Napier/BW Legal ticket paid for but incorrect car reg entered

Ibulis

Thanks so much LDast for your quick and clear response - 1 follow-up Q: Do I send my Defence along with my WS?

LDast

Your defence was submitted ages ago through the CNBC. You are now submitting your WS to your local court where the hearing is scheduled..

Ibulis

Coupon-mad said:

Using an ancient WS from 2021 is far too old.  Start again.

Recent good ones are by:

@Defendant911

@Milliered

@Harry77

Could you be a little clearer about which parts of my WS are too old? Is it the layout, the content? (I deliberately left out the longer sections of the template you provided, but will add those in for my next attempt) I've looked at the three WS you recommend and @Harry77 refers to the Claimant's WS - I was under the impression that I wouldn't receive this until the deadline of 14 days before the hearing therefore will have already submitted my own WS and won't be able to update it. I did however receive a bundle from bwlegal with the photos from the car park over a year ago so is this all that they'll be relying on, or should I contact them to ask what will be in their WS?

Coupon-mad

I'd include whatever you want to say about the photo evidence supplied last year.  And hope they send the WS a few days early, which they almost always do.

The 2021 version WS is very out of date, in that it doesn't mention the DLUHC draft IA and even pre-dates the statutory Code.

Ibulis

Thank you for the extra info @Coupon-mad, much appreciated.

Ibulis

Regarding the reference to the Parking Eye v Beavis case which is often cited in WS as a means to contest the additional charges levied by private parking firms - Napier Parking have quoted the same case in their 'Final reminder' and thoughtfully provided a hyperlink calling it 'a landmark Supreme Court decision in favour of a private parking company'!

Is this their way of trying to head off one of the most popular arguments do you suppose?!

Ibulis

I have now 99% completed my WS, I just need to track down various copies of Acts, etc to also include as exhibits and I have now included reference to the DLUHC draft IA in what I hope is the correct way. If anyone has the time to scan and comment on any obvious mistakes, I would be very grateful. I should also point out that this is not about entering the incorrect registration plate details as I originally thought but using an incorrect location code - it only took Napier Parking and BW Legal 3 years to make this clear to me!

Ibulis

(Usual blurb here)

 

Table of contents:

• Witness statement
• Exhibit 01: Copy of payment transaction to RingGo
• Exhibit 02: Copy of bank statement showing payment
• Exhibit 03: Copy of letter from BW Legal dated 29/12/2023
• Exhibit 04: Copy of Notice to Keeper from Claimant dated 04/03/2020
• Exhibit 05: Copy of FCN details
• Exhibit 06: Photographic evidence of old ticket displayed in car windscreen
• Exhibit 07: Photographic evidence of ticket machine displaying locator id 2195
• Exhibit 08: Map showing location of RingGo location code 2195
• Exhibit 09: Map showing location of RingGo location code 8672
• Exhibit 10: Photographic evidence of ticket machine Terms & Conditions
• Exhibit 11: Final reminder letter from Claimant dated 08/04/2020
• Exhibit 12: Copy of letter from BW Legal dated 08/08/23
• Exhibit 13: Copy of Claim Form dated 17/11/23

 

WITNESS STATEMENT OF DEFENDANT

 

I, XXX, of XXX, will say as follows:

 

INTRODUCTION

I make this Witness Statement (hereinafter referred to as WS) in readiness for the hearing listed on XXX in XXX and in support of my Defence against the Claimant’s claim.

 

In my statement I shall refer to (Exhibits 1-11) 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

1. This matter relates to the Napier Parking pay & display car park at Milton Keynes train station where, on 29th February 2020, I paid for two days parking using the RingGo phone app. I have an account with RingGo and make my bookings and payments online. This leaves a record of the booking within my account on RingGo with a booking reference number and card payment receipt. 
2. I will now make reference to Exhibit 01 which is a VAT receipt from RingGo for £20.15 which shows that I did make payment to RingGo for the facility of parking at MK station car park for the full duration of my stay. Payment was made on 29 February 2020 at 8:51am to park my vehicle at said location on 29 February 2020 from 8:51am until 2 March 2020 8:51am.
3. However there is an error in the vehicle registration number supplied in this document (EOO5OPV not EO55OPV) which I took to be the reason for the Claimant’s argument. It wasn’t until December 2023 that the Claimant, via their legal representative, made it clear that it was the location code used that they are using as the basis of their claim against me. Neither the claimant nor their legal representative made any attempt to clarify this despite my numerous emails and phonecalls in which I mentioned the incorrect registration details as the cause of their claim.
4. I also have the bank statement showing the amount debited from my account (Exhibit 05).
5. When BW Legal first informed me of a PCN I did contact Napier parking directly to appeal the claim but was informed by them that I’d missed the deadline to do so.
6. The reason I’d missed the deadline is that the FCN from Napier Parking was sent to an old address (see Exhibit 04).
7. There was no parking contravention notice placed on the windscreen of my car when I returned to collect it therefore I was unaware that any contravention had taken place.
8. I now make reference to the Claimant’s statement as provided by BW Legal (Exhibit 03) that “you failed to make a valid payment for the Car Park where you parked” which contradicts the wording of the FCN which details the contravention as “Failure to clearly display a valid ticket/permit” (see Exhibit 02). However, the signage in the photo (in Exhibit 10) states “vehicles that possess a valid virtual permit are not required to display a ticket/permit.”
9. Exhibit 06 shows a photo of the front of my car with an out-of-date parking ticket inside the windscreen. It’s my belief that this piece of evidence is not applicable as when a driver pays using an app on their phone they do not receive a printed ticket and the ticket in the photo is not for MK Station carpark nor was it issued by Napier parking.
10. As noted in Exhibit 01 my RingGo payment was for location code 8672. I was informed by BW Legal that this location code does not relate to MK Station carpark but as you can see in Exhibit 09 this location is at MK station.
11. The Claimant provided a photo (Exhibit 07) of a ticket machine showing the location 2195. As you can see if you compare Exhibits 08 & 09 this is in an almost identical location to location 8672.
12. In their letter dated 10 June 2020 (Exhibit 06) Napier Parking used the phrase ‘Payment was not made for this location’ without clarifying that I had used the incorrect location code.

Unenforceable Additional Costs

 

13.  Exhibit 10 shows that the signage provides for a "£100 fixed charge for breach of any Term or Condition”, plus “additional charges of up to £60 for which the driver will be liable on an indemnity basis.” However, I submit that these "additional charges" are not defined anywhere in the signage or contract terms allegedly relied upon by the claimant, rendering them vague and unenforceable under the Consumer Rights Act 2015 (CRA), which requires that contract terms be both fair and transparent.

14.  In the Particulars of Claim, the claimant has added £60 per Parking Charge Notice (PCN), claiming this as "recovery costs." The claimant cannot impose additional costs that are not clearly stated in the contract (assuming a contract even existed, which is disputed). This lack of transparency violates Schedule 2, Paragraph 10 of the CRA, which prohibits unfair terms “that have the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.”

Penalty Charge, Not Genuine Pre-Estimate of Loss

 

1. Furthermore, these additional costs appear to be arbitrary and penal in nature. Under established law principles, such as , in CPMS v Akande [2024]and CEL v Chan [2023], the court found that vague and inadequate PoCs that failed to provide essential details were grounds for striking out the claim. The claimant’s PoC in this case suffers from the same deficiencies — lacking crucial information such as the specifics of the alleged contravention, the terms supposedly breached, or any supporting evidence.

16.  The claimant has provided no breakdown or explanation of how this amount was calculated or why it is appropriate. It can only be viewed as a punitive charge designed to penalise the defendant, which is contrary to established legal principles that prohibit excessive and unfair contractual penalties.

17.  The claimant’s demand for additional costs of £60 per PCN is entirely baseless. It is not supported by any clear contractual term, it violates the CRA's requirements for fairness and transparency, and it constitutes an unlawful penalty charge. The court should strike out this portion of the claim as unenforceable.

Failure to comply with Civil Procedure Rules 16.4

 

1. As seen in Exhibit 13 , the claimant’s Particulars of Claim (PoC) are insufficient to make me aware of the nature of the claim. In CPMS v Akande [2024]and CEL v Chan [2023], the court found that vague and inadequate PoCs that failed to provide essential details were grounds for striking out the claim. The claimant’s PoC in this case suffers from the same deficiencies — lacking crucial information such as the specifics of the alleged contravention or the terms supposedly breached.

Claimant: Napier Parking’s belligerent response

 

1. To the best of my knowledge, neither the Claimant nor their legal representative have followed this matter up with RingGo to help resolve the dispute nor was any evidence provided that the parking attendant had checked my licence plate with RingGo.

 

20.  The Claimant used increasingly threatening language in their follow-up letter dated 8 April 2020 (Exhibit 11) as follows ‘should you force us to go to Court, we give notice of our intention to seek our full costs against you under Civil Procedure Rules 27.14 (2) (g) on the basis that you have wasted our time and that you do not have, and never advanced, any legitimate defence.’

 

Claimant's Failure to Satisfy the Burden of Proof

 

1. The claimant, in their correspondence (Exhibits 03 and 04), has failed to satisfy the fundamental burden of proof in this matter. Despite making various assertions about the alleged contraventions and my supposed liability, the claimant has not provided adequate evidence to support their claim. Specifically:

1. Lack of Evidence of Service: The claimant has not demonstrated that the Parking Charge Notices (PCNs), reminder notices, or any pre-action correspondence were properly served, as per the requirements of CPR 6.26. Having their legal representative simply produce copies of these documents is insufficient without proof of postage or delivery, and their failure to provide such proof severely undermines their claim.
2. Failure to Comply with CPR 16.4: As detailed earlier, the claimant’s Particulars of Claim (PoC) are woefully deficient and do not comply with the requirements of CPR 16.4. The PoC fails to provide sufficient detail about the alleged contravention, preventing me from fully understanding the case against me. Recent persuasive cases, such as CPMS v Akande [2024] and CEL v Chan [2023], demonstrate that such failures warrant the striking out of the claim.

(continued)

Ibulis

(Part 2)

Exaggerated Claim and 'Market Failure' Currently Examined By the Government

22.  The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added ‘debt collection’ costs are genuine. The £60 additional ‘debt collection’ costs appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015] UKSC67, parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £60 per PCN is neither justified nor explained.

23.  The Claimant has provided no breakdown or explanation of how this amount was calculated or why it is appropriate. It can only be viewed as a punitive charge designed to penalise defendants like myself, which is contrary to established legal principles that prohibit excessive and unfair contractual penalties.

24.  In my opinion, these fees were not paid out or incurred by this Claimant, who is to put strict proof of how they arrived at the enhanced amount claimed, 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.

25.  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.

26.  The Department for Levelling Up, Housing and Communities (now known as the Ministry of Housing, Communities & Local Government) first published its statutory Parking Code of Practice on 7th February 2022, “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."

27.  Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link for exhibit XXXXXXXXXX) a draft Impact Assessment (IA) to finalise the DLUHC Code was published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. (See exhibit XXXXXXXXX)

28.  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.

29.  With that sum in mind, 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’.

30.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre- action letter-chains 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.

31.  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 the Beavis case (See exhibit XXXXXXXX) Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) (See exhibit XXXXXXXXX) 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.

32.  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.

33.  In the Beavis case, 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.

34.  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.

35.  In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 (POFA) (See exhibit XXXXXXXXX) the sum claimed exceeds the maximum potentially recoverable.

(Just the Summary etc follows)

Coupon-mad

Ibulis said:

Regarding the reference to the Parking Eye v Beavis case which is often cited in WS as a means to contest the additional charges levied by private parking firms - Napier Parking have quoted the same case in their 'Final reminder' and thoughtfully provided a hyperlink calling it 'a landmark Supreme Court decision in favour of a private parking company'!

Which is absolutely correct. It was.

All parking firms use it.

Nothing to do with heading off any arguments about costs because Beavis didn't include any fake add-ons.  That's rather the point you are making by citing the paragraphs from it.