DCBL - county court

Bizzle17

Coupon-mad said:

No.  You looked at ricky's Supplementary WS which was a short extra bit he added recently, that completely irrelevant to a non-Britannia case.  When you are directed to read someone's thread, don't just skim-read the end or you find and learn nothing.

I advised you to adapt his witness statement (his first WS) and explained what to look for in it (so it's obviously not that second SWS he added later because that doesn't include any of what I said you need) and I advised you how to find out what the bundle needs to look like, cover sheet, etc.

You are so late this needs to go in Tuesday.  I hope the Judge doesn't give you a hard time for breaching the Order deadline but this is very urgent now.  Do it anyway.  Hopefully better late than never.

I see, yes I have the ws doc now..Im currently amending it but I really feel like I don't have much to say.  The ws I have read all have so much detail to what had happened on the day, whereas in my case I do not recall any of these fines.  Anyway, I'll post what I have.

Thank you

Coupon-mad

Yes, show us your draft.

Jenni_D

But don't dilly-dally ... you need it posted here by 1pm (ish) so people can help you refine it before you compile (as PDF) and email it by 3.30pm today.

Bizzle17

In the County Court at xxxxx

 

Claim Number: xxxxxx

 

 

 

First Parking LLP                       (Claimant)

 

V

 

 xxxxxxxxxxxxxxx                                        (Defendant)

 

 

WITNESS STATEMENT OF DEFENDANT

FOR TELEPHONE HEARING ON xx/xx/xxxx

 

 

 

1.       I am Mr xxxxxx of xxxxxxxxxxx, 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 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 and signage

 

3.       I received parking tickets for two alleged contraventions for 17/01/2019 and 09/03/2020.  These were disputed as I have no recollection of using such parking facilities.

 

4.       The appeal process is daunting and I am aware that the wording has to be correct and presented in a legal manner.  I therefore used a template to assist with this.

 

5.       I decided to appeal the parking charge as I had at no point seen a visible parking sign which is in contravention of the British Parking Association (BPA) Approved Operator Scheme (AoS) version 7 2018 section 18.2 & 18.3 under which the claimant is an active member. (Exhibit xx-08)

 

6.       It is therefore denied that the claimant’s signage is capable of creating a legally binding contract.

 

7.       A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit xx-09 for comparison.  In this case, the signage fails to adhere to the standards laid out by The British Parking Association (BPA).  The BPA Code of Practice says “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand” It also states that “ Signs play an important part in establishing a parking contract” with drivers.

 

ParkingEye v Beavis is distinguished

 

8.       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. (Exhibit xx-10)

 

9.       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. 

 

10.    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.

(Exhibit xx-11 for paragraphs of ParkingEye v Beavis)

 

POFA and CRA breaches

 

11.    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). 

 

12.    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).

 

13.    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. 

 

Lack of landowner authority evidence and lack of ADR

 

14.    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.

 

15.    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.

 

 

Abuse of process - the quantum

 

16.    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 67.  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.

 

17.    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

 

18.    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." 

 

19.    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 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.

 

20.    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.

 

21.    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." 

 

22.    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. I did not agree to it.

 

23.    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.

 

24.     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.

 

25.     It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years.  And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along.  As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit xx-12) where she went into great detail about this abuse.

 

26.    The Semark-Jullien case is now unreliable going forward, and is fully distinguished now that the Government has at last stepped in and exposed and published the truth.  This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover.  The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much-needed clarity for consumers and Judges across England and Wales.

 

27.     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.

 

CPR 44.11 - further costs

 

28.    I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).   In support of that argument, I remind the court that the defendant appealed and engaged with the Claimant at every step. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.

  

Jenni_D

3.       I received parking tickets invoices for two alleged contraventions contractual breaches for dated 17/01/2019 and 09/03/2020.  These were disputed as I have no recollection of using such the designated parking facilities.

4.       The appeal legal process is daunting for a Litigant in Person and I am aware that the wording has to be correct and presented in a legal manner.  I therefore used a template to assist with this.

A suggested amendment per above. (Obviously I've used bold and strikethrough to highlight the edits - you don't do that). Now I'll start reading the rest - this reply may be updated in a piecemeal fashion.

Item 5 ... this seems in contradiction with item 3 - if you've no recollection of using the facilities then there's no way you could have seen any sign as you weren't there? (Maybe someone else can help rewrite this to make more sense).

Coupon-mad

Bizzle17 said:

Thanks all for responding, I wish I had found this forum sooner.  I have already submitted my defence around 30 minutes ago..P2 and P3 read as follows:

2.  It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

As the registered keeper of the vehicle the defendant is not admitting or denying being the driver during this alleged parking event, they do not recall this event.

3.  The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. To state that a contract to park was created when it is expressly forbidden is perverse. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

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

Just a reminder what the defence said and the claim is for TWO PCNs in early 2019 then March 2020 (just before lockdown) and the Particulars show that this event was in a hospital:

https://imgbb.com/0Jkn6Fx

Claim form above.  Just for context for us all.  I guess the PCNs there were £80 each?

I have not read your draft WS yet. What was the car doing at a hospital, do you work there?  If you do, DO NOT say you have no recollection of parking there.

What was the car there for?  You will know that.

Don't try to be evasive.  Judges hate that.  Be honest.  Be the driver if you were!

You've said you got 'tickets' which sound like PCNs on the windscreen.  In which case you can't also say you don't remember parking there...where you got tickets...see what i mean?

You say you appealed?  Do you mean appealed, i.e. at the time of those PCNs in 2019 and 2020?

An 'appeal' is not your 2021 defence.  Not the same thing.

Bizzle17

Coupon-mad said:

Bizzle17 said:

Thanks all for responding, I wish I had found this forum sooner.  I have already submitted my defence around 30 minutes ago..P2 and P3 read as follows:

2.  It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

As the registered keeper of the vehicle the defendant is not admitting or denying being the driver during this alleged parking event, they do not recall this event.

3.  The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. To state that a contract to park was created when it is expressly forbidden is perverse. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

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

Just a reminder what the defence said and the claim is for TWO PCNs in early 2019 then March 2020 (just before lockdown) and the Particulars show that this event was in a hospital:

https://imgbb.com/0Jkn6Fx

Claim form above.  Just for context for us all.  I guess the PCNs there were £80 each?

I have not read your draft WS yet. What was the car doing at a hospital, do you work there?  If you do, DO NOT say you have no recollection of parking there.

What was the car there for?  You will know that.

Yes the PCNs were £80 each.  I do not work at the hospital.  I believe on both occasions it was for a walk in check up.

There was an additional driver on my insurance if that helps?

Coupon-mad

Don't try to be evasive.  Judges hate that.  Be honest.  Be the driver if you were!

You've said you got 'tickets' which sound like PCNs on the windscreen.  In which case you can't also say you don't remember parking there...where you got tickets...see what i mean?

You say you appealed?  Do you mean appealed, i.e. at the time of those PCNs in 2019 and 2020?

An 'appeal' is not your 2021 defence.  Not the same thing.

Just re-write your facts honestly.  You are going the right way to get on the very wrong side of the Judge right now.

I fear for your outcome at the hearing, as you are doing all this off-piste, late and rushed.

This is not a forum-assisted case but at least please take advice now while you can, and read the new statutory Code of Practice before the hearing so you know what to say about the abuse of adding fake '£120 costs' on top of two £80 parking charges that already more than cover the very minimal costs of the operation.

Very late WS and evasive 'nothingness' in your statement and you don't even appear to have appended PCM v Bull as an exhibit yet, despite hanging your hat on that case on your defence.  Which we didn't advise but you were late with the defence too and rushed it.  

KeithP

Bizzle17 said:

Coupon-mad said:

Bizzle17 said:

Thanks all for responding, I wish I had found this forum sooner.  I have already submitted my defence around 30 minutes ago..P2 and P3 read as follows:

2.  It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

As the registered keeper of the vehicle the defendant is not admitting or denying being the driver during this alleged parking event, they do not recall this event.

3.  The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. To state that a contract to park was created when it is expressly forbidden is perverse. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

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

Just a reminder what the defence said and the claim is for TWO PCNs in early 2019 then March 2020 (just before lockdown) and the Particulars show that this event was in a hospital:

https://imgbb.com/0Jkn6Fx

Claim form above.  Just for context for us all.  I guess the PCNs there were £80 each?

I have not read your draft WS yet. What was the car doing at a hospital, do you work there?  If you do, DO NOT say you have no recollection of parking there.

What was the car there for?  You will know that.

Yes the PCNs were £80 each.  I do not work at the hospital.  I believe on both occasions it was for a walk in check up.

Most people remember a visit to a hospital... unless of course you go there so frequently... in which case you would understand the parking arrangements.

Bizzle17

Coupon-mad said:

Don't try to be evasive.  Judges hate that.  Be honest.  Be the driver if you were!

You've said you got 'tickets' which sound like PCNs on the windscreen.  In which case you can't also say you don't remember parking there...where you got tickets...see what i mean?

You say you appealed?  Do you mean appealed, i.e. at the time of those PCNs in 2019 and 2020?

An 'appeal' is not your 2021 defence.  Not the same thing.

Just re-write your facts honestly.  You are going the right way to get on the very wrong side of the Judge right now.

I fear for your outcome at the hearing, as you are doing all this off-piste, late and rushed.

This is not a forum-assisted case but at least please take advice now while you can, and read the new statutory Code of Practice before the hearing so you know what to say about the abuse of adding fake '£120 costs' on top of two £80 parking charges that already more than cover the very minimal costs of the operation.

Very late WS and evasive 'nothingness' in your statement and you don't even appear to have appended PCM v Bull as an exhibit yet, despite hanging your hat on that case on your defence.  Which we didn't advise but you were late with the defence too and rushed it.  

Im not purposely being evasive, but I do know that they have a walk in check in clinic that myself and others use.  Others have used my car before, but I cannot prove this.

When I say that I appealed I mean the initial response to the PCN once they got my details from DVLA.

I did state that I feel like there's not much I can say here, the sequence of events are that I don't remember.

I appreciate that everyone here is helping a lot and I am taking this seriously.

Are you saying that this template is incomplete?  Ive not seen the PCM v Bull part

Im now going to read the new Code of Practice.