Napier Parking/BW Legal parking charge

Coupon-mad

Exemplar WS are in the NEWBIES thread, linked by 5 usernames.  Copy & adapt.

Received the claimant's Witness statement today - they reference my posts on this forum.

LOL... jolly amusing!  As if you aren't allowed to get advice from the foremost expert forum.

ChrisA7979

Coupon-mad said:

Exemplar WS are in the NEWBIES thread, linked by 5 usernames.  Copy & adapt.

Received the claimant's Witness statement today - they reference my posts on this forum.

LOL... jolly amusing!  As if you aren't allowed to get advice from the foremost expert forum.

Thank you - can I refer to false statements made in the claiment witness statement or is this best to argue in court?

Coupon-mad

Do not save that for court.  Fill your boots now and put it all in the WS.  Show us your draft tonight.

ChrisA7979

Witness Statement of Defendant

 

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 (See 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 which specific term of the alleged contract was purportedly breached.

 

 

Facts and Sequence of events

9.      Date and Time of the Incident: Tuesday, 20th September 2022, at approximately 13:50PM.

On the date of the alleged parking event, I parked at Jengers Mead car park West Sussex, RH14 9PB. The purpose of my stop was to post a parcel at the post office in Jengers Mead (14 Jengers Mead, Billingshurst RH14 9PB).

 

10.  Immediately after leaving my car, at approximately 13:50PM, I began the process of paying for parking on the Just Park phone application as I walked towards the post office. I have previously paid for parking in this manner, at this location, prior to 20/09/22 and after, shown in the proof of payment from Just Park (See Exhibit 6).

 11. My vehicle was parked around the corner from the post office, no more than a minute's walk from my vehicle. Before I completed the transaction, I had arrived at the post office and read a sign on the post office door stating “Closed for lunch 1:30 – 2:00”. I was on my lunch break between 13:00 and 14:00 so, was not able to wait until the post office reopened.

 

12. Due to the closure of the post office, I was not able to obtain their services and therefore did not need to park, so I returned to my car. The time between leaving my vehicle, walking to the post office, reading the closure sign and returning was around 4 minutes. This is highlighted by the observation time of my vehicle being only 50 seconds from 13:50.50 to 13:51.40 (Exhibit 5) and also the photo of me returning to my car is date stamped at 13:54.23 (Exhibit 7).


13.The claimant has made an accusation that in the photo (Exhibit 7) “Man returned to car carrying tobacco”. The “tobacco” that the claimant refers to is actually the same parcel I left my car with and intended to post. I had never smoked tobacco nor purchased it. The claimant has provided no evidence about what time I left my vehicle or what items I was carrying when I left my vehicle.

 

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

14.   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.

 

15.   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.

16.   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.

17.   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

"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."

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

 

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

 

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

 

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

 

22.   In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

 

23.   This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

 

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

 

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

CRA Breaches

26.   Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

 

27.   Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

 

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

 

29.   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  8)

 

The Beavis case is against this claim

30.   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 9) - set a high bar that this Claimant has failed to reach.

 

31.   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 10) for paragraphs from ParkingEye v Beavis).

 

32.   In the present case, the Claimant has fallen foul of those tests. There is one main issue that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) 'costs' are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top.  None of this was agreed by me, let alone known or even seen as I attempted to gain entry to the store. 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 Civ2both 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".

 

 

ChrisA7979

^ First Rough Draft

ChrisA7979

Facts and Sequence of events

1.      Date and Time of the Incident: Tuesday, 20th September 2022, at approximately 13:50PM.

On the date of the alleged parking event, I parked at Jengers Mead car park West Sussex, RH14 9PB. The purpose of my stop was to post a parcel at the post office in Jengers Mead (14 Jengers Mead, Billingshurst RH14 9PB).

 

10. Immediately after leaving my car, at approximately 13:50PM, I began the process of paying for parking on the Just Park phone application as I walked towards the post office. I have previously paid for parking in this manner, at this location, prior to 20/09/22 and after, shown in the proof of payment from Just Park (See Exhibit 6 supplied by Napier Parking).

 

11. My vehicle was parked around the corner from the post office, no more than a minute's walk from my vehicle. Before I completed the transaction, I had arrived at the post office and read a sign on the post office door stating “Closed for lunch 1:30 – 2:00”. I was on my lunch break between 13:00 and 14:00 so, was not able to wait until the post office reopened.

 

 

12. Due to the closure of the post office, I was not able to obtain their services and therefore did not need to park, so I returned to my car. The time between leaving my vehicle, walking to the post office, reading the closure sign and returning was around 4 minutes. This is highlighted by the observation time of my vehicle being only 50 seconds from 13:50.50 to 13:51.40 (Exhibit 5) and also the photo of me returning to my car is date stamped at 13:54.23 (Exhibit 7).

 

 

 

 

13. The claimant has made an accusation that in the photo (Exhibit 7) “Man returned to car carrying tobacco”. The “tobacco” that the claimant refers to is actually the same parcel I left my car with and intended to post. I had never smoked tobacco nor purchased it. The claimant has provided no evidence about what time I left my vehicle or what items I was carrying when I left my vehicle.

Fruitcake

Please also post the claimant's WS, with personal information redacted. 

ChrisA7979

Fruitcake said:

Please also post the claimant's WS, with personal information redacted. 

Thank you for your time - link provided

1505grandad

In the draft Defence you stated  -  " In this case, the time from first witnessing the car to placing a Parking Charge Notice on the windscreen was less than 1 minute."

In the Claimant's WS para 19 they vehemently deny a windscreen notice. Who is right? 

Le_Kirk

You have posted what looks like a defence, witness statements are written in the first person, as in "I did this, saw that" etc.