Witness statement - explain why I didn't appeal?

ReverseParkin

Hello
Any further help and advice would be greatly appreciated on this matter please.
Claimant is UK Parking Control Limited represented by DCB Legal Ltd. The date of the alleged infraction was just over 3 years ago.
My initial thoughts are that the breakdown of costs is still unreasonable and not allowed, particularly the 'contractual costs' of £60. It does say on the sign that additional charges may apply but it is in very small text. The sign does not use high-visibility colours and the charge is not in the largest font as in the exhibit referenced in the Beavis case. I cannot prove the conditions of signage at the time, but images captured from Google Street View show that the sign is not visible at the entrance to the car park.


I adapted the template defence listed on this forum. I've also completed the Directions Questionnaire and the case was transferred to my home court.


The judge ordered:
"1. The particulars of claim are struck out because they do not disclose any reasonable grounds for bringing the claim and they do not sufficiently particularise the agreement upon which the claim is based
2. The Claimant shall send to the court and to the Defendant a further statement of case, verified by a statement of truth by [date]. This must set out a coherent statement if facts, which, if true, disclose a legally recognisable claim against the Defendant, have attached to it a copy of the contract or documents constituting or evidencing any agreement on which the claim is based and contain a detailed breakdown of the sum of £xxx which is claimed.
3. The Defendant may, if so advised, send to the court and to the Claimant an amended defence by [date] ..."
I have about 2 weeks to submit an amended defence.


The Claimant has submitted such, document stretches to o6- pages including exhibits of contract, photos and copies of notifications sent, main text below:

"

These Amended Particulars of Claim are filed in accordance with the Court Order dated xxx

Parties

1. The Claimant is a Company that offers private car park management services to private landowners;

primarily to manage the way in which motorists are permitted to park whilst on their private land. The

Claimant is a member of the British Parking Association (BPA) and at all material times, ensures full

compliance with the BPA’s Code of Practice (Code).

2. The Defendant is the Registered Keeper of a Vehicle with the registration of xxx

Background

3. At all material times, the Claimant was contracted by the owner of private land, herein referred to as

xxx to manage parking on said private land. At the

time the Charge was issued, the Claimant was instructed by the owner of the Land (“Landowner”) to

manage parking on the Land. A copy of the same can be seen at “EXHIBIT 1”.

Claim for breach of contract

4. As part of the Claimant’s authority to manage parking at the land and in accordance with their obligations

under the BPA’s Code, the Claimant prominently displayed signs on the land, which can be seen at

“EXHIBIT 2”. Such signs stipulated the Terms and Conditions of parking on said land. It is such signage

which forms the basis of the contract which the Defendant accepted by choosing to park on the land. The

signage contained the following term:-

“Must be parked within designated bay with a valid parking permit displayed”

5. A further term made it clear that a £100 parking charge would be payable in those circumstances:-

“Failure to comply with the following at any time will result in a £100 Parking Charge (reduced to

£60 if paid within 14 days) being issued to the vehicle’s driver.”

6. It is the Claimant’s submission that in choosing to park on the land in the manner described herein on both

occasions, the Defendant accepted the contract by way of conduct; the parking space being the

consideration in the formation of such contract.

7. The Defendant breached the contract by parking on the Land without displaying a valid parking permit, in

accordance with the Terms on the Land. This can be seen from the images of the Vehicle at “EXHIBIT

3”.

8. In breach of the contract, the Claimant issued a Notice to Keeper to the Defendant on both occasions,

details of which are below:

PCN No. Location (“Land”) VRN Issue Date Reason for Issue

xxx

xxx

Defendant’s Liability

9. The driver failed to make payment and as such, the Claimant applied to the DVLA for the details of the

Registered Keeper of the Vehicle.

10. Pursuant to paragraph 4 of POFA, the Claimant has the right to recover the Charge from the ‘Keeper’.

Paragraph 1 of POFA clarifies that the Registered Keeper is presumed to be the ‘Keeper’ unless proven

otherwise.

11. The Defendant is the Registered Keeper of the Vehicle and is therefore presumed to be the ‘Keeper’ for the

purposes of POFA.

12. To make the driver aware, on each occasion, a PCN was affixed to the Vehicle in accordance with Section

7 of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). Exhibited to this Statement at

“EXHIBIT 4” is a copy of what was affixed. It can be seen from the images of the Vehicle at “EXHIBIT

3” that the PCN was affixed to the Vehicle at the time of each contravention.

13. A POFA compliant Notice of Keeper, which is exhibited at “EXHIBIT 5”, was therefore sent to the

Defendant at the address supplied by the DVLA, providing the Defendant the opportunity to pay, appeal or

nominate the driver (if it was not them). None of which were done.

Pre-Action Conduct

14. As a result of non-payment, the Claimant instructed Direct Collections Bailiffs Limited to send further

letters to the Defendant to prompt payment. As the matter could not be resolved, the Claimant instructed

my firm to send a Letter of Claim to the Defendant.

15. The Claimant subsequently issued Court proceedings as a last resort to recover the monies.

Amount Claimed

16. The Claimant seeks the total sum of £xxx, broken down as follows: -

Charge £xx

Contractual Costs £xx

Interest £xx

Court Fee £xx

Legal Representative Fixed Costs £xx

17. The Contractual Costs are claimed pursuant to the Contract which states:-

“Unpaid parking charges may be passed onto third parties such as debt recovery agents at which

point an additional charge of £60 will apply.”

18. Interest is claimed pursuant to section 69 of the County Courts Act 1984 at a standard rate of 8% per

annum above base rate until Judgment or sooner payment, or for such period as the Court sees fit.

AND THE CLAIMANT CLAIMS:-

[as above]

STATEMENT OF TRUTH
..."

ReverseParkin

Apologies for slight messed up formatting. Above should read "document stretches to *30* pages".

Le_Kirk

Is this to do with your other post: -
https://forums.moneysavingexpert.com/discussion/6393635/defence-submitted-by-email-no-confirmation/p1
If it is the same case, you should copy everything from this thread and put it in the other one for continuity and to prevent us having to dodge about between threads.  If it is new, then of course carry on.

ReverseParkin

Hello, could I bump this discussion please? I would really appreciate some advice / guidance on this matter.
Many thanks

@Le_Kirk, yes it is the same case, but now a very different situation hence a new discussion with a suitable subject. The old thread doesn't contain any relevant information (it was simply about submission to CCBAQ email address) and therefore it isn't necessary for anyone to go back and read it

Le_Kirk

The other thread has been marked as a duplicate with a link to this thread - please continue on this one.

ReverseParkin

Can anyone help me with this, please? If anything is not clear or needs more information, just let me know.

Coupon-mad

I doubt that you need to amend your defence if you used the template and covered the facts that they have set out, but starting a new thread and (wrongly) marking the other one as the duplicate has left us with no context.

Because we never have time to flit between two threads on one case, we don't know (here) what Para 2 & 3 of your defence said, so we don't know if there's something you think you now need to add.  Is there?

If you are happy with your defence I'd just send a short and 'not sweet' email to DCBLegal saying that you are happy with your defence as it is.  The Defendant intends to proceed and will not be making an offer, so DCBLegal may as well cut the crap template replies and go straight to the inevitable Notice of Discontinuance now and save the court's and everyone's precious time.

Not_A_Hope

From what I can understand you have already submitted a defence based on the template and have the opportunity to amend your defence now the claimant has provided more detailed particulars. As no-one knows what you actually submitted it is difficult to advise whether any changes to your defence should be made.

In para 7 of their particulars they suggest ‘parking without displaying a valid permit’. If you want some help it would be useful to provide more background such as what type of car park was it (retail / residential pay and display) and why the PPC didn’t see a permit (fell off / fluttering ticket / went to go and get a permit). The name and location of the car park might be useful as others may have fallen foul of any scam at this location.

Perhaps you could redact any of your personal information on the revised particulars and post a link to it for comment. If you have used the template defence any comments might be more useful for your witness statement rather than amending your defence.

patient_dream

YES, this is on par to be yet another crap case by UKPC, taken on by DCBL ?
They probably know it is crap but prefer to waste their time sending out scary letters hoping you will pay ?

You are now here so ... cut to the chase DCBL, YOU ALREADY LOOK PRETTY STUPID, stop wasting your time and discontinue

Anyway, it seems UKPC are now taking the pi** out of another legal. get out DCBL while the going is good ... 84 discontinue cases is not the sign of a professional legal .... IS IT ?

Le_Kirk

Coupon-mad said:

I doubt that you need to amend your defence if you used the template and covered the facts that they have set out, but starting a new thread and (wrongly) marking the other one as the duplicate has left us with no context.

Because we never have time to flit between two threads on one case, we don't know (here) what Para 2 & 3 of your defence said, so we don't know if there's something you think you now need to add.  Is there?

If you are happy with your defence I'd just send a short and 'not sweet' email to DCBLegal saying that you are happy with your defence as it is.  The Defendant intends to proceed and will not be making an offer, so DCBLegal may as well cut the crap template replies and go straight to the inevitable Notice of Discontinuance now and save the court's and everyone's precious time.

I would suggest OP, in light of this comment, that you should send an e-mail to the forum team and ask if they would kindly merger your two threads - give them the threads in question.

ReverseParkin

Many thanks for the replies. 

I have attached my original defence below. Would you advise that I need to change, add, or remove anything in light of the revised Particulars of Claim? Any further comments that may be helpful for my Witness Statement would also be gratefully received.

DEFENCE

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

3. The defendant parked in the location for a short time whilst picking up some items from a nearby place of work. Due to the proximity of the date to the Christmas holiday, most businesses in the area were closed and the car park did not appear to be in use; therefore it was not believed to cause any inconvenience by parking. Any signs present were not clearly noticeable at the time.

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

5. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated.  

6.  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 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'.

7. This finding 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

8. 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." 

9. 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." 

10. 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, 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, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.  

11. 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.

12. 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. 

13. 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.

14. 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.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

POFA and CRA breaches

15. 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').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred. 

16. 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.

17. 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. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers 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. 

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

18. 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.

19. 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'.

20.  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).  

21. 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." 

Lack of landowner authority evidence and lack of ADR

22. 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.

23.  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: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

Conclusion

24. 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. 

25. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. 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.

26. 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 46.5. 

27.  Attention is drawn specifically to the (often-seen from this industry) 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

...