County Court Claim Form, Britannia Parking / BW Legal

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The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

8. 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 xx-01).

9. 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.

10. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests (See Exhibit xx-02 for paragraphs of ParkingEye v Beavis).

11. In the alternative, if the Claimant alleges signage was present, I aver that the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains my position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge,

include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded;

and

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the

parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of

context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

12. 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." If the Claimant alleges a sign was present, my position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

POFA and CRA breaches

13. 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').

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14. 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.

15. 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. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver 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

Lack of landowner authority evidence and lack of ADR


16. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

17. I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.

Abuse of process - the quantum

18. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two wellknown 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 unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable.

19. My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. 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.

20. 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), 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.

21. Adding debt recovery/costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming 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."

22. This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite

indisputably knowing that these are banned 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.

23. 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."

24. 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 (also in February 2022), 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, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

25. This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

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

prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified

after the event.

27. 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.

28. 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.

29. This overrides mistakes made in the appeal cases that the parking industry try to rely 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, regrettably these one-sided appeals were findings by Circuit

Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

30. 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-03) where she went into great detail about this abuse.

31. 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 muchneeded clarity for consumers and Judges across England and Wales.

32. 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

33. I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that the Claimants representative did not have reasonable cause to issue the PCN (on my vehicles windscreen), as there were no Claimant signs clearly and prominently displayed on the approach road to my workplace car park, upon which my vehicle was parked. The very words “clearly and prominently displayed” are actually taken from the Claimants PCN details in relation to the Claimants signs (as to how they should be). It is denied that signage exists on this road; therefore it is denied I am in breach of terms and conditions. Not only could this claim have been avoided and the Claimant has no cause of action, but it is also vexatious to pursue an inflated sum that includes double recovery.

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

34. 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.

35. 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

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.

KeithP

In the rather long paragraph 8 - to be clear, I am referring to the third paragraph numbered '8' - I think you are unwise to use the words 'intellectually malnourished'. I can imagine a judge not approving of that. Maintain the high ground. You are stooping to their level. I know we see those words a lot here, but in a formal court document... I think not.

1505grandad

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

Is it not possible to show the amended version of the WS?

Coupon-mad

KeithP said:

In the rather long paragraph 8 - to be clear, I am referring to the third paragraph numbered '8' - I think you are unwise to use the words 'intellectually malnourished'. I can imagine a judge not approving of that. Maintain the high ground. You are stooping to their level. I know we see those words a lot here, but in a formal court document... I think not.

I agree.  And remove the first paragraph called number 8 as it is unnecessary repetition.

And two errors / typos in the middle para 8:

8. With regards to paragraph 2.1 of the claimants Witness Statement, the "letter of authority dated 7th November 2016"  between BW Legal Services Ltd and John Holman & Sons, the letter of authority included in their evidence is not a letter of authority, it is a letter requesting a letter of authority. Besides, a letter of authority is not a contract.
They state in the last paragraph that a service contract dated 29/03/2010 is ongoing, but the issue from this is neither Britannia Parking Services Ltd or Britannia Parking Group Ltd existed at this date; (both companies were not incorporated until August 2012-more than 2 years later). John Holman & Sons Ltd were incorporated in May 2014, some 4 years later, so there Witness Statement cannot be true.


Also - isn't Britannia Parking ServicesLtd defunct? 

qwertyoffice

Thanks all, I have made them changes suggested.

https://docs.google.com/document/d/1eZutl7u9oMoYNOVIhUJZ36c2Vgxo1Bx1/edit?usp=drive_link&ouid=103589061903042250373&rtpof=true&sd=true

So I will now submit this, do I just email it to CCBCAQ@Justice.gov.uk as normal? 

KeithP

qwertyoffice said:

Thanks all, I have made them changes suggested.

https://docs.google.com/document/d/1eZutl7u9oMoYNOVIhUJZ36c2Vgxo1Bx1/edit?usp=drive_link&ouid=103589061903042250373&rtpof=true&sd=true

So I will now submit this, do I just email it to CCBCAQ@Justice.gov.uk as normal? 

It is not 'normal' to file a Witness Statement and evidence with the County Court Business Centre.

The County Court Business Centre gave up all interest in your case when it was transferred to Basildon County Court.

It is to Basildon that you need to send your Witness Statement and evidence, remembering to send a copy of all that stuff to the Claimant too.

qwertyoffice

Thanks all, I will keep you updated!

1505grandad

"Thanks all, I have made them changes suggested."

Well the following at least haven't:-

"Britannia Parking Group

(Claimant)"

".... did not have reasonable cause to issue the PCN (on my vehicles windscreen), as there were no Claimant signs clearly and prominently displayed on the approach road to my workplace car park, upon which my vehicle was parked.

qwertyoffice

1505grandad said:

"Thanks all, I have made them changes suggested."

Well the following at least haven't:-

"Britannia Parking Group

(Claimant)"

".... did not have reasonable cause to issue the PCN (on my vehicles windscreen), as there were no Claimant signs clearly and prominently displayed on the approach road to my workplace car park, upon which my vehicle was parked.

Sorry, what is wrong with Britannia Parking Group (Claimant)?

I removed the PCN on my windscreen bit and resent the WS on the 26th of July and resent it, thank you