DCB Legal - Letter of Claim - multiple pcn's

Coupon-mad

That's not correct.

But wasn't all this caused by an error or oversight by the CNBC? If it was, he needs to raise a complaint and ask for £275 at least in compensation as his actual loss.  They must pay him back.

See the thread by @jag_run

nomoredebt

Coupon-mad said:

That's not correct.

But wasn't all this caused by an error or oversight by the CNBC? If it was, he needs to raise a complaint and ask for £275 at least in compensation as his actual loss.  They must pay him back.

See the thread by @jag_run

Thankyou @Coupon-mad, will look into that.

He has now got his date for court, 30th April.  Working on the WS.  Will post it when complete.

Coupon-mad

Everyone gets compensation for CNBC error.  It is easy.  A couple of emails.

nomoredebt

Please see my husbands WS attached.  I have helped him to do this.  The facts and sequence of events section I have put in as he has given me.  Please bear in mind that this is for x 14 PCN's over a period of 3 years.

I would have added this sooner but we were waiting for a statement from one of the McDonalds managers who said they would write one regarding them no longer using UKPC but they seem to have decided not to do this any more so have given up waiting for it.

Any constructive criticism is very welcome.

I have had to use LibraOffice Writer as I do not have Word on my laptop.  I have copied and pasted the WS below.  I could not add the images for the exhibits so have left them out (hope this is ok).

Table of Contents

Witness Statement of Defendant 2

Exhibit 1 – Civil Enforcement v Ming Tak Chan Judgment 10

Exhibit 2 – Parallel Parking v Anon 14

Exhibit 3 – Another Badly Pleaded Parking Claim 1 15

Exhibit 4 – Another Badly Pleaded Parking Claim 2 16

Exhibit 5 – Grimsby Road McDonalds entrance Aug 2002 18

Exhibit 6 – Grimsby Road McDonalds wooden fence Aug 2002 18

Exhibit 7 – Grimsby Road McDonalds entrance March 2024 19

Exhibit 8 – Grimsby Road McDonalds wooden fence March 2024 20

Exhibit 9 – Excel v Wilkinson Case Transcript 21

Exhibit 10 – The Beavis case sign for comparison 31

Exhibit 11 – ParkingEye Limited v Beavis 32

Claim number xxxx (Defendant) Hearing Date:

In the County Court at

UK Parking Control Ltd (Claimant)

xxxx (Defendant)

Witness Statement of Defendant

1. I am xxxx of xxxx. 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 1 – 11 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 in 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 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 up 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 judgement , the court should strike out the claim, using its powers of pursuant to CPR 3.4 (See Exhibit 1).

1. 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. (See exhibit 2).

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. (See exhibit 3).

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 lacking 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.

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 terms 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.

Facts and Sequence of events

9. I am a regular customer of the McDonald's restaurants known and respected by managers and staff alike, listed on the parking tickets issued to me I have not entered into an inferred contract or made any acknowledgement of the terms due to the following reasons. The signage during the dates on the tickets was unholy inferior and virtually unreadable due to the size of the inadequate fonts used. The signs have been updated since my alleged offence.

10. Because they are unreadable l have not entered into a contract in any shape or form. The fact that the signs have been made clearer is a resolution to the fault of their unreadability.

11. As a regular genuine patron of these McDonald's sites they have become a comfort zone for me in relation to mental health issues suffered by myself for the past 12 years. A couple of coffees, something to eat and to read the newspapers served in some way or other to reduce my stress, anxiety and depression (as well as medications l am taking). The past twelve years have been a constant struggle to uphold a full-time job to support my wife and children. I am proud of being able to do this but find myself akin to someone about to drown under the pressure.

12. The constant bombardment of letters and demands tantamount to intimidation and threat for what l consider to be a vastly inflated, unjustified sum of money for something l neither agreed with or entered contractually as amplified my mental health to the degree were sleepless nights. Suicide has been regularly contemplated by myself. I have suffered episodes of mental breakdown and self harm leading to my temporary suspension from work due to me damaging a mirror and a window in the workplace. This has lead to arguments and bad feeling between me and my wife. Because Mental Health has been such a taboo subject, the claimants have made no supervision or acknowledgement of this, such is the ongoing stigma.

13. The outcome for McDonald's as a result of customer complaints about parking restrictions and financial penalties, has been that one of the franchise owners (the Grimsby Road branch) has pulled the plug on at least one of the sites having a parking management company namely UKPCL operate in the car park as an offer to manage a car park, turns into a money by demands and extortionate charging becomes greed on an industrial scale. Which in turn only serves to alienate McDonald's regulars which McDonald's staff are very much aware of on a day to day basis. Subsequently this leads to resentment of the charges for the customer and loss of custom for McDonald's. (See exhibits 5, 6, 7 and 8)

14. The administration carried out by the Civil National Business Centre on behalf of UK Parking Control Ltd and Direct Collection Bailiffs Ltd has been very stressful to say the least. It is apparent by their automated email responses that they are facing severe backlogs this as resulted in a judgement by default being issued against me on 26/02/2024 through no fault of my own. CNBC had sent me a Directions Questionnaire dated 8/11/2023 but not received by myself till 24/11/23. I returned the Directions Questionnaire by email on 27/11/23 and received an automated receipt acknowledgement stating l would receive a further acknowledgement in 10 days which never happened.

15. Then on the 26/02/2024 l received a Judgement by Default. It was alleged by CNBC that l had not returned the Directions Questionnaire at all. After sending email and screenshot evidence to CNBC they still claimed they never received it. As a consequence of this and other factors l have made a few mistakes at work with not being able to think straight and tiredness from lack of sleep. As a result l submitted form N244 and paid a fee of £275 as compliants were rebuffed from CNBC and Direct Collections Bailiffs Ltd. On 09/03/24 an order was made by a Judge at CNBC to remove the Judgement by default as CNBC admitted there was an error in their dealing of the Directions Questionnaire.

nomoredebt

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

16.  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.

17.   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.

18.  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.

19.  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."

20.  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

21.  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.

22.  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.

23.  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.

24.   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’.

25.   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.

26.  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.

27.  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).

CRA Breaches

1. 28. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

1. 29. 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. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

1. 30. 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/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

1. 31. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit 9)

The Beavis case is against this claim

1. 32. 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 charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs - (See Exhibit 10) - set a high bar that this Claimant has failed to reach.

1. 33. 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 'concealed pitfalls or traps'. (See Exhibit 11) for paragraphs from ParkingEye v Beavis).

1. 34. In the present case, the Claimant has fallen foul of those tests. There is one main issue that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) 'costs' are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top.  None of this was agreed by me, let alone known or even seen as I attempted to gain entry to the store. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

1. Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

1. 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, due to "the absence of any notice on the wall opposite the parking space".

Conclusion

35.  The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

36.  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.

37.  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.

38.  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:

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.

Defendant’s signature:

Date: xxx

Trainerman

Para 9. Not 'unholy' I think you mean "wholly"

nopcns

Also, it was not an alleged "offence". It was an alleged parking event. An "offence" is a criminal act. This is nothing of the sort. It is a civil law alleged breach of contract.

nomoredebt

Trainerman said:

Para 9. Not 'unholy' I think you mean "wholly"

@Trainerman, thankyou, have changed..

nomoredebt

nopcns said:

Also, it was not an alleged "offence". It was an alleged parking event. An "offence" is a criminal act. This is nothing of the sort. It is a civil law alleged breach of contract.

@nopcns, thankyou have changed.

nomoredebt

Have done those updates.  Is it ok to send in now do you think?  Does it get emailed to the court he is attending or does it need to be posted in?