Claim sent to registered keeper (not driver at the time)

Fruitcake

Click on the link to the poster C-m mentioned in her post, then scroll down until you find the threads (discussions) started by ricky_balboa. That will get you to ricky's thread, then read through until you find their WS.

Coupon-mad

His name is a hyperlink.

PabloPurple123

Thanks both!

I will post my initial WS draft below, I have tried to adapt it to suit my mums circumstances - I was not able to find many previous threads with examples of a WS where the defendant was not the driver, so please advise if I need to further remove any paragraphs or there are useful bits to add. As always, appreciate any help from you all! Thanks

PabloPurple123

((sorry for some reason the numbered bullet points change when I copy over, they are all in order without restarting at 1 on my version))

1. I am Mrs 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. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. I assert that I was the registered keeper of the vehicle in question in this case. I was not the driver.

Sequence of events

1. In December 2021 the Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant UK Parking Control Limited for a total amount of £319.20 (inclusive of £35 Court Fee & £50 Legal representative’s costs).

2. Through research the Defendant came to understand the claim relates to a PCN that was issued against the Defendant’s old vehicle xxx over 5 years ago on 07/10/2016 at Brunel University. 

3. The Defendant is certain they were not the driver as the location was in a University car park that they have never visited. 

4. The location is within the University grounds, of which you are required to have an access pass to proceed through security barriers. 

5. Family members who drove that car would have visited during their time as a student, and felt they were authorised to park there whilst accessing the site to study.

ParkingEye v Beavis is distinguished

1. 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.

2. 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. 

3. 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. 

POFA and CRA breaches

1. 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). 

2. 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)

3. 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

1. 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. The Claimant is put to strict proof that they have standing to enforce charges by means of civil litigation in their own name.

2. 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

1. 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.

2. 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

3. 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." 

4.  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.

5. 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.

6. 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." 

7.  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.

8. 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.

9. 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.

10. 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 where she went into great detail about this abuse.

11. 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 judgement 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.

12. 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 judgement 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.
    
    

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

1. 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

1. 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”.

2. Therefore, I am appending with this bundle a fully detailed costs assessment 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.

DEFENDANT’S SCHEDULE OF COSTS

Ordinary Costs

Loss of leave through attendance at court hearing:

£95.00

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents:

(15 hours at Litigant in Person rate of £19 per hour):           

£285 (15 x £19)

TOTAL COSTS CLAIMED:

£380 (£285 + £95)

Coupon-mad

Was the NTK compliant with the POFA? In 2016, UKPC sometimes didn't use POFA wording, in which case they can't hold a keeper liable in law.

You need to say that.

What exhibits are you attaching?  pictures of the signs in 2016 if Google Streetview has them?  BPA Code of Practice on consideration and grace periods strikes me as relevant, also  the transcript  (from the Parking Prankster's case law) about allowed unloading, in Jopson v HomeGuard.

You haven't mentioned whether the driver told you about the PCN and whether you appealed.

You haven't mentioned that the driver felt that this was an entrapment area with inadequate signs.  You need to say it is your belief the signage was insufficient to draw the parking charge to the attention of drivers and that even if a sign was in the distance, the only large letters were
'NO UNAUTHORISED PARKING' and the Claimant is put to strict proof that the driver was unauthorised and wasn't merely fetching their permit or unloading (both of which are allowed).

You haven't pointed out that the photos from UKPC are taken between just x minutes, which means they breached the 'consideration period' requirements of the BPA Code of Practice and unfairly penalised authorised persons who need a reasonable time on arrival. to get a permit from indoor premises/the Student Hub office, or indeed to load/unload books, bags or other belongings up to their room.

You haven't mentioned if the dates appear to be a start or end of term moving in or out date?

Do you know what the headings, cover sheet and whole bundle looks like?  See the example by @jrhys

PabloPurple123

Coupon-mad said:

Was the NTK compliant with the POFA? In 2016, UKPC sometimes didn't use POFA wording, in which case they can't hold a keeper liable in law.

Yes they were compliant, I posted it earlier this thread and you confirmed it was compliant, so will leave that bit out. 


You haven't mentioned whether the driver told you about the PCN and whether you appealed

No it was never appealed

I have not mentioned about the grace period / dates as they did take the photos 15 mins apart which I believe is compliant, so have left out? 


Thank you very much for all your points!! I have included the transcripts and points you mentioned, I wont re copy and paste the whole lot, but rather just to the top bit which I have mainly edited:

Sequence of events

1. In December 2021 I was issued with a Claim Form by DCB Legal acting on behalf of the Claimant UK Parking Control Limited for a total amount of £319.20 (inclusive of £35 Court Fee & £50 Legal representative’s costs).

2. Through research I came to understand the claim relates to a PCN that was issued against my old vehicle xxx over 5 years ago on 07/10/2016 at Brunel University. 

3. I am certain I was not the driver as the location was in a University car park that I have never visited. 

4. The location is within the University grounds, of which you are required to have an access pass to proceed through security barriers. 

5. Family members who drove that car would have visited during their time as a student, and felt they were authorised to park there whilst accessing the site to study.

6. It is relevant to note that at the point of entry to the University car park, the entrance terms and conditions sign is not visible or readable (exhibit xx-01). Furthermore, in the actual car park itself the terms and condition sign is also not visible or readable (exhibit xx-02). 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-03 for comparison. In this case, the signage fails to adhere to the standards laid out by The British Parking Association (BPA). The BPA Code of Practice says “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand” It also states that “Signs play an important part in establishing a parking contract” with drivers (exhibit xx-04). 

7. It is my belief that the signage was insufficient to draw the parking charge to the attention of drivers and that even if a sign was in the distance, the only large letters were ‘NO UNAUTHORISED PARKING’. 

8. The Claimant is put to strict proof that the driver was unauthorised and wasn't merely fetching their permit from indoor premises/the Student Hub office, or indeed to load/unload books, bags or other belongings up to their room (both of which are allowed). The Defendant relies on Jopson v Homeguard [2016] B9GF0A9E Appeal to draw a distinction between unloading and parking a vehicle (exhibit xx-07). 

The exhibits I have included are: 

XX-01 View of site entrance to Brunel University (car park signage/terms and conditions not clearly visible)

XX-02 Signage within car park not clear/visible 

XX-03 The Beavis case sign, for comparison

XX-04 British Parking Association (BPA) Approved Operator Scheme (AoS) Version 8 - January 2020, section 19

XX-05 ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198

XX-06 The ‘Excel vs Wilkinson’ transcript

XX-07 Jopson v HomeGuard transcript

XX-08 Schedule of costs


And I have put it all into a bundle as per the person you linked  

please let me know if there is anything else important you think I have missed? 

Once good to send - do I send it to the assigned courts email address (i.e. in my case countycourtuxbridge@justice.gov.uk) aswell as the claimants solicitors which I have previously sent my defence etc to? no need to send to ccbcaq right?

MANY THANKS!!!

Coupon-mad

First week of October - possibly start of term moving in?  Almost certainly, because Freshers' Weeks are end of Sept/early Oct.

I'd add that after #7.

Then the second half of ricky balboa's WS about the DLUHC banning fake debt recovery 'fees' and calling them out as extortion.

PabloPurple123

@Coupon-mad thank you I have now added that in after #7, and my WS does include that whole chunk about the DLUHC in the second half too

Reckon it's good to go? 

Once good to send - do I send it to the assigned courts email address (i.e. in my case countycourtuxbridge@justice.gov.uk) aswell as the claimants solicitors which I have previously sent my defence etc to? no need to send to ccbcaq right?

Is this correct? Thanks for all your help

Coupon-mad

Yes, all correct.

PabloPurple123

Super, have sent the email now. Will come back to update on here once she receives further correspondence! Thanks again for your help, it has been very much appreciated