County Court Claim - Old Life Boat House, Wells-Next-the-Sea

Brook80

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. 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." 

17. 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." Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA and 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.

18. Pursuant to Schedule 4 paragraph 4 [5] of the Protection of Freedoms Act 2012, the sum claimed exceeds the maximum amount 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/obligation] which in this case is denied. 

19. At the Bradford County Court, District Judge Claire Jackson [now HHJ Jackson, a Specialist Civil Circuit Judge] decided to hear a 'test case' where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims. That case was Excel v Wilkinson: G4QZ465V, heard in July 2020, and leave to appeal was refused and that route was not pursued. The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. This Judge, and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021, went into significant detail and concluded that parking operators [such as this Claimant] are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown.''

20. Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is averred that the Claimant has not paid or incurred any added costs and cannot plead a case in damages at all. Any debt collection letters were either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low-cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist. 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. 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. 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. 

22. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA and 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." 

23. Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice [CoP] that now includes a hastily-added clause 'allowing' added costs/damages. The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''

24. The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long. They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019. Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute. In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new Parking Act 2019 is very much consumer-focussed, aiming for: ''good practice... in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''

25. In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice. Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity regarding the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action. There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

Coupon-mad

I'm not sure that end bit is the March 2022 template?

Brook80

@Coupon-mad which sections? I think I have mixed a couple up inadvertently as I tried to use recent Wells cases

Brook80

Brook80 said:

@Coupon-mad which sections? I think I have mixed a couple up inadvertently as I tried to use recent Wells cases

I will take a look again tomorrow. Thanks @Coupon-mad

Coupon-mad

Well the Template Defence ends by talking about costs and this doesn't.

Brook80

@Coupon-mad should I literally be leaving every template section in and just adjust points 2 and 3?

Fruitcake

Yes, that is what we normally advise. If there are other points not already included such as not relevant land/byelaws, then add those as well and renumber follow on paragraphs.

Brook80

@Fruitcake thank you. I'll have another go. Does the bye-laws section read ok? 

Brook80

Hi all. I think I am about there and ready to email my defence on Monday.
Your 'submitting your defence' advice recommends emailing to the parking firms legal team or solicitors, but I am struggling to find one for CEL. Can you point me in the right direction please? 

KeithP

Sticking CEL Legal Team in the forum's search facility will return several threads

Just reading a couple of those will get your answer.