Court Claim for Old Milton Green Britannia parking unlawful camera

Coupon-mad

Looks fine but the template defence isn't about 'abuse of process'! It talks about double recovery but also covers unclear signs and no landowner authority.  Gives you all the stepping stones you need to reach witness statement stage.

ricky_balboa

Coupon-mad said:

Looks fine but the template defence isn't about 'abuse of process'! It talks about double recovery but also covers unclear signs and no landowner authority.  Gives you all the stepping stones you need to reach witness statement stage.

Ok thanks Coupon-mad. I did read through the template last night again and noticed that some of my previous defence was covered in the template. I sent the defence by email before the deadline and phoned the court business centre to check they had filed the defence, which they had.

Thanks to everyone for their advice on helping me complete the defence. I will now start researching peoples WS's to help comply my own.

ricky_balboa

I need to submit a WS and exhibits to the court and claimant solicitors.
Am i right to believe this can be done by email?
The future hearing is by telephone and not in person at court.

many thanks for any advice.

Fruitcake

Yes, by email is correct. This will be emailed to the court you have selected, not the CCBC, usually one near where you live, and the email address that the solicitors have used to send information to you.

Coupon-mad

This person is working on their WS and evidence - read all the advice and take it on board:

https://forums.moneysavingexpert.com/discussion/6300296/lbcc-county-court-claim-enterprise-parking-solutions/p4

And have you seen the news last month, that things have changed for the better recently?

Read the whole new DLUHC Code of Practice because it covers all the usual points and issues, and states the best practice position.

Not retrospective but you can use it in a WS to effectively say 'Here's what a professional parking firm should have done'.

I've created a new paragraph 4 onwards to replace the template defence, which covers the fact that debt recover pseudo 'costs' are now banned:

https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299

That new wording explains to a Judge why that is relevant for existing cases, too.

Some of that can be used in witness statements and we are encouraging everyone with a claim that includes the 'extortionate' fake costs to deal with that more robustly than ever.

It covers the very welcome statutory Code of Practice produced by the DLUHC on 7th February, the development for which included my personal involvement and attendance in the Government's Steering Group since 2020, which I was not able to admit until afterwards.

Fully discussed in bargepole's thread here, so newbies can understand this ground-breaking news and the changes:

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

  

ricky_balboa

The following is my WS. This needs emailing by Monday at 4pm to the court and claimant solicitors. The telephone hearing from Southampton court is to be held on April 22nd. I am yet to receive a WS from the opposing solicitors.

I will include several photos of the car park showing the lack of visible signs in the car park and attached parts of the relevant BPA  AoS  sections.. Any advice is gratefully received.

Witness Statement

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.         It was a busy Saturday lunchtime on 30th December 2019 and myself, my wife and two young daughters visited Greggs restaurant in Old Milton Green, New Milton for lunch. The car park for Greggs is not known to me and had never been visited prior.

4.         The approach and entrance to the car park is on a busy A-road (exhibit xx-01). I approached from the West and needed to turn right into the car park whilst concentrating on crossing any oncoming traffic from the opposite direction, pedestrians crossing the car park entrance and cars manoeuvring in the car park itself.

 5.         At the point of entry, the entrance terms and conditions sign is not visible or readable (exhibit xx-02 and xx-03).

 6.         After finding a suitable place to park, outside the entrance to The Flip & Tails shop.  I helped my daughters out of the car and safely led them to the walkway in front of the parade of shops. At no point did I see any visible parking signs from entering the car park, manoeuvring to a space, assisting my young daughters to exit my car or travelling along the walkway outside the shops to Greggs restaurant.

 7.         Whilst inside Greggs, and now a paying customer, I was neither informed, nor reminded to pay-and-display or register parking or validate parking, nor was it made abundantly clear that a parking service was in operation. Had the parking service been clear to me, I would have willingly cooperated with the service.

 8.         After finishing our brief lunch we returned to our car along the walkway, safely placed the children back into the car and manoeuvred to leave the car park. Again no car parking signs were visible during this process.

 9.         I waited at the exit of the car park for traffic to pass which were waiting on Southern road to enter the busy A-road. I then exited the car park to continue my day.

 10.     At the start of January 2020 I received  Parking Charge Notice (PCN) from Britannia Parking for allegedly exceeding the maximum stay in New Milton, Old Green Parade BH25 6QA.

 11.     The PCN contained two digital images of the car (front and back), however on them there were no landmarks nor street furniture identifying its location.

 12.     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-05)

 13.     It is therefore denied that the claimant’s signage is capable of creating a legally binding contract. At no point during our visit to the car park and restaurant did we believe any permission to park was needed.

 14.     The alleged overstay was 15 minutes but this would have been time spent in moving traffic, arriving, manoeuvring to a parking space, parking, safely helping children from the car and locking the car. At the end of our visit a reasonable period of grace to leave is expected. This is not a ‘period of parking’ (under the POFA definition) that was in anyway exceeded. Any contravention of allowed parking time is denied.

 15.     Even if the Claimant can demonstrate that the car was indeed ‘on site’ and in the car park for a proven and synchronised 15 minutes in addition to the 20 minutes of free parking, this would have been entirely within the grace periods of 10 minutes prior to entering a contract to and 10 minutes at the end of a parking event, set out in paragraph 13 of the BPA Code of Practice (BPA CoP) relevant version 2018. (exhibit xx-06)

 16.     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 relevant accredited parking association, the International Parking Community ('IPC').  The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

 ParkingEye v Beavis is distinguished

 17.     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.

 18.     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. 

 19.     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.

ricky_balboa

 POFA and CRA breaches

 20.     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).  The Claimant is put to strict proof of full compliance, if seeking keeper/hirer liability under the POFA, because liability is not accepted by the Defendant. 

 21.     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).

 22.     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

 23.     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.

 24.     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

 25.     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.

 26.     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

 27.     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." 

 28.     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.

 29.     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.

 30.     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." 

 31.     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.

 32.     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.

 33.      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.

 34.      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

 35.     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 I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  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.  This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

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

36.     As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 37.     The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 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.

ricky_balboa

Coupon-mad said:

This person is working on their WS and evidence - read all the advice and take it on board:

https://forums.moneysavingexpert.com/discussion/6300296/lbcc-county-court-claim-enterprise-parking-solutions/p4

And have you seen the news last month, that things have changed for the better recently?

Read the whole new DLUHC Code of Practice because it covers all the usual points and issues, and states the best practice position.

Not retrospective but you can use it in a WS to effectively say 'Here's what a professional parking firm should have done'.

I've created a new paragraph 4 onwards to replace the template defence, which covers the fact that debt recover pseudo 'costs' are now banned:

https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299

That new wording explains to a Judge why that is relevant for existing cases, too.

Some of that can be used in witness statements and we are encouraging everyone with a claim that includes the 'extortionate' fake costs to deal with that more robustly than ever.

It covers the very welcome statutory Code of Practice produced by the DLUHC on 7th February, the development for which included my personal involvement and attendance in the Government's Steering Group since 2020, which I was not able to admit until afterwards.

Fully discussed in bargepole's thread here, so newbies can understand this ground-breaking news and the changes:

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

  

Many thanks, i have used some of your new defence advice in my ws. I hope i have used it appropriately.

1505grandad

Para 16 quoting IPC CoP  -  as stated in para 15 claimant is a BPA AoS member.

Coupon-mad

Yes, replace all mention of the IPC CoP with the BPA CoP relevant section from the right year.

Remove the final sentence (just the final sentence) of paragraph 20 as they aren't trying for keeper liability in a case with an admitted driver.

Did you appeal and get refused?  If so, say so.

Southampton Court 

Haha! Brilliant!

Can't wait for the lovely DJ Grand and DJ Taylor to read the new template words and study the statutory Code, and see they were right all along about the false add-on!

Tell you what. As the icing on the cake, and because this is also a Britannia case, add this because the Semark-Jullien case was a Southampton one:

34.  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) where she went into great detail about this abuse.

35.  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.




You will need the transcript of Excel v Wilkinson (see most posts by DP Dance in recent months for that link!) and must then re-number your exhibits and paragraphs.