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

Banana2022

Take 3 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

Coupon-mad

That's good. The only other thought I had is, how are you so sure that the delayed permit was the fault of the MA?

Could it be argued that these are in fact VCS permits?  Usually the parking firm produces the permits for their client.

If unsure, why not just allege that the delay was (on the balance of probabilities) caused by VCS, as the agreement with the MA is likely to state that VCS issue the permits. As such, this is the perfect scam. Withhold a permit from a known resident and spend a fortnight sending a predatory ticketer round specifically targeting the site or a particular bay.

Banana2022

Thanks so much Coupon-mad! I have a picture of the permit as my friend's was given to the wrong tenant when she first moved in so she took pictures of it being used by another car! I've checked the image and they're definitely issued by VCS so I'll get that added first thing tomorrow! The perfect scam indeed!

1505grandad

A heads-up  -  make sure the name of the claimant on the heading is as stated on the claim form.

Not sure what some of the page numbers relevance is  -  for instance (there are others):-

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

In the body of the WS:-

".....and informed them that a fine had been issued incorrectly by the Claimant. (exhibit xx-03, page 1)."

"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)."

"The Claimant then informed XXX via phone call that it was the discretion of the management company (exhibit xx-03, page 6)."

Banana2022

Will do, thank you for flagging!

Exhibit 3 is 7 pages of an email chain so I have added the page number of the email I'm referring to next to the exhibit for ease but do you think that will annoy the judge?

Banana2022

Edited Sequence of Events adding in that the Claimant issues permits;

IN THE COUNTY COURT AT XXX

Claim No: XXX

 

 

 

VEHICLE CONTROL SERVICES LIMITED
(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 requested a replacement permit from the issuer (the Claimant) who then failed to reissue a new permit prior to 31st July 2021 so there was no permit available to display on this date.

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

6. I also notified the Claimant of the error by appealing through their online form. 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 that the fine was still being pursued so the management company 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 me 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 am 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.

14. The Claimant did not immediately issue a new permit and knew that there would be a resident without a valid permit to display on this day so sent a ticketer to target vehicles parked on the site. XXX and I did everything we reasonably could to inform the Claimant that the charge had been issued incorrectly but they did not accept our appeals to successfully scare me into paying for this scam.   

Coupon-mad

Looks good.

Banana2022

Thanks! Are my exhibits labelled ok with the page numbers?

Banana2022

1505grandad said:

A heads-up  -  make sure the name of the claimant on the heading is as stated on the claim form.

Not sure what some of the page numbers relevance is  -  for instance (there are others):-

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

In the body of the WS:-

".....and informed them that a fine had been issued incorrectly by the Claimant. (exhibit xx-03, page 1)."

"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)."

"The Claimant then informed XXX via phone call that it was the discretion of the management company (exhibit xx-03, page 6)."

Will do, thank you for flagging!

Exhibit 3 is 7 pages of an email chain so I have added the page number of the email I'm referring to next to the exhibit for ease but do you think that will annoy the judge?

Banana2022

Hi everyone,

It's been a couple of weeks since my court date now so just thought I'd update you on what went on.

Unfortunately I lost my case and had to pay £212 to VCS. Extremely annoying...

BUT

Please don't let what happened to me put you off challenging these scammers. The only reason I lost is because I hadn't parked in my friend's allocated space in the first place. I genuinely thought I was parked there so was an honest mistake but unfortunately this made my whole case flop.

The Judge was extremely kind and understanding towards me. He shouted at the Claimant's rep within 5 minutes of being in the room. They are clearly sick of these kinds of cases coming through from these companies. The Claimant hadn't even noticed I wasn't in her space either, the Judge actually figured it out from a image in the Claimant's witness statement.

If I had been in her space I absolutely would have won. The final charge was £100 for the fine and £112 in fees, the £60 'debt collectors' fees was easy to dismiss thanks to Parking Eye vs. Beavis. The Judge also gave me a 3 month deadline to pay instead of 2 weeks as he was very sympathetic. The scammers have since sent me a horrible letter saying they 'won a CCJ against me' and I must pay soon or they will send bailiffs...

They haven't got a CCJ against me yet, that will only happen if I don't pay before the deadline. They also have no legal right to send bailiffs before the deadline... They are the most awful people and we must stop them doing this to vulnerable people. 

It was tough pulling all the paperwork together but overall the court experience was really fun. I'd definitely do it again to teach these scammers a lesson, but I'll make sure my evidence is actually solid next time!!

Thanks so much everyone for all your help getting this together, until next time