Witness Statement and Trial Date - CEL Parking fine

mamangam

All...Apologies for the delay. PFB the Witness statement I have put together. Request you to kindly review and help..

In the County Court at Reading

Claim No.XXXXXX

Between

Civil Enforcement Ltd (Claimant)

And

XXXXXXX

Witness Statement of XXXXXDefendant)

1.    I XXXXXX of XXXXX,Newbury is the registered keeper of the vehicle in question in this case. I am underrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

2.    I deny that the Claimant is entitled to relief in the sum claimed, or at all.

3.    Attached to this statement is a paginated bundle of evidence marked Exhibits AA1 to AA2 to which I will refer.

4.    On XXX 2018, I parked at the car park at Newbury Retail Park, while doing shopping at the shops in retail park. I live locally, and have parked here and shops frequently. I am therefore very familiar with this land and surrounding areas. Before the date in question, I have never received any form of ‘Parking Charge Notice’ or invoice the same as or similar to the one I later received from the Claimant, alleging that I had parked in the car park without displaying a ticket and therefore breached a contract which I had allegedly entered into when entering the car park. It was not clear to me that this was an operational car park with time limits for free parking.

5.    This ‘car park’ has no signage on entry to make clear to drivers that the land is a car park with time limit for free parking. This is clear from the picture provided in Exhibit AA1, which is a Google Streets view of the ‘car park’.

6.    There is no distinctive signage for drivers to see on parking their vehicles in the area which I parked, indicating the time limit for free parking or the alleged contract that drivers apparently enter into on entry to the car park. As you can see from Exhibits AA2 and AA3, which is taken after I received the PCN on daylight, signage is sporadic and quite far, some of which is at least seven feet in height, making it difficult/impossible to read.  The signage explaining the terms and conditions of the ‘contract’ in font that is too small to see unaided and is not concise so as to explain the terms and conditions clearly to a layperson.

7.    Further, at the time of my parking in the car park, it was nearly dark and drizzling as far as I can remember between 15:00-19:00 in December. There is no street lighting illuminating the car park or signage, and no additional lighting appears to have been installed to aid drivers in either recognising that this is a car park on entry, or identifying and being able to read the terms and conditions set out.

8.    Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample and the charge clear. I submit that Civil Enforcement Limited do not comply, and the signs described in my statement are on contract to the type approved in the Parking Eye v Beavis case.

9.    In addition, a reasonable interpretation of Lord Denning’s 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

10.  Breaches with regard to signage on the property mean that a valid contract could not have been offered to any individual (including visually impaired) and therefore with respect to this claim, no contract was ever in place; thus rendering a breach impossible.

11.  In addition to the ‘parking charge’, the Claimant has artificially inflated the value of the Claim by adding costs of £80 which have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. 

12.  CPR 44.3 (2), Exhibit TJB5, 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.”

13.  The standard wording for parking charge/debt recovery contracts is 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.

14.  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 and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

15.  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.

16.  Unlike this Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. 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, and all parking firms are very familiar with this case.

17.  In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £180. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case.

18.  The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract. The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair.

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

20.  Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made.

21.  The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage. 

22.  The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity. I aver that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

23.  Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.'' 

24.  The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019. Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute. In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.'' 

25.  In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice. Further, the Particulars of Claim are embarrassing and incoherent failing to detail any conduct or liability that could give rise to a cause of action. There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

26.  The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction. The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

27.  Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach. Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

28.  This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

29.  The Claimant is in breach of the very rules in place to protect its business and through obscuring the procedures as set out in trade associations codes of Practise and POFA schedule 4, the Claimant maintains a way of confusing motorists and harassing them for grossly inflated Parking charges.

30.  The Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA, The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

31.  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

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

Signature of Defendant:

Name:

Date:

 

Le_Kirk

1.    I XXXXXX of XXXXX,Newbury is the registered keeper of the vehicle in question in this case. I am underrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

Maybe better as: -

1.    I XXXXXX of XXXXX,Newbury is I am XXXXX of XXXXX and am the registered keeper of the vehicle in question. in this case. I am underrepresented unrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

Good to see you have the up-to-date Statement of Truth.

1505grandad

Paras 11 and 17  -  are they the correct amounts?  -  previous post suggests £70 debt collection charge.

mamangam

Le_Kirk said:

1.    I XXXXXX of XXXXX,Newbury is the registered keeper of the vehicle in question in this case. I am underrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

Maybe better as: -

1.    I XXXXXX of XXXXX,Newbury is I am XXXXX of XXXXX and am the registered keeper of the vehicle in question. in this case. I am underrepresented unrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

Good to see you have the up-to-date Statement of Truth.

Thanks Le kirk..I shall update.the same.

mamangam

1505grandad said:

Paras 11 and 17  -  are they the correct amounts?  -  previous post suggests £70 debt collection charge.

I had mentioned £80 including the £10 interest amount hey have claimed. Adn £180 is the total amount which hey CEl has mentioned on their Witness statement. Should I change it?

mamangam

Also, could anyone guide me on the following please: 
1. Should I mention that I had offered £50 for settlement which they have rejected especially because the court is directing to settle outside?
2. From an Exhibit perspective, I am planning to attche 3 photo graphs of the location which shows there is no clear visibility of the signs. Anything else which I need to attach as exhibit like any judgement copy, photographs etc?
3. I will also prepare the statement costs and pubish here. Any thing else which I need to prepeare?

Le_Kirk

1. In your witness statement you put anything and everything that helps your case and supports your defence.  If you have offered a settlement figure (and have proof it it) and it was rejected by the parking company, this will be taken by the judge as an attempt to settle without involving the court. 
2. You attach as evidence anything that supports and backs up what you have said in your defence and witness statement.  If it doesn't support you, don't use it.  Don't know what you mean by "any judgment copy"
3. Yes prepare your summary costs assessment and show it here.  Advice on this is in the NEWBIE sticky.

Umkomaas

1. Should I mention that I had offered £50 for settlement which they have rejected especially because the court is directing to settle outside?

Was this in writing?  Did you mark the offer 'Without Prejudice, Save as to Costs'?

mamangam

Umkomaas said:

1. Should I mention that I had offered £50 for settlement which they have rejected especially because the court is directing to settle outside?

Was this in writing?  Did you mark the offer 'Without Prejudice, Save as to Costs'?

It was via email and the offer was not marked without prejudice. Below is what I wrote:
Hi

Could you please let me know whether you would like to settle the above claim for £50? 

The costs which you have added in your claim are disproportionate and blown up which I cannot accept and neither you have any arguments to support the claim. I am also aware of the fact that that you are currently misusing and abusing the process to threaten the people to claim these money form people. Court is no were going to accept all these costs.

Still I am ready to settle this case by paying £50 as this will help in court's  time for other important cases than these kind of petty issues aware. 

Let me know asap if you are willing to settle this case or not.

Their response was:

Dear Sir,

Unfortunately, we are unable to accept £50 at this time and as stated in our cover letter with our witness statement, we are willing to accept £125.

1505grandad

Interest is not included in the "global sum" so the amounts are £70 and £170 respectively.