PCN residential address WS stage vs UKCPM/gladstones

taleb

IN THE COUNTY COURT AT XXX

Claim No.: XXXX

Between

UK CAR PARK MANAGEMENT LIMITED

(Claimant) 

- and -  

MR XXXX

 (Defendant)

_________________

Witness Statement of Defendant

 

1.     I am XXX, (ADDRESS) 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 and honest belief. 

2.     In my statement, I shall refer to (Exhibits 1-6) within the evidence supplied with this statement. My defence is repeated and I will say as follows:

3.     The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability'.

 

The facts known to the Defendant:

4.     It is admitted that the Defendant was the registered keeper of the vehicle at the time of the contravention, but liability is denied.

5.     The Defendant was a resident of the block of flats at XXX where the car park is situated on the date of the contravention. The car parking area contains unallocated parking spaces demised to the residents and their guests via the leasehold.

6.     On the 19th of December 2018 the Claimant proceeded to issue a parking charge notice as the Defendant’s vehicle was allegedly in breach of the terms of parking at XXXX, which the Defendant strongly denies all liability to.

7.     Under the terms of the Defendant's tenancy agreement (See Exhibit 1), references are made to the usage of parking spaces in section “3.15” of the lease titled “Use of the property", under clause “3.15.14”, which the Defendant expressly notes that none of the conditions of the lease were breached.

8.     The Claimant relies on the agreement with the freeholder (See Exhibit 2) to assert the right to issue PCNs in relation to vehicles parked in breach of the terms and conditions. The said agreement states that: (i) permit holders (and visitors) only, (ii) no parking outside of a designated area.

·       The Defendant, being a resident, was a permit holder, a fact never contested by the Claimant, and asserted by the Defendant in their original appeal against the PCN.

·       As the Claimant’s own photos show (Exhibit 3), the vehicle is parked within a designated area.

·       Hence, it is asserted that the Defendant, at all material times, was parked in accordance with the terms and conditions. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

 

9.     The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

        (i).   a strong 'legitimate interest' extending beyond mere compensation for loss, and

       (ii).   'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

 

10.  The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

 

 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

11.  The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:

        (i).   the alleged breach, which is not pleaded in the POC and requires further and better particulars, and

       (ii).   a breakdown of how they arrived at the enhanced sum in the POC, including how interest was calculated, which looks to be improperly applied on the entire inflated sum, as if that was all overdue on the day of the alleged event.

 

12.  The Defendant affirms that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

 

13.  This case is a classic example where adding exaggerated fees funds the 'numbers game' of bulk litigation of weak and/or archive parking cases.  MoJ statistics of bulk litigators reveal that there are several hundred thousand parking claims per annum, with some 90% causing default CCJs totalling hundreds of millions of pounds.  No checks and balances are likely to have been made to ensure facts, merit or a proper cause of action (given away by the woefully inadequate POC).

 

 

14.  The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is 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.  Despite legal challenges delaying the Code - marked as temporarily withdrawn - it is thankfully 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis exposes what they say are industry-gleaned facts about supposed 'fees'. The analysis is 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 state that the parking industry has shown the DLUHC that the true minor cost of what the former calls debt recovery or 'enforcement' ( = pre-action) stage totals a mere £8.42 per case (not per PCN).

 

17.  With that in mind, it is clear that the extant claim has been enhanced by an extreme sum, believed to be routinely retained by the litigating legal team, not the Claimant.  In this Claim it is additional to the intended 'legal representatives fees' cap set within small claims track rules.  This conduct has been examined and found - including in a detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery'. The Defendant takes that position.

 

18.  The draft IA shows that the intimidating letter-chains actually cost 'eight times less' than the seemingly 'price-fixed' +£70 per PCN. This causes consumer harm in the form of almost half a million wrongly-enhanced CCJs each year, that District Judges are powerless to prevent.  This false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who suddenly aligned in 2021 re allowing +£70, each led by a Board of the very parking operators and debt firms who stood to gain from it. 

 

19.  It is denied that the purported damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  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 ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of template letters and 'would appear to be penal'.

 

20.  This Claimant has not incurred costs. A parking charge model already includes what the Supreme Court called an 'automated letter-chain' and it is a model that generates a healthy profit.  In Beavis, there were 4 pre-action letters/reminders and the £85 'PCN' was held to more than cover the minor costs of the operation.  The DLUHC's IA confirms that the parking charge more than covers the minor costs of the letters (NB: the debt collectors do not charge anything in failed collection cases).

 

21.  Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged by the parking industry. The 2022 DLUHC Code will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  In a clear steer for the Courts and for the avoidance of doubt: the DLUHC say they are addressing 'market failure'.

 

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 from a registered keeper.  Further, the Claimant is put to strict proof of POFA compliance.

 

23.  The Defendant asserts that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant failed to erect well-placed, large and readable signs on a par with the yellow & black warnings seen in Beavis, and unlike the signage requirements set out in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

Exhibit 4, taken from the Claimant’s own evidence, gives a better indication of the illegibility of the parking signs as seen from a driver’s perspective (unlike the closeup images that do not reflect the driver’s view). Also note that the only charge that's legible in the signage is £100 (Exhibit 5). The extra charges were not even included in the original PCN (see Exhibit 6)

 

CRA breaches

24.  Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

 

25.  The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications intended to be read by consumers. Signage must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

26.  The Defendant affirms that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of 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

27.  Unlike in Beavis, the penalty rule remains engaged, not least due to the unconscionable added 'Fee'.  The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

 

28.  The Supreme Court held that 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 alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  In the present case, the Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver.  Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i)             Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii)            Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, both leading authorities 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''. 

 

29.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t." 

 

Lack of ADR

30.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed.  The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (2020 Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should lead Judges to know that a fair appeal was never on offer.

 

Conclusion

31.  There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that claims like this should be struck out. 

 

32.  In the matter of costs, the Defendant seeks:

a)    standard witness costs for attendance at Court, pursuant to CPR 27.14, and

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

 

33.  Attention is drawn 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.

 

Signature:

Date: 15/12/2024

taleb

I've also received the claimant's witness statement, I can post it here if that's helpful
not sure if I should be addressing his points directly
thanks

Le_Kirk

taleb said:

(btw, the original PCN was issued on 19 December 2018, so it's been longer than 6yrs. does that make it obsolete?)

What was the date of the claim, it will be on the N1 form?  The rule is that they have six years to start a claim from date of the original event which, at 19th December 2018, would be 19th December 2024 and if you are at WS stage, they made it in time.

Coupon-mad

Have you already had the N244 CCJ hearing and were you granted your £275 fee back at the first hearing? Did you get paid it by the C?

taleb

@Coupon-mad yes, and yes. I posted about that a while back
the judge didn't award me the costs initially during the hearing, but then I got an email from Gladstones asking for my bank details so they could pay me. A couple of days later, I got the judgement in which the judge had reconsidered and decided to award me the costs
now I'm at the witness statement stage, and would appreciate your feedback
thanks

Coupon-mad

Glad to hear you got your £275 back!

It reads too much like a defence. Go through it and change ' the Defendant' to "I" throughout. And if you used the template defence it will have been the same as that draft WS second half (which doesn't need saying twice) so remove any exact repetition when compared to your defence.

Do you have Jopson v Homeguard? You need it, so search the forum if not.

Make it more in the style of your 'story'. A less templatey WS example is on the thread by @Harry77

Put it all in the first person and admit to driving, if you were. I'm not clear which exhibits you have (as well as your lease... you own the flat?). What else?

As it was a Gladstones claim, unless they were ordered to submit further & better Particulars of Claim (POC) ? then the POC on the claim were inadequate.

taleb

thanks @Coupon-mad I'll make those changes

Trainerman

Para 4 accepts that there was a contravention. Far better to say something like "was keeper at the material time"

Coupon-mad

taleb said:

thanks @Coupon-mad I'll make those changes

And search the forum for:

Chan and Akande

taleb

thanks @Trainerman I'll make that change
@Coupon-mad the witness statement is basically a copy-paste of my defence, with some labels/headings changed
I'll change the style so it's in the first person, but are you suggesting that I remove the Exaggerated claims and all subsequent sections?
In terms of exhibits, it's the tenancy agreement, UKPC's agreement with the freeholder, photos of the vehicle parked, parking signs and the original PCN
I'm not actually sure who was the driver at the time. As both myself and my wife used the car, and I'm not sure who had parked it when the PCN was issued
As for the POC, I think it was more specific this time. It talks about my car not displaying parking permit
Would it be helpful if I shared the claimant's WS?