Court Claim Defence Help - Parked in Friend's Allocated Space

Banana2022

Hi everyone,

I was wondering if I could get some feedback on my draft defence below, largely copied from the guidance directed from the Newbies page.

I parked at my friend's apartment block on 31st July and didn't display a valid permit as she has lost it on 22nd July and the managing agent had failed to immediately issue a new one (got email evidence for this). The managing agent requested that the parking company drop the fine which they said they would for a £20 cancellation fee which I still refused to pay the scammers. Now they are pursuing me for the full original fine and then some. The original fine was for being parked in the wrong space as well but the actual court claim only mentions the missing permit which is interesting. I stupidly admitted to being the driver in my second appeal which is why that's on there.

The claim was issued on 2nd Feb so plenty of time to amend this before I need to send it, thankfully covid meant I had a lot of free time on my hands last week.

Thank you in advance!

IN THE COUNTY COURT

Claim No: XXX

Between

XXX
(Claimant)

-and-


XXX
(Defendant)



DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

2.  It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied. 

3. The Particulars refer to the material location as ‘XXX. The Defendant was a visitor of XXX, who held legal title under the terms of a lease, to XXX at that location from 25th August 2020 to 24th August 2021. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The underground car parking area contains allocated parking spaces to residents only. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under section 15 in the terms of XXX’s (Tenant) lease, a number of references are made to conditions of parking motor vehicles:

’15. Cars and Parking

15.1 To park a private vehicle only at the Premises, if applicable.

15.2 To park in the car parking space, garage or driveway allocated to the Premises, if applicable.

15.3 To display a valid permit in your vehicle, whilst parking in the car parking space, garage or driveway allocated to the premises, if applicable.

15.4 To keep any garage, driveway, or parking space free of oil and to pay for the removal and cleaning of any spillage caused by a vehicle of the Tenant, his family, contractors or visitors.

15.5 To remove all vehicles belonging to the Tenant, his family or visitors at the end of Tenancy.

15.6 Not to park any vehicle at the Premises that is not in road worthy condition and fully taxed.’

5.1. Clauses 15.4-6 are held to visitors of the Tenant therefore acknowledging the Defendant’s right to park on the Premises.

5.2. The lease states the vehicle must be parked in the allocated space if applicable. The space allocated to the premises Flat No. XXX was Bay 56. Bay 56 was occupied by another tenant’s vehicle so therefore this clause was not applicable at this time.

5.3 The terms of the lease say a valid permit must be displayed if applicable. The displaying of the permit was not applicable in this case as no permit had been provided by the managing agent at this time. The Tenant reported to the managing agent that the permit had been lost on 22nd July 2021 and the managing agent failed to issue a new permit before the date in question.

5.4. The car in question was in road worthy condition and fully taxed on the date in question.

5.5 The terms of the lease do not state that the Tenant or visitors must pay penalties to third parties, such as the Claimant, for the non-display of a valid permit.

6. The Claimant dropped the charges against the Defendant on 27th August 2021 as the managing agent confirmed the Defendant was permitted to park on the Premises without displaying a valid permit as detailed on the lease. The Claimant instated a £20.00 cancellation fee to drop the penalty against the Defendant.

6.1. The Claimant had suffered no financial loss so therefore was not entitled to any compensation in the form of a cancellation fee from the Defendant.

6.2 The Claimant failed to outline that a £20.00 cancellation fee would be chargeable if the penalty was cancelled in the terms set out on the signage displayed in the car park.

6.3 The terms of the lease do not state that the Tenant or visitors must pay any cancellation fees to third parties, such as the Claimant, for the dismissal of a penalty.

7. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

9. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

9.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents and their visitors.

9.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, their family and visitors, as is on offer to the general public and trespassers. However, residents, their family and visitors are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

10. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

11. The Claimant, or their legal representatives, has added an additional sum of £145.00 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

12. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £245.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

13.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

In the matter of costs, the Defendant seeks:

 

14.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

 

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

 

15.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

 

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.




………………………………………………………. (Defendant)

……………………… (Date)

KeithP

Banana2022 said:

The claim was issued on 2nd Feb so plenty of time to amend this before I need to send it...

Hello and welcome.

With a Claim Issue Date of 2nd February, you have until Monday 21st February to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Monday 7th March 2022 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

I don't think the terms of your friend's lease help you at all so i would not quote them.  And you were a visitor who did not know those terms at the time so they are irrelevant to you.

I'd be saying something instead about these facts:

The Defendant parked at a friend's apartment block just days after she had alerted the Managing Agents (MA) who issue (and re-issue) the paper permit, that she has lost it on 22nd July.  The MA had failed to immediately issue a new one or to alert their agent, the parking firm, to whitelist cars authorised by that resident in the meantime (the Defendant has and will provide email evidence for this). The MA supported the resident's right to park (and for visitors to park) and, given that the purpose of the scheme was not to punish authorised drivers, they requested that the Claimants cancel the charge but they did not.

The term to display a permit was thus impossible to perform on 31st July.  The MA knew this and there was a breakdown of communication between this Claimant and their clients through no fault of the Defendant or resident who had made every endeavour to alert the MA responsible for the paper permit.  As such, no breach of contract can have occurred and a requirement to display a permit that the issuing MA knew had not yet been re-issued, was void for impossibility.  Authorities will include the decision by DJ Iyer in PACE v Lengyel, which dealt with a comparable issue. 

Banana2022

Hi all,

Thanks so much for all your help and advice above.

I've now received a court date and am preparing my witness statement. I'll paste what I have so far below. A lot of my evidence includes identifying information which will take me days to redact so I've just included what I need help with below. I removed some of paragraphs in the witness statement linked from the Newbies page as it didn't feel relevant to my case (the Claimant has photo evidence of my car parked in front of the sign so I don't think I can argue it wasn't visible.) Please let me know if this is the wrong thing to do though.

I removed the lines from my friend's tenancy in my defence but should I include pages from her tenancy agreement as exhibits in the evidence? Pages 2, 3 and 10 show her name, the dates she held the lease and the section about her allocated parking space.

Any advice on how to label and display email evidence so I don't annoy the judge greatly received too!

Thanks so much!

CONTENTS:

PAGE NUMBER:

 

 

Witness Statement………………………………………………………………………………………………….2-5

 

Exhibit xx-01 – XXX Tenancy Agreement pages 2, 3 & 10……………………..…………………...6-8

 

Exhibit xx-02 – Email from X to MANAGEMENT COMPANY reporting missing permit…..9

 

Exhibit xx-03 – Emails from XXX to XXX to cancel parking fine…………….……………..…10-19

 

Exhibit xx-04 – Letter received from Claimant rejecting appeal on 08/09/21………..20-21

 

Exhibit xx-05 - Britannia v Crosby Approved Judgment - Southampton Court ……….22-28

 

Schedule Of Costs……………………………………………………………………………………………….……29

 

Exhibit xx-06 - ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198……..…...30-31

 

IN THE COUNTY COURT AT XXX

Claim No: XXX

 

 

 

XXX
(Claimant)

-V-

XXX
(Defendant)

 

WITNESS STATEMENT OF DEFENDANT FOR HEARING ON XXX

 

1. I am XXX of XXX, 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:

3. On 31st July 2021 I made an impromptu trip to visit my friend, XXX, at her residential flat which she held a tenancy agreement for from 25th August 2020 to 24th August 2021 (exhibit xx-01). I parked in XXX assigned residential parking space in the communal car park ‘XXX’ that is only accessible by key fob provided to residents.

4. The Claimant’s case is that a contravention occurred as I was parked without displaying a valid permit. XXX informed the building management company, XXX, that the permit had been lost and needed replacing on 22nd July 2021 (exhibit xx-02). The management company then failed to reissue a permit prior to 31st July 2021 so there was no permit available to display on this date.

5. On 31st July 2021, XXX requested that the management company place my vehicle on the exemption list and informed them that a fine had been issued incorrectly by the Claimant. (exhibit xx-03, page 1).

6. On 25th August 2021 the Claimant informed me that they were unable to process my appeal. On 27th August 2021 XXX notified the management company and they requested that the Claimant cancel the fine. The Claimant agreed to cancel the fine subject to a £20.00 admin fee payable within 14 days or the full charge will be pursued (exhibit xx-03, page 4).

7. The management company incorrectly informed XXX that they were unable to cancel the charge entirely as the £20 admin fee was up to the discretion of the Claimant. The Claimant then informed XXX via phone call that it was the discretion of the management company (exhibit xx-03, page 6).

8. The representative of the management company said that they would need their manager’s approval to dismiss the £20 fee. The representative informed XXX that they could not get this approval until Tuesday (3 days later) when their manager was back in the office. The representative reassured us that we had 14 days to contest the £20 admin fee so the delay would not cause any issues (exhibit xx-03, page 7).

9. On Tuesday 31st August 2021, XXX chased the management company to ensure action was taken. On Wednesday 1st September the management company sent the request to the Claimant to dismiss the £20 fee. The Claimant responded saying they were unable to fully cancel the fine as the request was made ‘outside the 28 days.’ (exhibit xx-03, page 7.)

10. The Claimant did not make it clear what date the 28 day deadline was from. XXX requested the management company fully cancel the fine on 27th August 2021, which is within 28 days of both the contravention (31st July) and the fine issue date (3rd August). Therefore the deadline was missed due to the fact the management company failed to complete the request in a timely manner.

11. The car park is only accessible by key fob so no access is permitted to vehicles not permitted to park. XXX was allocated a parking space as part of her tenancy agreement which also covered her visitor’s right to park (exhibit xx-01, page 2.)  The management company have instructed the Claimant to issue fines in this car park when it is the residents lawful right to park there without harassment from third party companies.

12. The Claimant formally rejected my second appeal (submitted 30th August 2021) on 9th September 2021, stating ‘the only exception to this requirement is for vehicles which have been placed on an exemption list by our client or businesses on the site.’ My vehicle had been placed on the exemption list by the management company on this date so their reason to decline my appeal is invalid. (exhibit xx-04).

13. The Claimant has continued to pursue payment for the fine which went back to the full charge of £100 after I did not pay the £20 admin fee. I was not liable for any sum of money as the fine was issued incorrectly and failed to be dismissed due to poor communication between the Claimant and their client.

Abuse of process - the quantum

14. The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit xx-05 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

15. Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

16. The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the preBeavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419):

LINK ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

17. This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

18. This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit - xx-06), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest. 

 

CPR 44.11 - further costs

19. 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

20. 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.

21. 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.

 

 

SIGNATURE …………………….. xxxxxxxxxxxxx

DATE xx/xx/xxxx

Umkomaas

You don't seem to have told us who the PPC is or which solicitors are representing them. Sometimes that has a bearing on the advice we give. Please tell us. 

Coupon-mad

Don't use Crosby.  Don't base your WS on the one by RobertCox.

Sorry, the WS example in the NEWBIES thread is a bit out of date due to the incoming Code of Practice and we now use Excel v Wilkinson and robust wording as seen in the recent WS by @ricky_balboa and @wobs2k

Also, your WS doesn't use the 2 paragraphs that I gave you in February.  Were they already used in your defence?

Banana2022

Hi all,

Super sorry for the slow reply. I thought I posted a reply on 1st June but my brain wasn't working and didn't see the character limit was too high. I need to get my statement in the post tomorrow to meet the deadline so any quick help gratefully received, my apologies for the rush!

I'll paste my amended WS in 2 parts below. Coupon-mad I used your paragraphs above in my defence but do let me know if I should repeat them in this too.

Thanks again for all your help!

CONTENTS:

PAGE NUMBER:

 

 

Witness Statement………………………………………………………………………………………………….2-8

 

Exhibit xx-01 – XXX Tenancy Agreement pages 2, 3 & 10……………………..………………..9-11

 

Exhibit xx-02 – Email from X to MANAGEMENT COMPANY reporting missing permit..12

 

Exhibit xx-03 – Emails from XXX to XXX to cancel parking fine…………….……………..…13-22

 

Exhibit xx-04 – Letter received from Claimant rejecting appeal on 08/09/21………..23-24

 

Exhibit xx-05 – Signage at site provided by Claimant…………………………………………………25

 

Exhibit xx-06 - BPA AoS 2018 version 7 section 18.2 & 18.3……………………………………....26

 

Exhibit xx-07 - BPA Aos 2018 version 7 section 13.1, 13.2 & 13.4…………………………...….27

 

Exhibit xx-08 The Beavis case sign for comparison………………………………………………...….28

 

Exhibit xx-09 - ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198……..…...29-30

 

Exhibit xx-10 -  Excel v Wilkinson case transcript……………………………………………..….31-40

 

Defendants Schedule Of Costs………………………………………………………………………………..…41

 

IN THE COUNTY COURT AT XXX

Claim No: XXX

 

 

 

VEHICLE CONTROL SERVICES
(Claimant)

-V-

XXX
(Defendant)

 

WITNESS STATEMENT OF DEFENDANT FOR HEARING ON XXX

 

1. I am XXX of XXX, 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:

3. On 31st July 2021 I made an impromptu trip to visit my friend, XXX, at her residential flat which she held a tenancy agreement for from 25th August 2020 to 24th August 2021 (exhibit xx-01). I parked in XXX assigned residential parking space in the communal car park ‘XXX’ that is only accessible by key fob provided to residents.

4. The Claimant’s case is that a contravention occurred as I was parked without displaying a valid permit. XXX informed the building management company, XXX, that the permit had been lost and needed replacing on 22nd July 2021 (exhibit xx-02). The management company then failed to reissue a permit prior to 31st July 2021 so there was no permit available to display on this date.

5. On 31st July 2021, XXX requested that the management company place my vehicle on the exemption list and informed them that a fine had been issued incorrectly by the Claimant. (exhibit xx-03, page 1).

6. On 25th August 2021 the Claimant informed me that they were unable to process my appeal. On 27th August 2021 XXX notified the management company and they requested that the Claimant cancel the fine. The Claimant agreed to cancel the fine subject to a £20.00 admin fee payable within 14 days or the full charge will be pursued (exhibit xx-03, page 4).

7. The management company incorrectly informed XXX that they were unable to cancel the charge entirely as the £20 admin fee was up to the discretion of the Claimant. The Claimant then informed XXX via phone call that it was the discretion of the management company (exhibit xx-03, page 6).

8. The representative of the management company said that they would need their manager’s approval to dismiss the £20 fee. The representative informed XXX that they could not get this approval until Tuesday (3 days later) when their manager was back in the office. The representative reassured us that we had 14 days to contest the £20 admin fee so the delay would not cause any issues (exhibit xx-03, page 7).

9. On Tuesday 31st August 2021, XXX chased the management company to ensure action was taken. On Wednesday 1st September the management company sent the request to the Claimant to dismiss the £20 fee. The Claimant responded saying they were unable to fully cancel the fine as the request was made ‘outside the 28 days.’ (exhibit xx-03, page 7.)

10. The Claimant did not make it clear what date the 28 day deadline was from. XXX requested the management company fully cancel the fine on 27th August 2021, which is within 28 days of both the contravention (31st July) and the fine issue date (3rd August). Therefore the deadline was missed due to the fact the management company failed to complete the request in a timely manner.

11. The car park is only accessible by key fob so no access is permitted to vehicles not permitted to park. XXX was allocated a parking space as part of her tenancy agreement which also covered her visitor’s right to park (exhibit xx-01, page 2.)  The management company have instructed the Claimant to issue fines in this car park when it is the residents lawful right to park there without harassment from third party companies.

12. The Claimant formally rejected my second appeal (submitted 30th August 2021) on 9th September 2021, stating ‘the only exception to this requirement is for vehicles which have been placed on an exemption list by our client or businesses on the site.’ My vehicle had been placed on the exemption list by the management company on this date so their reason to decline my appeal is invalid. (exhibit xx-04).

13. The Claimant has continued to pursue payment for the fine which went back to the full charge of £100 after I did not pay the £20 admin fee. I was not liable for any sum of money as the fine was issued incorrectly and failed to be dismissed due to poor communication between the Claimant and their client.

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-08 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.

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. (Exhibit xx-10)

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. (Exhibit xx-09 for paragraphs of ParkingEye v Beavis)

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).

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. – I’m not sure if this part is relevant to me as I’m using emails with the landowner as evidence?

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. – Should I mention the £20 ‘cancellation fee’ again here?

Banana2022

Part 2:

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: LINK

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. 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-10) 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 restating 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.

36. 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

37. 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. 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.

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

38. 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.

39. 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.

SIGNATURE …………………….. xxxxxxxxxxxxx

DATE xx/xx/xxxx

1505grandad

Have not read the whole WS but a fundamental error obvious  -  VCS are IPC AoS members not BPA.

Coupon-mad

Don't mention the £20 again later.

– I’m not sure if this part is relevant to me as I’m using emails with the landowner as evidence?

Yes because your emails are NOT with the landowner!

Banana2022

Thanks so much both! Take 3!!

CONTENTS:

PAGE NUMBER:

 

 

Witness Statement………………………………………………………………………………………………….2-8

 

Exhibit xx-01 – XXX Tenancy Agreement pages 2, 3 & 10……………………..………………..9-11

 

Exhibit xx-02 – Email from X to MANAGEMENT COMPANY reporting missing permit..12

 

Exhibit xx-03 – Emails from XXX to XXX to cancel parking fine…………….……………..…13-22

 

Exhibit xx-04 – Letter received from Claimant rejecting appeal on 08/09/21………..23-24

 

Exhibit xx-05 – Images of signage at site taken by Claimant………………………………………25

 

Exhibit xx-06 – Images demonstrating size of signage taken by Claimant………………..…25

 

Exhibit xx-07 - IPC Code of Practice page 22 (version 8 1st July 2021)……………………….26

 

Exhibit xx-08 – IPC Code of Practice Schedule 1 page 28 (version 8 1st July 2021)……..27

..

Exhibit xx-09 - ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198……..…...28-31

 

Exhibit xx-10 -  Excel v Wilkinson case transcript……………………………………………..….32-41

 

Defendants Schedule Of Costs………………………………………………………………………………..…42

 

 

IN THE COUNTY COURT AT XXX

Claim No: XXX

 

 

 

VEHICLE CONTROL SERVICES
(Claimant)

-V-

XXX
(Defendant)

 

WITNESS STATEMENT OF DEFENDANT FOR HEARING ON XXX

 

1. I am XXX of XXX, 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:

3. On 31st July 2021 I made an impromptu trip to visit my friend, XXX, at her residential flat which she held a tenancy agreement for from 25th August 2020 to 24th August 2021 (exhibit xx-01). I parked in XXX assigned residential parking space in the communal car park ‘XXX’ that is only accessible by key fob provided to residents.

4. The Claimant’s case is that a contravention occurred as I was parked without displaying a valid permit. XXX informed the building management company, XXX, that the permit had been lost and needed replacing on 22nd July 2021 (exhibit xx-02). The management company then failed to reissue a permit prior to 31st July 2021 so there was no permit available to display on this date.

5. On 31st July 2021, XXX requested that the management company place my vehicle on the exemption list and informed them that a fine had been issued incorrectly by the Claimant. (exhibit xx-03, page 1).

6. On 25th August 2021 the Claimant informed me that they were unable to process my appeal. On 27th August 2021 XXX notified the management company and they requested that the Claimant cancel the fine. The Claimant agreed to cancel the fine subject to a £20.00 admin fee payable within 14 days or the full charge will be pursued (exhibit xx-03, page 4).

7. The management company incorrectly informed XXX that they were unable to cancel the charge entirely as the £20 admin fee was up to the discretion of the Claimant. The Claimant then informed XXX via phone call that it was the discretion of the management company (exhibit xx-03, page 6).

8. The representative of the management company said that they would need their manager’s approval to dismiss the £20 fee. The representative informed XXX that they could not get this approval until Tuesday (3 days later) when their manager was back in the office. The representative reassured us that we had 14 days to contest the £20 admin fee so the delay would not cause any issues (exhibit xx-03, page 7).

9. On Tuesday 31st August 2021, XXX chased the management company to ensure action was taken. On Wednesday 1st September the management company sent the request to the Claimant to dismiss the £20 fee. The Claimant responded saying they were unable to fully cancel the fine as the request was made ‘outside the 28 days.’ (exhibit xx-03, page 7.)

10. The Claimant did not make it clear what date the 28 day deadline was from. XXX requested the management company fully cancel the fine on 27th August 2021, which is within 28 days of both the contravention (31st July) and the fine issue date (3rd August). Therefore the deadline was missed due to the fact the management company failed to complete the request in a timely manner.

11. The car park is only accessible by key fob so no access is permitted to vehicles not permitted to park. XXX was allocated a parking space as part of her tenancy agreement which also covered her visitor’s right to park (exhibit xx-01, page 2.)  The management company have instructed the Claimant to issue fines in this car park when it is the residents lawful right to park there without harassment from third party companies.

12. The Claimant formally rejected my second appeal (submitted 30th August 2021) on 9th September 2021, stating ‘the only exception to this requirement is for vehicles which have been placed on an exemption list by our client or businesses on the site.’ My vehicle had been placed on the exemption list by the management company on this date so their reason to decline my appeal is invalid. (exhibit xx-04).

13. The Claimant has continued to pursue payment for the fine which went back to the full charge of £100 after I did not pay the £20 admin fee. I was not liable for any sum of money as the fine was issued incorrectly and failed to be dismissed due to poor communication between the Claimant and their client.

ParkingEye v Beavis is distinguished

14. 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.

15. 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.

16. 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. (Exhibit xx-09 for paragraphs of ParkingEye v Beavis)

Signage

17. The Claimant’s signage is placed prominently as demonstrated in the picture taken of my vehicle by the Claimant with the signage in the background. However you can also see from this image that the size of the sign is not satisfactory and means the text is not clearly readable. (Exhibit xx-06)

18. The signage is also excessively wordy and the print size excessively small; therefore, I deny that it is capable of creating a legally binding contract. (Exhibit xx-05) 

18. The IPC’s CoP states that text size must be such that signs are ‘clearly readable’ by a motorist, I believe that the claimant’s signs do not adhere to this guidance. (Exhibit xx-08)

19. The IPC’s CoP states that reference to additional charges must be made in the signage (exhibit xx-07). The Claimant failed to mention in the signage that a £20 admin fee would be chargeable to cancel a penalty that has been incorrectly issued. (Exhibit xx-05)

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).

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.