County Court Claim for a Free Car Park Parking Ticket - help please

hallie28

Can I have some help please? I need to submit my witness statement by Wednesday (29th). I have just re-read the letter from the court which states: hard copies of the documents to be delivered by post, by DX or personally to Birmingham Crown Court. So ideally I need to get it finalised tonight so I can DX tomorrow. 
1 . Am I still allowed to email to files to the solicitor rather than post (I am trying to keep down costs)
2. Do I also include the schedule of costs in this submission?
3. Is there anything I've missed from the Witness Statement? (I'll copy below)
4. Should I address why I didn't respond to the PCN on my car window ,and why I waited for it to come to court? 

hallie28

Witness Statement of Defendant 

 

1.   I am Miss XX (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. 

 

2.   In my statement I shall refer to (Exhibits 1-12) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows: 

 

Preliminary matter: The claim should be struck out 

3.   The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority. 

 

4.   A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16.  On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (Exhibit 01). 

 

5.   Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit 02) 

 

6.   Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit 03) 

 

7.   Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit 04) 

 

8.   The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate how I had ‘not parked correctly within the markings of the bay or space’. They have not been able to evidence how I entered a contract or submit any evidence of the ‘clearly and prominently displayed’ signage.

 

 

Facts and Sequence of events 

9.    Date and Time of the Incident: On 4th November 2017 I visited Merry Hill Car Park.

 

10.     Decision to Park: I had visited Merry Hill regularly for the previous couple of years, and used the same car park on each occasion. Car parking across the whole of the Merry Hill site is free and incredibly busy. On the day in question, the car park was very busy. I noticed that there were pavements which had double red lines and pavements that had no lines and thus parked besides a pavement that had no lines. Please see Exhibit 5 for images provided to me by the Claimant when I did a Subject Access Request (SAR), which show that the area I was parked did not contain any lines, and the other surrounding pavements had double red lines. The was ample space for cards to pass in both directions.

 

11.     Duration of Parking: I was parked for a very brief period of time, as the purpose of my visit was to give money to my partner, who was eating food in Nando’s. Please see Exhibit 6 for a map demonstrating the short distance between the parking spot and Nando’s. I approximate that the car was parked for 5 minutes. The photographs submitted by the Claimant use a timestamp of 13:28 (exhibit 5), suggesting that they immediately issued a PCN without allowing me a grace period to locate a sign/contract or to leave to car park if I did not agree with the alleged contract. The British Parking Association (BPA) and the International Parking Community (IPC) both stipulate that a 10 minute grace period is required. Thus UPKC have breached this.

 

12.     Insufficient Signage: At the time of parking, I was not aware of any signage or contract that was prominent or visible. At this point, I was not familiar with the legalities of Parking Companies, and thus naively assumed that it was a free carpark under the management of Merry Hill. I had no idea that I should have been looking for contracts and signage. The images supplied by the claimant for the purpose of my SAR show that there was no prominent signage in the car park. The SAR provided an image of a car park sign (please see Exhibit 7). I haven’t ever seen this sign in the car park. The photos provided in Exhibit 5 demonstrate that this sign was not present or visible in the car park. Exhibit 8 shows the entrance to the carpark, which does not have any signage or contract that I could have considered prior to parking.

 

13.     Use of Red Lines: The car park used double red lines. In the absence of signage to explain why they were used, I was left to assume (in line with the high way code) that they were used to mark areas on the road/pavement where parking/stopping was not allowed. I parked on a pavement that had no lines. It was the only pavement along that stretch of the car park that didn’t have any lines (Exhibit 5). In the absence of signage to explain the meaning of the lines, I interpreted this as a deliberate communication to drivers that parking there was allowed.

 

14.     As shown in Exhibit 9, the car park now has red lines in the space relevant to this current claim. This suggests that the Claimant was also aware that their communication of appropriate parking spaces was confusing and against regulations that requires signs to be prominent, plentiful and well-placed.

 

Exaggerated Claim and 'market failure' currently examined by the Government 

16.   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. 

 

17.   I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of: 

(i) the alleged breach, and 

(ii)  a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event. 

18.   This Claimant routinely pursues a disproportionate additional fixed sum(inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action. 

19.   The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7thFebruary 2022, here:  

https://www.gov.uk/government/publications/private-parking-code-of-practice 

"Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

20.Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf 

 

21.   Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case. 

 

22.   With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position. 

 

23.   The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. In the current case, the fixed-price of £90 was even more extortionate than average. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it. 

24.   In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of 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. 

 

25.   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. 

 

26.   Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one. 

 

27.   In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA). 

hallie28

CRA Breaches 

 

28.   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.

This Government guidance on the CRA details 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. 

 

29.   Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear. The absence of signage and clarity on how the contract was breached is a violation of this guidance.

 

30.   The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith). 

 

31.   Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit 10) 

The Beavis case is against this claim  

 

31.   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 11) set a high bar that this Claimant has failed to reach.

 

32.   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.  

 

33.   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') (see Exhbit 12 for exerts from the case)  In the present case, the Claimant has failed those tests, with an absence of visible signage, 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''.

34.  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." 

 

 

Defence 

35.   I entered a free car park that did not contain any contract at the entrance and did not contain any visible signage in the immediate environment. I parked in a space that did not contain any signage to indicate that I could not park there. To the contrary, the surrounding red lines suggested that this was a space that had been allocated for parking.

 

36.   I parked for approximately 5 minutes. The BPA and IPC both stipulate that a 10-minute grace period is required to allow drivers to find/read the terms of parking. Thus the current PCN is a breach of this requirement.

 

37.   I maintain that no contractual agreement existed between myself and UKPC Ltd, and the Claimant will concede that no financial loss has arisen.  The charge imposed, in all the circumstances is a penalty (not saved by the ParkingEye v Beavis case, which is fully distinguished).  In addition to the fact that the sum claimed under purported 'contract' is disproportionately exaggerated, additionally the interest is inflated as interest appears to be miscalculated on the whole enhanced sum from day one as if £290.98 was the original proportion PCN penalty.  

38.   DCB Legal LTDl indisputably issue tens of thousands of inflated parking claims every year 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 DCB Legal LTD and nothing to do with the Claimant's alleged £90 PCN.  I hope the Judge addresses this in the final judgment, at the very least to warn or sanction DCB Legal as the court sees fit. 

Conclusion 

39.   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. 

40.   The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the way in which a violation occured.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out. 

 

41.   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. 

 

42.   With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale. 

 

43.   In the matter of costs, the Defendant asks: 

(a) The previously reserved costs of £315, and 

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

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

 

44.   Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))." 

 

Statement of truth: 

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. 

Coupon-mad

DX is a system for companies and solicitors. And 'Crown Court' - surely not!

1 . Am I still allowed to email to files to the solicitor rather than post (I am trying to keep down costs)
Yes.

2. Do I also include the schedule of costs in this submission?
Yes.

3. Is there anything I've missed from the Witness Statement? (I'll copy below)
Have not read it yet, sorry!

4. Should I address why I didn't respond to the PCN on my car window ,and why I waited for it to come to court? 
Not really. You didn't have to respond to what bore all the hallmarks of a scam to you.

hallie28

Coupon-mad said:

DX is a system for companies and solicitors. And 'Crown Court' - surely not!

1 . Am I still allowed to email to files to the solicitor rather than post (I am trying to keep down costs)
Yes.

2. Do I also include the schedule of costs in this submission?
Yes.

3. Is there anything I've missed from the Witness Statement? (I'll copy below)
Have not read it yet, sorry!

4. Should I address why I didn't respond to the PCN on my car window ,and why I waited for it to come to court? 
Not really. You didn't have to respond to what bore all the hallmarks of a scam to you.

Sorry I meant County Court! 

Coupon-mad

I don't think you should call it a 'pavement'.  Sounds bad to be parked on a pavement.

If you were just dropping something off, then don't call it 'parking', either.

Typo here:

 The was ample space for cards to pass in both directions.

1505grandad

No para numbered 15

Two paras numbered 31

hallie28

Update: I rang the solicitors for the email address and they informed me that they have closed the case and aren't proceeding. 

The courts have said that the Judge now won't consider the documents I submitted. 

I was going to email the evidence over with the schedule of costs and ask the judge to consider this, given the costs I have incurred in this farcical process. Would this be allowed?

Coupon-mad

Might be. You can but try.

Did you get your £275 back?

Was it reserved by the first Judge?

See the NEWBIES thread example re asking for costs after the event.

Also are you aware of this Inquiry that I think will interest anyone who has had to face the hurdles involved in a CCJ set aside case from a rogue parking firm:

https://forums.moneysavingexpert.com/discussion/comment/80417494/#Comment_80417494

Closes in just over a week. Those with CCJ evidence are encouraged to show your paperwork and tell the Committee that parking 'charges' should never cause this level of consumer harm.

Change is happening. Help steer it!

hallie28

Thanks - I'll send over an email to the courts. It's worth a shot. 

I didn't have to pay the £275 for this case (I did for my other one). Thanks to you guys, I submitted a complaint (as the CCJ was due to their delays in receiving emails) and thus it got set aside. 

Nice to finally see an end to one of my cases!