Residential PCN now a CCJ claim UKPC/DCB

justiceseeker180

Yep you are right. Can the referenced case transcripts (ive now found a few after searching the forum) be sent as PDF attachments along with the WS if so how would I reference them as exhibits?

I am still not sure on this.

Coupon-mad

You give them an exhibit number comprising your initials then 1, 2, 3, etc. Save them as PDFs then once you have finished, signed & dated your WS save that as a PDF too then merge the PDFs (WS first, then exhibits in order of number) and reduce the file size using a free online PDF merger/editor. 

If you mean what do you write about them, search the forum and copy what someone else wrote about each case in their WS.

1505grandad

For clarification the only reason IPC is mentioned in WS (and Defence) is in regard to:-

"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."

Coupon-mad

Which works for all cases.

justiceseeker180

Coupon-mad said:

You give them an exhibit number comprising your initials then 1, 2, 3, etc. Save them as PDFs then once you have finished, signed & dated your WS save that as a PDF too then merge the PDFs (WS first, then exhibits in order of number) and reduce the file size using a free online PDF merger/editor. 

If you mean what do you write about them, search the forum and copy what someone else wrote about each case in their WS.

Ah ok so you replace the Exhibit-XX part with your initials. eg Exibiit-D.B 1

1505grandad said:

For clarification the only reason IPC is mentioned in WS (and Defence) is in regard to:-

"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."

Yes that was a part of my defence and where the confusion stemmed from.

justiceseeker180

Hopefully a slighty improved WS. I thought it to be easier not to add all the case studies for now and post it here for now. Thanks everyone for taking the time to look and being patient.

Table of Contents

Witness Statement 2-7

Exhibit xx-01 Proof of Purchase of property.....................................................…..................9-10

Exhibit xx-02 Proof of parking permits......................………………………………………....  11-12

Exhibit xx-03 Proof of windscreen replacment……………………………………………..…….…13

Exhibit xx-04 Lease document…………………………..…………………………………………...14

Exhibit xx-05 The Beavis Case sign for comparison………………………..…......….............14-15

Exhibit xx-06 Parking Eye Limited V Beavis- Paragraphs 98, 193 and 198…….......................16

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

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

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

Exhibit xx-09 Excel v Wilkinson................................................................................................etc

 

    UK PARKING CONTROL LIMITED                                                                (Claimant)

                                                                           V

    Joe Bloggs                                                                                            (Defendant)

 

                                                 Witness Statement of Defendant

1. I am Mr Joe 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 1-8) 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 lived at and owned 11 made up street as a leaseholder from date and moved out and into to a new property in date (Exhibit xx-01).

4. The property was owned by myself as a leaseholder and included the use of a parking space along with two parking permits which were displayed in vehicles parked at the property as a courtesy and not as a contractual obligation. As such I have also provided evidence of permits held (Exhibit xx-02). The lease terms provide the right to park a vehicle in any free parking space, without limitation as to ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. Due to its size a copy of the lease is accessible via the URL link in (Exhibit xx-03).

5. The vehicle in question needed a windscreen replacement on the date  (Exhibit xx-04) and in a set of unfortunate circumstances the permit which was attached to the windscreen that was replaced, was not reattached to the new windscreen by the windscreen technician. Subsequently the vehicle was then parked in my parking space at 11 made up street 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 sent back in response. It is clear and obvious that once it was established I was a resident and leaseholder 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 to the point of which it is now obvious that the claimant is not thinking on a conscientious level of any degree.   

 

1. 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 and leaseholder.

2. I contend, therefore, that the leasehold 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.

3. 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.

4. 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.

5. 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.

6. 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

7. 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.

8. 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.

9. 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.

10. 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."

11. 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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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).

justiceseeker180

CRA Breaches

19. 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.

 

20. 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.

 

21.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).

 

22. 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

23. 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.

24.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:

 

(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

25. 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.

26. The Defendant asks the judge to read the persuasive Judgment from His Honour Judge HHC Murch (August 2023), and deliver the same outcome given this is the same Claimant and the exact same vague POC. In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

27. 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.

28.  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

Coupon-mad

Looks good. A great residential WS example.

1505grandad

Some observations:-

"26. The Defendant asks the judge to read the persuasive Judgment from His Honour Judge HHC Murch (August 2023), and deliver the same outcome given this is the same Claimant and the exact same vague POC. In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out."

This seems to be the first time the Chan case has been mentioned  -   and the claimant is not the same as yours.

Check Exhibit numbers  -  for instance paras 4 and 5 (the first lot  -  you will amend paras sequentially before filing and serving?)  -  are the wrong way round.

Two number 9 in exhibit list  -  but refer to exhibits 1 - 8 in WS.

Just checking  -  is this case/description of relevance to your case?:-

"6. 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."

  

justiceseeker180

Thanks, funnily enough I was literally just looking up that exact paragraph on here for the reasons you say- anything it could be replaced with or best to remove it? 

Ah ok thanks yes I will amend the exhibit numbers.

The saaed v plustrade case I added because I thought it carried more weight despite not being relevant to my case I thought it was just the principle of it that matters?