One Parking Solution + DCB legal - Residential Parking Defence

Coupon-mad

What are your exhibits?

Parking_Nightmare835

• Photos showing the signs from where you'd see them when driving in or getting out of your car
• My tenancy agreement showing the right to quiet enjoyment
• IPC Code of Practice Schedule 1 page 28 (version 8, 1st July 2021) demonstrating recommendations for text sizing
• Transcript of a recent judgment which highlights the relevance of section 37 of the Landlord and Tenant Act 1987
• Transcript of Judgement ParkingEye v Beavis, paras 98, 193 and 198 ([2015] UKSC 67)
• Transcript of Judgement Excel Parking v Wilkinson in the County Court at Bradford 2nd July 2020

Coupon-mad

Parking_Nightmare835 said:

I've now got a court date at Brighton on 2nd November and the deadline for my WS has come round quite quickly (I have had a lot going on this month)! Here's a draft based on the one mentioned in the comment above. In the appendix I will include my tenancy agreement, photos of the signs from a driver's POV, the IPC Code of Practice and the relevant judgements.

Am I on the right lines here?

NB: pasting this into the comments had made the numbering go wrong, in my document they are continuous though the whole document.

1. I am XXXX XXXX of XXXX, 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:
   
   

Background:

1. I have been a resident at XXXX since November 2018, as a private tenant.
   
   

2. There are parking spaces near the flats that are for residents, they are not allocated to specific residents. There were no permits required and I had no issues parking there for over 2 years, from November 2018, until I found PCN OPS560830 on my car.
   
   

3. My tenancy agreement states that I have the right to quiet enjoyment of the property and makes no mention of parking permits for residents. The Claimant’s letters containing references to bailiffs and county court judgements have caused me a great deal of stress, impacting my enjoyment of the property.
   
   

4. I did not receive any notification of the changes to the parking situation, or any change to my tenancy agreement.
   
   

5. On 07/02/2021 I parked my car in one of the spaces as usual, there were no signs present mentioning OneParking Solution or permits. As there were no signs there to see when I parked my car there, I did not form a contract with OneParking Solution, or agree to pay them anything.
   
   

6. As we were in a national lockdown period I did not return to my car until 14/02/2021. On 14/02/2021 I went out to my car in the afternoon and found PCN OPS560830 on my car and an additional sign nearby.
   
   

7. PCN OPS562538 had been issued on the previous day, but had been removed from my car. As the letters I received were the same template, I thought there had been an error in the Claimaint’s systems and did not realise there were 2 PCNs. Therefore I only appealed PCN OPS560830.
   
   

8. After my initial appeal was turned down I did some research online and learned that the private parking company appeals processes are generally a waste of time and therefore did not pursue them further.

Abuse of process - the quantum

1. 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, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67 - Exhibit XX-12 . 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
   
   

2. 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 XX-13
   
   

3. 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 goes here]
   
   

4. 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."
   
   

5. This particular Claimant's legal team pursues a sum on top of the PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'administration' enhancement of £70 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.
   
   

6. 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 is 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.
   
   

7. 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."
   
   

8. 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 money making exercise to extract a high fixed sum from weaker motorists, and came far too late. I did not agree to it.
   
   

9. 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.
   
   

10. This overrides the mistakes and presumptions in the appeal cases that the parkingindustry 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.
    
    

11. 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-12) where she went into great detail about this abuse.
    
    

12. 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 re-stating 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.
    
    

13. 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.

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

1. 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.
   
   

2. 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:

1. 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.

Here's your WS for people to read.

Exhibits look good, except OPS are not and never have been (yet) in the IPC.

Parking_Nightmare835

Ah, good point, I'll take that out.

Parking_Nightmare835

Is there anything I should say about the code of practice being withdrawn? (I got their witness statement today and they mention it).

Coupon-mad

What exactly do they say, plus anything else you've noticed that is crap, stupid or plain wrong in the WS that you want to mention in your own?

Parking_Nightmare835

They say: "The Defendant alleges that contractual costs are not permitted as per the new Private Parking Code of Practice. I note that the Private Parking Code of Practice has been withdrawn as of 07/06/2022 in order to review the levels of private parking charges and additional fees. I therefore do not intend to make submissions on these allegations any further."

There are a few other bits that stand out to me:

They do mention Britannia v Semark-Jullien and One Parking Solution v Wilshaw, which I have already mentioned in my WS, I can update that to reference their WS paragraph.

They say that I have 'benefitted' from the parking management service, and therefore I should comply with their requirements. That is definitely not true, I had been happily using the parking before they arrived, their 'service' has resulted in me not being able to use the residents parking and parking on the street instead.

They have said that the extra costs they're claiming are actual costs they have incurred, but as they were pursuing two claims and all the correspondence I received was the same for both claims, it shows that the claims are automated & templated and wouldn't have cost them much at all. I think we have also covered that one, but I can add in something about the duplicate correspondence and show an example of the letters I received.

When talking about legitimate interest they say that "The Landowner's legitimate interest in managing the Land is because it is for permit holders only." Which doesn't make sense, surely the landowner's interest is to prevent non-residents from parking in the spaces.

Again about their costs: they say it's not their company's usual business to try and recover these debts, which seems an odd claim when looking at the number of times dcb legal come up on this forum.

Thanks again for your super speedy help on this, I can add these points in tomorrow.

Coupon-mad

Again about their costs: they say it's not their company's usual business to try and recover these debts, which seems an odd claim when looking at the number of times dcb legal come up on this forum.

Forget about DCBLegal. They are not the Claimants.

The Claimant is OPS.

IMHO, unfair 'fines', aggressive demands and court cases are a major part of their business model.  But don't linger on that section of the WS, because your local Judges have read that template 'it's not part of our usual business' gubbins many times before. They always say that!

The rest of your observations are good to include in your WS, though.

Parking_Nightmare835

Great, thanks, I'll make those amendments and get that sent off today. One last question, should I say something in response to this from them:

They say: "The Defendant alleges that contractual costs are not permitted as per the new Private Parking Code of Practice. I note that the Private Parking Code of Practice has been withdrawn as of 07/06/2022 in order to review the levels of private parking charges and additional fees. I therefore do not intend to make submissions on these allegations any further."

I'm not sure what to say about that.

Coupon-mad

It is true. But it shows the intention of Government (the Code is only stalled for an Impact Assessment) and the clear wording from the DLUHC Minister, that the added fees are 'extorting money from motorists' adds weight to the view that the added £70 that has never been paid to any debt collector, is an excessive addition to a parking charge that is already intended to cover the minor costs of automated letters pre-action.