Discontinued =) - CP Plus / DCBL

Coupon-mad

Yes as per the thread and worked example WS by @ricky_balboa

uksniper

Hi all,

I've left this till the last hour but hopefully all is in order to submit later today!

Any comments on my witness statement would be duly appreciated.

 

1.       I am Mr XXXX of XXXX, 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

 

3.       The defendant parked the vehicle in question on an overflow carpark at the MOTO Hilton south service station at approximately 10:30pm in the evening. Upon parking the vehicle, the Defendant did not see any signage along their route that would indicate a maximum parking period was in effect. The defendant parked in this area to meet with their partner (since separated) who entered the defendant’s vehicle. At no time during the period of stay did the defendant leave their vehicle. At the end of the defendant’s period of stay, they returned directly home following the same route used to enter the service station.

4.       No less than 35 days later, the Defendant received an invoice from the Claimant requesting payment for the alleged contravention of parking in excess of the free period. It is not possible for such contravention to have occurred as the Claimant did not ensure that the Defendant or any other competent driver would have been made aware such terms were in effect.

 

5.       It is of importance that the route in which the Defendant accessed the overflow carpark was from “Hilton Lane”. This route allows entry to the service station via a side entrance rather than directly from the connecting / adjacent motorway. The route used by the defendant can be confirmed by the ANPR images taken by the Claimant.

Signage 

 

6.       The Defendant has since reviewed Google street maps imagery which shows two large signs indicating restrictions on free parking when entering the service station via its primary route (Exhibit XX-01, XX-03), however these signs are absent on entrance via the Defendants route by “Hilton Lane” with one of the signs angled so it’s contents are unreadable from the Defendants direction of travel (Exhibit XX-04). Even if the sign was readable from the Defendants direction of travel, it’s positioning would lead any reasonable person to assume it related to the entrance to the main car park which was not utilised by the Defendant.

7.       On the route to overflow parking from “Hilton Lane”, there is one smaller sign which would have been passed by the Defendant (Exhibit XX-07), however this was only notable by the Defendant specifically looking for such a sign following the invoice for parking being received. The sign is undistinguished against the other 7 signs within a drivers view (Exhibit XX-05) into the overflow carpark. The area is also inadequately lit at night time which relate to the conditions in which the Defendant had parked the vehicle.

 

8.       The Defendant notes since the alleged contravention, the Claimant has had an additional sign erected in the overflow car park (Exhibit XX-06). Exhibit XX-02 evidences this sign was not previously in place, presumably introduced as the Claimant was aware that there was an inadequate number of signs to inform users of the service station that limits to parking applied.

 

Breach of Code of Practice

 

9.       The Claimant states in her witness statement that her company is accredited by the British Parking Association (“BPA”) and it operates within the BPA Code of Practice (“Code”). The BPA Code at the material date was version 6. The assertation that the company operates within the Code is factually incorrect as detailed below. 

 

10.    ‘Appendix B – Entrance Signs’ from the BPA Code (Exhibit XX-09) in relation to signage states “A standard form of entrance sign must be placed at the entrance to the parking area.”. The Code further states “… you must tell us in advance and get our approval to amend the sign or not have one”. The Claimant has not complied with the code as the standard form of entrance sign was not displayed on the Defendants route to parking. Furthermore, the Claimant has not shown that approval was sought and confirmed by the BPA to not display an entrance sign.

 

11.    The Claimant is not able to purport that the only sign on the Defendants route to parking is an acceptable alternative as it does not meet the Code’s requirement on design principles (Exhibit XX-09). A minimum requirement for ‘Group 1’ text size which the Code states should stipulate the period of free parking is “60mm” in the relevant scenario “Parking area entered immediately by turning off a 30mph road”. The sign as shown in Exhibits XX-07, XX-08 demonstrates that the sign does not meet these requirements, and furthermore, does not meet the Code’s lowest expected text size of “50mm” where vehicles remain stationary next to the sign. Furthermore, the Code expects the size of text other than in Group 1 to be at least 50% of its size, presumably to ensure clarity to the reader. It is clear from the Exhibit’s below this is a further deviation from the code which is designed to ensure readers are aware limits on free parking are in place.

12.    The Code stipulates “You must deliver the letter to keeper within 14 days after the issue event occurred” in relation to ANPR issued tickets. This is also a requirement within Section 4 of the Protection of Freedoms Act 2012. The Claimant did not issue the letter as evidenced within their witness statement until 35 days later than the alleged breach of contract, a further example of how the Claimant disregards its obligations within legislation and the approved code of practice.

 

13.    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-10 for comparison. The signs relied upon by the Claimant breach the relevant code of practice and by virtue that the Defendant did not note its presence on parking demonstrates it was not bound to be seen.

 

The Beavis case is against this claim 

 

13.    This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.   

 

14.    I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

 

Redacted Landowner Contract 

 

15.    The Claimant has appended a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent. 

 

16.    In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. 

https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''.

POFA and CRA breaches

 

17.    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). 

 

18.    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).

 

19.    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. 

 

Abuse of process - the quantum

 

20.    The quantum and interest has also been enhanced.  It is denied that the sum sought is recoverable and the majority 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.

 

21.    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

 

22.    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." 

 

23.    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 £240 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. The enhanced claim of £240 in damages over the alleged parking charge of £100 (which remains disputed by the Defendant) is nothing short of extortive and unconscionable with no breakdown or methodology provided by the Claimant for its calculation.

 

24.    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.

 

25.    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." 

 

26.    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.

 

27.    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'.

28.    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.

 

29.    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-13) where she went into great detail about this abuse.

 

30.    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.

 

31.    In case this Claimant tries to rely upon those old cases where 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.

 

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. 

Full Pack with appendices: https://1drv.ms/b/s!Ar6JO1O_iqL4hEOnwx_3KcI-ReGh?e=wVlcaO

Thanks.

Coupon-mad

I can't see your link as it would need downloading but that's a good WS.

uksniper

So I've just had the first meeting by teams, the district judge stated there were points that held value but suggested that when the case proceeds to an in-person hearing, the parts on Beavis and Landowner contract would be better not argued as they would be dismissed. He did however appear optimistic about my other points raised.

Coupon-mad

Landowner contract can win so I'd ignore that!

And IMHO it's important to distinguish your case from Beavis but that's a quick intro sentence, nothing more.

Each Judge is different so don't drop any point out of hand.

uksniper

2 weeks until the big day..

Surprise surprise... letter of discontinuance

Another MSE win - thanks all!

Coupon-mad

Great news - well done you! Don't disappear just yet though... And congrats...

ANOTHER CP PLUS ONE BITES THE DUST!

What a waste of your time though. Get your revenge this Summer because £100 plus the false £70 'fee' is extortionate. It's truly horrible being pursued for £100 for no reason, by an ex-clamper aggressive firm, isn't it?

If you are not likely to pop back here every week to check, please set up email alerts for this forum and bookmark this thread (below) as we intend that one of us posts on it when the Government opens the Consultation:
https://forums.moneysavingexpert.com/discussion/6333989/mse-parking-ticket-appeals-guide-feedback#latest

Read the latest there. 

The PPC moneymakers have blocked the new Code with Judicial Reviews.  Stopped the declared and much welcomed parking code from February 2022, which stated that added £70 false 'DRA fee' extortion was to be banned and that parking levels would start at £50, like Council PCNs.

Together, we can stop the rotten parking industry from riding roughshod over the new statutory Code and the charge level caps, and otherwise bullying all motorists forever, using the regulation to gain kudos and status.

This Summer will be your chance to make a difference, plus any other drivers you know (family, friends) who are also fed up to the back teeth with the greedy and unscrupulous parking industry and the stranglehold they have on people.

We need high numbers of real victims to make a point of responding to this final Consultation.

Umkomaas

This process of court pursuit, forcing motorists to take up so many months of their time, their emotional and intellectual energies to defend themselves, or face a judgment in default, only for DCB Legal to issue a discontinuation late in the process, sits full square with immorality. 

This needs to be included in responses to Consultation #3.

patient_dream

uksniper said:

2 weeks until the big day..

Surprise surprise... letter of discontinuance

Another MSE win - thanks all!

Well done, DCBL and CP PLUS chicken out again.

The courts should crack down on these robo claims money grabbers because they are in general simple timewasters

uksniper

I have done a big write up on my linked in account, (no longer interested in my anonymity) tagging the CEO and a Director I spoke with plus the companies involved through this process from landowner onwards to express my disgust how they could have justified dragging something on so long to just quit!