DCB Legal - UKPC - County Court Business Centre

iw1234

The_Loner said:

Did you get an auto response from CCBC ?

Yes, got an email back

iw1234

Quick update - the case was allocated to Birmingham and I received Notice of Allocation to the Small Claims Track (Hearing) today.

It seems that they have fixed a date for a "Dispute Resolution Hearing" - I know that there was a pilot of this in Birmingham in the past - is there anything I need to know about this type of hearing?

The date is 15th June and I have been told to submit witness statement/documents no later than 14 days in advance of this. 

Le_Kirk

I don't know why this is done, as it adds another level of costs and time wasting for the defendant and the courts at a time when the courts cannot cope with the current level of work!  There is a possibility that the judge CAN come to a final decision either way and save the need for an actual hearing.  Search the forum for "dispute resoloution hearing" and see what others have said, especially those who have gone through it.

iw1234

This is my draft WS - appreciate any comments on it:

1.       I am XXXXXXX of XXXXXXXXX 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:

 

Sequence of events and signage

 

3.       On 23 XXXXXXX 2020, I parked the vehicle XXXXXXX at a car park to the rear of the XXXXXXXXXX while visiting the XXXX.  The access to the car park is from XXXXX XXXXX.  I understood that this car park was a pay and display car park and this is what is stated on the most prominent sign at the entrance to the car park which simply reads “Pay & Display Car Park” (exhibit XX-01).

 

4.       After one enters the car park, the signs for permit holder bays are not visible or readable (exhibit XX-02). 

 

5.       I reverse parked my vehicle into the parking space.  Once I had reverse parked into the parking space, the sign for a permit holder bay is not visible when one looks in any direction (exhibits XX-02, XX-03, XX-04, XX-05).  There were no markings on the surface of the car park to distinguish pay and display spaces and any other spaces in this car park.

 

6.       I left my car and did not see any signs that indicated that I had parked my vehicle in a permit holder bay.

 

7.       I proceeded to purchase a valid ticket for the duration for which the vehicle was parked and I then returned to my car to display the ticket prominently in the front windscreen of the vehicle.  The ticket was valid for the duration that the vehicle was parked at the location. 

 

8.       When I returned to the car to display the ticket, no signs were visible to indicate that the parking space I had parked in was in any way different to any of the other parking spaces in the car park.

 

9.       After visiting the XXXXXX, I returned to my car and was surprised to see that I had been issued with a parking charge notice.  At this point, I was still unable to see any signs that indicated that the parking space I had parked in was in any way different to any other pay and display parking spaces in the car park.

 

10.    A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit xx-09 for comparison.  In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC').  The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

 

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

11.    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.

12.    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.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'.

13.    In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s 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).  

14.    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." 

15.    This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.  

 

16.    However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed.  As such, I take the point that the parking charge in my case is a penalty, and unenforceable.   This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

 

Abuse of process - the quantum

 

17.    The 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 well-known 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'.

 

18.    My stance is 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

 

19.    Adding 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." 

 

20.    This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

21.    The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event. 

 

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. This is clearly an abuse of the court process.

 

23.    The Claimant has added a sum disingenuously described as 'damages’.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit XX-09 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision stands. 

 

24.    Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence. 

 

25.    The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419):  https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''  

 

26.    This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both. 

 

27.    This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit - XX-10), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest. 

 

28.    Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA.  Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA.  The official CMA guidance to the CRA makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs. 

 

CPR 44.11 - further costs

 

29.    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 I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  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

 

30.    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.

 

31.    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:

Not_A_Hope

You you should amend paras 19 and 22 to indicate it is intended to ban adding costs/damages /fees when the new COP comes into force.

Coupon-mad

Yep this isn't right:

"17.    The Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned." 

Not sure where you got that version.  Look at the one by @aphex007 which I think states it right.

You should also add, in your facts about the signs near the start, a quote from the CRA 2015 about how courts must interpret ambiguous terms and notices.

1505grandad

And make sure if/when you quote CoP you refer to the correct one  -  para 10 states IPC but claimants are BPA AoS members.
However if as advised above you use that version it will refer to BPA anyway.

iw1234

Coupon-mad said:

Yep this isn't right:

"17.    The Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned." 

Not sure where you got that version.  Look at the one by @aphex007 which I think states it right.

You should also add, in your facts about the signs near the start, a quote from the CRA 2015 about how courts must interpret ambiguous terms and notices.

Thanks, I used this version: https://forums.moneysavingexpert.com/discussion/comment/79265411/#Comment_79265411

Is there a more up to date version?

Coupon-mad

Replace those paragraphs about the quantum with those from the Template Defence (unless you already had them in your defence - in which case don't repeat what you already had).

If you already used those paragraphs in your defence, to avoid verbatim repetition you could replace them with the words about the enhancement posted the other day by Solicitor poster @Johnersh (in his replies in his profile).

iw1234

The Notice of Hearing states that "hard copies of the documents to be delivered by post, by DX or personally at Birmingham County Court"

I will serve the witness statement on the Claimant via the email address I have for their solicitors.

Does anyone know whether it is possible to submit the statement to the Court via email?

The deadline is this Thursday.