Urgent, court hearing in July, WHAT NEXT :(

ISTIAWAN

Well, today I received a notice of allocation to the small claims and a date in late May for the hearing.

I believe the Claimant UKPC have to make a payment first, before the 18/4 and then if they do not it will be stuck out. 
Fingers crossed for that I guess!

Eeek - panic starts to rise again, I hate the power that UKPC has my headspace / anxiety!  

ISTIAWAN

So today I have received a Notice of allocation to the small claims track (hearing) 

I hate these cowboys and the fear these letters give me!!!

So I am reading that UKPC being the claimant have to pay the fee before 18/4 or the case will be thrown out - so fingers crossed for that !! So worrying! 

If not - then late May will see me going to court! Ive managed to reach 50 years old without ever doing this! Can you believe that the scammers are allowed to make people feel this way Yes I guess you can …….  

Coupon-mad

ISTIAWAN said:

So today I have received a Notice of allocation to the small claims track (hearing) 

I hate these cowboys and the fear these letters give me!!!

So I am reading that UKPC being the claimant have to pay the fee before 18/4 or the case will be thrown out - so fingers crossed for that !! So worrying! 

If not - then late May will see me going to court! Ive managed to reach 50 years old without ever doing this! 

You won't be going to court if you put your WS bundle in BEFORE their deadline to pay the hearing fee. DCB Legal will discontinue.

Can you believe that the scammers are allowed to make people feel this way Yes I guess you can …….  

Yea.  This is why I've been on this forum for umpteen years and it's why I've been an ever-present attendee on the Government's Parking Code of Practice Steering Group for 4 years already.

We will get there.  But YOUR help is needed:

Please find time to do this new Justice Committee Inquiry this weekend - before it closes within days - help us to try to STOP this abuse of the system:

https://forums.moneysavingexpert.com/discussion/comment/80375249/#Comment_80375249

Consumer groups have said:

"“Looking ahead, this inquiry should be a stepping stone to a full-scale commission on civil justice with the needs of consumers as its heart.”

The Committee invites evidence on:

• What the current level of delay in the County Court is

• The ways in which the County Court engages with litigants in person, and how this could be improved

• The causes of action giving rise to claims in the County Court

• What future reforms to the County Court should be considered.

Please state in one of your answers that private parking firms and their bulk litigators are the main problem as far as small claims delays are concerned, as they dominate and clog up court lists.

Parking court claim numbers are rising every year and will make up close to a third of all small claims in 2023, based on the 2022 figures that the MoJ divulged in the DLUHC's recent Parking Code of Practice draft Impact Assessment.

The MoJ must now be informed to urgently separate parking cases with a new pre-action protocol (requiring use of ADR instead of inflated debt demands and bulk litigators who want court). It should be a last resort but litigation is the first aim of DCB Legal.  They state in various articles that bulk litigation is their company aim.

Tell the Committee about your claim and delays, and show the Claim Form and the Hearing Order.  Point out that the it about Witness Statements is buried in small print on page two, and it is ridiculous that consumers are being sent such antiquated, legalese orders that are as clear as mud.

Remember as well, that when the horrific claim form arrived with all the legalese attachment pages, you also found the info on how to defend confusing. It wasn't clear at what stage evidence is submitted.  Tell the Inquiry that small claims is meant to be for consumers, not a system to support bulk litigation in extreme numbers from a known rogue industry.  Why is is being made so easy for extreme 'volume Claimants' from a dodgy sector and so hard for consumer Defendants?.

This is a hidden (unknown to many people) scandal affecting hundreds of thousands of people every year.  Yes it is that many.  There are c1.5m small claims per annum and about HALF A MILLION are parking claims. The Inquiry won't know that - please tell them.

Please tell the Committee that the private parking legislative framework needs to be removed from the county court altogether., to protect consumers.  Ideally, parking cases should NEVER go to county court and should not be able to affect people's credit rating.  

Please add your voice.

Interested parties have until Weds 17 January  to make a submission to the committee.

Coupon-mad

ISTIAWAN said:

 I need to send a copy of my tenancy lease as this is my defence, that parking permits are not mentioned.

This will be one of your WS exhibits.  See the Newbies thread for the other exhibits to add.

ISTIAWAN

Coupon-mad said:

ISTIAWAN said:

 I need to send a copy of my tenancy lease as this is my defence, that parking permits are not mentioned.

This will be one of your WS exhibits.  See the Newbies thread for the other exhibits to add.

Yes heading to newbies WS thread  now - thank you xxxxx I am also going to be actioning my response on the link you provided, and a truly huge thank you xxx  

ISTIAWAN

Hi - Well it’s taken many hours but I feel more empowered with knowledge now!  

Just wondered if you would look over my WS and give me any guidelines please?  

I feel that my last paragraph of conclusion went on and on as I tried to give it more clout - but seems to be endless…..Think I need a new set of eyes ! 

I want to include the Chan case but not sure if its in the right place?! 

ISTIAWAN

https://www.dropbox.com/scl/fi/nzt0jt23jvu37yxavf8i0/WS-UKPC-JAN-2024.pages?rlkey=s44tik2r4fgcgbp5jo9ayvfkm&dl=0

Coupon-mad

Don't know if it's just me but I can only see page one and it won't scroll up.

Your exhibits look good except you need to have CEL v Chan as a numbered Exhibit too, not embedded in the document body.

You could copy & paste your wording straight here into a couple of replies.  More people will look at that than click on a link.

ISTIAWAN

Table of Contents

Witness Statement 2-7

Exhibit xx-01 Proof of Tenancy agreement …………………………………………………….

Exhibit xx-02 Proof of permit requests………………….………………………………………

Exhibit xx-03 Proof of permit held………………………………………………………….…..

Exhibit xx-05 The Beavis Case sign for comparison………………………..…......….............

Exhibit xx-06 Parking Eye Limited V Beavis- Paragraphs 98, 193 and 198……......................

Exhibit xx-07 Pace v Mr N………………………………………………………………………..

Exhibit xx-08 Jopson v Homeguard ……………………………………………………………..

Exhibit xx-09 Saaed v Plustrade Limited…………………………………………………………

Exhibit xx-10 Excel v Wilkinson……………………………………………………………………

 

 UK PARKING CONTROL LIMITED  (Claimant)

       V

   

 Joe Bloggs (Defendant)

 

                                                

 Witness Statement of Defendant

1. I am Mr BLAH Bloggs 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 1-10) 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:

Facts and Sequence of events

3. I live at 1********* I am a tenant. My tenancy agreement permits the parking of vehicle(s) on land. I aver that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant areas, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease has been attached for the Court (Exhibit xx-01 ) 

4. The property is rented by my husband and myself. It includes the use of a private parking space adjoining a garage, and parking areas around the property. My tenancy terms provide the right to park a vehicle, without limitation as to ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. The operator’s signs cannot (i) override the existing rights enjoyed by residents and any visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

5. As a courtesy and not as a contractual obligation, I contacted Crabtree Management company in July. 2020, with a request to provide me with a permit (Exhibit xx-02). My requests for the permit was not responded to and I continue to email and call them with further requests (Exhibit xx-03) 

I finally received a permit in August 2022. As such I have also provided evidence of permit currently held (Exhibit xx-04). 

5 Subsequently the vehicle was then parked at ++++ when the PCN was issued.

6. Despite repeated attempts to explain and produce evidence, these set of circumstances have been completely ignored by the claimant. At no point has the claimant been willing to discuss any details I have presented to them. Instead any challenge made by myself to this completely unreasonable charge has been met with generic templates from the claimant with no relevance to anything I have said back in response.  It is clear and obvious that once it was established I am a resident for whom the whole point of parking regulation was at the property to protect residents, that the PCN should have and could have simply been cancelled swiftly ending the matter saving the courts time and my own time. Instead I have had to endure months of appeal processes along with harassment and threatening letters and phone calls, to the point of which it is now obvious that the claimant is not thinking on a conscientious level of any degree.   

 

7. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space, which is surely their only purpose, would cancel any PCN upon being notified they have issued a PCN to a resident.

8. I contend, therefore, that the tenancy agreement provides an unfettered right to use of common area for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc. I refer previous cases such as Pace v Mr N (Exhibit xx-07), where it was found that the parking company could not override the tenant’s right to park by requiring a permit to park.

9. I refer to the case of Jopson v Homeguard (Exhibit xx-08), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. The Jopson judgment is on point and persuasive on county court level decisions.

10. I did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.

11. These costs which the Claimant has neither paid nor incurred and 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.

12. In Saeed v Plustrade Ltd (Exhibit xx-09)  it was found the managing agent could not reduce the amount of parking spaces available to residents. This shows derogation from grant.

  

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

13. 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.

14. 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 claim, 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.

15. 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.

16. 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."

17. 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

18. 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.

19. 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.

20. 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.

21. 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’.

22. 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.

23. 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 2024 to scrutinise every aspect of claims like this one.

24. 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

25. 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.

26. 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.

27.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 the template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit  xx-08)

 

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 xx-05) - 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 xx-06 ) 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 to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

 

ISTIAWAN

(ii). 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 by myself, which their evidence shows doesn't warn me about a possible £100 charge. 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".

 

Conclusion

32. 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.

33. I draw to the attention of the allocating 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.

34. 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 the Practice direction to Part 16. On the 15th of 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 xx)

34. 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.

35.  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.

 

Defendant’s signature:

Date: xxx