Urgent, court hearing in July, WHAT NEXT :(

Gr1pr

And edit your thread title, to something like 

Urgent, court hearing in July, further advice needed 

LDast

ISTIAWAN said:

...they have quoted various points such as:

If one exists, any lease or Tenancy Agreement between residents and the Landowner does not

conflict with my Company’s ability to enforce the Terms and Conditions on the Land. My

Company’s contract with the Landowner was orchestrated to work alongside the conditions of

such an agreement. It is in the Landowner’s interest to ensure that there is no conflict between

the contract with my Company and the leases or Tenancy Agreements with the residents

themselves. It is important to note that each Term and Condition that my Company enforce on

the Land has been agreed to by the Landowner;

iv. The lease or Tenancy Agreement does not therefore legally designate ownership of the

parking spaces or a right to park on site. The Land in question is specifically assigned to a

permit holders. As per the aforementioned, the contract with my Company and the Landowner

and the signage surrounding the Land clearly indicated that unless the Terms of parking are

complied with, you are not authorized to park unless you are registered to do so with my

Company and doing so will result in a PCN being issued;

You said that the Claimants WS is signed by a legal rep from DCB Legal. That rep has signed a statement of truth. Unless that rep also owns DCB Legal, they have lied in their statement of truth.

Aside from the fact that what was said in those two paragraphs is total bull testicles, the mendacious nature of that statement is an abuse of process that must be highlighted at the start of your WS.

Something along these lines must be put as a Preliminary Matter in your WS:

Preliminary Matter: The claim should be struck out

As a preliminary matter, I would like to bring to the Court's attention that the Claimant's Witness Statement, signed by [Paralegal or Solicitor's Name] of DCB Legal Solicitors, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As [Paralegal or Solicitor's Name] does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this non-compliance, the Defendant respectfully requests that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

You should point out the statement I've highlighted where the paralegal has mentioned that "my company" etc. Printout each paragraph where the paralegal has been mendacious.

ISTIAWAN

This is amazing, thank you. I nearly reached for my plastic to pay them off about 3am after a restless night of worry! However I read this and now determined to strangle these cowboys! Thank you all who take your time to help people like me, who have zero legal knowledge and are easily intimidated by these companies. I appreciate you! 

ISTIAWAN

Would you mind having a look at my WS so far.
Many thanks

1. As a preliminary matter, I would like to bring to the Court's attention that the Claimant's Witness Statement, signed by JOE BLOGS, of DCB Legal, does not comply with CPR 32.4 and Practice Direction 32, which requires that an individual make a witness statement with direct knowledge of the facts. 

Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As JOE BLOGS does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. 

In light of this non-compliance, the Defendant respectfully requests that the Court strike out the claim according to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions. (See Exhibits 01)

Facts and Sequence of Events

Date and Time of the Incidents: 

@. The property is rented by my husband and myself. According to our lease agreement, we have the right to use a parking space and a garage and we have a parking permit. We display this permit in our vehicles as a courtesy, not because we are obligated to do so. I have provided evidence of the permits (See Exhibits 02).

3. Our tenancy agreement, arranged by our estate agent, allows us to park a vehicle without any restrictions on ownership or usage, and it does not mention a requirement to display a parking permit. You can refer to the lease at the following. URL: [Exhibit 03].

4. The claimant asserts claims for "Not parked correctly within the markings of the bay or space" and "Not displaying a valid parking permit" (See Exhibits 04 / 05 / 06).

@ (Refer to Exhibit 07). 

@, before moving the vehicle.

The vehicle was briefly stopped to carry out these tasks safely and then moved to a private parking space (Refer to Exhibits 08).

5. @, I saw the attendant still on duty. I confidently approached him, contested the ticket, and firmly explained that the vehicle had been parked for legitimate loading purposes. However, he responded with hostility, dismissing the situation as mere "bad luck.”

A reasonable person could infer that the use of double yellow lines in this garage for loading is allowed, considering the exemptions outlined in the Highway Code and relevant statutory regulations for street use. If a private firm mimics double yellow lines, then their usual meaning applies. Even if this might be thought to be ambiguous, the Consumer Rights Act 2015 confirms:

“Section 69: Contract terms that may have different meanings

Contract terms can be ambiguous and capable of being interpreted in different ways, especially if they are not in writing or an accessible format. In these cases, this section ensures that the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that is used.”

The car was parked in in view of my house and garage on the aforementioned dates, in good faith, I contend that my decision to stop in this location was reasonable  (See Exhibit 09).

Entrance sign: 

6. Upon entering the area, there is a sign near the entrance, (see exhibit 10) which unfortunately adds to the confusion rather than providing clear guidance regarding access to my garage. The wording on the sign is ambiguous and does not distinctly mention the garage access or for unloading/loading purposes. Due to the lack of specificity, it was unclear whether the sign applied to the residents’ garages where I was parked. The ambiguity of the sign created uncertainty, giving me the impression that parking restrictions might be associated with the adjacent car park or intended for delivery drivers and visitors rather than residents using personal garages.

In Exhibit 09, take note of the number of garages in this area, which serves as a compelling visual representation of the area being used as an entry and exit point for garages for residents only. 

It is clear to me that as a resident, the primary objective of parking regulations on the premises is to ensure the welfare of residents. Consequently, the parking charge notice (PCN) could and should have been promptly retracted, thereby streamlining the process for both the courts and myself. 

Instead, I have had to endure several months of procedures, along with unwelcome harassment and intimidating correspondence. It has become evident that the claimant is not handling this matter with due diligence.I believe that any parking management company truly interested in protecting the parking rights of a residential area should revoke any PCN issued to a resident upon being informed of its issuance.

7.I contend, therefore, that the agreement provides an unfettered right for tenants to use common areas and garages. This cannot be superseded, altered, or ignored by a parking management company post hoc. I refer to previous cases such as Pace v Mr N (Exhibit 10), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

8.. I refer to the case of Jopson v Homeguard (Exhibit 11), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop nearby for loading/unloading. The Jopson judgment is on point and persuasive on county court-level decisions.

 9. These costs which the Claimant has neither paid nor incurred were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it. 

10. The Defendant also 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 on the following persuasive authority.

11.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 given the Chan judgment, the Court should strike out the claim, using its powers under CPR 3.4 (See Exhibit 12).

12.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 13).

13.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 14).

14.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 several firms on robo-letters and illegitimate practices. (See Exhibit 15).

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.

Exaggerated Claim.

15. 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.

The claimant must provide solid evidence of:

(i) the alleged breach, and

(ii) a breakdown of how they calculated the enhanced amount being claimed, including an explanation of how interest was determined. It seems as if they applied interest improperly to the entire inflated sum as if that amount was immediately overdue on the day of the alleged parking event.

12. This claimant consistently seeks an excessive fixed sum (which is added per PCN) despite being aware that Parliament aims to prohibit or significantly reduce disproportionate 'Debt Fees'. This case is a clear example of how exaggerated fees lead to unjust enrichment and encourage inappropriate and uncontrolled pursuit of weak or outdated parking cases through bulk litigation. It is unlikely that pre-action checks were carried out to verify facts, the merit of the case, the positioning of signs, the vehicle, or the basis of the claim. 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.”

Despite legal challenges which have temporarily delayed the implementation of the Code, a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on July 30, 2023. This draft has revealed industry-derived information regarding 'Debt Fees', as outlined in the Government’s analysis, available at the link above. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

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.

With that amount in mind, it is evident that the existing claim has been inflated by an excessive sum, which has been added deceptively as an extra ‘fee’.

It is suspected that this amount is routinely kept by the legal team involved in the litigation and has been claimed in addition to the specified limit for 'legal representative fees' set within the small claims track rules. After a thorough examination, including a detailed judgment by Her Honour Judge Jackson, who is now a specialised Civil High Court Judge on the Leeds/Bradford circuit, this behaviour has been found to constitute 'double recovery'. 

The Defendant maintains this position.

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 under 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.

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.

13. The claimant has not incurred any additional costs because the full parking charge, after the discount has expired, is already high and more than covers what the Supreme Court referred to as an 'automated letter-chain' business model that generates a healthy profit. In the Beavis case, there were a total of 4 or 5 letters, including pre-action phase reminders. The £85 parking charge was considered to cover the 'costs of the operation', and the Driver and Vehicle Licensing Agency's Interpretation Act suggests that it should still be the case that the parking charge itself more than covers the minor costs of the pre-action stage, even if and when the government reduces the level of parking charges.

14. In addition, according 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).

ISTIAWAN

CRA Breaches

15. 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 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.

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 CRA has been breached due to unfair/unclear terms and notices, under 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).

Now for the first time, the DLUHC's draft IA exposes that the template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit  16)

The Beavis case is against this claim 

16. 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.

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 12) for paragraphs from ParkingEye v Beavis).

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

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. The driver is completely unaware of any risks and has no idea about the amount of risk involved. This was not agreed upon by me, nor was it known or seen by me as I tried to gain entry/exit to the garage and residence.

Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge include:

Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) 

Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded;

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".

Conclusion

The claim is entirely without merit. The Claimant is urged to discontinue now to avoid incurring costs and wasting the court's time and that of the Defendant.

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 nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

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.

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 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.

Statement of truth:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature:

Date: xxx

ISTIAWAN

***The layout hasn’t been copied and pasted too well, but you get the idea. Not sure about numbering the sections as I have done?

h2g2

I can't comment on the depth (I feel someone will likely refer you to the template defence/WS, maybe? I'm not sure on that and will leave it to more experienced forumites) but I'd make two suggestions:

On paragraph 3: don't refer them to a URL. Assume the judge the and opposition don't have an internet account and only read documents printed for them by their associates, and write accordingly. While using a URL might (if you're lucky) work, it might also open excuses like "we couldn't access the link for [whatever reason]" and there's a chance the tenancy agreement might end up inadmissable which you don't want.

Quote relevant sections in the statement, and attach the actual document (or important parts of it) as an actual exhibit. 

On paragraph 8: (and someone with more experience may contradict me on this) make the point that the Jopson case is almost identical to yours, with both involving a resident unloading their vehicle. Unless someone suggests otherwise, you can quote the bit of the judgement: "In the almost identical appeals case of Jopson vs Homeguard His Honour Judge Harris concluded that 'A milkman leaving his float to carry bottles to the flat would not be “parked”. [...nor] indeed the appellant, unloading an awkward piece of furniture. Any other approach would leave life in the block of flats close to unworkable.' I was therefore not parked.

ISTIAWAN

Excellent advice thank you, I did use a couple of recommended templates combined, as listed in the Newbies thread. I will amend the ULR reference, and scan it in.

 will also defo quote the part above in the Jopson case. 

Coupon-mad

You don't need paras 12, 13 or 14 (or extra exhibits there) as the Chan exhibit above it, should instead be the multiple judgments document seen in @Le_Kirk's thread here:

https://forums.moneysavingexpert.com/discussion/6536578/judgments-link

You should exhibit a decent, authoritative document confirming the loading/unloading exemption on normal double yellow lines.  Just in case the Judge wrongly thinks DYL mean no stopping. A lot of people wrongly think that.

And I agree with @h2g2 about making more of Jopson which absolutely matches your case.

I'd also add Link v Parkinson. Search the forum.

ISTIAWAN

The signs do not mention the loading at all,  but I have just noticed this sign saying I can park in front of my garage anyway, I mean how do I even open my garage if I cant stop >?? - God I hate these people taking up headspace !!