Parking fine help, claim form received from DCB Legal

Not_A_Hope

Well panicking is what the scammers want as this results in most people paying up. You could adapt the witness statements produced by @Nosy or  @jrhys or robertcox999 to suit your case

Coupon-mad

The WS by @jrhys and @Nosy are the best 2021 examples of how the bundle and exhibits should all look, with pages numbering and evidence, plus a costs assessment.

But if course there is now more to add to the 2021 efforts!

https://forums.moneysavingexpert.com/discussion/comment/79013061#Comment_79013061

https://forums.moneysavingexpert.com/discussion/6333036/breaking-news-government-has-announced-the-statutory-code-of-practice-and-enforcement-framework/p1

Happy reading, no need to panic.

Kayteeheych

Ok am starting to get things together. 

In other forums I keep seeing a lot of talk of referencing other cases as part of a witness statement. Are there standard cases which apply to many similar claims or am I going to have to try and find these from scratch? If so I haven't the faintest idea where to find such things. 

When should I expect to receive a copy of the claimants witness statement or is this usually past the deadline in which Im expected to submit my own?

Coupon-mad

Yep, they are shown in the WS by @jrhys and @Nosy.

Not_A_Hope

Don't expect to see the claimants witness statement before you have to submit yours. You should however have time to look in detail at their statements and bring any issues to the attention of the judge or if you wish and gave time send a supplementary witness statement

Kayteeheych

Not_A_Hope said:

Don't expect to see the claimants witness statement before you have to submit yours. You should however have time to look in detail at their statements and bring any issues to the attention of the judge or if you wish and gave time send a supplementary witness statement

This is really helpful thanks. Just curious to know what they intend to present as “evidence” as would like to comment upon this but if I can do that later I will do so. Still trying to hang on to the thread of hope that they’ll just bother to pay the fee but at least I’m getting prepared for the worst in case they don’t.

 Have almost got a draft ready to post here for feedback. Really appreciate all the help everyone has given so far 

Kayteeheych

1. I am NAME of ADDRESS and I am the Defendant against whom this claim is made. The facts 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.

3. It is admitted that the Defendant was the registered keeper and driver of the vehicle  in question (registration XXXX XXX) but liability is denied.

4. My Defence is repeated and I will say as follows:

Sequence of events and signage:

5. On the XX of XX, 2016, I was the driver of the vehicle and had my then 2 year old daughter as a passenger in the rear of the vehicle. I was unfamiliar with the local area and chose to park at the facility as recommended by a friend who resided in the area, who advised that free parking was offered for customers of the shopping centre. Despite the amount of time having passed since this date my recall of these details is accurate as this was my first and only time visiting this particular location and therefore has remained noteworthy.

6. On the approach to the parking facility I observed that there were signs directing drivers to the location of the entrance to the parking facility as well as information relating to the maximum height of vehicles which could enter the facility but no visible signs stipulating if the car park was managed or any terms in operation. Once I had entered the facility I drove around until I found the nearest available parking space, then parked my vehicle. Due to the amount of time lapsed since the event and the unfamiliarity with this location I am unable to recall exactly which level of the multi-storey facility my vehicle was parked on or the layout of the facility at this time. 

7. On exiting my vehicle with my daughter I looked around the facility to see if I could identify any signage to clarify the terms of use of the site, being unfamiliar with this location I wanted to ensure there were no restrictions in place such as needing to display a ticket in my window or having a parking ticket validated via one of the retail units within the shopping complex. I checked multiple floors of the facility and could not find any evidence of a payment machine or any signs directing customers as to any terms in operation at the site, and there did not appear to be an attend on duty to ask.  

8. After taking reasonable steps to look for signage around the site I then returned to my vehicle once more to collect my bags, taking the opportunity to inspect other vehicle windows as I passed to check if any of these had on display any tickets or permits for the site, as I did so I was approached by another user of the car park who informed me that the site was free to park. Satisfied that my car was legally parked I then entered the shopping complex to utilise the facilities there. On both entry to and exit from the car park I noted that there were ample parking spaces available for other users of the site and therefore would dispute any claims of loss of earnings or damages which the Claimant may make. 

9. I did not see any signs during my entry to, stay at or exit from the parking facility. As such I can only reasonably conclude that there were no such signs. Had there been any clear indications that parking at the facility was subject to a time restriction, I would have been sure to leave the facility within this time frame. The Claimant refers to signage being displayed, however as seen in the photographs of my vehicle shown on the Notice to Keeper of which a copy (exhibit XX) was provided by the Claimant following a Subject Access Request in October 2021, there are no such signs visible in either of the photographs. In fact from the poor quality of the photographs provided it is impossible to determine where these images were actually captured.

10. At the time of visiting this facility I did not take any photographs as evidence of lack of signage as I was of the genuine belief that parking was provided free of charge, having always been meticulous to observe the terms of any parking facility I have used throughout many years of driving without incident this did not occur to me to do so. I have since obtained photographs (exhibits XX & XX) showing the entrance to the car park via a historical search of Google Maps. The image from July 2015 shows the entrance to the car park and it can be seen clearly in this image that there is no signage on display relating to the terms and conditions for use of the facility. A subsequent image which was captured in July 2016 (exhibit XX) also shows the entrance to the car park, albeit from a slightly different viewpoint but it can be concluded from this image that no additional signage was placed between these two time periods. I therefore put the Claimant to strict proof that appropriate signage was displayed and in place on the date of XX XXX 2016.

11. In considering the breach of contract element of the claim, I have considered the Code of Practice (CoP) of the British Parking Association (BPA), of which the Claimant is an accredited member. In order to be an accredited member of the BPA, compliance with the CoP is compulsory. Only by subscribing to its CoP are private parking firms able to ask the DVLA for details of a vehicle’s registered keeper. 

12. Regarding Entrance Signs, The British Parking Association (BPA) Code of Practice  (COP)  version 6 which was in affect at the date of the alleged breech of contract, stipulates in section 18.2 that a standard form of entrance sign must be in place at the entrance to the car park which must follow some general principles (see exhibit XX). I contest that any such signage was in place on the date in question, therefore it cannot be assumed that I agreed to enter into a contract with the Claimant. 

13. In consideration of signage throughout the car park, The CoP states in section 18.3 that signs should be placed around the car park to allow drivers chance to read them at the time of parking or leaving their vehicle (see exhibit XX). These signs must be conspicuous and legible so that they are easy to see, read and understand. I put the Claimant to strict proof that such signs were on display in a prominent location visible from where my vehicle was parked on the date in question. 

14. In preparation for this case I have conducted a significant amount of research relating to enforcement of parking charges at the site in question, through this research I identified that a change in regulations was introduced circa XX 2016 which caused public outcry amongst many local residents who were also subject to Parking Charges due to being unaware of a change in parking terms at the site. The BPA CoP also stipulates that when changes are made which materially affect the motorist, this should be made clear via the signage on site (section 18.11). It is also recommended where changes will impose liability where none existed previously that a grace period be considered to allow visitors to the site to adjust and familiarise themselves with the changes. No specific time period is set out by the BPA for this, however I would argue that since the incident in question took place only one month following the introduction of these changes and local residents were still unaware of the changes that this did not constitute a suitable grace period. I append within my statement a copy of a published local news article showing the outcry within the local community at the time (exhibit XX). 

The Beavis case is against this claim

15. The 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 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.

16. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay. As such I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage is precisely the sort of “concealed pitfall or trap” and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge. 

Abuse of process - the quantum

17. In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is disingenuously described variously as “debt collection costs”, “additional charges levied to cover the cost of recovery”, “additional administration costs”, "debt recovery costs”, "initial legal costs” and “recovery costs”, which further inflate the estimated total to £286.14. The added £60 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). The Judge concluded that such claims are proceedings with “an improper collateral purpose”. Leave to appeal was refused and that route was not pursued. 

18. 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. 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”. 

19. According to the Protection of Freedoms Act 2012, Schedule 4 (exhibit XX) the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant “Notice to Keeper”, and the ceiling for a “Parking Charge” as set by the Trade Bodies and the DVLA is £100. This also depends upon the Claimant fully complying with the statute.  It is submitted that the Claim is artificially inflated, as pleaded, constitutes double recovery. 

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

20. 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

21. As a litigant-in-person I have had to spend a considerable amount of 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 worrying about my safety and of the integrity of my credit records.

22. Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX) 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). In support of that argument, I first draw the Court’s attention to the fact that the Claimant was aware (exhibits XX and XX) that there was no signage at the entrance to the parking area and no signage visible from my vehicle, and that any terms or conditions of parking outlined on any elsewhere-placed signage could not be binding. Such matters, forming a significant part of the Claimant’s business model, can be reasonably considered to be within the Claimant’s expertise, and the Claimant could have avoided this claim.

23. Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.

Kayteeheych

Please see the post above for my first draft of the witness statement, I would really appreciate any constructive feedback on this Have adapted some of the templates recommended to me by @Coupon-mad as well as a those from a few other successful cases found on this forum. 

This may seem a stupid question, obviously when posting on here users are posting with various details removed to protect identity, but in the case of appending evidence for exhibit and this is referenced for example as "XX-01" should the XX be replaced with my initials? Or if not initials should this be some other form of sequential identifier?

Thanks again to all who have assisted so far! Feeling a lot less panicked now I have something more solid in place

Not_A_Hope

Hi KTH, a busy week and your thread got buried below many others. I think you have made an excellent start and am aware your deadline may be imminent. If you have not yet completed and sent your WS I have a few comments which you may chose to include. Hopefully some of the experts may add their thoughts.

1. Para 8 - I would delete the reference to ample parking places / no loss as this has not been a legal point since POFA 2012
2. Para 12 - typo 'breech'.
3. I would add a para that demonstrates the case law regarding 'unclear terms'. Something like this :-

 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

(iii)      Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where 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.  To pre-empt that, in fact 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.

4. Challenge the PPCs authorisation to issue parking charges by adding this para:-

 The claimant has not provided any evidence within their claim that the freeholder of the land has authorised them to issue parking charges or what the land enforcement boundary and start / expiry dates in a contract are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than  a bare licence to act as an agent 'on behalf of' the landowner.

5. Finally you might wish to review the statutory Code of Practice that is about to become law and include references to this for the judge including abstracts from the foreword which is scathing of the practices of many PPCs. You might add references to the new COP especially signage and the additional costs which government have agreed are unfair.

Keep going. You are nearly there. Chances are they will pull out or the judge will find in your favour

Kayteeheych

Not_A_Hope said:

Hi KTH, a busy week and your thread got buried below many others. I think you have made an excellent start and am aware your deadline may be imminent. If you have not yet completed and sent your WS I have a few comments which you may chose to include. Hopefully some of the experts may add their thoughts.

1. Para 8 - I would delete the reference to ample parking places / no loss as this has not been a legal point since POFA 2012
2. Para 12 - typo 'breech'.
3. I would add a para that demonstrates the case law regarding 'unclear terms'. Something like this :-

 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

(iii)      Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where 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.  To pre-empt that, in fact 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.

4. Challenge the PPCs authorisation to issue parking charges by adding this para:-

 The claimant has not provided any evidence within their claim that the freeholder of the land has authorised them to issue parking charges or what the land enforcement boundary and start / expiry dates in a contract are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than  a bare licence to act as an agent 'on behalf of' the landowner.

5. Finally you might wish to review the statutory Code of Practice that is about to become law and include references to this for the judge including abstracts from the foreword which is scathing of the practices of many PPCs. You might add references to the new COP especially signage and the additional costs which government have agreed are unfair.

Keep going. You are nearly there. Chances are they will pull out or the judge will find in your favour

Thanks so much for this, will make the final tweaks tonight as need to submit tomorrow. 

Am I right in thinking I have to send the witness statement to the claimant? The letter regarding the hearing says I have to file all documents to the court and the claimant so I have presumed this means my witness statement but if I’ve assumed wrong I don’t want to give them more than I have to! Also if this is correct do I send this to DCB legal who are acting on their behalf or to the parking company themselves?

Thanks again!