Draft for defence against Parallel Parking ltd (& gladstones solicitors)-please check!

star1800

Hey guys this is my final draft for my WS as I have to send it tomorrow.  Please review and any help will be much appreciated.

1. I am xxxxxx 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. I was neither the registered keeper nor the driver of the vehicle in question and liability is denied. 

 

3. I admit to being the hirer but cannot be held liable under any rule of law, nor by presumption nor agency arguments. It is unclear how this Claimant believes it can hold me liable for the alleged breach of another driver. There is no cause of action.

4.  I provide the finance on the lease agreement for the car on behalf of a family friend.

5.  I cannot recall visiting this car park, and as I do not use this car, I must stress the point that I cannot be held liable for this charge.

6. I have attached (exhibit 1) the insurance document of the vehicle which clearly shows another individuals name but I do not have any knowledge who was driving the car at the time of the alleged breach.

7. There was no requirement for me to respond to the brightly coloured alarmist notices that appeared to be junk letter. This was not an offence or fine from an Authority like a council, and there was no reason or obligation to ‘appeal’ to what appeared to be junk mail impersonating a parking ticket yet with no basis in law.

8. The claimant has failed to comply with Paragraph 14 of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). Paragraph 14.2(a) of PoFA states that in order to hold the hirer liable for the PCN, the claimant must obtain and provide to the hirer specific documents outlined in Paragraph 13.2 of PoFA. Those documents are: 13.2(a) a statement signed on behalf of the vehicle-hire firm to the effect that at the time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; (c) a copy of the statement of liability signed by the hirer under that hire agreement. No such documents were served.

9. According to Paragraph 14(2) and (3) of POFA 2012:
(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.[/I]

10. The claimant was required to send this information to me within 21 days after receiving them from the lease/hire company (xxx). As this has not happened, the claimant cannot use POFA to assume keeper liability.

11. As the claimant has not complied with paragraphs 13 (2) and 14 (2) of POFA 2012, the claimant cannot rely on the provisions of the Act and hold me liable as keeper.

12. The judge in the very recent case of Excel v Lamoureux (C3DP56Q5) at Skipton held that without using POFA and with no evidence as to the identity of the driver, the claim against Mr Lamoureux was misconceived and so was dismissed.

13. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

14. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent which amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter. Two recent cases the Judges ruled Elliott v Loake as not relevant or applicable, (Excel v Mr C C8DP37F1 Stockport 31/10/2016) and (Excel v Mr B C7DP8F83 at Sheffield 14/12/2016)

 

 

Abuse of Process

15. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this will be 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 admin costs inflating it to £135 'would appear to be penal'.

16. This finding is underpinned by Government intervention and regulation.  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

 

17. Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 27), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the roboclaim race to court and to side-step the £50 legal fees cap set in the Small Clams Track.

18. Adding costs/damages/fees (however described) onto a parking charge is likely to be banned. In a very short section called 'Escalation of costs' the new 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." The code of practice also stated “ to cap debt recovery fees at the existing industry level of £70’ 

19. 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." 

20. 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; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.  

21. This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

22. 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.

23. 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.

24. 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 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. 

25. 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." 

 

Conclusion

26. A DLUHC spokesperson commented on the legal challenges to the code: “We’re determined to end rip-off parking practices, and it’s very disappointing that some in the parking industry are resisting this

27. With the DLUHC's likely ban on additional costs, there is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only dismiss extortionate costs in the tiny percentage of cases that reach hearings, whilst allowing other such claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers every year, who suffer CCJs or pay inflated amounts due to intimidating tactics at pre-action stage. I believe that knowingly enhanced parking claims cause consumer harm on a grand scale and it is in the public interest that claims like this should not be allowed to continue.  I invite the court to dismiss the false 'costs' element at least, and to consider whether an appropriate sanction is to resume the policy of striking out parking claims altogether, where the POC include a vague but fixed sum in 'damages/costs'. 

28. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time.

 

 

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.

Fruitcake

That looks okay to me, but see what others say.
Don't forget to include a costs schedule.

Email it to the court, the claimant's solicitors, and yourself. Some PPCs have a habit of saying they didn't receive court documents. If the court receives it and you receive it, then on the balance of probabilities the claimant has also received it.

star1800

okFruitcake said:

That looks okay to me, but see what others say.
Don't forget to include a costs schedule.

Email it to the court, the claimant's solicitors, and yourself. Some PPCs have a habit of saying they didn't receive court documents. If the court receives it and you receive it, then on the balance of probabilities the claimant has also received it.

Fruitcake said:

That looks okay to me, but see what others say.
Don't forget to include a costs schedule.

Email it to the court, the claimant's solicitors, and yourself. Some PPCs have a habit of saying they didn't receive court documents. If the court receives it and you receive it, then on the balance of probabilities the claimant has also received it.

Ok thanks. Also do i have to label each exhibit. As theyre all photos and il have to print screen and copy paste into word and insert exhibit as the header. Or can i just name the file as exhibit and thats sufficient?

Coupon-mad

12 and 13 mention things that you must attach as exhibits.

star1800

Ok guys im going to email the court . Where is the courts email id?? I cant seem to find it. Its the Leicester county court.

Umkomaas

star1800 said:

Ok guys im going to email the court . Where is the courts email id?? I cant seem to find it. It's the Leicester county court.

Google 'court finder'.

star1800

Hey, I just had my court case today. unfortunately i lost. The judge said even tho i wasnt the driver, but i should have responded to the pcn and explained that i wasnt the driver as the lease agreement is on my name so the onus is on me. and on that basis i lost and have to pay the full amount of £300+.  I even said that they have added extra charges and the judge goes that how it works, if you ignore then the charges will keep increasing and its a harsh lesson for you to learn. 
any comments guys ???

Le_Kirk

You were in front of a judge who is not up-to-speed on the "admin or debt management costs" issue if you mean that the judge allowed them to stand.  I though you had stated you were not the driver (certainly that is what is states on your WS) so what was the judge reading ..... or not reading?

star1800

You were in front of a judge who is not up-to-speed on the "admin or debt management costs" issue if you mean that the judge allowed them to stand.  I though you had stated you were not the driver (certainly that is what is states on your WS) so what was the judge reading ..... or not reading?

Yes the judge asked if I was driving and I said no I only
provide the finance on behalf of family friend. And it seemed at that point that she made her mind up. Stating that it’s your responsibility when you received the pcn in post to let them know that you weren’t driving. She asked me did you inform them and I said I didn’t. So she goes I have to hold you responsible , and I asked under what act. And her reply was if someone used your car and committed an offence , wouldn’t you tell police it wasn’t you driving.so I said that’s a criminal case, and she goes well this is a parking contravention. 

She was very very harsh . Didn’t make me feel comfortable and kept grilling me and not letting me give a good account of myself. I’m wondering if I can appeal this?

Coupon-mad

You could - but appeals go to an even more out of touch Judge.  Believe me, I've seen an appeal hearing or two in parking cases and Circuit Judges are useless to consumers, swallowing everything a legal rep or barrister for the other side tells them.

She was completely wrong and has erred in law about your liability. Didn't your bundle include Excel v Smith (appeal)?  That would have saved her falling into error.