PCN from Parking Control Management 23 June 2022 at 1:32PM in Parking tickets, fines & parking 55 replies 708 views

MadMunk

You're a star coupon.  Thank you for the guidance, it's appreciated.

MadMunk

Hello experts.  

I am almost at that point of expecting a court date if the claimant does not back out at the last minute.  I had prepared this WS some time ago but would appreciate any feedback on whether my content is good/bad.

Thank you in advance for your kind assistance.

MadMunk

IN THE COUNTY COURT

Claim No.:  <Number>

Between

<Claimant>

(Claimant) 

- and -  

<Defendant>

 (Defendant)

_________________

Witness Statement

1. I, <Name>, residing at <Address>, hereby assert my position as the Defendant in the present claim. I affirm that the following facts are true to the best of my belief, and this account is based on my personal knowledge.

2. Throughout this statement, I will make reference to the exhibits included as evidence, using appropriate page and reference numbers. I reiterate my defense as follows:

3. I have identified an irregularity concerning the claim currently brought before this court. Regrettably, I have not been given an opportunity in the pre-action phase to respond or adequately prepare for the alternative claim denoted by reference <New claim reference> (Exhibit 1: pages 5, 7, 9). Up until that point, all correspondence and the Pre-Action Protocol (PAP) related to claim <Original claim reference> (Exhibit 1: pages 1, 3).

I find it unclear which claim the Claimant intends to pursue. The multiple Letters Before Claim received from the Claimant's solicitors contain a mixture of reference numbers, which have not been brought to my attention in a clear and concise manner. The only mention of the new reference is found in the second and third Letters Before Claim from the Claimant's solicitor, both of which initially appear identical. Additionally, the only other reference is the one provided on the Claim Form sent by the County Court Business Centre (CCBC). It appears that the claim reference number has been changed since the issuance of the Pre-Action Protocol (PAP). Notably, the Gladstones Solicitors website still indicates the original payment reference from the PAP as <Original claim reference> (Exhibit 2).

4. On <Date> and again on <Date>, the Claimant and their solicitor have explicitly stated their unwillingness to engage in any further discussion regarding the specifics of this claim. Given that I am unaware of the Particulars of Claim (POC) for this new claim, I have prepared my defence and witness statement in accordance with the Pre-Action Protocol (PAP) for the alleged parking infringement that occurred on <Date> under claim <Original claim reference> (Exhibit 1: page 9 / Exhibit 3).

Sequence of events:

5. On <Date>, at approximately <Time>, I parked my vehicle following a biweekly 90-mile round trip to return my child home to the opposite side of London. I ensured strict adherence to the parking regulations by parking entirely within the designated bay and prominently displaying the PCM branded permit using the provided permit holder. The permit remains consistently affixed within the holder and is never tampered with. It is important to note that the vehicle is only utilized every other Friday and Sunday, remaining parked for the rest of the time.

6. During that particular time of the year, darkness had already set in upon my return to the residence. The inadequacy of the lighting conditions hindered my ability to accurately discern the signage and fully comprehend the terms of the parking contract. The combination of different font sizes, as well as the lack of clarity in the prominent terms, added to the confusion. Nevertheless, I want to emphasize that I diligently displayed the permit, parked within the designated bay, and adhered to the specified conditions. Based on this compliance, I believed that the risk of incurring a parking charge was non-existent.

7. When I returned to my vehicle on <Date> to conduct a brief roadside check ahead of my biweekly trip the following day, I was taken aback to find an invoice affixed to my car windscreen. This unexpected occurrence puzzled me since I had visibly displayed the permit, and the vehicle remained securely parked within the confines of the designated bay. Despite a slight curl in the permit, I could still clearly observe the hologram and permit number from certain angles. (Exhibit 5)
Upon reviewing the online images, I discovered that the invoice/charge had been issued due to the curling of the permit, resembling a tube, which had transpired since my last visit to the car. It is worth noting that this issue is commonly experienced by other residents as well. (Exhibits 7/8/9)

8. Acting promptly, on <Date>, I initiated an appeal directly with <Claimant>. (Exhibit 13) However, my appeal was subsequently denied on <Date>. (Exhibit 14: pages 1-2)

9. Following the denial of my initial appeal, I pursued the appropriate course of action by submitting an appeal to the Independent Appeals Service (IAS) on <Date>. Regrettably, this subsequent appeal was also met with denial on <Date>. (Exhibit 12)

10. With both PCM and the IAS rejecting my appeals, I made an effort to seek resolution through PCM's complaints web functionality. It is crucial to underscore the unfairness of incurring costs resulting from the failure of their product. Unfortunately, this avenue for resolution was also dismissed on <Date>. (Exhibit 11: Pages 1-2)

11. The solicitor representing the Claimant alleges that their pursuit of this claim is due to my alleged failure to engage with them or their client. I categorically deny this claim as false. (Exhibit 1: page 9)

12. When I parked and displayed a valid permit, I did so in good faith, expecting it to fulfil its intended function. It is important to note that I have every legal right and authority to park, being a resident of this development. My tenancy agreement grants me the privilege of using the parking and communal grounds. Displaying a permit is a courtesy rather than an obligation. (Exhibit 4: pages 7,16)

13. The Claimant alleges that I contravened the parking regulations by not displaying a valid permit. However, their own records clearly indicate that I am the owner of two valid permits, and the vehicle is registered to this address, which aligns with the permits they have been interacting with for over 18 months. It is important to highlight that the signage contract explicitly prohibits retrospective authority to park, which consequently resulted in the denial of my appeals as outlined in points 8, 9, and 10. Furthermore, it is noteworthy that the signage fails to specify any terms pertaining to the Claimant's product malfunctioning during extended periods between vehicle visits, such as the 11-day duration in this particular case. (Exhibit 10)

14. I request substantiating evidence that the permits have undergone any form of qualitative or quantitative testing beyond basic accuracy and legibility checks during the printing and dispatch process. The permits, which lacked useful installation instructions, are not fit for purpose. Moreover, the Claimant's refusal to accept retrospective authority to park constitutes an unfair term. Despite numerous requests, the Claimant has been unwilling or unable to provide me with evidence of product testing. (Exhibit 11: page 2) I have also made this same request to the Claimant's solicitor in preparation for court. (Exhibit 17)

15. The permits were sold at a price of £15 each (x2), with holders priced at £2.50 each (x2). Under the Consumer Rights Act 2015, a product must fulfil its designated purpose. I had purchased the permits and holders 10 months prior to the alleged parking infraction. It is reasonable to expect that they would not fail within such a short period of time when left untouched.

16. When the permit and holder were initially received on <Date>, the accompanying letter provided no installation tips. The template letter used was also outdated, and the price of the permits mentioned was inaccurate. (Exhibits 15/16) Although not explicitly stated, I took precautions during installation by positioning the permit away from direct heat, allowing the area to cool, cleaning it with 70% IPA, letting it dry, and then applying the permit holder. The paper permit was then inserted as instructed in the permit documentation and left undisturbed thereafter.

17. The Claimant suggests that I have tampered with the permit, intentionally invalidating a permit that clearly displays my authorized parking authority to their operatives. (Exhibit 11: page 2)

18. I assert, as stated in my defence, that this product has not undergone testing for its intended purpose. Relying on a signage clause that refuses retrospective evidence of authority to park in such situations goes beyond fairness. In this scenario, the signage is incapable of forming a binding contract with anyone utilizing the transferable permit product supplied by the Claimant.

Signage

19. The Claimant’s signage is placed prominently as demonstrated in the picture taken of my vehicle by the Claimant with the signage in the background. However you can also see from this image that the size of the sign is not satisfactory and means the text is not clearly readable.(Exhibit 18)

20. The signage is also excessively wordy and the print size excessively small; therefore, I deny that it is capable of creating a legally binding contract, moreso in the dark on a winters evening.(Exhibit 19) 

21. The IPC’s CoP states that text size must be such that signs are ‘clearly readable’ by a motorist, I believe that the claimant’s signs do not adhere to this guidance.(Exhibit 10)

22. The IPC’s CoP states that reference to additional charges must be made in the signage. The Claimant failed to mention in the signage that the transferable permits may self fail and incur cost to the motorist.(Exhibits 10/23)

Coupon-mad

Looks good except the entire section about false added £70 'damages' is missing, along with Excel v Wilkinson.

As seen in the exemplar WS by @aphex007


Typo here: 
"the stationary/letter had no installation tips"

The letter isn't 'stationary' (parked!).

MadMunk

Thanks Coupon, I'll dive in and insert the missing sections.  

Edit: I edited the post above and continued in the one below

MadMunk

Abuse of process - the quantum

23. 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.

24. Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) 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." 

25. This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are bogus costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 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. 

26. The driver did not agree to pay a parking charge, let alone these unknown costs, which were not quantified in prominent text on signage.

27. 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-16) where she went into great detail about this abuse.

28. 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.

29. 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.

CPR 44.11 - further costs

30. With respect to point 29(c) of the defence (Exhibit 21: page 5),

I have previously conveyed to the Claimant, through their solicitor, the potential costs they would incur if they opted to proceed with court proceedings, as evidenced in Exhibit 20. I respectfully urge the court to consider making an award pursuant to its powers under CPR 44.11.

To substantiate this request, I would like to remind the court that the representatives of the Claimant lacked reasonable grounds to reject my appeal against the Parking Charge Notice (PCN) due to the absence of mutually acceptable terms on the Claimant's signage, which could establish a valid contract, particularly considering the evident self-failure of the product. It is evident that the product has not undergone satisfactory testing for its intended purpose, and it is incumbent upon the Claimant to conduct a comprehensive recall and provide a suitable replacement. As a customer, I would have been content had they promptly replaced the defective product, cancelled the charge, and offered a perfunctory apology.

I assert that the intentional alteration in the attempted invoice recovery was deliberately withheld from my attention, likely due to their reluctance to engage in further correspondence. The objective would be to deceive me into paying the original PAP claim while simultaneously taking me to court for a claim for which I am ill-prepared.

I firmly deny any breach of the terms and conditions, whether prominent or otherwise. Not only could this claim have been avoided, as the Claimant lacks a valid cause of action, but it is also vexatious to pursue an inflated sum that includes double recovery—twice.

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

31. As a litigant-in-person, I have undertaken extensive research and invested significant time in learning the relevant law, processing and preparing my defence, as well as this witness statement. Consequently, I request the court to consider awarding me fixed witness costs in recognition of my efforts.

I am aware that costs on the Small Claims track are governed by rule 27.14 of the CPR. Unless a finding of 'wholly unreasonable conduct' is made against the Claimant, the court generally does not have the power to order one party to pay the costs of another party. However, fixed costs such as witness expenses, reasonably incurred in traveling to and from the hearing (including fares and/or parking fees), may be allowed. Additionally, the court has the authority to award a set amount for loss of earnings or loss of leave.

32. The fixed sum for loss of earnings or loss of leave applies to any hearing format and is stipulated in PD 27, 7.3 as follows:

"The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings) are: 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."

Considering my daily rate exceeds this amount without factoring in travel expenses, I request the court to grant me the maximum allowance per day as outlined in the aforementioned rule.

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 truth without an honest belief in its truth.

SIGNATURE

DATE

Coupon-mad

Nearly there.

34 and 40 are wrong because they both say the added fake costs are "now banned".  As you probably know, we aren't quite there yet.  The correct paragraphs (adjusted to suit the current position)  are in the template defence.

And referring back to "paragraph 27" below, makes no sense in your case because your para 27 isn't about the JRs:

33. Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 27), 

MadMunk

Thank you very much Coupon.

Above text edited.

34 and 40 switched with the new template defence statements from the newbie thread.  Para 27 reference removed.

Once complete, I threw the whole thing through chat GPT.  Doesn't she make it read all nice and pretty?

Coupon-mad

That should do it.

One last thing though. Did you use our template defence? If so, much of those paras are already in it.  If stuff is already in your defence don't repeat it verbatim now.  No need to say it twice.

MadMunk

Yes, I did use the template defence back in November ish last year.

Many of the points are all present in my defence, so you say strip that out?

Not a problem, edited above and re-numbered