UKPC QDR Solicitors County Court Claim

1505grandad

"The PCN date was 10/5/21."  -  is stated in the op.

Why are you using:-

" British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 6 - October 2015 section 18.3"

The BPA CoP relevant to the parking event will be version 8 dated January 2020.

Not_A_Hope

Did you add a couple of specific paragraphs to the template defence? If so you might wish to find a recent template WS that covers all the other relevant points you may have included in your defence and the associated exhibits.

Coupon-mad

That's not the whole WS is it?

Have a look at a more recent one, e.g. the WS this week by @justiceseeker180 (albeit his or hers is about a residential car park so the facts won't match). Don't copy their stuff about the lease/right to park.

And don't copy this bit (linked below from their thread) unless your POC don't state the breach allegation (I think QDR POC do state the breach):
https://forums.moneysavingexpert.com/discussion/comment/80362188/#Comment_80362188

The main point is, you haven't used any of the usual second half or the usual exhibits.  Unless you are just not showing us the rest.

Also, why are you referring to a well out of date BPA CoP that has been replaced three times since the 2015 one?  Looks like you've read a really old thread to get that ancient BPA CoP!

And change clunky wording and 'the Defendant' to "I" because this is your story, e.g. 

a) In the alternative, if the Claimant alleges signage was present the Defendant avers that the signs had vague/hidden terms...

...should instead just start

a). I will say that the signage was non-prominent and had vague/hidden terms...

tjfruits

Thanks for the suggestions below is my improved draft:

Table of Contents

Witness Statement ……………………………………………………………………………………2-7

 

Exhibit xx-01 Picture Showing Parking Space Delineation…………………………………………..8

 

Exhibit xx-02 Picture Showing Parking Sign at the Site……………………………………………..8

 

Exhibit xx-03 Picture Showing the Nearest Signage to Parking Location…………………………8

 

Exhibit xx-4 Parking Eye Limited V Beavis- Paragraphs 98, 193 and 198...............................9-10

 

Exhibit xx-05 The Beavis case sign for comparison..................................................................10

 

Exhibit xx-06  Excel v Wilkinson Case Transcript................................................................11-20

 

Exhibit xx07  Excel v Mrs S..................................................................................................21-23

 

 

 

 

 

UK PARKING CONTROL LIMITED

V

XXXXXXXX

 

                                                 Witness Statement of Defendant

1. I am XXXX 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. I am a litigant in person, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief. 

 

3. I am the Registered Keeper and driver of the vehicle in question in May 2021

 

4. In my statement I shall refer to (Exhibits 1-X) 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:

Facts and Sequence of events

5. I drove to Pure Gym Milton Keynes car park on 10 May 2021 at 18:00 hours.

6. I parked in a parking space in which I truly believed was for use by Pure Gym members. I had been using this car park for 5 months and had no reason to believe otherwise. The car park is used by two gyms - however the delineation between parking spaces is not prominent with no barriers or fencing and a lack of adequate signage.

7. The on-site parking signage pictured by the claimant, exhibit 1, is barely readable at close proximity. When viewing from a car window it would be unreadable. The nearest signage is 40m away from the point at which I was parked, which also happened to be where the car park jurisdiction changes, as shown in exhibit 2.

a) In the alternative, if the Claimant alleges signage was present I will say the signs had vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. 

8. The delineation between spaces is unclear, the claimants photo of my car, exhibit 3, shows the space behind me being partially marked with white lines and the space I am parked in marked with yellow lines. On my walk to the gym or in the vicinity of where I was parked there is no signage to inform me of what the difference in line colour may mean.

9.I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 8 – J[anuary 2020 section 19. This specifically states that signs with specific parking terms must be placed throughout the site, including specifically at any entrances, so that drivers are given the chance to read them at the time of parking or leaving the vehicle.

10. It is therefore denied that I entered a legally binding contract, as no clear signs existed in the vicinity of the parking space where I was parked. For the last 5 months of parking on the same site and on the date of 10 May 2021, at no point did I believe any permission to park was needed.

Exaggerated claim

11. The alleged 'core debt' from any parking charge cannot have exceeded £100 (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.


12.I say that fees were not paid out or incurred by this Claimant, who is put to 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.

13.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.


14 .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 in which The Code's Ministerial Foreword was damning:


"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."

15. Section 3 of the Private Parking Code of Practice includes the following which supports my case:

“3.1.1 An entrance sign must be displayed and maintained at the entrance to controlled land to inform drivers as appropriate whether parking is permitted subject to terms and conditions, including payment, or is prohibited”

“3.1.3 Signs within controlled land displaying the specific terms and conditions applying must:

b) be sufficiently large to be visible from a distance and legible on approach;

f) use a sentence-case font size appropriate for the location of the sign so as to be clearly readable by a driver, having regard to the likely position of the driver in relation to the sign;

l) indicate clearly in shared-use land whether and where different terms, conditions and restrictions apply.

a) be placed throughout the controlled land, such that drivers have the chance to read them at the time of parking or leaving their vehicle

16. There was no signs at the re-entrance into the claimants parking area from the Pure Gym area. Therefore, a contract to park could not have been formed as I had no way of being aware of the terms and conditions.

17. Where there were signs within the site, nearest being 40m from where I had parked, they were not clearly readable and didn’t display clear terms and conditions, using a mix of different font sizes, formatting and logos – as can be seen in Exhibit XX-02.

18. 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/a ttachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

19. 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.


20. 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.


21.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.


22. 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 ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). 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'.


23. This Claimant has not incurred any additional costs because the full parking charge (after expiry of 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 pre-action stage, even if and when the Government reduces the level of parking charges.


24. 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 2023 to scrutinise every aspect of claims like this one.


25. 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 Breaches

26. 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.

27. 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.

28.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).

ParkingEye v Beavis is distinguished

29. 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 XXXX - set a high bar that this Claimant has failed to reach. See Exhibit XX002 for example of the claimants sign.

30. 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 XXXX for paragraphs from ParkingEye v Beavis).


31. In the present case, the Claimant has fallen foul of those tests. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a 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

(iii) 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". (i).

32. Now for the first time, the DLUHC's draft IA exposes that the template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was  right all along in Excel v Wilkinson. (See Exhibit  xx-06)

33. I have found that parking Defendants are often ambushed by 'Chaplair v Kumari' but that case has no application in my case.  To preempt this: Kumari concerns a lease where both parties signed/agreed a contract and knew about the terms. Completely different to predatory ticketing, unclear terms and pitfalls/traps set up by ex-wheelclampers and firms of their ilk, to catch out drivers in car parks.


34. Similarly, my research has revealed that parking Claimants often cite 'One Parking Solution v Wilshaw' (a flawed judgment, wrongly missing the point whereby the DVLA requires mandatory landowner authority in parking cases, but it was a unique site where OPS had title in the land and were held to be 'tenants-at-will, unlike in this case).  That case seems to be used to mislead courts into thinking that no landowner contract is required (relying on an old and inapplicable 'I could sell you Buckingham Palace' argument). Quite the contrary.  Landowner authority is always required in these cases because it is a prerequisite of the DVLA KADOE rules before keeper data can even be obtained. The DLUHC Code reiterates this and it will be effectively cemented as a statutory requirement.

tjfruits

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. The claim is entirely without merit. 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.

37. 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.


38. 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

b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

35.       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

tjfruits

Formatting and exhibit numbers will be sorted in final read through. 

Thanks again for all your help

Not_A_Hope

A after a quick scan I see you have included in your list of Exhibitsx xx07 Excel v Mrs S but I cannot see any mention of this in relation to your case in your WS.

Para 7 I personally don’t like the phrase ‘ a) In the alternative, if the Claimant alleges signage was present I will say the signs had vague/hidden terms’. It suggests there might have been signs near where you parked. Let them prove to the judges satisfaction signs were present. All other signs that were there were found to have vague / hidden terms.

para 9 typo J[anuary

Why in para 10 have you added ‘ at no point did I believe any permission to park was needed’. This case isn’t about permission is it.

Coupon-mad

Add to para 26 'including symbols and bay colour delineation.'

Remove this (not relevant to your case) and replace it and the exhibit with CEL v Chan wording and that transcript instead (search the forum; seen in loads of WS):

Exhibit xx07  Excel v Mrs S ..................................................................................................21-23

tjfruits

See updated below:

Table of Contents

Witness Statement ……………………………………………………………………………………2-7

 

Exhibit xx-01 Picture Showing Parking Space Delineation…………………………………………..8

 

Exhibit xx-02 Picture Showing Parking Sign at the Site……………………………………………..8

 

Exhibit xx-03 Picture Showing the Nearest Signage to Parking Location…………………………8

 

Exhibit xx-4 Parking Eye Limited V Beavis- Paragraphs 98, 193 and 198...............................9-10

 

Exhibit xx-05 The Beavis case sign for comparison..................................................................10

 

Exhibit xx-06  Excel v Wilkinson Case Transcript................................................................11-20

 

Exhibit xx07   CEL v Chan Case Transcript ..................................................................................21-23

 

 

 

 

 

UK PARKING CONTROL LIMITED

V

XXXXXXXX

 

                                                 Witness Statement of Defendant

1. I am XXXX 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. I am a litigant in person, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief. 

 

3. I am the Registered Keeper and driver of the vehicle in question in May 2021.

 

4. In my statement I shall refer to (Exhibits 1-X) 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:

Facts and Sequence of events

5. I drove to Pure Gym Milton Keynes car park on 10 May 2021 at 18:00 hours.

6. I parked in a parking space in which I truly believed was for use by Pure Gym members. I had been using this car park for 5 months and had no reason to believe otherwise. The car park is used by two gyms - however the delineation between parking spaces is not prominent with no barriers or fencing and a lack of adequate signage.

7. The on-site parking signage pictured by the claimant, exhibit 1, is barely readable at close proximity. When viewing from a car window it would be unreadable. The nearest signage is 40m away from the point at which I was parked, which also happened to be where the car park jurisdiction changes, as shown in exhibit 2.

8. The delineation between spaces is unclear, the claimant’s photo of my car, exhibit 3, shows the space behind me being partially marked with white lines and the space I am parked in marked with yellow lines. On my walk to the gym or in the vicinity of where I was parked there is no signage to inform me of what the difference in line colour may mean.

9.I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 8 – January 2020 section 19. This specifically states that signs with specific parking terms must be placed throughout the site, including specifically at any entrances, so that drivers are given the chance to read them at the time of parking or leaving the vehicle.

10. It is therefore denied that I entered a legally binding contract, as no clear signs existed in the vicinity of the parking space where I was parked.

 

Exaggerated claim

11. The alleged 'core debt' from any parking charge cannot have exceeded £100 (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.

12.I say that fees were not paid out or incurred by this Claimant, who is put to 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.

13.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.


14 .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 in which The Code's Ministerial Foreword was damning:

"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."

15. Section 3 of the Private Parking Code of Practice includes the following which supports my case:

“3.1.1 An entrance sign must be displayed and maintained at the entrance to controlled land to inform drivers as appropriate whether parking is permitted subject to terms and conditions, including payment, or is prohibited”

“3.1.3 Signs within controlled land displaying the specific terms and conditions applying must:

b) be sufficiently large to be visible from a distance and legible on approach;

f) use a sentence-case font size appropriate for the location of the sign so as to be clearly readable by a driver, having regard to the likely position of the driver in relation to the sign;

l) indicate clearly in shared-use land whether and where different terms, conditions and restrictions apply.

a) be placed throughout the controlled land, such that drivers have the chance to read them at the time of parking or leaving their vehicle

16. There was no signs at the re-entrance into the claimants parking area from the Pure Gym area. Therefore, a contract to park could not have been formed as I had no way of being aware of the terms and conditions.

17. Where there were signs within the site, nearest being 40m from where I had parked, they were not clearly readable and didn’t display clear terms and conditions, using a mix of different font sizes, formatting and logos – as can be seen in Exhibit XX-02.

18. 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/a ttachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

19. 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.


20. 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.

21.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.

22. 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 ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). 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'.

23. This Claimant has not incurred any additional costs because the full parking charge (after expiry of 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 pre-action stage, even if and when the Government reduces the level of parking charges.

24. 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 2023 to scrutinise every aspect of claims like this one.

25. 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 Breaches

26. 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 including symbols and bay colour delineation intended to be read by the consumer.

 

27. 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.

 

28.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).

 

ParkingEye v Beavis is distinguished

29. 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 XXXX - set a high bar that this Claimant has failed to reach. See Exhibit XX002 for example of the claimants sign.

30. 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 XXXX for paragraphs from ParkingEye v Beavis).


31. In the present case, the Claimant has fallen foul of those tests. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a 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

(iii) 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". (i).

32. Now for the first time, the DLUHC's draft IA exposes that the template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was  right all along in Excel v Wilkinson. (See Exhibit  xx-06)

33. I have found that parking Defendants are often ambushed by 'Chaplair v Kumari' but that case has no application in my case.  To preempt this: Kumari concerns a lease where both parties signed/agreed a contract and knew about the terms. Completely different to predatory ticketing, unclear terms and pitfalls/traps set up by ex-wheelclampers and firms of their ilk, to catch out drivers in car parks.

34. Similarly, my research has revealed that parking Claimants often cite 'One Parking Solution v Wilshaw' (a flawed judgment, wrongly missing the point whereby the DVLA requires mandatory landowner authority in parking cases, but it was a unique site where OPS had title in the land and were held to be 'tenants-at-will, unlike in this case).  That case seems to be used to mislead courts into thinking that no landowner contract is required (relying on an old and inapplicable 'I could sell you Buckingham Palace' argument). Quite the contrary.  Landowner authority is always required in these cases because it is a prerequisite of the DVLA KADOE rules before keeper data can even be obtained. The DLUHC Code reiterates this and it will be effectively cemented as a statutory requirement.

tjfruits

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. The claim is entirely without merit. 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.

37. 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.


38. 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

b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

 

35.       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