !

Trainerman

Do you really want to give money to a company that is trying to scam you over £1 which you actually tried to pay? These scammers depend on systems going wrong so that they can send you a bill for a inflated charge.

I am sure one of the really clued up regulars will be able to help you  in this.

nick325i

I will, apologies. Personal stuff happened yesterday and today I rushed to get this out. Ok, I am back in the room!

What is best to do now?
I haven't yet sent to the solicitor. I dont think going to court with a half-arsed WS I sent is going to work in my favour which is why I suggested putting an end to it