PCM/Gladstones Court Claim

DrAculaGonzo

I did in the above, no?

Here is my whole thing in one text. All my original questions stand:

Facts and sequence of events

3. I am the leaseholder of a flat in the residential development concerned. PCM has been introduced to the site in late 2014 without consultation with residents and, in my specific case, without prior notice (the letter which supposedly informed residents of PCM starting to enforce the ‘rules’ was never delivered to me). After initial (and informal) ‘grace’ period where enforcement was patchy, PCM started issuing ‘PCNs’ en masse.

4. Loading bays in question have been originally intended for the commercial units on the ground floors of the development’s buildings however, due to the fact that these units remain largely unoccupied (15 years from completion of the development), these bays are virtually always empty and unused. Given the lack of any other genuine usage local residents have for years used these bays in order to load, unload or temporarily stop for other reasons. This was the case both prior to and after introduction of PCM to site and is an indirect proof that residents’ life would be nigh impossible should they not be able to resort to use these bays from time to time for the purposes described.

5. My vehicle, driven by a family member who, like me, is a resident at the development, has been ‘stopped’ in the loading bay in order to gain reasonable access to the property. While the details of specific events on the day are not known to the me due to the lack of direct involvement, the only reason why the vehicle is ever stopped in the loading bay is for the purposes of loading and unloading. Typically the ‘stay’ does not last longer than 10 minutes taken to bring the shopping bags home and unload frozen/refrigerated goods before returning to the car to take it to the off site car park. Neither myself nor any other drivers of my vehicle actually park the car in the loading bays in question.

6. Family member in question is frequently required to stop in the loading bay in order to unload and deliver multiple heavy shopping bags to home before returning to park the car in the off site car park. To avoid doing so would require the person in question to carry bags weighing as much as half their body weight for several hundred meters from the location of the off site car park (refer to local area map in exhibit LM1), which would be a severe hindrance in daily life.

7. Due to previous experience of appeals process against these private PCNs and realisation that they are completely arbitrary and unfair I have not challenged the PCN at any stage.

 

Exaggerated claim

8. 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.

9.  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.

10. 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.

11. 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."

12. This Private Parking Code of Practice includes the following which supports my case:

In Annex F, section F.1, point 2 it says: “It is also good practice, where possible (e.g. at hospitals or GP surgeries), to mark dedicated drop-off and/or loading areas with adjacent signs stating the maximum time allowed”

In Annex G, section G.2, it is expected that “landowner confirms that they have considered with the operator (…) arrangements and exemptions for loading/unloading and deliveries”

13. The Claimant has submitted no evidence regarding a consideration period. A contract to park by conduct cannot be formed unless there is a consideration period to discover, read, understand and accept the contract.

14. The car was stopped for a very brief period of time consistent with a consideration period, only to allow unloading the goods which, as the Jopson vs Homeguard (case number B9GF0A9E) case has established, does not constitute parking. It was then moved from the private land, thereby signalling that the driver did not accept any contract (if such were to exist and be valid - but no such contract was seen or in view).

15. 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

16. 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.

17. 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.

18. 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.

19. 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'.

20. 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.

21. 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.

22. 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

23. 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.

24. 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.

25. 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

26. 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 LM 2) - set a high bar that this Claimant has failed to reach (as shown in penultimate page of Exhibit GS 4 of Claimant’s Witness Statement)

27. 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 LM 3 for a paragraph from ParkingEye v Beavis).

28. 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".

 

Observations re this Claimant's Witness Statement

29.  Most of Claimant’s witness statement, but especially Paragraphs 4 and 17 are clearly a template response. This is easily seen by looking at paragraph 22, which falsely claims that the PCN was appealed, which I can certainly confirm has not been the case.

30. In paragraph 28 the Defendant states that no images were provided of the unloading activity. I would like to point to the fact that it cannot be reasonably expected for anyone to be photographing their shopping in front of the car in the remote expectation that a rouge parking management company decides to pursue false claims against them.

31. In paragraph 29 the Defendant fails to address paragraph 4 of my submitted Defence. Furthermore, in the last page of exhibit GS 4 they assert that postal notice was chosen “to avoid conflict with driver”, which is laughable given the driver was a short (160cm) skinny lady.

33. In paragraph 31 the Defendant appears to conflate the off site car park (which I have a permit for) with the loading bays in question in this court case which are accessible from and adjacent to a public road. The conclusions reached by the Claimant are therefore too far reaching and simply wrong.

33. It is also pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes (which I believe is relied upon by this Claimant) criticised two District Judges for apparently 'not having enough evidence' to conclude that Britannia 'knew' that their added costs were exaggerated 'double recovery'. Unbeknown to HHJ Parkes, of course all District Judges deal with generic evidence in cases like this every week, and parking operators certainly have been told this by Judges for many years.

34. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (EXHIBIT XXXX).

35. I have found that parking Defendants are often ambushed by 'Chaplair v Kumari' but that case has no application in my case.  To pre-empt 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.

 

Conclusion

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,

and

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

39. 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)). (...)

Coupon-mad

DrAculaGonzo said:

Guys, thanks as ever for all help and comments:

Few points:

...

With regards to all the cases relied upon in the defence, i take it I only need to include them as exhibits...

For para below I wasn't sure which paragraph from Beavis I was meant to include 

Because the Beavis case is from the Supreme Court, it doesn't need to be a full exhibit.

But you are meant to attach a sheet copying & pasting the usual paragraphs from Beavis (as we always do as standard; pretty sure the NEWBIES thread says this?) and a sheet showing them is almost certainly an exhibit in the exemplar WS bundle by @aphex007 on his thread).

NOT RANDOM PARA 205.  We aren't asking you to read Beavis and guess, we've already read & discussed it a thousand times since 2015!  Also you quoted this from the template which already identifies the paragraphs

"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..."

There's a typo in paragraph 30 'rouge'!

Paragraph (14) is out of place, would be better following straight after para 7.

And you must of course append JOPSON as a transcript (the whole judgment) as found all over the forum in loads of other defences with Jopson appended. Used hundreds of times.

You also need to dig out your leasehold and take a screenshot or scan of the first page and any pages that talk about the demised property, rights of way, access and egress by vehicle, and anything else useful.  Needs to be an exhibit.

Your early bit should also state the year you moved in, if you pre-date PCM.

And in your bit about criticising their WS as a template, another example of that is that para 31 talks about you as if you have a 'tenancy agreement' when in fact your family/you are leasehold owners with title in the property (I think?).  ALTERNATIVELY:

If this error is due to you accidentally calling it a Tenancy Agreement in your defence then put it right, near the start, with the pages from your leasehold title document as Exhibit 1.

"Point 31 I propose to delete as they do have a contract with landowner and included it in their WS?"

I would never delete that vital area of dispute!

Surely it's only signed by a managing agent not the freeholder?

Presumably it also doesn't include an authenticated 'enforcement map' proving that PCM are allowed to infest the loading bay area?  

Look for the holes - what it DOESN'T say or prove is as important as what it does say.  You can't rely on PCM's own imaginary map with coloured flags or dots on, that they created themselves, using Google Earth!


"Private Parking Code of Practice - the below is all I've managed to find - am I missing something substantial?"

Yes... might be somewhere near the end.

I don't know the paragraph number but there's a clause in the DLUHC Code quite low down (someone quoted it earlier today) that says something like PPCs must be sure that they are not enforcing contract law that tries to override the prior rights of residents or goes against planning rules for the use of the site.

You will have to look again at the DLUHC CoP and go through it, or do 'control & f ' on a laptop, looking for the keyword 'residents' or 'planning'.

I don't understand this question; the paragraph is clear in what it's saying and is in the Template Defence (if you used it?) and it's a section that uses 2 x statute law to simply prove they have exaggerated the claim which is disproportionate as a matter if law because they have added a false enhancement on top of the £100 PCN sum:

I am not clear on what template WS says here - why is the below being stated please?

22. 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.

I also don't understand this question (below) but the section is correctly structured (with example of case authorities that DO NOT have to be appended as they are Court of Appeal and 'trite law').  Para 28 is about unclear signs at the place parked - which is vital for you, because the loading area is silent about how long residents have to load/unload, and it's not signed as a 'NO PARKING' area, presumably?

(I don't think you need a video of a lack of entrance signs).

For below, I am not sure the sentence structure makes sense - what are we trying to say here?

28. 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:

DrAculaGonzo

Coupon-mad said:

Because the Beavis case is from the Supreme Court, it doesn't need to be a full exhibit.

But you are meant to attach a sheet copying & pasting the usual paragraphs from Beavis (as we always do as standard; pretty sure the NEWBIES thread says this?) and a sheet showing them is almost certainly an exhibit in the exemplar WS bundle by @aphex007 on his thread).

NOT RANDOM PARA 205.  We aren't asking you to read Beavis and guess, we've already read & discussed it a thousand times since 2015!  Also you quoted this from the template which already identifies the paragraphs

"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...

Thanks, now changed my exhibit 3 to include para 98, 193 and 198 from aphex007. I added para 100 manually as it wasn't in that WS. I thought I was pretty thorough with newbies section, but maybe missed it there. Thanks for catching it and pointing it out. Do I also need to add ParkingEye Ltd v Somerfield Stores paras 419-428?

Coupon-mad said:

There's a typo in paragraph 30 'rouge'!

Sorted

Coupon-mad said:

Paragraph (14) is out of place, would be better following straight after para 7.

Sorted

Coupon-mad said:

And you must of course append JOPSON as a transcript (the whole judgment) as found all over the forum in loads of other defences with Jopson appended. Used hundreds of times.

Sorted

Coupon-mad said:

You also need to dig out your leasehold and take a screenshot or scan of the first page and any pages that talk about the demised property, rights of way, access and egress by vehicle, and anything else useful. Needs to be an exhibit.

Done, but in terms of demised property all I have is below. Nothing for rights of way or egress and nothing relevant for access or egress. Is below any good? I've included it for now following your instruction.

Extract from lease:

Schedule 4

Exceptions and Reservations

There are excepted and reserved out of this demise to the Landlord and the lessees of

the other premises comprised in the Building -

(a) Easements rights and privileges over along and through the Premises

equivalent to those set forth in paragraphs 2 3 and 4 of the Second Schedule

(b) The right for the Landlord and its surveyors or agents with or without workmen

and others at all reasonable times on notice (except in case of emergency) to enter the

Premises for the purpose of carrying out its obligations under this Lease

(c) The loadbearing walls of the Building the floor structure and (if the premises

are on the top floor of the Building) the roof

(d) All easements or rights of light and air or other easements or rights which (but

for these present reservations) would restrict or interfere with the free use of any

adjoining or neighbouring land and premises now or formerly within the ownership of the

Landlord or within eighty years hereafter subsequently added thereto or amalgamated

therewith for building or any other purposes and the Leaseholder shall not become

entitled to any such easements or rights in respect of the Premises

(e) The right for the Landlord at any time upon reasonable notice to temporarily

suspend or revoke the allocation of a parking space for the purpose of repair to any part

of the adjoining road or for any reasonable other purpose.

(i) All such rights as may be required by any drainage services or other authority

in connection with any sewers drains services and other conducting media and apparatus

and the right of the Landlord to grant to such authorities all easements wayleaves

licences rights and privileges needed in connection with the services usually provided or

maintained by them

(g) (For the Landlord only or as authorised by it) to install connect to and/or use

inspect maintain renew repair or alter any drains sewers services or other conducting

media or apparatus as the Landlord shall consider necessary in on or under the Premises

or part thereof whereon for the time being there shall not be any buildings with power to

enter on the Premises for all the said purposes and any rights of entry required by the

Landlord to effect any works in connection with the fulfillment of any conditions or

obligations relating to the development of the Estate and/or otherwise in connection with

the development of adjoining or other parts of the Estate or other land (all rights of entry

herein reserved being inclusive of the right to erect maintain and use scaffolding on the

Premises for the erection of buildings providing such right shall not substantially interfere

with the occupation and use of dwellings on the Estate) the person exercising such rights

causing as little damage and disturbance as possible forthwith making good all damage

to the reasonable satisfaction of the Leaseholder

Coupon-mad said:

Your early bit should also state the year you moved in, if you pre-date PCM.

Done

Coupon-mad said:

And in your bit about criticising their WS as a template, another example of that is that para 31 talks about you as if you have a 'tenancy agreement' when in fact your family/you are leasehold owners with title in the property (I think?).  ALTERNATIVELY:

If this error is due to you accidentally calling it a Tenancy Agreement in your defence then put it right, near the start, with the pages from your leasehold title document as Exhibit 1.

Done as you will see in my restated WS. For the record my original defence is below. Do I need to tackle this more explicitly in my WS or is what I said enough?

Extract from defence letter

6. There is primacy of contract by way of the residents existing rights in the tenancy agreement, including those transferred to visitors, there is no mention of the site being controlled by any parking company, there is no requirement to pay parking charges, and no mention of court claims. Changes to a tenancy can only take place if approved in accordance with a ballot as per the strict requirements of the landlord and Tenant Act 1987.

Coupon-mad said:

"Point 31 I propose to delete as they do have a contract with landowner and included it in their WS?"Done

I would never delete that vital area of dispute!

Surely it's only signed by a managing agent not the freeholder?

Presumably it also doesn't include an authenticated 'enforcement map' proving that PCM are allowed to infest the loading bay area?  

Look for the holes - what it DOESN'T say or prove is as important as what it does say.  You can't rely on PCM's own imaginary map with coloured flags or dots on, that they created themselves, using Google Earth!

Oh-oh. Now I am starting to fear I may be on the hook after all. It seems it is with the freeholder, however Name, Position in the Company and Signature are all blacked out... it's only a one pager so it does not include a map either. See below and please help with some tweaks to original point if I should indeed reinstate it as the last point before conclusions as you had in your template. I guess I could point to lack of actual evidence that contract is signed and also lack of map, but would appreciate help with how to plot it into existing template point.

Coupon-mad said:

"Private Parking Code of Practice - the below is all I've managed to find - am I missing something substantial?"

Yes... might be somewhere near the end.

I don't know the paragraph number but there's a clause in the DLUHC Code quite low down (someone quoted it earlier today) that says something like PPCs must be sure that they are not enforcing contract law that tries to override the prior rights of residents or goes against planning rules for the use of the site.

You will have to look again at the DLUHC CoP and go through it, or do 'control & f ' on a laptop, looking for the keyword 'residents' or 'planning'.

I found the below in 14.1, note 4, but I don't think it applies to me in the sense that my lease is silent on any rights concerning vehicles etc. I'm also oblivious to any planning consent issues, but one thing I know is that development was meant to be a car free one and to that effect in my lease I am barred from applying for local authority managed parking inc. on the road parking. How do I proceed given these news?

Extract from PPCoP

4. Particular care is needed to establish appropriate contractual terms, including the application of parking restrictions, in respect of controlled land where leaseholders may have rights that cannot be qualified or overruled e.g. by imposing a requirement on the resident of an apartment block to display a permit to park in contravention of their rights under their lease, or to ensure that free parking periods do not breach planning consents.

Coupon-mad said:

I am not clear on what template WS says here - why is the below being stated please?

22. 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.

I don't understand this question; the paragraph is clear in what it's saying and is in the Template Defence (if you used it?) and it's a section that uses 2 x statute law to simply prove they have exaggerated the claim which is disproportionate as a matter if law because they have added a false enhancement on top of the £100 PCN sum:

Gotcha. I guess I don't understand which specific clauses of CRA this breaches and it's a massive act so was looking for some pointers on which bits are relevant so I can answer this if asked in the hearing.

Coupon-mad said:

For below, I am not sure the sentence structure makes sense - what are we trying to say here?

28. 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 also don't understand this question (below) but the section is correctly structured (with example of case authorities that DO NOT have to be appended as they are Court of Appeal and 'trite law').  Para 28 is about unclear signs at the place parked - which is vital for you, because the loading area is silent about how long residents have to load/unload, and it's not signed as a 'NO PARKING' area, presumably?

I guess the last sentence just grammatically doesn't make sense to me, but maybe I am missing something. I'm not a native speaker. Specifically:
a) is authorities meant as legal precedents or as institutions/courts?
b) should there be a coma in front of which so that sentence could just read "Court of Appeal authorities include..."
c) is on all fours meant to be that they are overwhelmed with caseload?
d) are multiple authorities dealing with one case involving a lack of 'adequate notice' of charge?

Hopefully these questions point you to why I'm struggling with logical flow of the sentence, but it may be I just misunderstood something. Sorry, just trying to help, but probably my English if falling to short here...

Either way, the loading area is not even a loading area - I call it that. These are just bays (see below) with yellow grid on them. The sign is also below. As you can see, it's not a no parking area. Funnily enough it demands permits, but I sincerely doubt permits can be obtained for these bays as they are clearly just temporary stopping places rather than proper parking spots.

Coupon-mad said:

(I don't think you need a video of a lack of entrance signs).

OK, not included

As far as some of my original questions go I don't think they were addressed. Could I ask that you have a quick look at them too.

1) Your template WS includes the below. I obviously used part of it, but wasn't clear on the reference to PoFA and therefore deleted it. Could you please explain what the bits in bold are trying to say so I can stand behind it? the VCS element I assumed is irrelevant, but please tell me if I should reinsert it and why?

26.  Paragraphs XX and XX are clearly template paragraphs. Further, they cannot have used the PoFA 2012. That law is irrelevant to this case. VCS cannot hold a keeper liable because byelaws land is expressly excluded from Schedule 4.

2) GS in their WS stated the following. Do I need to respond to it in any way?

30. Whilst they claim that they were not afforded a grace period, the breach had already occurred as they had parked in the hatched area. The permit was not valid as they were not parked in a bay corresponding to the permit, and they were not parked within a bay at all. Given that the breach had already taken place, a grace period was not applicable.

3) Your template WS includes the below. Do I need to include the whole doc or just some extracts from it?

29. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (EXHIBIT XXXX).

4) Re below from template WS - what does it mean in £ terms. Don't I need to be prepared with some monetary estimate if judge asks me?

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,

and

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

Thanks all. That should be it. I will post my revised WS separately to be read in conjunction with some final queries/questions in this post.

DrAculaGonzo

Revised WS: Amended bits in bold.

Facts and sequence of events

3. Since 2013 I have been the leaseholder (see exhibit LM 1) of a flat in the residential development concerned. (NB: in point 6 of my defence, I have mistakenly referred to my contract as a tenancy agreement where in fact I am a leaseholder). PCM has been introduced to the site in late 2014 without consultation with residents and, in my specific case, without prior notice (the letter which supposedly informed residents of PCM starting to enforce the ‘rules’ was never delivered to me). After initial (and informal) ‘grace’ period where enforcement was patchy, PCM started issuing ‘PCNs’ en masse.

4. Bays, where the alleged contract breach occurred, are known (from anecdotal evidence) to have been originally intended for the commercial units on the ground floors of the development’s buildings therefore I will refer to them as loading bays further in this document. Due to the fact that said commercial units remain largely unoccupied (15 years from completion of the development), these bays are virtually always empty and unused. Given the lack of any other genuine usage local residents have for years used these bays in order to load, unload or temporarily stop for other reasons. This was the case both prior to and after introduction of PCM to site and is an indirect proof that residents’ life would be nigh impossible should they not be able to resort to use these bays from time to time for the purposes described.

5. My vehicle, driven by a family member who, like me, is a resident at the development, has been ‘stopped’ in the loading bay in order to gain reasonable access to the property. While the details of specific events on the day are not known to the me due to the lack of direct involvement, the only reason why the vehicle is ever stopped in the loading bay is for the purposes of loading and unloading. Typically, the ‘stay’ does not last longer than 10 minutes taken to bring the shopping bags home and unload frozen/refrigerated goods before returning to the car to take it to the off site car park. Neither myself nor any other drivers of my vehicle actually park the car in the loading bays in question.

6. Family member in question is frequently required to stop in the loading bay in order to unload and deliver multiple heavy shopping bags to home before returning to park the car in the off site car park. To avoid doing so would require the person in question to carry bags weighing as much as half their body weight for several hundred meters from the location of the off site car park (refer to local area map in exhibit LM 2), which would be a severe hindrance in daily life.

7. Due to previous experience of appeals process against these private PCNs and realisation that they are completely arbitrary and unfair I have not challenged the PCN at any stage.

8. The car was stopped for a very brief period of time consistent with a consideration period, only to allow unloading the goods which, as the Jopson vs Homeguard (case number B9GF0A9E; see Exhibit LM 3) case has established, does not constitute parking. It was then moved from the private land, thereby signalling that the driver did not accept any contract (if such were to exist and be valid - but no such contract was seen or in view).

Exaggerated claim

9. 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.

10.  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.

11. 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.

12. 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."

13. This Private Parking Code of Practice includes the following which supports my case:

In Annex F, section F.1, point 2 it says: “It is also good practice, where possible (e.g. at hospitals or GP surgeries), to mark dedicated drop-off and/or loading areas with adjacent signs stating the maximum time allowed”

In Annex G, section G.2, it is expected that “landowner confirms that they have considered with the operator (…) arrangements and exemptions for loading/unloading and deliveries”

14. The Claimant has submitted no evidence regarding a consideration period. A contract to park by conduct cannot be formed unless there is a consideration period to discover, read, understand and accept the contract.

15. 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

16. 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.

17. 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.

18. 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.

19. 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'.

20. 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.

21. 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.

22. 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

23. 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.

24. 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.

25. 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

26. 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 LM 4) - set a high bar that this Claimant has failed to reach (as shown in penultimate page of Exhibit GS 4 of Claimant’s Witness Statement)

27. 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 LM 5 for a paragraph from ParkingEye v Beavis).

28. 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".

 

Observations re this Claimant's Witness Statement

29.  Most of Claimant’s witness statement, but especially Paragraphs 4 and 17 are clearly a template response. This is easily seen by looking at paragraph 22, which falsely claims that the PCN was appealed, which I can certainly confirm has not been the case.

30. In paragraph 28 the Defendant states that no images were provided of the unloading activity. I would like to point to the fact that it cannot be reasonably expected for anyone to be photographing their shopping in front of the car in the remote expectation that a rogue parking management company decides to pursue false claims against them.

31. In paragraph 29 the Defendant fails to address paragraph 4 of my submitted Defence. Furthermore, in the last page of exhibit GS 4 they assert that postal notice was chosen “to avoid conflict with driver”, which is laughable given the driver was a short (160cm) skinny lady.

32. In paragraph 31 the Defendant appears to conflate the off site car park (which I have a permit for) with the loading bays in question in this court case which are accessible from and adjacent to a public road. The conclusions reached by the Claimant are therefore too far reaching and simply wrong.

33. It is also pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes (which I believe is relied upon by this Claimant) criticised two District Judges for apparently 'not having enough evidence' to conclude that Britannia 'knew' that their added costs were exaggerated 'double recovery'. Unbeknown to HHJ Parkes, of course all District Judges deal with generic evidence in cases like this every week, and parking operators certainly have been told this by Judges for many years.

34. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (see Exhibit LM 6)

35. 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.

36.  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.

 

No changes to last 4 points in conclusions

Thanks all

Coupon-mad

Wow, for a non-native speaker you are amazing!  You are right about the comma before the word 'which' (it would read better with a comma).

in this context, the word 'authorities' means high level court case 'precedents', either binding or at least 'persuasive' decisions in court.

You can just provide a URL link to ParkingEye v Somerfield (the High Court judgment, not the Court of Appeal one).

We will try to come back to this thread over the weekend, but if this was originally a 'car free' development, when and how did that change?  

You were then allowed to bring vehicles in to load or unload but not park, or what?

DrAculaGonzo

Coupon-mad said:

Wow, for a non-native speaker you are amazing!  You are right about the comma before the word 'which' (it would read better with a comma).

in this context, the word 'authorities' means high level court case 'precedents', either binding or at least 'persuasive' decisions in court.

You can just provide a URL link to ParkingEye v Somerfield (the High Court judgment, not the Court of Appeal one).

We will try to come back to this thread over the weekend, but if this was originally a 'car free' development, when and how did that change?  

You were then allowed to bring vehicles in to load or unload but not park, or what?

mhm, weird one.... i don't think it changed.... so a bit of background as much as I know
Just note that 10 years ago when I bought this property I was oblivious to many things, to the extent I didn't even appreciate what leasehold is vs freehold etc... as such many important details may have escaped me at the time

Either way this is a post industrial site which in mid 2000s was redeveloped into residential development of c. 10 buildings (all 4-6 story high). I can't recall how I know it's meant to be car free development, but I guess it was from the sales person that sold me the flat (which by the way was a shared ownership, but by now I 'staircased' to be 100% owner/leaseholder, not sure if this is relevant?). Also, by this I guess it was meant that residents won't be able to apply for LA managed parking, just like my lease states.

Oddly, inside of the development there are c. 50 car parking spaces, but not sure how they were allocated. All I know that I have no chance of getting one as they are attached to specific properties and cannot be sold in isolation to them.
HA also own some land nearby (or rather has some sort of agreement with freeholder via section 106 agreement, possibly predating the redevelopment of the site???) which has been used as an offsite car park. For an initially nominal amount (10 quid a year) one could buy a permit to use that car park. over the years it became increasingly more expensive and more regulated/controlled. I'm not sure how this operates, why it's in place and why HA even operates the offsite scheme... perhaps it was a sweetener for residents/workaround for planning permission being granted on basis of car free development?
Finally, the road where the "loading bays" are is not in controlled parking zone (i.e. you park for free as long as you can find a space, which has been getting increasingly harder over the years)...

Does this give some context? Unfortunately a lot of unknowns... 

DrAculaGonzo

Hi Guys, On the 14th I need to submit a response therefore any final views/comments would be much appreciated. Many thanks. 

Coupon-mad

is on all fours meant to be that they are overwhelmed with caseload?

No, "on all fours with" is a colloquial phrase meaning 'the same as'.

And you don't copy ANY of the stuff about VCS in the example WS that I wrote last week.

That bit (those specific paragraphs) is just an example about a no-stopping Airport case.  You just replace that section with details about your own case.

Show us your latest draft WS so we can see.

I think you need to add this about the extortionate interest:

Gladstones have applied the wrong interest rate of 10.25% which they appear to have made up.  The highest rate allowed in civil claims (only at the discretion of courts) is 8%. I have discovered from research that this legal representative roboclaim firm (connected to the IPC trade body) always adds 10.25% interest and are highly likely to be one of the top five 'bulk parking case litigators' shown in the Government's analysis, linked elsewhere in this statement.  Gladstones indisputably issue tens of thousands of inflated parking claims every year, all of which have the wrong interest rate (a deplorable 10.25%)  and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims.  Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Gladstones and nothing to do with the Claimant's alleged £100 PCN.  I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit.

DrAculaGonzo

DrAculaGonzo said:

Revised WS: Amended bits in bold.

Facts and sequence of events

3. Since 2013 I have been the leaseholder (see exhibit LM 1) of a flat in the residential development concerned. (NB: in point 6 of my defence, I have mistakenly referred to my contract as a tenancy agreement where in fact I am a leaseholder). PCM has been introduced to the site in late 2014 without consultation with residents and, in my specific case, without prior notice (the letter which supposedly informed residents of PCM starting to enforce the ‘rules’ was never delivered to me). After initial (and informal) ‘grace’ period where enforcement was patchy, PCM started issuing ‘PCNs’ en masse.

4. Bays, where the alleged contract breach occurred, are known (from anecdotal evidence) to have been originally intended for the commercial units on the ground floors of the development’s buildings therefore I will refer to them as loading bays further in this document. Due to the fact that said commercial units remain largely unoccupied (15 years from completion of the development), these bays are virtually always empty and unused. Given the lack of any other genuine usage local residents have for years used these bays in order to load, unload or temporarily stop for other reasons. This was the case both prior to and after introduction of PCM to site and is an indirect proof that residents’ life would be nigh impossible should they not be able to resort to use these bays from time to time for the purposes described.

5. My vehicle, driven by a family member who, like me, is a resident at the development, has been ‘stopped’ in the loading bay in order to gain reasonable access to the property. While the details of specific events on the day are not known to the me due to the lack of direct involvement, the only reason why the vehicle is ever stopped in the loading bay is for the purposes of loading and unloading. Typically, the ‘stay’ does not last longer than 10 minutes taken to bring the shopping bags home and unload frozen/refrigerated goods before returning to the car to take it to the off site car park. Neither myself nor any other drivers of my vehicle actually park the car in the loading bays in question.

6. Family member in question is frequently required to stop in the loading bay in order to unload and deliver multiple heavy shopping bags to home before returning to park the car in the off site car park. To avoid doing so would require the person in question to carry bags weighing as much as half their body weight for several hundred meters from the location of the off site car park (refer to local area map in exhibit LM 2), which would be a severe hindrance in daily life.

7. Due to previous experience of appeals process against these private PCNs and realisation that they are completely arbitrary and unfair I have not challenged the PCN at any stage.

8. The car was stopped for a very brief period of time consistent with a consideration period, only to allow unloading the goods which, as the Jopson vs Homeguard (case number B9GF0A9E; see Exhibit LM 3) case has established, does not constitute parking. It was then moved from the private land, thereby signalling that the driver did not accept any contract (if such were to exist and be valid - but no such contract was seen or in view).

Exaggerated claim

9. 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.

10.  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.

11. 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.

12. 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."

13. This Private Parking Code of Practice includes the following which supports my case:

In Annex F, section F.1, point 2 it says: “It is also good practice, where possible (e.g. at hospitals or GP surgeries), to mark dedicated drop-off and/or loading areas with adjacent signs stating the maximum time allowed”

In Annex G, section G.2, it is expected that “landowner confirms that they have considered with the operator (…) arrangements and exemptions for loading/unloading and deliveries”

14. The Claimant has submitted no evidence regarding a consideration period. A contract to park by conduct cannot be formed unless there is a consideration period to discover, read, understand and accept the contract.

15. 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

16. 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.

17. 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.

18. 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.

19. 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'.

20. 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.

21. 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.

22. 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

23. 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.

24. 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.

25. 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

26. 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 LM 4) - set a high bar that this Claimant has failed to reach (as shown in penultimate page of Exhibit GS 4 of Claimant’s Witness Statement)

27. 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 LM 5 for a paragraph from ParkingEye v Beavis).

28. 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".

 

Observations re this Claimant's Witness Statement

29.  Most of Claimant’s witness statement, but especially Paragraphs 4 and 17 are clearly a template response. This is easily seen by looking at paragraph 22, which falsely claims that the PCN was appealed, which I can certainly confirm has not been the case.

30. In paragraph 28 the Defendant states that no images were provided of the unloading activity. I would like to point to the fact that it cannot be reasonably expected for anyone to be photographing their shopping in front of the car in the remote expectation that a rogue parking management company decides to pursue false claims against them.

31. In paragraph 29 the Defendant fails to address paragraph 4 of my submitted Defence. Furthermore, in the last page of exhibit GS 4 they assert that postal notice was chosen “to avoid conflict with driver”, which is laughable given the driver was a short (160cm) skinny lady.

32. In paragraph 31 the Defendant appears to conflate the off site car park (which I have a permit for) with the loading bays in question in this court case which are accessible from and adjacent to a public road. The conclusions reached by the Claimant are therefore too far reaching and simply wrong.

33. It is also pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes (which I believe is relied upon by this Claimant) criticised two District Judges for apparently 'not having enough evidence' to conclude that Britannia 'knew' that their added costs were exaggerated 'double recovery'. Unbeknown to HHJ Parkes, of course all District Judges deal with generic evidence in cases like this every week, and parking operators certainly have been told this by Judges for many years.

34. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (see Exhibit LM 6)

35. 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.

36.  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.

 

No changes to last 4 points in conclusions

Thanks all

Latest draft here, just going to see where i could fit your Gladstones statement here and to check how you got the 10.25% to confirm it applies to my case.

DrAculaGonzo

interestingly the letter before claim states this 

Amount Due/ Debt £170.00

Estimated Interest £0.00

Estimated Court Fee £35.00

Estimated Fixed Solicitors' Costs £80.00

Estimated Total £285.00

Please note interest is calculated daily and will be added to the Amount Due/ Debt if Court

proceedings are issued.

The court papers show below and indeed confirm 10.25% 

Amount claimed 194.66

Court fee 35.00

Legal representative's

costs 50.00

Total amount 279.66

Particulars of Claim

The driver of the vehicle with registration XXXXX (the Vehicle') parked in breach of the terms of parking stipulated on the signage (the 'Contract') at YYYYYYY, on 12/07/2021 thus incurring the parking charge (the 'PCN'). The PCN was not paid within 28 days of issue. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle, Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £100 for the PCN, £70.00 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £24.66 pursuant to s69 of the County Courts Act 1984 at 10.25% per annum, continuing at £0.05 per day.