UKPC County Court Business Claim

moneymat

Thanks Castle I'll update the WS accordingly

Coupon-mad

I have the receipt for payment next morning from Richmond council. They may have a record of the PCN.

Now I'm confused. A council PCN has absolutely nothing to do with UKPC.

What do you mean and what makes you think the date on the pic shown by UKPC has been altered? Maybe the car was just displaying both permits that day?

moneymat

Hi coupon mad I honestly can’t remember it’s 5 years ago.  As I can only see the dashboard it’s hard to know.  It’s odd that they only photographed that & not the ESA pass. I just assumed it was the Richmond one as it was the same pass as one in the windscreen & photo is so poor I can't make out the detail. I'll just leave it out as that is not part of my defence. My main defence is that I was parked legally in a bay that UKPC were not employed to monitor.

moneymat

Hi Guys
I have amended my WS in line with advice. I would greatly appreciate it if you would check through it & let me know if it is ok so I can send it. The exhibits are still available on this link below in case you need to check them.Many thanks once again for all your help & advice.

https://www.dropbox.com/home?select=My+Witness+Statement+for+review.pdf

moneymat

1.       I am Ms 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 and in communication with the Operations Team Leader at Flying Butler Apartments Ltd who previously worked for Executive Serviced Apartments Ltd (ESA who owned the lease for 50% of the apartments at Athena Court in July 2017 when the PCN was issued) before they fell into administration in September 2019. Flying Butler Apartments took over the lease for the 50% of the apartments previously owned by ESA after they vacated on 27 August 2020. I also contacted the Senior Guest Services Co-ordinator at House of Fisher Ltd who own the lease for the other 50% of the apartments at Athena Court. All of this communication is outlined below in paragraphs 6 and 7.

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.     On 13 July 2017 I was visiting my daughter who lived at Athena Court. I entered the car park for Athena Court residents and visitors but did not see any UK Parking Control Ltd (UKPC) signs at the entrance displaying exactly which parking bays they were monitoring. This is in contravention of the British Parking (BPA) Association Approved Operators Scheme (AOS) Code of Practice section 18.2. (I refer to Exhibit 1 page 7: Photo of entrance to Athena Court Car Park and Exhibit 2 page 8: (BPA) (AOS) Code of Practice version 6 2015 section 18.2)

4.     As advised by the managing agents, Executive Serviced Apartments (ESA), I parked in a bay reserved for ESA residents and their guests which was denoted by the ESA logo marked on the bay. (I refer to Exhibit 3 page 9: ESA logo and Exhibit 4 page 10: Photo of my car parked in ESA designated bay taken by UKPC warden and sent as part of my subject access request on 04/01/2022) 

5.     I was issued a parking permit by ESA which I placed on the dashboard. Although it refers to UKPC Car Park Management they did not employ them & were asked to add that by House of Fisher as confirmed in exhibits 6, 7 & 9 below. (I refer to Exhibit 5 page 11: Athena Court ESA Parking Permit)

 

6.     All ESA parking bays at Athena Court (50% of the parking bays) were monitored internally by ESA. They did not employ UKPC to monitor their parking bays as confirmed by letter and emails. (I refer to Exhibit 6 page 12: Letter confirming ESA did not employ UKPC (previously sent via email to DCB Legal on 6 January 2022) and Exhibit 7 pages 13-19: Emails from ESA)

 

7.     The other 50% of the parking bays at Athena Court were managed by House of Fisher (HOF) who did contract UKPC to manage their parking bays at the time. However, they were only contracted to manage HOF parking bays, as they shared half of the apartments in the property at the time with ESA. HOF parking bays were clearly identified by ‘House of Fisher’ plaques on the floor/wall. This has been confirmed in an email from HOF. (I refer to Exhibit 8 page 20: HOF Logo and Exhibit 9 pages 21-23: Emails from House of Fisher)

 

8.     It states on the UK Parking Control Ltd website “ if we have ticketed a legitimate user let us know & we will cancel it immediately”, hence ESA contacted UKPC who issued the PCN to explain that it had been issued in error as they had no authority to issue PCNs for ESA parking bays in the Athena Court car park and that I was parked there legally with a valid permit which seemed to satisfy them. Considering this, I was surprised to receive a court claim over 4 years later. (I refer to Exhibit 10 page 24: Screen shot of FAQ page from the UKPC website: FAQ #3 denoted by red asterisk. https://www.ukparkingcontrol.com/frequently-asked-questions/) 

9.     On the Notice to Keeper, which UKPC sent to me on 04/01/2022 as part of my subject access request, it states that “the driver of the vehicle breached the terms and conditions of parking which were clearly and prominently displayed on our car park signs. These terms and conditions were agreed by the driver when your vehicle was parked on private land.”

This claim is denied as I did not enter into any agreement with UKPC. I was legitimately parked in an ESA designated parking bay which was not controlled by UKPC but by ESA internally. It is my view, therefore that issuing a PCN to a driver parked in a clearly designated ESA parking bay amounts to serial predatory ticketing of residents and visitors located at Athena Court in contravention of the current BPA AOS Code of Practice. (I refer to Exhibit 11 page 25: BPA Code of Practice section 9: Professionalism: clause 9.5)

10.  Additionally, as UKPC was only authorised to monitor the House of Fisher parking bays their signs should have indicated this in line with the British Parking Association (BPA) Approved Operator Scheme (AOS) of which they are a member. (I refer to Exhibit 12 page 26: BPA AOS Code of Practice Version 6 2015 section 18.3). This categorically states that signs with specific parking terms must be placed throughout the site, so that drivers are given the chance to read them at the time of parking or leaving the vehicle. The Claimant is put to strict proof that, at the time of the parking event that the signage indicating specific parking terms (HOF parking bays only) was evident, correct and clearly visible in the car park in question. 

moneymat

PARKINGEYE VERSIS BEAVIS IS DISTINGUISHED

 

1.     A key factor in the leading authority from the Supreme Court, was that ParkingEye was 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'.  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. I have included a copy of the Parking Eye sign alongside a photo of the UKPC signage from Athena Court sent to me on 04/01/2022 as part of my subject access request as I did not see or take a photo of their sign at the time. (I refer to Exhibit 13 page27: Photos of Parking Eye sign alongside UKPC sign and Exhibits 2 and 12 above pages 8 and 26: BPA AOS Code of Practice Version 6 2015 sections 18.2 and 18.3)

 

2.     Contrary to this case, Parking Eye 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. 

 

3.     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. (I refer to Exhibit 14 page28: Paragraphs 98/193/198 from Parking Eye versus Beavis)

 

4.     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. (I refer to Exhibit 15 page 29: Paragraphs 205/255 from Parking Eye v Beavis)

moneymat

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 maintains 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

 

4.     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.

 

5.     The Defendant further maintains 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.

moneymat

ESCALATION OF COSTS

 

1.     The amount and interest has 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 unsubstantiated '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 a County Court claim is a moneymaking exercise to extract a high fixed sum from motorists. 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 (unsubstanciated, 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). (I refer to Exhibit 16 pages 30-39: Excel v Wilkinson Judgement) 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 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.

 

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 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.

moneymat

Sorry had to do it in sections as too long so it has altered all the numbers

Coupon-mad

Saw a typo: VERSIS (no such word!).

And no such company as the one you name here, so can you check exactly which company is mentioned on the permit, could it be UKCPM (a different firm?):
5.     I was issued a parking permit by ESA which I placed on the dashboard. Although it refers to UKPC Car Park Management 

Also you need to address the fact the new statutory Code is temporarily withdrawn/stalled.  That wording is covered in a paragraph starting 'Whilst...' in a recent WS by @aphex007