Claim Form Received

ppjj29

How is this?

Index

 

 

 

Content	Page number
Witness Statement	2-8
Exhibit 1 - Proof of previous address and route map	9
Exhibit 2 - Photographs of construction works	10
Exhibit 3 - Appeal letter sent to Highview Parking	11
Exhibit 4 - Response to appeal letter provided via SAR	12
Exhibit 5 - Proof of use of XXX GYM	13
Exhibit 6 - Letter to LAND land owner	14
Exhibit 7 - ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198	15
Exhibit 8 – Excel v Wilkinson	25
Exhibit 11 - Schedule of Costs	26

 

In the County Court at XXX

 

Claim Number XXX

 

Between

 

 

 

 

 

 

(Claimant) V

(Defendant)

 

 

WITNESS STATEMENT OF DEFENDANT

 

 

 

 

 

1.          I am MR XXX of LOCATION, 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. As these parking charges are over five years old it is hard to remember the exact circumstances. I can confirm that I was the driver at the time.

 

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.          In 2016, XXX GYM was my most local gym which I frequented between 3-5 times a week. I would often stay in the gym from between 1–3 hours depending on whether I was training by myself or with a friend with whom I often met up with. On this particular occasion, I believe I met up with my friend for an extended gym session. I was living in ADDRESS at the time and this gym was my closest XXX GYM. (Exhibit 1 – showing proof of my address at the time taken from my credit report, along with a Google maps screenshot showing the nearest XXX GYM to my address at the time).

 

4.          When entering the gym on the date of the alleged contravention, I recall there being major construction works taking place which affected the whole of the underground parking structure. From what I recall, the parking signs/terms and conditions were not visible and the construction works caused an obstruction of the throughway meaning vehicles were intermittently struggling to enter/exit the parking structure. (Exhibit 2 – images taken by myself showing the extent of the construction works on Urban Exchange car park at the time of the alleged contravention).

 

5.          I believe I entered the gym for a workout, having met up with my friend which meant I was going to be up to 3 hours.

 

 

6.          Upon leaving the gym, I recall being concerned about having to exit the car park in a timely manner and I recall taking photographs as proof of the disruption in case I faced any issues. My friend often walked to the gym so there would have been no discussion with them about parking issues due to them not driving. (Photographs visible in Exhibit 2).

 

7.          I vaguely recall struggling to locate the parking terms and conditions to find out what may happen if I was to overstay through no fault of my own.

 

8.          I received a penalty charge notice dated DATE informing me that I am being charged £95 for staying over the “allowed” 3 hours in the car park.

 

9.          I do not recall submitting an appeal, however I did find an appeal that was submitted on my personal computer. When fulfilling my SAR request, LANDOWNER advised that they no longer held a copy of my appeal. (Exhibit 3 – the appeal sent to Highview Parking).

 

10.      As part of my SAR request, Highview Parking provided a copy of a letter explaining that for them to uphold my appeal, I would need to provide evidence that I used the gym or shops in the retail park at the time of the alleged contravention. (Exhibit 4 – the appeal response letter allegedly sent by Highview Parking). I do not recall receiving this letter. If I had, I would have provided proof from my XXX GYM online account that proves I was using the gym on this date. I have provided proof of me continuing to use the XXX GYM (and subsequent car park) at times when I meet my friend (Exhibit 5 – proof of use of XXX GYM). I now live in LOCATION so my closest gym is XXX GYM.

 

11.      I believe that the parking charge notice had been cancelled due to not having any further contact from Highview Parking and not receiving any response to my appeal. Many years later I started receiving letters from DCB Legal demanding payment in 2020. I attempted to email the landowner of LANDOWNER to no avail. (Exhibit 6 – email to landowner).

 

 

ParkingEye v Beavis is distinguished

 

12.      I suggest that a penalty of £95 for the parking charge notice ‘Consequences which are out of all proportion to any legitimate interests’ of the claimant, distinguished from the charge levied in the Beavis case. (Exhibit 08)

13.      The Supreme Court held that the intention cannot be to punish a motorist, or to present them with concealed pitfalls, traps, hidden terms, or unfair/unexpected obligations, or can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests.

POFA and Consumer Rights Act

 

14.      Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 (POFA), the sum claimed exceeds the maximum sum which may be recovered from the keeper.

15.      Pursuant to Schedule 2 paragraph 6 of the Consumer Rights Act 2015, the sum claimed could be regarded as unfair by the court as it considers the test of fairness laid out in Section 71.

Signage

 

16.      The claimant’s signage wasn’t legible due to the construction works and as such was void of creating a legally binding contract. In addition to this, I recall attempting to seek signage after parking to understand the terms if I were to run over due to no fault of my own.

 

 

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The Quantum and abuse of process

 

17.      This Claimant continues to pursue a hugely disproportionate sum; it is denied that the quantum sought is recoverable, indeed it represents a penalty. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015]

KSC67. 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'.

18.      In addition to this, the ‘additional charge’ constitutes a double recovery and the court is invited to find the quantum claimed is false and an abuse of process as found by HHJ Jackson in Excel v Wilkinson in which £60 had been added to a parking charge. (Exhibit 10)

19.      My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for LevellingUp, 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.

20.      Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice, 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.

21.      Adding debt recovery costs, damages, or fees (however described) onto a parking charge is now 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."

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.      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.

24.      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.

 

25.      The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

 

26.      The new Act overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark- Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being                     persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

27.      Where this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

Aggressive Debt Collection

 

28.      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."

With the court process well outside of my life experience, my defence was signed only after extensive research on appropriate fora and was supported by knowledge that I had gained during study of the relevant case law. I have attempted to represent myself to the best of my ability.

CPR 44.11 - further costs

 

29.      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 the Claimants representative did not have reasonable cause to issue the PCN, as there were no Claimant signs clearly displayed in the car park, upon which my vehicle was parked. It is denied that clear signage existed in this car park; therefore, it is denied I am in breach of terms and conditions. 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

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

 

 

30.      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.

 

31.      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.''

 

 

 

 

 

Conclusion:

 

32.      It is submitted that the fine was disproportionate and the ‘additional charges’ are (and were at the time) unreasonable in the face of case law precedent and, subsequently an Act of Parliament. The Claimant’s signage was not visible at the time of the alleged contravention. In addition to this, the Claimant had apparently offered to void the parking charge notice upon receipt of evidence that the gym or shops were being used. I never received such letter (only via a SAR 6 years later) so never had the opportunity to prove I used the gym, evidence which I would have been able to provide.

33.    I therefore request that the court find the quantum claimed is false and constitutes an abuse of process.

 

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 trust without an honest belief in its truth.

 

Signature:

 

 

 

XXXX

 

Date:

 

ppjj29

Just bumping this to see if anyone had any thoughts on the above? Exhibits have been redacted however the descriptions should explain what is in them. 

Thanks. 

Coupon-mad

I would remove 10, 32 and 33 entirely.  No conclusion needed and don't mention an appeal response you never received -  and certainly don't add it as an exhibit.  If asked, you never received a response - end of story.

Remove this first line from 9:

"I do not recall submitting an appeal, however "

And add in the actual transcript of HHJ Hegarty's words from PE v Somerfield about £75 not being a penalty but enhancing it to £135 would be disproportionate. The actual transcript as an exhibit. It's Googlable and found on a SWARB result, but make sure you grab HHJ Hegarty's judgment at High Court level, NOT the Court of Appeal one (which didn't overturn his findings).

ppjj29

Coupon-mad said:

I would remove 10, 32 and 33 entirely.  No conclusion needed and don't mention an appeal response you never received -  and certainly don't add it as an exhibit.  If asked, you never received a response - end of story.

Remove this first line from 9:

"I do not recall submitting an appeal, however "

And add in the actual transcript of HHJ Hegarty's words from PE v Somerfield about £75 not being a penalty but enhancing it to £135 would be disproportionate. The actual transcript as an exhibit. It's Googlable and found on a SWARB result, but make sure you grab HHJ Hegarty's judgment at High Court level, NOT the Court of Appeal one (which didn't overturn his findings).

Thank you so much, appreciated!

Once done, do you think it is good enough to submit? Is it recommended to wait until the deadline to submit in case I can catch a glimpse of the claimants WS?

KeithP

ppjj29 said:

Coupon-mad said:

I would remove 10, 32 and 33 entirely.  No conclusion needed and don't mention an appeal response you never received -  and certainly don't add it as an exhibit.  If asked, you never received a response - end of story.

Remove this first line from 9:

"I do not recall submitting an appeal, however "

And add in the actual transcript of HHJ Hegarty's words from PE v Somerfield about £75 not being a penalty but enhancing it to £135 would be disproportionate. The actual transcript as an exhibit. It's Googlable and found on a SWARB result, but make sure you grab HHJ Hegarty's judgment at High Court level, NOT the Court of Appeal one (which didn't overturn his findings).

Once done, do you think it is good enough to submit? Is it recommended to wait until the deadline to submit in case I can catch a glimpse of the claimants WS?

And of course the opposite is true...
The sooner you file your Witness Statement, the greater opportunity the Claimant has to pull it to pieces.

So, leave filing and serving your Witness Statement, evidence and Costs Schedule to the last possible moment, but do not miss the deadline.

ppjj29

KeithP said:

ppjj29 said:

Coupon-mad said:

I would remove 10, 32 and 33 entirely.  No conclusion needed and don't mention an appeal response you never received -  and certainly don't add it as an exhibit.  If asked, you never received a response - end of story.

Remove this first line from 9:

"I do not recall submitting an appeal, however "

And add in the actual transcript of HHJ Hegarty's words from PE v Somerfield about £75 not being a penalty but enhancing it to £135 would be disproportionate. The actual transcript as an exhibit. It's Googlable and found on a SWARB result, but make sure you grab HHJ Hegarty's judgment at High Court level, NOT the Court of Appeal one (which didn't overturn his findings).

Once done, do you think it is good enough to submit? Is it recommended to wait until the deadline to submit in case I can catch a glimpse of the claimants WS?

And of course the opposite is true...
The sooner you file your Witness Statement, the greater opportunity the Claimant has to pull it to pieces.

So, leave filing and serving your Witness Statement, evidence and Costs Schedule to the last possible moment, but do not miss the deadline.

In regard to the costs schedule - is it acceptable to type out the costs (my witness costs and loss of earnings) and just attach as an exhibit? This is what I have done so far. Thanks. 

Coupon-mad

It is not an exhibit.

A costs assessment is just a page attached with proof of loss of earnings.

1505grandad

"8.          I received a (penalty) charge notice...."  -  (parking)

Also para 8 and 12  -  just checking  -  the original pcn was definitely £95?

Para 20  -  (typo)  -  "...fees cap set in the Small (Clams) Track."

ppjj29

1505grandad said:

"8.          I received a (penalty) charge notice...."  -  (parking)

Also para 8 and 12  -  just checking  -  the original pcn was definitely £95?

Para 20  -  (typo)  -  "...fees cap set in the Small (Clams) Track."

Thanks for this. 

Yes, the SAR contained the original PCN letter and it says £95 as the figure or a discount if paid within 14 days.