URGENT: Court letter Parallel Parking- please help!

star1800 · 12 November 2022 at 4:15PM

Coupon-mad said:

I think remove para 5 from that WS.

I am concerned that this short draft has nothing else, and you've missed all the usual advice, including the typical Exhibits in the NEWBIES thread. It isn't based on the WS bundle by @aphex007 which is what we advise.

Also you haven't cited the Claimant's Trade Body's rules or guidance about keying errors, nor quoted from the new incoming statutory DLUHC Code of Practice which says ALL keying error cases will have to be cancelled on appeal in future, because it is an unfair term; an unbalanced burden on consumers when the available technology certainly allows the system to recognise VRMs and search for and attribute 'near-miss' keying entries.

You should also make more of the fact you phoned them up, so they KNEW from the outset, that payment was yours. Absolutely zero legitimate interest in getting DVLA data and punishing you to the tune of £100.

Hi thanks for your reply.

the exhibit from newbies thread, do you mean this:
a) a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case (see Google images - it's yellow and black)
(b) photos proving the scarce/illegible small print signs & a view showing the lack of entrance signs, etc.
(c) maybe a video of how it looks from a car? Get a passenger to hold a camera or phone and record the lack of signs in similar light conditions.
(d) if you are defending as keeper, not driver, include a copy of Schedule 4 of the POFA - there is a link in post #1 above. Plus a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability'.
(e) a copy of your lease or tenancy agreement if this is an 'own space' or 'block of flats' dispute where YOU have primacy of contract.
(f) case transcripts that support your argument (get them from the Parking Prankster's case law page), e.g. if arguing prohibitive 'forbidding parking' signs which offer no contract a driver can accept, you need PCM v Bull; if arguing that this is a residential space where the tenant/leaseholder has already been granted the right to park or unload, you need Jopson v Home Guard (appeal) and PACE v Mr N, etc.
(g) the IPC or BPA Code of practice, where it supports your case (e.g. grace periods) but be sure to use the RIGHT version for the date of parking.
(h) Pay & Display ticket, if the driver paid. DON'T argue 'no loss'!
(i) the Approved Judgment from Southampton, plus paras 98, 193 and 198 from Parking Eye v Beavis copied & pasted onto a single sheet.

I havnt used these because I dont think any of it applies to my case as it wasnt to do with small print signs etc etc.

The other info you have suggested, I will get onto it asap and edit my draft and will reupload it.
thanks

Coupon-mad · 12 November 2022 at 5:29PM

"I haven't used these because I dont think any of it applies to my case."

...what, not even the Beavis sign as a comparator, nor paras 98, 193 and 198 from Parking Eye v Beavis copied & pasted onto a single sheet? Basic stuff for every case.

Plus Excel v Wilkinson as seen in the example WS bundle by @aphex007

Plus the stuff about keying errors and making MUCH MORE about the fact you rang them up (in the car park?) so they KNEW THAT PAYMENT RELATED TO YOUR CAR.

Use the phrase "no legitimate interest in obtaining my data at all, which completely distinguishes my case from Beavis".

star1800 · 12 November 2022 at 7:23PM

Coupon-mad said:

"I haven't used these because I dont think any of it applies to my case."

...what, not even the Beavis sign as a comparator, nor paras 98, 193 and 198 from Parking Eye v Beavis copied & pasted onto a single sheet? Basic stuff for every case.

Plus Excel v Wilkinson as seen in the example WS bundle by @aphex007

Plus the stuff about keying errors and making MUCH MORE about the fact you rang them up (in the car park?) so they KNEW THAT PAYMENT RELATED TO YOUR CAR.

Use the phrase "no legitimate interest in obtaining my data at all, which completely distinguishes my case from Beavis".

I have read the beavis case but its more to do with sings not being readable. The judge also in that case was happy with the £85 claim. So I dont see how it will help my case as my case has no base for signage issue.

I will put in keying error and about how I rang them.

Coupon-mad · 12 November 2022 at 7:44PM

"my case as my case has no base for signage issue."

Even though every single case here does?

The point is that the £100 wasn't prominent. Not that they 'had signs up'. Tell me the £100 was in massive lettering and I will agree with you.

star1800 · 13 November 2022 at 3:49PM

Coupon-mad said:

"my case as my case has no base for signage issue."

Even though every single case here does?

The point is that the £100 wasn't prominent. Not that they 'had signs up'. Tell me the £100 was in massive lettering and I will agree with you.

Ah ok I see what your pointing out, yehh thats true it didnt say anywhere clearly about £100 fine. Ok I will put the beavis case in! Sorry!

star1800 · 13 November 2022 at 4:12PM

1. I am xxxxxxx 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.

Sequence of events

2. I drove into the car Mansfield car park on Saturday 26/06/2021 at 15:08 as shown in the photo provided by the claimants witness statement.

3. I then found parking and walked towards the pay and display machine to purchase my ticket. Unfortunately, a keying error occurred when entering my car registration number and I entered a wrong digit. However I did pay for the ticket which was £5 for 2 hours.

4. This keying error that occurred was due to not wearing my reading glasses, so I could not see the digits very clear on the machine.

5. Another reason why the keying error occurred is that it was my first day out since the covid pandemic as I had to shield. This made me very anxious in pressing the buttons on the machine as it did not take measures to reduce the covid transmission such as providing option of buying a ticket through online app or that the buttons had been cleaned regularly.

6. The sign (exhibit 1) states in large writing that display ticket inside windscreen so I did not have the option to buy the ticket online or through an app.

7. I realised I made a keying error and so I rang the customer service number straight away whilst in the car park that is provided on the sign (exhibit 1) but unfortunately this number diverted my call to AA roadside assistance. There was no instructions provided or any guidance as to what I should have done in my situation.

8. I then made sure that I returned to my car before my parking ticket expired and exited the car park so I do not overstay my parking ticket.

9. I emailed the claimant asking for partially redacted VRM data of the car park pay and display machine for the date 26/06/2021, which is the date I parked to show that I did purchase a ticket but due to a keying error, 1 digit was incorrect. The claimant issued nine pages of VRM (exhibit 2-10) with every single digit redacted as claimant stated it would be data breach if unredacted.

10. I replied asking for either half of the VRM to be redacted as this would not be in breach of data confidentially, but the claimant rejected my request to send partially redacted VRM. I have attached this email conversation in exhibit 11.

11. This proves my point that I did with all honesty purchase a parking ticket but due to the keying error, the claimant is falsely accusing me of not purchasing a ticket. If the data is unredacted, it will clearly show my car number plate (with 1 digit incorrect) and that I also left within the time specified on the ticket.

12. The claimant made no legitimate interest in obtaining my data at all, which completely distinguishes my case from Beavis.

Abuse of Process

12. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that admin costs inflating it to £135 'would appear to be penal'.

13. 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

14. Adding costs/damages/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." The code of practice also stated “ to cap debt recovery fees at the existing industry level of £70’

15. 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."

16. 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.

17. 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.

18. These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged 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 too late. I did not agree to it.

19. 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.

20. The new parking code of practice as set out by the government states ”The Code requires all parking operators to follow a policy to avoid issuing or enforcing a parking charge where keying errors occur”. Looking at this code of practice, this again cancels the claimants parking charge claim.

ParkingEye v Beavis is distinguished

21. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach. (exhibit 12)

22. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with concealed pitfalls/traps, hidden terms or unfair/unexpected obligations. (Exhibit 13)

POFA and CRA breaches

23. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance.

24. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

25. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

26. 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

27. With the DLUHC's 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. The Defendant believes 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. The Defendant invites 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 and that of the Defendant.

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.

Hey guys let me know if this draft is ok? I cant think of anymore info to insert.

Also when I re the exhibits, can i attach them separately to the WS when I am emailing it to the court or does WS and exhibit have to be on 1 single file?

thanks

Coupon-mad · 13 November 2022 at 4:52PM

What are all your exhibits, please?

If this is a WS, why does it end:

"I believe that the facts stated in this defence are true. "

star1800 · 13 November 2022 at 5:01PM

Coupon-mad said:

What are all your exhibits, please?

If this is a WS, why does it end:

"I believe that the facts stated in this defence are true. "

My exhibits are:
1: parking sign with customer service number
2-10: Pay and dislay machine data redacted VRM
11: email screenshot where I ask for unredacted VRM
12: Beavis case sign for comparison
13: Beavis case para 98, 193 and 198

Thanks I will change the defence to witness statement

1505grandad · 13 November 2022 at 8:07PM

There are several paras stating DLUHC ban on additional costs - should there be the usual para re JR's? - similar to the start as follows (unless I missed it):-

"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."

star1800 · 16 November 2022 at 10:18PM

Hey guys this is my final draft for my grans WS. I have to submit this by end of tomorrow so please let me know if its ok? Iv cut off the first line and the last statement as it goes over the posting word limit.

Sequence of events

2. I drove into the car xxxxxx as shown in the photo provided by the claimants witness statement.