LBC from DCB Legal instructed by Met for residential multiple fines

Coupon-mad

Debateable. Probably not.

For that amount of money (£2380 plus fees) I'd seriously consider going to Contestor Legal and paying them to argue your case for you.  They usually win, are specialists and can attend hearings for you.

This won't be discontinued.

Trouble is your WS is due on Monday.

Look at the final drafts by

@Defendant911

@Milliered

KeithP

parkingfinehelp1 said:

Here is my claim, am i ok to use CE vs chen in my witness statement please? 

It would've been useful, but did you mention Chan (not Chen) at all in your Defence?

Your poor masking makes it easy to see your vehicle's registration mark on that image you have shown us.

1505grandad

Defence appears to be here:-

https://forums.moneysavingexpert.com/discussion/comment/80578490/#Comment_80578490

"Yes filed the aos and now drafted my defence. Thanks all. I've taken bits of other defences found on this site and used the template from newbies thread 

3. It is admitted that on the material dates of the PCN’s, the defendants vehicle was almost certainly identified in the car park of Longfield House because this was the defendant’s home.

On occasion, when necessary, the defendant uses the car park on which his building stands, to unload goods / small children to his property as the defendant is the owner of a Leasehold flat on the Third floor of Longfield House which he purchased in 2015.

3.1. The defendant denies parking and only ever stopped to offload, briefly, causing no

obstruction, in an empty, unused parking bay.

3.2. As per the defendants lease, it gives full rights and liberty at all times to gain access to the building. Maintaining the resident’s rights to peaceful enjoyment of the property does not include allowing everyone to be unfairly charged by lurking ex wheel clampers for normal life like necessities like stopping to unload groceries, building materials, the Defendants young children etc. Clearly there is no legitimate interest supporting these circumstances and also no

reason for the Claimant to sit on their hands for nearly 6 years hoping to profit even further from exaggerated interest calculations.

3.3. The defendant avers that the operators signs cannot (i) override the existing rights enjoyed by residents and their visitors (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within their lease. The Defendant will rely upon the judgements on appeal of HHJ Harris QC in Jopson Vs Homeguard Services Ltd (2016) and of Sir

Christopher Slade in K-Sultana Saeed Vs Plustrade Ltd (2001)

4. Accordingly it is denied that

(i) There is any agreement between the Defendant and or driver of the vehicle and the Claimant

(ii) the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss

(iii) the Claimant has suffered or incurred any ‘damages or indemnity costs if applicable’ as

vaguely stated in the template POC

5. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

5.1. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Exaggerated Claim and 'market failure' currently being addressed by UK Government............"

Coupon-mad

Also search the forum for:

Jopson lease residential witness statement

LDast

It's a WS. No "the Defendant did this or that. Everything is in your words in the first person. I did this or that.

parkingfinehelp1

thanks for everyones help. I have contacted contestor Legal, they are too busy to assist me at the moment with submitting my WS but will attend court with me . So here its is, my shot at my WS statement. I left out chan as not mentioned in my defence. I have included some background info about my absent freeholder but unsure if it is relevant 

MET Parking Services                                                                (Claimant)

                                                                           V

    Joe Bloggs                                                                                            (Defendant)

 

                                                 Witness Statement of Defendant

1. I am Mr Joe Bloggs and I am the defendant against whom this claim is made. The facts below 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 1-12) 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:

Facts and Sequence of events

3.  It is admitted that on the material dates, I was the registered keeper of the vehicle. It is unknown who the driver of the vehicle was on the dates of the claimed PCNs, given the PCNs date back to 2018/2019  

8.  I have been a leaseholder at xxxxxxxxxxxx since 2015,  my partner since 2007, her mother and father from 1987. When we were expecting our first child in 2015, I bought into the property joining her on the current lease. (Exhibit xxx)

9.     xxxx House consists of 2 blocks of flats sitting along the busy main road xxxxx Road. There is no entry directly from the main xxxx Road, residents must access the residential blocks via the access road leading into to the carpark. ( Exhibit google maps xxx)

10.    Signs on entry to the flats are confusing and contradictory.  

i. First sign on entrance, ‘Strictly no Parking, Residents Only’ (Exhibit xxx)

ii. The 2nd sign sitting a few meters further along ‘Authorised Parking Only. The sign includes the wording No parking, stopping, waiting, loading or unloading on yellow or white lines, or hatched areas.

11. It is difficult to remember on each occasion of the dated PCN’s the reasons to why I was stopped outside my residence, in the empty car park of xxxx house, it would certainly be to unload/ load briefly for heavy shopping, escorting my disabled mother, carrying heavy shopping and my baby daughter up or down the stairs to my 3rd floor flat.  I use residential roads 10 mins walk away for parking and have used the carpark at xxxx house only for stopping to unload. 

i.   Whilst loading / unloading I was certainly not stopped on the yellow or white lines, or hatched                               areas. Therefore, I am not in breach of MET’s terms. 

12. Despite repeated attempts to call and explain, these set of circumstances have been completely ignored by the claimant. There only advice was to speak to the Freeholder. At no point has the claimant been willing to discuss any details I have presented to them.  Instead any challenge made by myself to this completely unreasonable charge has been met with generic templates from the claimant with no relevance to anything. It is clear and obvious that once it was established I was a resident and leaseholder for whom the whole point of parking regulation was at the property to protect residents, that the PCN should have and could have simply been cancelled swiftly ending the matter saving the courts time and my own time. 

13. The Freeholder of the Building at xxxxxx is Westbourne Ltd,  an absent landlord registered address Peregrine House, Isle of Man. (Exhibit? ). 

i.     Westbourne Ltd built into the airspace in 2005 adding an additional 2 storeys onto each of the two blocks, adding 16 flats.  At this time, Westbourne sold the car park area and garages to a connected company, Longstock 2006 Ltd, both companies sharing the same registered address Peregrine House, Isle of Man. (Exhibit 10?). 

ii.    Parking permits were only available to the 16 newly constructed flats and not available to the remaining leaseholders of the original 38 flats, despite some of the residents having parked there for many years

iii.   Myself and many other leaseholders have contacted the solicitors acting for carpark / building Freeholders, in an attempt to obtain parking permits and was point blank refused.

 

14.  I no longer have access to evidence the emails sent to the absent Freeholders solicitors to prove that I have attempted and been refused a permit

i.    I have managed to locate an older email correspondence between leaseholders objecting to further planning permission.  Here the parking situation is described by residents,  that not only leaseholders but delivery drivers and tradesmen being ticketed rigorously by Met parking ltd (exhibit xxx)

ii.   To prove the harassment of the leaseholders by not only the parking services but also from the Freeholder, I include evidence of the solicitors acting on behalf of the Freeholder claiming trespass and imposing a rent charge of £1000 per month for merely using an empty corner of the carpark to store the Council paladins for refuge. These are the same solicitors I approached for a permit by email and phone calls and was told the permits are only available for the new flats. 

15.   My property Lease has no mention of a parking permit required, (page 39, exhibit 7) ‘The lessee shall not park or permit any of its visitors to park within the curtilage of the building or the area at the rear shown edged green’. The map of the Edged green area (page 42, exhibit 7) is the garages at the rear of the carpark, nowhere near where I stopped to offload (exhibit xxx)

16.   The operators signs cannot override the existing rights enjoyed by residents and their    visitors that parking restrictions and that parking easements cannot retrospectively and unilaterally be restricted where provided for within their lease.

17.  I refer to previous cases such as Pace v Mr N (Exhibit xx-), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

18.    I refer to the case of Jopson v Homeguard (Exhibit xx-), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. The Jopson judgment is on point and persuasive on county court level decisions.

19. I did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.

i.   These costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged 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 too late. I did not agree to it.

20.   In Saeed v Plustrade Ltd (Exhibit xx-)  it was found the managing agent could not reduce the amount of parking spaces available to residents. This shows derogation from grant. (Exhibit xxx)

  

Exaggerated Claim and 'market failure' currently examined by the Government

21.    The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

22.     I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and

(ii)  a breakdown of how they arrived at the enhanced quantum claim, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

23.    This Claimant routinely pursues a disproportionate additional fixed sum(inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

24.  The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7thFebruary 2022, here: 

https://www.gov.uk/government/publications/private-parking-code-of-practice

"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."

25. Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

26. Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

27. With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.

28. The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

parkingfinehelp1

29. In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

30.   This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

31.   Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

32. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

CRA Breaches

33.   Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

 

34.   Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

 

35.    The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

 

36.   Now for the first time, the DLUHC's draft IA exposes that the template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit  xx)

 

The Beavis case is against this claim

37.    The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs - (see Exhibit xx-05) - set a high bar that this Claimant has failed to reach.

38.    Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See Exhibit xx- )for paragraphs from ParkingEye v Beavis).

In the present case, the Claimant has fallen foul of those tests. There is one main issue that renders this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

 

(ii). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) 'costs' are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top.  None of this was agreed by me, let alone known or even seen by myself, which their evidence shows doesn't warn me about a possible £100 charge. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

 

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

 

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space".

 

Conclusion

39.    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.

40.    The Defendant asks the judge to read the persuasive Judgment from His Honour Judge HHC Murch (August 2023), and deliver the same outcome given this is the same Claimant and the exact same vague POC. In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

41.   With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

42.   Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) 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))."  

Statement of Truth

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.

 

Defendant’s signature:

Date: xxx

Coupon-mad

I have contacted Contestor Legal, they are too busy to assist me at the moment with submitting my WS but will attend court with me.

I think for £2.5k at stake that's very sensible. Have they been told your hearing date and can definitely attend with you?

I skim-read your WS but spotted:

- para 3 jumps to para 8

- you say you can't recall who was driving but then in para 11 you (twice) say it was you!

- I couldn't see that you have mentioned an easement by prescription and the doctrine of lost modern grant (Google):

In a case where an easement (right of way and therefore to park a vehicle) has been acquired rather than expressly granted, there must have been at least 20 years’ continuous use.

You'll need a couple of extra WS from your partner's parents confirming that since YEAR they had a right to park there (or always did park cars there) unfettered by risk of parking charges or being accused of failing to display some jumped-up permit. No permission was needed and the permit scheme was foisted on the estate without any application to amend the leases (which they would never have agreed to).

Following the ruling in Welford v Graham [2017] UKUT 297 (TCC), applicants claiming a prescriptive right can rely on the presumption of use as of right by their predecessor in title, absent evidence to the contrary. In this case, the applicants sought to register the benefit of an easement (a right of way) over an adjoining yard to their workshop.

They argued that their predecessors in title had acquired the benefit of a right of way by long use of the way, relying on the principle of lost modern grant. It was submitted that there was an existence of an evidential presumption that the use was ‘as of right’ and without permission.

That argument was supported by a long line of authorities and “by good sense”. Mr Justice Morgan commented that the absence of such an evidential presumption would make little sense - the claimant would then have to adduce evidence that there was no permission at any point during the period of use.

He ruled: “Having called evidence to establish that the yard had been used openly and without interruption for a sufficient period of time, the Appellants had the benefit of an evidential presumption that such user was as of right.”

 

parkingfinehelp1

Thank you so much, i really appreciate all your help.

Submitted on Monday and included easement by prescription Welford v Graham. I will get an additional ws from parents. And I'll get back to contester to make sure they can attend with me in January.

Ill update you on the outcome. Best case for me is that the judge removes the added £70 on each ticket 

Coupon-mad

No that's the worst case scenario!  Best case (and very likely) is you win and the Claim is dismissed.