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Napier Court Claim Form
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So what have you been doing in the last four months?agent17 said:Hi guys, I have to submit my witness statement by tomorrow, have there been any changes in last few months that may mean I have to edit some stuff? e.g. do I still attach Excel v Wilkinson Case Transcript or are there newer ones that are relevant?
Show us your proposed Witness Statement when you are ready.
I assume you have already gathered all your evidence that you intend to file?2 -
Which court did you request this time?2
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KeithP said:
So what have you been doing in the last four months?agent17 said:Hi guys, I have to submit my witness statement by tomorrow, have there been any changes in last few months that may mean I have to edit some stuff? e.g. do I still attach Excel v Wilkinson Case Transcript or are there newer ones that are relevant?
Show us your proposed Witness Statement when you are ready.
I assume you have already gathered all your evidence that you intend to file?I prepared my statement along with evidence some time ago and, as per my previous case where I missed an update, I just though I better ask if anyone knew if there had been recent updates I should know about.
1) I am XXXXXXXXXXXX, 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 the 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:
The facts as known to the Defendant:
3) It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.
4) Under the terms of the Defendant's commercial lease, dated February 2017, the Defendant is entitled to park a vehicle in the space directly behind the Defendant's shop. The lease also allows provision for the purpose of loading/unloading, with no specified time limit. Actually, the Defendant is entitled to park two vehicles as the Defendant leased two adjacent shops from the landlord, each entitled to one parking space. So, parking or loading/unloading in one or other of the spaces is/was permitted at all times.
5) The Defendant's lease precedes any agreement the landlord made with the Claimant, who appeared and started to bulldoze the separate piece of land, an old pub site completely separate to the shop/residents parking area, around April/May2017, thereby creating a brand new car park. This area is wholly separate from the area behind the shops which consisted of allocated parking for residents only and even has a separate entrance in a different street to the entrance that services the new car park.
6) The Claimant followed that up by removing, without the Defendant's consent nor consultation, the signs fixed to the back of the Defendant's two shops that clearly marked them as for the use of shop staff only. It should also be noted that the Defendant's parking spaces are marked out with yellow lines, clearly defining they are not normal parking spaces.
7) That being said, it became clear very early that the Claimant had instructed their operatives to investigate every vehicle in the the shop/residents parking area so, for a simple life, any permits that were issued were kept in the front office in order that, after parking, whoever was needing to park that day would need to unlock the rear of the building, disable alarms, make their way to the front office and then return with the permit to place it on the windscreen.
8) So, if a permit was not on display, it would likely be an issue that the driver was held up by a customer, or some other unavoidable issue in the shop and had not yet had time to return to the vehicle, or was in the process of loading and unloading, which would be done as quickly as reasonably possible.
9) The photos provided by the Claimant cover the period 15.03:10 to 15.03:33 on 11th June 2021, only 23 seconds, and the note further made by the operative mention that the driver was seen at the vehicle on his phone at 15.09:33 would suggest the Defendant was likely loading/unloading, or had maybe just put the permit in place. It is further suggested that, maybe in the interest of the Claimant, no further photos were taken after 15.03:33 maybe because they would not have shown an empty parked vehicle but, possibly, a vehicle in the process of loading/unloading. Regardless, it is not considered that a 23 second window would be enough time to retrieve a permit, load/unload, nor in the case of no permit being available, would that be enough time to get to a ticket machine and return to the vehicle.
10) Also, at no point, either before or after the Claimant created the new car park and removed the signs that designated the Defendant's rightful parking space in the area reserved for shop/tenant parking, did the Defendant receive any communication from the Landlord or Estate Agent notifying the Defendant of any change to parking rights, therefore the Defendant questions whether any claim is procedurally correct.
11) Even if the court believes that the Defendant and employee drivers had a 'relevant obligation' to display a permit in their own bays (which is denied), it is clear that the Claimant is in breach of the IPC Code of Practice section on consideration periods which mandates a 5 minute minimum observation time. Further, the ticketer has failed to pay any regard to the exclusive rights of the Defendant's staff to load or unload, and indeed park without incurring charges.
12) The facts in this defence come from the Defendant's own knowledge and honest belief. To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence.
13) With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case. Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim. The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated.
14) This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.
15) This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice
16) Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."
17) The Code's Ministerial Foreword 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."
18) The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified 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, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.
19) This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.
20) The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.
21) Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.
22) This overrides mistakes made in the appeal cases that the parking industry try to rely 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, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further. In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.
POFA and CRA breaches
23) 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 other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred.
24) Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.
25) Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.
ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)
26) ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.
27) 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 a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'.
28) In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:
(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and
(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,
both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and
(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).
29) Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."
Continued...
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KeithP said:
So what have you been doing in the last four months?agent17 said:Hi guys, I have to submit my witness statement by tomorrow, have there been any changes in last few months that may mean I have to edit some stuff? e.g. do I still attach Excel v Wilkinson Case Transcript or are there newer ones that are relevant?
Show us your proposed Witness Statement when you are ready.
I assume you have already gathered all your evidence that you intend to file?
....ContinuedLack of landowner authority evidence and lack of ADR
30) DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.
31) The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).
Conclusion
32) The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.
33) With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.
34) In the matter of costs, the Defendant asks:
(a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and
(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.
35) Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."
Statement of Truth
I believe that the facts stated in this defence 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.
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Good question!B789 said:Which court did you request this time?
I googled it and decided Chichester would make for a nicer day out than Southampton. Then I got a letter saying it was going to Portsmouth so I emailed them and said I asked for Chichester and they told me it had been shut for years so they moved it to Portsmouth lol...
In hindsight, I did find it strange that there were only a few entries mentioning Chichester County Court but they were there, and still are, so I had no reason to think it was shut.
I guess the lesson there is don't put all your faith in google searches, try a phone call too...
So I'm back at Portsmouth, hopefully not the same judge.3 -
I don't see any exhibits referred to early on, such as your shop leases showing the parking spaces and/or a map from Google Streetview showing your shop units. Evidence is key.
Also the section about the DLUHC Code, from para 16 onwards, is taken from the old template defence version that said the DRA fees are 'now banned'. I've edited that section now to say things like 'likely to be banned' as there has been a delay.
Oh and the whole thing needs to be written in the first person instead of 'The Defendant did this/that'.
And this isn't a defence so the statement of truth is incorrect:I believe that the facts stated in this defence are true.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD2 -
Coupon-mad said:I don't see any exhibits referred to early on, such as your shop leases showing the parking spaces and/or a map from Google Streetview showing your shop units. Evidence is key.
Also the section about the DLUHC Code, from para 16 onwards, is taken from the old template defence version that said the DRA fees are 'now banned'. I've edited that section now to say things like 'likely to be banned' as there has been a delay.
Oh and the whole thing needs to be written in the first person instead of 'The Defendant did this/that'.
And this isn't a defence so the statement of truth is incorrect:I believe that the facts stated in this defence are true.Thanks, evidence/exhibits are already included, I just never included first page or the photos:
INDEX
Content Page Number
Witness Statement 2-3
EX-01 Lease Ancillary Rights 6
EX-02 Estate Agent - 35 Market Parade - Garner Wood 7
EX-03 Estate Agent - 37 Market Parade - Garner Wood 7
EX-04 Designated Parking Area For Shops 35 & 37 8
EX-05 Claimant Removed My Signs 8
EX-06 Excel v Wilkinson Case Transcript 9-17
EX-07 Defendants Schedule Of Costs 18
In truth, a lot of what's there is copy/pasted from defence, I just added some bits, I thought that's what I was meant to do. Also, I was under the impression from when I did this before that I had to write it all as defendant but I have amended that now and changed to I/me/myself.
Referring to my original question, should I still be including the Excel v Wilkinson transcript?
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Yes, it is a good one that Judges like. Your exhibits list looks great!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD1 -
Thank you, that's a wrap then. Second time up against these predators, hopefully a fair minded judge will find in my favour.Coupon-mad said:Yes, it is a good one that Judges like. Your exhibits list looks great!
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