UKPC PCN County Court Claim 24 NOV - 2021 - Defence Statement Help Needed

Le_Kirk

But what is the deadline for you to submit your WS?

shariifi

2 weeks before hearing date 30 may 22

Umkomaas

shariifi said:

2 weeks before hearing date 30 may 22

Unusual for a Claimant's WS to arrive before the deadline, but it does give you some time to dissect it and highlight in your own WS any errors/inaccuracies/false accusations they have made under a signed Statement of Truth. 

Get the fine tooth comb out!

shariifi

Umkomaas said:

It will be the added 'debt collection/admin' charge of £60 that's bumped it up to £160. That added charge is to be outlawed by the Govt in the new Code of Practice as it is 'designed to extort money from motorists'.  You need to build this in to your WS. That posted by @ricky_balboa covers this very well. 

I'm a bit concerned that the Claimant has submitted their WS before you see to have submitted yours. Is this correct?  What deadline do you have for your WS to be submitted?

Can you point me the link for rickys post "You need to build this in to your WS. That posted by @ricky_balboa covers this very well. "

Umkomaas

shariifi said:

Umkomaas said:

It will be the added 'debt collection/admin' charge of £60 that's bumped it up to £160. That added charge is to be outlawed by the Govt in the new Code of Practice as it is 'designed to extort money from motorists'.  You need to build this in to your WS. That posted by @ricky_balboa covers this very well. 

I'm a bit concerned that the Claimant has submitted their WS before you see to have submitted yours. Is this correct?  What deadline do you have for your WS to be submitted?

Can you point me the link for rickys post "You need to build this in to your WS. That posted by @ricky_balboa covers this very well. "

Just click on the name as posted, it's a hyperlink to his profile. Once there, click on 'Discussions' (l/h side of the profile page), then scroll down. It's the thread re Britannia Parking. 

shariifi

Coupon-mad said:

The claimant has to pay a hearing fee.  This is all normal.

Read the section in the NEWBIES thread under the red heading about knowing what happens when.

Yoh know the Govt published a draft new Code of Practice in February and the added fake £70 'debt recovery fees' are banned as 'extortion'?

If you've missed all this you need to read the forum more as this will be in your WS.

Do you have a link for a written statement for the Govt new Code of Practice in order to include in my WS.

shariifi

I have created my draft of the WS, can anyone please help if all correct:

WITNESS STATEMENT OF DEFENDANT

AT THE COUNTY COURT HEARING AT XXXXXXX ON DD/MM/2022 AT NN:NN AM

 1.            I am XXXXXXXXXXXXX of XXXXXXXXXX, XXXXXX, XXXXX XX0 0XX, 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:

Issued Parking Charge Notices ('PCNs')

The claimant issued two Parking Charge Notices (inflated amount of £320+ £143 Interest) to the Defendants’ Vehicle XXXXXX. The details of the PCNs listed below:

•             PCN XXXXXXXXXX XXXXXX, XXXXXXXX 23/11/2016 Parked in a roadway

•             PCN XXXXXXXXXX XXXXXX, XXXXXXXX 13/12/2016 Parked in a roadway

Sequence of events and signage

 3.           It should be noted that the claimant PCN signage (Exhibit 01) that was taken on 13/12/2016 10:52:25 by the enforcement officer was from a different location (Exhibit 01). There was no signage (Exhibit 03, 04) displayed and there were no unauthorised markings (either single or double YELLOW lines) on this street where the car was parked on 13/12/2016 10:52:06.

 4.           The approach and entrance to the St James Building is on a single-track road with double yellow lines (Exhibit 02). This is a quiet street with very little traffic. On Both PCNs issued by the claimant, it clearly shows that the car was parked at the end of double YELLOW lines with no markings (a space with no restrictions mentioned).

5.            There was no visible sign  (Exhibit 02) at the entry point on this street clearly states the terms and conditions. It is denied that the claimant's signage sets out the terms in a sufficiently clear manner that would be capable of binding any reasonable person reading them. The only signage which is not viewable or readable is the one taken by the enforcing officer located far from the entry point to this street which does not mention anything related to the risk of paying £100.

6.            I have spoken to the enforcement officer and called the claimant and explained all the above points (paras. 1 to 5 above) and the claimant informed me on the phone that the PCNs will be cancelled and that no further action is required. I have not heard or had any correspondence from the claimant since 2016 (i.e., over 5 years from date the PCNs were issued).

7.            The Claimant’s legal representatives DCB Legal Limited have artificially inflated the value of the Claim. The Defendant submits the added costs have not actually been incurred by the Claimant or the landowner; that these are figures plucked out of thin air and applied regardless of facts.

a. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has increased.

b. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

c. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.

d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs Parking Eye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

8.            However, I received a small court claim on 24/11/2021 and now am asked to pay an inflated charge of £160 per PCN (£320 being the total of the PCNs and damages) and an interest of £143.04 (at a rate of 8% daily rate of 0.04).

 9.           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 02 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.

 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.         However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed.  As such, 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 provided in their Witness Statement on 09/05/2022, a ‘landowner contract’. 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...''

Private Parking Code of Practice (Published 7 February 2022)

Source: https://www.gov.uk/government/news/government-clamps-down-on-rogue-parking-firms-with-new-code-of-practice

What does the Government say?

•             Code of Practice launched to crackdown on cowboy private car parking firms

•             Fines cut by up to 50% in most areas across England, Wales and Scotland

•             New Appeals Charter will eliminate fines for motorists who make genuine errors or have mitigating circumstances

•             Additional rip-off debt collection fees banned

•             Rogue operators who do not follow the Code could be banned from accessing Driver and Vehicle Licensing Agency (DVLA) data

Minister for Levelling Up Neil O'Brien said: "Private firms issue roughly 22,000 parking tickets every day, often adopting a system of misleading and confusing signage, aggressive debt collection and unreasonable fees designed to extort money from motorists. [Our] new Code Of Practice will set out a clear vision with the interests of safe motorists at its heart, while cracking down on the worst offenders."

CONCLUSION

17. "The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4 not with reference to the judgement in parking eye v Beavis. It is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the civil procedure rules 1998"

Whilst this does not set a precedence in a county court and each judge is entitled to make their own decision, the adjudicator of this case should be invited to read this case decided by a District Judge.

18.          Fluctuating and random charges. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional legal cost of £60, for which no calculation or explanation is given, and which appears to be an attempt at maximising revenue for the pursuing parties. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

19.          It is denied by the Defendant, that a contract was formed and that there was any agreement to pay a parking charge.

20.          The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking a true course of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims.

21.          The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

22.          The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

23.          The Defendant invites the court to dismiss this claim out as it is in breach of pre-court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

24.          In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and should be disallowed.

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.

 SIGNATURE

  

XXXXXXXXXXXXXX

 

DATE    DD/05/2022

KeithP

If I were a Judge, who perhaps doesn't deal with parking disputes every day, my first question would be - what's a PCN?

In paragraph 2 you leap straight in with "Issued PCNs".
That line would be best rewritten as "Issued Parking Charge Notices ('PCNs').

The next line in that same paragraph starts "The claimant issued 2 PCNs (inflated amount of £320+ £143 Interest)...".
Surely each issued PCN had a 'face value' of £100 ( or thereabouts)? 
You go on to explain the larger amounts in paragraph 8 - which is good.

Umkomaas

You've jumped from para 9 to para 13, then para 16 to para 27. 😵‍💫

Coupon-mad

Is this true, can they claim £100 on the initial pcn issued.

Of course, if the signs said £100 in large lettering.  They will say that formed the contract.

They just can't have the added £60 and that's where copying & adapting ricky_balboa's WS comes in, because he included the stuff about the DLUHC's new Code and why it matters, even though the new code isn't yet implemented.