LBCC - County Court Claim - Enterprise Parking Solutions

happych4ppy

Coupon-mad said:

Have a look at the WS by @rapidon.

That WS covered Excel v Wilkinson, as did the WS by @jrhys

But both were done in 2021, before the debt recovery fees were banned by the published Code of Practice, so you have that advantage to include!

Thanks, if I want to post my final version here for future reference (so maybe others can download/use it?) what's the best way to do it?

Coupon-mad

Best to copy and paste it across two replies as that means no poster has to click on a link, and it's much quicker for us to cut & paste to advise or comment on a section.

happych4ppy

Coupon-mad said:

Best to copy and paste it across two replies as that means no poster has to click on a link, and it's much quicker for us to cut & paste to advise or comment on a section.

WS final version (post 1 of 2)

Sequence of events and signage: 

3. I did not see any signs upon entering the car park, nor did I see any signs whilst driving into the car park, through the car park, nor whilst parking in the car park. Any signs were either not clearly displayed, not easy to read and/or not written in big enough font to read. I did not see any signs while leaving the car parked, nor whilst walking towards and entering the venue for which the car park serviced. Whilst inside the venue, and now a paying customer, I was neither informed, nor reminded about the parking charge service, nor was it made abundantly clear that a parking charge service was in operation. Had the parking charge service been clear to me, I would have willingly cooperated with the service. 

4. The BPA Code of Practice https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2 020_v8(2).pdf page 12 (Exhibit XX-01) states that “driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start... Entrance signs play an important part in establishing a parking contract and deterring trespassers.” It also states that “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” At the point of entry, the entrance terms and conditions are not visible or readable and do not mention anything relating to risk of paying a fine of £100. 

5. The Claimant provides no evidence that any signage claimed to be at the site on the material date was visible from any car entering, parking in or exiting the parking area. Any photographs purporting to show such signage on a different date cannot be considered sufficient to evidence their presence on the date in question. In addition, any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance nor from any areas. 

6. Even taken as an extreme close-up, with no proof as to its visibility from the parking area, the signs that the Claimant has presented as evidence has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. Note the small font and difficulty in reading this in comparison to the Beavis case sign (Exhibit XX-02), which demonstrates clear terms and conditions with the penalty charge in the largest font on the signage with high contrast black on yellow (ref Paragraph 22-27.). As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, even if I had seen signage of the sort presented by the Claimant – which I didn’t – no contract to pay an onerous penalty would have been seen, known or agreed. 

7. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge, visitors were expected to know to input their Vehicle Registration Number (VRN) somewhere inside the venue or to pay. This was far from clearly signed. It is contended that the Claimant failed to alert visitors to an unexpected obligation to pay/register VRN or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.'' 

8. The Claimant provides images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of having not paid/registered VRM or not being a patron of the facility. Regarding proof of breach, the Claimant is put to strict proof. 

No Evidence of Non-Payment/Registration 

9. On 22nd September 2021 I issued my initial Subject Access Request upon the Claimant (Exhibit XX-03), requesting all data held and evidence they will rely upon including machine record etc. As seen in their initial reply October 14th 2021 (Exhibit XX- 04), the Claimant states “we are not able to provide a payment machine record to you for the day/time in question due to ICO guidance on handling of vehicle registration mark data by car park operators”. On Upon further request asking for what guidance they are relying upon and exactly how they intend to evidence the case, the Claimant replied “ The ICO has made it clear that all VRM data held by Car Park Operators with a DVLA KADOE license are not permitted to disseminate the data publicly.” To which I replied, “The ICO saying PPCs are not allowed to 'disseminate the data publicly' simply means you are not allowed to put data about people/their cars on public view on your website or elsewhere. "Publicly." That is not to say that you can't provide a machine log with VRMs partially redacted, as PPCs do all the time for POPLA/IAS appeals, and will certainly have to in evidence for court. Please provide me with machine logs, because you are now wilfully withholding evidence that the pre-action protocol requires to be shown to the Defendant.” (Exhibit XX-05) I have since had zero contact from the Claimant. Regarding proof of breach, the Claimant is put to strict proof. 

10. On November 23rd, I received an email someone at Smart Parking Ltd. (Exhibit XX- 06) In the email they state, “recently Smart Parking Ltd have acquired Enterprise Parking Solutions – and therefore, I will now be continuing the Subject Access Request you have submitted.” They then continue to explain how they “can confirm that through the platform Enterprise Parking Solutions utilise – they do not have a facility to track payments made and therefore, this cannot be provided to you” I would therefore assert that the Claimant does not have sufficient evidence to make their case. Again, regarding proof of breach, the Claimant is put to strict proof. 

Abuse of process – the quantum 

11. The quantum and interest has also been enhanced beyond the parking charge sum. It is denied that the sum sought is recoverable and this claim seems to represent (in whole or in part) a penalty, applying the authority from two well-known ParkingEye cases. The court's attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67. (Exhibit XX-07) Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet this was a case where the learned Judge also considered added 'costs'. The parking charge was set at £75 (discounted to £37.50 for prompt payment) then increased ultimately to £135. At paras 419- 428, HHJ Hegarty sitting at the High Court (decision later ratified by the Court of Appeal) found that adding £60 on top and taking the sum sought to £135 'would appear to be penal' and was unrecoverable. 

12. In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £167 that is disingenuously described variously as 'Administration Fees', ‘debt recovery charges’, ‘additional administration costs’, ‘Legal representative’s costs’ and ‘court fee’. The added £167 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is Exhibit XX-08). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued. 

13. After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. 

14. My stance regarding the pseudo 'debt recovery/admin fees' enhancement is supported by the Government. The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice/private- parking-code-of-practice 

15. The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unjustified and 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." 

16. This particular Claimant continues to add a sum on top of each PCN, despite indisputably knowing that these are banned costs which they have neither paid nor incurred. 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'. Although the parking industry flooded both public consultations, some even resorting to masquerading as consumers, the DLUHC saw through this and identified in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were clearly '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 data around electronically. Parking firms such as the Claimant have not incurred any additional costs (not even for their own letters) because the full parking charge itself more than covers what is merely a 'letter chain' business model that generates a healthy profit. 

17. The Ministerial Foreword to the new Code is unequivocal, saying this about 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." 

18. The Government banning such add-ons altogether must be viewed as a clear steer for the Courts in existing cases and overrides the mistakes and/or presumptions in the appeal cases the parking industry used to rely upon (Semark-Jullien, Wilshaw or Percy) where Circuit Judges who appeared to be somewhat inexperienced in niche private parking law, DVLA rules about landowner authority and the proper application of the CRA 2015, were led in one direction by legally trained counsel for the parking firms, and were not in possession of the same level of facts and evidence as the DLUHC considered. 

happych4ppy

Coupon-mad said:

Best to copy and paste it across two replies as that means no poster has to click on a link, and it's much quicker for us to cut & paste to advise or comment on a section.

WS final version (post 2 of 2)

Protection of Freedoms Act 2012 and Consumer Rights Act 2015 

19. 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 parking 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). 

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

21. Section 71 provides for the duty of court to consider the test of fairness and 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 2015 has been breached due to unfair terms and/or unclear notices, pursuant to s62 and having regard to the requirements for transparency and good faith, taking into account as guidance, examples 6, 10, 14 & 18 of Schedule2. 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished 

22. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN and overcame the possibility of it being dismissed as punitive and unrecoverable. 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, the car park location and prominent, clear signs with the parking charge in the largest/boldest text. The unintended consequence is that, rather than persuading Judges that all parking 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. 

23. 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 the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests. 

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

26. 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, would 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 Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''. In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio. 

27. Fairness and clarity of terms and 'consumer notices' are paramount in the new statutory Code and this stance is supported by the BPA and IPC Trade Bodies. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, 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." The Defendant's position is that the terms the Claimant is relying upon were unclear/unfair and the Beavis case is fully distinguished. 

Lack of landowner authority evidence and lack of any fair ADR 

28. 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. 

29. 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. 

My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14 

30. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e). 

CPR 44.11 – further costs 

31. As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records. 

32. Therefore, I am appending with this bundle a fully detailed costs assessment (Exhibit XX-09) which 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). 

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. 

Witness’ signature: 

Date: 

happych4ppy

I never received anything from the Claimant or Solicitor. The Court document says both parties had until 11th March to serve on each other and court. Is this a good sign?

1505grandad

Your posted draft Defence stated (as does the WS):-

" Had the parking charge been clear to the defendant, the defendant would have willingly cooperated and paid for the service.)"

Para 9  -  should you be talking about machine logs not being provided by the claimant as you clearly state above the you admit never making a payment? 

Coupon-mad

And yes it's a good sign; maybe they will discontinue.

Remove this from the end of 13 because DJ Hickinbottom had a case appealed, so best not to mention this:

Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''. 

Le_Kirk

happych4ppy said:

I never received anything from the Claimant or Solicitor. The Court document says both parties had until 11th March to serve on each other and court. Is this a good sign?

Have you then filed and served your WS now, otherwise you will also be late!

happych4ppy

1505grandad said:

Your posted draft Defence stated (as does the WS):-

" Had the parking charge been clear to the defendant, the defendant would have willingly cooperated and paid for the service.)"

Para 9  -  should you be talking about machine logs not being provided by the claimant as you clearly state above the you admit never making a payment? 

Thanks. That was on my Defence, my WS now states "Had the parking charge service been clear to me, I would have willingly cooperated with the service." As a paying customer the parking should technically be free, as it states on the entrance signs "Free for Customers" however it wasn't made clear to me that I was supposed to register VRM as the terms on conditions were on smaller signs in the car park and not at the entrance. And even then the font is tiny. Do you think it'll make a difference? I've tried to emphasise the machine log in paragraphs 9 and 10 and how they can't prove that that I didn't register/pay as they don't have any machine logs to prove it. Only thing they provide is entrance and exit photos of my car and the times. My argument is that they failed to make it clear that I was supposed to (as a paying customer) register VRM (and that they have no evidence, and the signs aren't clear enough), not necessarily that I didn't pay. What do you think? will my argument hold up?

happych4ppy

Le_Kirk said:

happych4ppy said:

I never received anything from the Claimant or Solicitor. The Court document says both parties had until 11th March to serve on each other and court. Is this a good sign?

Have you then filed and served your WS now, otherwise you will also be late!

Yeah I filed and served just in time. Still waiting to hear from the Claimant. What can I expect to happen next?