HELP: Parallel Parking Court Claim

GolfR12

CRA Breaches

29.    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.

 

30.    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.

 

31.    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).

 

32.    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  xx-08)

 

The Beavis case is against this claim

33.    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-09) - set a high bar that this Claimant has failed to reach.

 

34.    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-10) for paragraphs from ParkingEye v Beavis).

 

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

(i). Concealed pitfall or trap:

The signage in this case required customers to enter their vehicle registration number at a kiosk inside the store. Unfortunately, this kiosk was inaccessible to me as the store was closed, rendering compliance impossible.  I also wish to highlight the presence of a sign in the parking area that mentioned clamping. The use of clamping as a penalty for parking violations was made illegal under the Protection of Freedoms Act 2012. The inclusion of such outdated language on a parking sign raises questions about the relevance and validity of the signage in the parking area.  This sign, which suggested that 'Others will be clamped,' directly contradicts current parking regulations and creates further confusion regarding the penalties associated with parking violations. It is reasonable to assume that the parking operators responsible for the signage failed to update their notices to reflect the changes in the law.  Given this discrepancy and the fact that clamping is no longer a legally permissible penalty, it further underscores the uncertainty surrounding the parking terms at the location in question. I believe this is another critical factor that should be considered by the court when evaluating the legitimacy of this case.

 

(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 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".

 

36.    Gladstones 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 Gladstones and nothing to do with the Claimant's alleged £100 PCN.  I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit.

 

Conclusion

 

37.    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.

 

38.    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.

 

39.    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.

 

40.    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.

 

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

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

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

 

42.    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

GolfR12

Please find WS above for critique. Apologies in advance for the weak attempt at a WS! Extremely tired, having to fit this in alongside my day job at such short notice (like most others and also the extremely helpful people on here who help us for nothing which is much appreciated!)

Few things to note: 

Point 8 – Should I remove this as the Claimant’s WS states ‘The Terms and Conditions of the Site, Inter alia, express the following conditions for any motorist using the Site;

“ALL DRIVERS MUST@ PAY FOR THEIR ENTIRE DURATION OF THEIR PARKING UPON ARRIVAL”

However, obviously this was not made clear in the Claimant’s POC.

 

Point 14 – In the Claimants WS, they have provided a copy of the contract between the company (Parallel Parking Ltd) and the client. The contract they have provided is for period 04/01/2021 – 03/01/2022 which I have mentioned. One of the points in the contract state ‘The company shall not disclose any data pertaining to the receipt of the PCN to the Client, nor shall the company disclose any data pertaining to the Client to the recipient of the PCN, unless required by law to do so’. Bit of a stretch, but was the Claimant required to provide a copy of the contact with the client in their WS?

 

Point 16 – Sorry @Coupon-mad I couldn’t locate the wording you were referring to when searching for VCS Edward Excel Smith (unless it is just the sentence that I have included). If you link me to this, I will add it in. I have not added any further points in relation to vehicle 2 other than this.

 

Point 41 – I have removed (a) The previously reserved costs of £315 as it did not seem applicable to this case.

Coupon-mad

Point 8 – Should I remove this as the Claimant’s WS states ‘The Terms and Conditions of the Site, Inter alia, express the following conditions for any motorist using the Site;
“ALL DRIVERS MUST PAY FOR THEIR ENTIRE DURATION OF THEIR PARKING UPON ARRIVAL”
However, obviously this was not made clear in the Claimant’s POC. 

I don't think you should remove it.  How does that sentence in capitals even equate to an obligation to provide your VRM to pub staff?  It makes no sense and doesn't create any such 'relevant obligation'.

Do you not have previously reserved costs?  If not then you are of course right to remove that bit from whichever one you are looking at.

Did Gladstones also add 10.25% interest in the Particulars of Claim? If so, you need to search for the usual wording objecting to that Gladstones speciality.

Point 16 – Sorry @Coupon-mad I couldn’t locate the wording you were referring to when searching for VCS Edward Excel Smith (unless it is just the sentence that I have included). If you link me to this, I will add it in. I have not added any further points in relation to vehicle 2 other than this.

Yes you can... easy to find in a second. I wouldn't be able to find the thread from last week (where I wrote some wording about the Edward case) any quicker than you can with that same search.

You did change the search to NEWEST, of course?

Or just search for HHJ Gargan as your keywords!

Here's VCS v Ian Edward:

https://www.dropbox.com/scl/fi/w0k19zxzlpf9eumu68u7b/VCS-v-EDWARDS-Transcript.pdf?rlkey=5t2gilebrjx7g0d6jmy32lou4&dl=0

And here's Excel v Smith:

https://www.dropbox.com/s/xfx25wgm3nlqkyc/Claim No. C0DP9C4E:M17X062.pdf?dl=0

GolfR12

Coupon-mad said:

Point 8 – Should I remove this as the Claimant’s WS states ‘The Terms and Conditions of the Site, Inter alia, express the following conditions for any motorist using the Site;
“ALL DRIVERS MUST PAY FOR THEIR ENTIRE DURATION OF THEIR PARKING UPON ARRIVAL”
However, obviously this was not made clear in the Claimant’s POC. 

I don't think you should remove it.  How does that sentence in capitals even equate to an obligation to provide your VRM to pub staff?  It makes no sense and doesn't create any such 'relevant obligation'.

Do you not have previously reserved costs?  If not then you are of course right to remove that bit from whichever one you are looking at.

Did Gladstones also add 10.25% interest in the Particulars of Claim? If so, you need to search for the usual wording objecting to that Gladstones speciality.

Point 16 – Sorry @Coupon-mad I couldn’t locate the wording you were referring to when searching for VCS Edward Excel Smith (unless it is just the sentence that I have included). If you link me to this, I will add it in. I have not added any further points in relation to vehicle 2 other than this.

Yes you can... easy to find in a second. I wouldn't be able to find the thread from last week (where I wrote some wording about the Edward case) any quicker than you can with that same search.

You did change the search to NEWEST, of course?

Or just search for HHJ Gargan as your keywords!

Here's VCS v Ian Edward:

https://www.dropbox.com/scl/fi/w0k19zxzlpf9eumu68u7b/VCS-v-EDWARDS-Transcript.pdf?rlkey=5t2gilebrjx7g0d6jmy32lou4&dl=0

And here's Excel v Smith:

https://www.dropbox.com/s/xfx25wgm3nlqkyc/Claim No. C0DP9C4E:M17X062.pdf?dl=0

Sorry stupid question, but how do I know if we have previously reserved costs? Nothing in relation to this on the POC or Claimants WS.

Gladstones 10.25% wording added.

Received a letter of claim - ParkingEye via DCB Legal Ltd — MoneySavingExpert Forum - Is this the wording you are referring to @Coupon-mad ? Taken from thread UKPC PCN - Hire vehicle - Page 4 — MoneySavingExpert Forum - This seems to refer to a hire vehicle scenario so doesn't seem applicable in this case so thinking I've got the wrong wording. Sorry!

Sorry how I incorporate the two case transcripts into my WS?

GolfR12

Ok so I think the transcripts are incorporated into the WS via screenshots and referencing them as Exhibits with the wording you have previously mentioned. Just need to get the right wording now lol

GolfR12

Found the below, can I use this? @Coupon-mad

6.        The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but dd not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed.

GolfR12

Please see witness statement on the link below. Am I ok to email this to the court and Parallel Parking Ltd and/or Gladstones?

https://docdro.id/mdQCA1j

KeithP

I've just read the Defendant's Witness Statement and cannot see any mention in there about two parking incidents where the Defendant was the driver on one occasion but not the driver the other time. Did I miss it?

GolfR12

KeithP said:

I've just read the Defendant's Witness Statement and cannot see any mention in there about two parking incidents where the Defendant was the driver on one occasion but not the driver the other time. Did I miss it?

Point 17 is where I've mentioned vehicle 2, however, you are right, I should clearly state 'the defendant denies being the driver of vehicle 2 on xx date'. I will add this in the morning. 

I think tomorrow is the last day for the WS to be sent off. Is it ok to email a copy of the WS to Gladstones and/or parallel parking?

Coupon-mad

Your links in the index at the start don't jump to the right exhibit pages.

Re the PCN where the D was not driving, they need to make that crystal clear and add this paragraph:

It is denied that I was the driver of the vehicle on one of the two occasions in question (namely the event on DATE relating to VRM xxxxxx). The Claimant is put to strict proof to explain the basis of my alleged liability. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that I was the driver on both occasions, and will not be able to because on one occasion I was not. The Claimant is therefore limited to pursuing me for that charge, only if they complied with the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"). Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to me as the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.