UKPC / DCB Legal Defence - Feedback please!

AbbatheHorse

Coupon-mad said:

Looks good.

Change all the third party "the Defendant" to "I" because this is your story. First person.

And go back and check if this WS is verbatim repeating chunks of your defence (assuming you used our Template Defence). If there is verbatim repetition lower down in this statement, remove it if your defence already has it.

Don't forget to include a single sheet costs assessment as seen in loads of completed claim threads.  You will then get your Discontinuance, like this:

https://forums.moneysavingexpert.com/discussion/comment/80468757/#Comment_80468757

P.S.
really pleased to see you not only did that Inquiry but you have also posted encouraging advice on other threads.  Stick around! We need more like you on this forum. 

  

Thanks @Coupon-mad - I am struggling a little to work out what I can claim for in my Schedule of Costs.  I will need to take half a day off work to attend court.  I understand that £95 is the maximum daily rate I can claim for?  Half a day equates to just over £100 for me, so can I claim the full £95, or can I only claim £47.50? 

Also, at this stage, I believe that I can only claim back these 'ordinary costs', as anything above and beyond (time preparing, printing fees etc) would only be payable if I can convince the judge that the Claimant has acted unreasonably (which i don't feel able to do right now).  Have I got that right?  

Sorry, this probably seems like very basic information, but I have read so much and some of it seems contradictory (or at least confusing to me).

Coupon-mad

Yes you have that right.  And that's how you could also ask for your actual loss of leave or salary too.  Unreasonable conduct.

Attach proof of income to the Costs Assessment.

AbbatheHorse

Thank you again.  Here is my updated second draft of my Witness Statement.  I have not included exhibits, but have included my Schedule of Costs.  I would be grateful for any more feedback.

Table of Contents Witness Statement of Defendant 2 Exhibit xx-01 - Civil Enforcement v Ming Tak Chan Judgment 9 Exhibit xx-02 - Parallel Parking v Anon. 13 Exhibit xx-03 - Another Badly Pleaded Parking Claim 1. 14 Exhibit xx-04 - Another Badly Pleaded Parking Claim 1. 15 Exhibit xx-05 – Google Street View Images Exebridges Retail Park Entrance. 17 Exhibit xx-06 – Google Street View Images Exebridges Retail Park Entrance. 18 Exhibit xx-07 – Google Street View Images Exebridges Retail Park. 19 Exhibit xx-08 – UKPC sign at Exebridges Retail Park. 20 Exhibit xx-09 - Excel v Wilkinson Case Transcript 21 Exhibit xx-10 - The Beavis case sign for comparison. 31 Exhibit xx-11 - ParkingEye Limited v Beavis. 32 Defendant’s Schedule of Costs. 34 Defendant’s Proof of Salary. 35  

 

 

 

 

UK Parking Control Ltd

(Claimant)

V

[REDACTED]

(Defendant)

Witness Statement of Defendant

 

1.       I am Mr [REDACTED], (Address: [REDACTED]) 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 1-11 within the evidence supplied with this statement, referring to reference numbers where appropriate. My defence is repeated, and I will say as follows:

 

Preliminary matter: The claim should be struck out:

3.       I draw 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 Particulars of Claim (‘POC’) seen here are far worse than the one seen on appeal).  I believe 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 15 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 (Exhibit xx-01).

 

5.       Similarly, at the Wakefield County Court on 8 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 xx-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 xx-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 xx-04).

 

8.       I believe 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. It remains uncertain whether the claim pertains to the driver’s alleged parking outside of a designated bay, failure to remain on the premises, incorrect bay parking, overstaying the allotted time, or perhaps a technicality associated with the entry process. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

 

The Facts as known to the Defendant:

9.       It is admitted that on the material date, I was the registered keeper of the vehicle in question, but liability is denied.

 

10.   I do not know who was driving the vehicle on an unremarkable day many years ago.  I have no knowledge of the parking contravention and have no records of receiving any notice of parking charges or letters from the Claimant.

 

11.   I am not familiar with any terms relevant to Exebridges Retail Park (the location described in the POC) on the date described in the POC.  Any signage that would have been in place at that time is no longer in place, as the parking arrangements have recently been changed at this location.  This can be seen in multiple local news stories on this very topic, including https://www.devonlive.com/news/devon-news/new-penalty-charges-introduced-two-8930289 and https://www.devonlive.com/news/news-opinion/exeter-car-parking-charges-cash-8938045.

 

12.   Images on Google Street View show the entrance to the car park and signage in place in September 2022.  Exhibit xx-05 shows the entrance to the car park as a left turn from a main road, with no parking signs visible as you first turn from the main road.

 

13.   Exhibit xx-06 shows that upon a subsequent turn to enter the car park, there is one small parking sign visible.  In this image, it can clearly be seen that this sign states “3 Hours Maximum Stay”, however any small print is clearly illegible, even when zooming in.  For the driver, this sign is placed at a left turn, on the opposite side of the road, with oncoming traffic coming between the driver and the sign, as well as the potential of pedestrians in or crossing the road. 

 

14.   Exhibit xx-07 shows the view from the vehicle as it arrives at the first parking spaces.  It is clear that there are no further parking signs in the immediate vicinity, with only one visible in the distance in the second image.

 

 

15.   At the time of alleged breach of contract, this was a free-to-use car park.  As such, there was no requirement to display any ticket and there were no payment machines in place in the car park.  Therefore, there was no reason for any driver to specifically seek out any T&Cs that were not clearly displayed to the driver.

 

16.   Online searches show previous UKPC signage in place at Exebridges Retail Park in the past (See Exhibit xx-08); however, I am unaware if this was the specific signage that was in place at the time of the alleged breach of contract.

 

17.   Given the lack of clarity in the POC in relation to the alleged breach of contract, I consider that the onus is on the Claimant to prove that the signage in place at the time of the alleged offence was adequate and constituted an agreement of terms and provide evidence that these terms were breached by the driver.

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

18.   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.

 

19.   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.

20.   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.

 

21.   The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7 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."

22.   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

 

23.   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.

 

24.   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 I take that position.

 

25.   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.

 

26.   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.

 

27.   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.

 

28.   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.

 

29.   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

30.   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.

 

31.   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.

 

32.   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).

 

33.   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-09).

AbbatheHorse

The Beavis case is against this claim

1.       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-10) - set a high bar that this Claimant has failed to reach.

 

2.       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-11) for paragraphs from ParkingEye v Beavis).

 

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

 

Defence

 

4.       The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim were an unexpected shock. I deny that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was a breach of any prominent term, and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

 

5.       Given that there was no requirement to pay for parking at the time of the alleged offence, there were no parking machines available in the car park, and therefore no reason for the driver to seek out any specific parking T&Cs.  As such, any terms of parking should be made clear to the driver, and it is clear from the images that the signage in the car park is woefully inadequate. 

 

6.       The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action”.

 

7.       I, as Defendant, am unable, on the basis of the POC, to understand with certainty what case is being pursued.

Conclusion

 

8.       The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time or my time.

 

9.       I ask 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.

 

10.   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.

 

11.   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. I believe 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.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

12.   In the matter of costs, I ask for the following, (which are outlined in my Defendant’s Statement of Costs on page 34 of this bundle):

(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. 

13.   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

Defendant’s Schedule of Costs

 

Ordinary Costs

Loss of earnings through attendance at court hearing 19/01/2024: £47.50

 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents (16 hours at Litigant in Person rate of £19 per hour): £304

 

TOTAL COSTS CLAIMED £351.50

Coupon-mad

I'd state your ACTUAL loss of earnings and say see attached wage slip' or whatever.  Don't even state £47.50.

The Judge will decide!

Good to go if you remove this entire section which is just repetition:

Defence

 

4.       The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim were an unexpected shock. I deny that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was a breach of any prominent term, and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars. 

 

5.       Given that there was no requirement to pay for parking at the time of the alleged offence, there were no parking machines available in the car park, and therefore no reason for the driver to seek out any specific parking T&Cs.  As such, any terms of parking should be made clear to the driver, and it is clear from the images that the signage in the car park is woefully inadequate.  

 

6.       The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action”. 

 

7.       I, as Defendant, am unable, on the basis of the POC, to understand with certainty what case is being pursued.

1505grandad

Second para numbered 3  -  " 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. "  -  I would suggest that this implies who driver was.

AbbatheHorse

Brilliant, thank you again @Coupon-mad and @1505grandad

AbbatheHorse

Hi all

Does anyone know an email address for UKPC for me to send my Witness Statement to?  I only have their DPO address and this doesn't seem right.  Online, I can only find a Sales or Complaints email address and they don't seem right either.

Thanks

JerryJ64

Have you tried info@... or legal@... or customer.service@... (that last one is an oxymoron joke).

Coupon-mad

Eh? The claim was filed by DCBLegal