Getting change of address sorted for PCNs

Lought_TA

Ok - noted @Coupon-mad ! Had a quick read of some of the searches related to CEL v Chan but certainly will include this in the WS and read up on more.

@1505grandad - not yet. I've had no correspondence from the new County Court just yet. 

Lought_TA

Got the court notice yesterday about being allocated to the Small Claims Track at the new County Court. All parties must provide everything they are going to the case with by 12th Jan. (Actual court date is mid Feb)

I'll get my WS finalised and then post in here - a couple of questions straight away though:

• I assume I can e-mail the WS to the County Court and DCBL? I've seen forum advice stating do not send recorded mail to these parties. Just want to check that is still up to date advice.
• On previous WS examples on the forum, people have previously added a section towards the end which critiques the Claimant's evidence - I am yet to receive anything from DCBL. Is this likely to arrive before the 12th Jan or is that not a must have for the WS?

Thanks all again   

Coupon-mad

Only a 'must have' if you get their WS first!

And don't send anything to Northampton CNBC.

Lought_TA

Ok - have drafted WS this weekend and can share tomorrow. I've seen a couple of methods of uploading WS on the forum - one is through Dropbox and the other is a direct download in the comment.

Is there a preferred method to use? I'd need to set up a Dropbox account if that is the way to go.

Coupon-mad

Just copy & paste here in a reply.  We really don't want to have to click on links.

Lought_TA

Ok - even better!

First draft below: (Exhibits just discussed unless it is a photo which I've then included to save space for the forum)

1.     I am xxx of xxx 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:

Preliminary matter: The claim should be struck out

3.     The Defendant draws to the attention of the court that there is now a persuasive appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on appeal). The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based on the following persuasive authority.

4.     A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th of August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (Exhibit 1) [Pages 1-4 of Chan judgement snippet used]

5.     Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v Anon) and struck the Claim out without a hearing. (Exhibit 2) [Photo of this judgement used]

6.     Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (Exhibit 3) [Photo of this judgement used]

7.     Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lack of clarity, detail, and precision. As stated in Exhibit 4, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. [Photo of this judgement used]

8.     The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs. The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

Sequence of events and signage

9.     In November 2021, I had hired a vehicle to move my belongings out of a flat in the Millennium Village and into an external storage site as part of the process of moving out of the flat and moving to a new area. This involved loading various belongings down from the third floor flat (in a building without a lift) into the vehicle in question and driving to the external storage site.

10.   I then returned to the flat later that day to load larger items into the vehicle before exiting the site for a second time. Upon my next return, the vehicle was parked in my designated parking space in the Moseley Row Car Park. Entrance to this car park was through a key fob entry that needed to be authorised by the on-site concierge. I have attached the lease agreement (Exhibit 5a) confirming a car park space and a Google Map screenshot (Exhibit 5b) highlighting the distance between the Millennium Village site and this car park.

11.   I have returned to the site twice since November 2021 (in November 2022 and April 2023) to take photographs of the area myself and are used in the Exhibits below.

12.   To gain access to the Millennium Village, the main entrance is blocked by an entry/exit barrier at the end of School Bank Road to stop access during peak school times. The barrier was opened (outside of peak hours) using the key fob that also allowed access to Moseley Row Car Park. (Exhibit 6a) While my photo shows the barrier was up, I have attached a Google Street View photo from May 2022 that shows the barrier down and still in use. (Exhibit 6b)

(Not included Google Street View - but their image from May 2023 clearly shows barrier down)

13.   There had been no communication or changes to my lease agreement that stated these rules had now changed and Exhibit 6b clearly shows access allowed onto the site through a key fob or permitted entry from on-site concierge as the method of entry. I have included a close up of the entry/exit barrier in Exhibit 7.

14.   If we consider the signs themselves used by the Claimant, these breach a number of rules they need to follow in their own British Parking Association (BPA) Code of Practice and against a number of County Court judgements made in the past.

15.   The latest BPA Code of Practice (version 8 – January 2020) Section 19, Paragraph 19.2 states that “(operators) must use signs to make it easy for (drivers) them to find out what your terms and conditions are.”

16.   It may be noticed in Exhibit 2a that the Claimants first sign a motorist is supposed to notice is a sign stating ‘Permit Holders Only’ and surrounded by a number of other signs erected by the local building management. Exhibit 8 shows a more focused picture of this sign. It is clear that the sign is in poor condition and hanging off the lamppost, making it harder for motorists to notice and pay attention to this sign. It would not have surprised me if since April 2023, that sign has fallen off completely.

17.   This therefore goes against the BPA Code of Practice, as Section 19, Paragraph 19.3 states that “Signs must be conspicuous and legible…easy to see, read and understand.” (Exhibit 9) The photos of this sign show that it is neither easy to see, nor read and tactically placed on the opposite side of the road from the closest side for a motorist to see. [Snipped page from BPA CoP used]

18.   BPA Code of Practice Appendix B also details other rules that entrance signs must follow which this sign is in breach of. (Exhibit 10) [Snipped page from BPA CoP used]

19.   Appendix B states that the sign “should be placed so that is it readable by drivers without their needing to look away from the road ahead.” It is clear from the photos in Exhibits 6a and 8 that a driver would need to look away from the road and potentially stop under a barrier to enable to read the sign properly.

20.  Following close inspection of the first sign, which encourages people to the site to refer to the terms and conditions, I found a sign near the main entrance during my visit in April 2023 (Exhibit 11a) that displays the various terms and conditions that the Claimant believes motorists to the site sign up for upon entry.

21.  These signs (of which there are a few more placed at random throughout the Millennium Village) immediately breach the BPA Code of Practice as discussed above in a number of ways.

22.     Firstly, the sign is not particularly prominent being out of sight for motorists driving into the site (breach of BPA Code of Practice Paragraph 19.3) as well as using a small font size that makes the various terms and conditions discussed on the sign unreadable. (Exhibit 11b)

23.  This is also in breach of the Consumer Rights Act 2015 (section 63-67 – contract terms which must be regarded as unfair) which states that non-prominent terms or consumer notices are not binding on consumers.

24.     A number of notices on the sign also offer neither support nor advice as to how to register for a valid parking permit or where to go if one is required.

25.     As well as the main entrance on School Bank Road, there are a number of other access points into the Millennium Village that motorists are able to use. While sometimes, these are blocked by bollards, having lived on the site for over 6 and a half years, I saw many times that these access points were usually open.

26.    Exhibit 12a and Exhibit 12b taken in November 2022 from the North side of Millennium Village entrance at Child Lane clearly shows an open access point into the Millennium Village with other cars parked on the street. The important aspect to note in this photo is the complete lack of signage or acknowledgement of any parking restrictions from this entrance point in.

27.  This inconsistent approach to signage and lack of informing motorists of various terms and conditions equates to usual predatory tactics used by the Claimant to claim money off residents who live at the Millennium Village who have right to access the space near their apartments.

Loading – Jopson v Homeguard

28.  It is worth drawing the attention of the honourable judge to the following case which bares similarities to mine: Jopson v Homeguard (Ref: 9GF0A9E) The case was determined by His Honour Judge J Harris QC and stated that loading and unloading is not considered parking. (Exhibit 13) [Pages 1-11 of Jopson judgement snipped]

29.  Paragraphs 20 and 21 within the judgement are the most xxx to this case as the Judge discussed “The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration.” (Paragraph 20)

30.  The exact time definition of short duration is not given however, the Judge continues with “A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant, unloading an awkward piece of furniture. Any other approach would leave life in the block of flats close to unworkable…” (Paragraph 21)

31.   As this was a Court of Appeal case, this decision is influential on the lower courts and must be considered as part of this case.

Exaggerated Claims and ‘market failure’ currently examined by the Government

32.  The Claimant has not provided any evidence of the additional charges. The Claimant has at no time provided an explanation of how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £340 to £472.56. The Claimant has inexplicitly added ‘costs or damages’ bolted onto the alleged PCNs, despite using a solicitor to file the claim, who must be well aware that the CPR 27.14 does not permit such ‘admin’ charged to be recovered in the Small Claims Court.

33.  The heavily quoted case of ParkingEye v Beavis (Ref: UKSC67) confirmed that a parking firm not in possession cannot plead their case in damages and could only collect the already inflated parking charge (in that case, £85) which more than covered the very minimal costs of running an automated/template letter parking regime. The Claimant is put to strict proof to show how any alleged costs/damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was in fact, expended. To add vague damages plus alleged 'legal costs' on top is a wholly disingenuous attempt at double recovery, and the Defendant is alarmed by this gross abuse of process.

34.  The alleged 'core debt' from any parking charge cannot have exceeded £100 per charge (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

35.   I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and

(ii) a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

36.  This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

37.  The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here: 

https://www.gov.uk/government/publications/private-parking-code-of-practice 

"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."

38.  Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

39.  Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

(continues...)

Lought_TA

40.  With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.

41.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

42.   In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of the ParkingEye Ltd v Beavis [2015] (Ref: UKSC67) case I have mentioned above. 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 (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal’.

43.   This Claimant has not incurred any additional costs because the full parking charge (after expiry of the discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of the pre-action stage, even if and when the Government reduces the level of parking charges.

44.  Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2024 to scrutinise every aspect of claims like this one.

45.  In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

Conclusion

46.  The claim is entirely without merit. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

47.  There is now ample evidence to support the view (long held by many District Judges) that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

48.  In the matter of costs, the Defendant asks:

a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.

49.  Attention is drawn specifically to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably(r.27.14(2)(dg))."

Statement of truth & signature/date.

troublemaker22

Well written. How about “pertinent” for the “xxx” in para 29. 

I don’t think Jopson v Homeguard was in the Court of Appeal. It was an appeal case heard in the Oxford County Court. 

Lought_TA

Great - thank you for the feedback @troublemaker22! 

Good spot on 'xxx' - I'll certainly use pertinent and update the Jopson v Homeguard correct court.

Much appreciated for taking the time to read through.

Coupon-mad

Looks very good!   I might link this as an example in the NEWBIES thread of a WS that uses the CEL v Chan case.