Multiple UKPC charges for tenant living in Private Rd

nadsterstar

UK Parking Control Ltd (Claimant)

V

XX (Defendant)

 

Witness Statement of Defendant

1.     I am XX, 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 01-09) 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:

Preliminary matter: The claim should be struck out

3.     The Defendant 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 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 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 in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4. (See Exhibit xx) 

 

5.     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 xx)

 

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)

 

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)

8.     To illustrate just how poorly the POC’s are in this particular case, even the road name where the alleged breach of terms took place, is not included on two of the three claims. The Claimant has included completely different road names. (See POC at paragraph X)

 

9.     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.  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. 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

Facts and Sequence of events

10.  Date and Time of the Incident: It is admitted that on the material dates, I was the registered keeper and driver of the vehicle XXXXXX.

 

11.  Inadequate Signage: I have observed a lack of clear and visible signage regarding parking regulations. The two signs that are present on the road, are placed in obscure locations, approximately 10ft from the ground, making them difficult to notice, far from a typical line of sight. One of the signs is set at least 15ft away from the road. Additionally, the signage features very small text, making the terms and conditions impossible to read, even when standing up close. The poor placement and legibility of these signs make it extremely difficult for anybody to be aware of or comply with the parking rules. (See Exhibit XX & Exhibit XX).

 

12.  Entrance sign: A sign near the entrance to the road indicates that this road is a ‘Private Estate’ for ‘Permit Holders Only’. I am a resident of the estate and a permit holder, and was displaying my permit at the time the PCN’s were issued (See Exhibit XX).

 

ESTOPPEL

13.  The claimant has inexplicably made these two additional claims despite the set of circumstances have striking similarities to their previous claim ([CLAIM-01-REF]), including the same particulars, same road, same vehicle and same reasons provided. The first claim ([CLAIM-01-REF]) is dated over one month after the PCN dates referenced within [CLAIM-03-REF]. Therefore, all PCN’s were known to the claimant when they originally advanced their first claim.

 

14.  Being legally represented, the Claimant knows, or should know, that by detaching or allowing to remain detached, elements of alleged debts and issuing separate claims, each which rely upon essentially duplicate particulars and facts, is an abuse of the civil litigation process.  

 

15.  By filing three separate claims (for parking charges with exact same facts) the claimants have multiplied the costs and court time wasted. This can also be considered as a tactic for intimidation against the defendant.  The POC’s have been reproduced below:  

 

[CLAIM-01-REF], Dated 27/03/2023 – Paid by the Defendant

 Particulars of Claim

1. The Defendant(D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle XXXXXX at XXXXX Estate XXXX Close,XXXX Close, XXXX 2. The PCN details are 21/11/2021, XXXXXXXXXXX 3. The PCN(s) was issued on private land owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).4. The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper.

Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

AND THE CLAIMANT CLAIMS

1. £160 being the total of the PCN(s) and damages. 2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.02 until judgment or sooner payment. 3.Costs and court fees

[CLAIM-02-REF]), Dated 02/05/2023

Particulars of Claim

1. The Defendant(D) is indebted to the Claimant(C) for a Parking Charge(s) issued to vehicle XXXXXXX at XXXXXX Estate XXXXX XXXX,XXXX Close, XXXXXX. 2. The PCN(s) were issued on 01/06/2022,02/06/2022 03/06/2022,04/06/2022,04/06/2022,05/06/2022.

3. The PCN(s) was issued on private land owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).4. The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper.

Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

AND THE CLAIMANT CLAIMS

1. £1020 being the total of the PCN(s) and damages. 2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.13 until judgment or sooner payment. 3. Costs and court fees

[CLAIM-03-REF]), Dated 10/10/2023

Particulars of Claim

1. The Defendant(D) is indebted to the Claimant(C) for a Parking Charge(s) issued to vehicle XXXXX at XXXXXXX Estate, XXXXXXXX, XXXXX Close, XXXX Close, XXname of streetXX Close, XXXXXX, XXXXXX. 2. The PCN(s) were issued on 30/12/2022 31/12/2022,24/02/2023. 3. The PCN(s) was issued on private land owned or managed by C.

The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).4. The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper. Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

AND THE CLAIMANT CLAIMS

1. £510 being the total of the PCN(s) and damages. 2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.07 until judgment or sooner payment. 3. Costs and court fees

16.  In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”

 

17.  In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:

(i) when a matter becomes subject to litigation, the parties are required to advance their whole case;

(ii) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;

(iii) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

18.  Multiple claims were raised on behalf of the claimant where one would have sufficed; which has multiplied the waste to court time.

 

19.  The Claimant filing the first claim and failing to advance the whole case, any cause of action was immediately extinguished for any other similar fact Parking Charges against the Defendant. The courts may estop a second claim where the cause of action is substantially the same.

 

20.  The Defendant invites the court to dismiss the second and third claim under the grounds of cause of action estoppel. In the alternative, the Court is respectfully invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.

PRIMACY OF CONTRACT

21.  The Defendant wishes to highlight here all wording related to car parking from the signed Property Lease from the Defendant’s address (EXHIBIT XX). This contains the following exact wording:

13        Car Parking and Storage

13.1      To park private vehicle(s) only at the Property.  If the Tenant is allocated a car parking space, the Tenant will only park in the space allocated to the Property.

13.2      Not to park or store any boat, Caravan or commercial vehicle at the Property or in any communal car park or parking space without the prior consent of the Landlord or the Agent which will not be unreasonably withheld but which may be withdrawn upon giving reasonable Notice.

13.3      It is the Tenant’s responsibility to verify whether they are eligible for any Residents Parking Scheme operated by the relevant local authority. The granting of this Tenancy does not imply a right to obtain a Resident’s Permit

22.  It should be noted that there are no allocated car parking spaces on the road, and since this is a private road, the local authority does not manage or provide Residents Permits.

 

23.  Further, the landlord of the property issued to the Defendant, a notice from ‘XXXX XXXX Management Limited’ (the landlord of the private road) titled ‘Use of the Communal Grounds’(EXHIBIT XX). The wording in that notice relating to parking, reads:

THE RULES

For the conservation of the Estates gardens and avoidance of undue disturbance, the following activities are not permitted: -

9          Parking more than one private motor vehicle on the estate

10        Leaving untaxed or SORN vehicles anywhere on the estate other than a private garage.

***If you sublet your property, please ensure your tenants are aware of these regulations.***

24.  There are no terms within the lease, or the notice from the landlord of the estate, requiring lessees to display parking permits, to park in particular places, or to pay penalties to third parties, such as the Claimant.

 

25.  Through the Lease, the Defendant had primacy of contract, therefore no third-party contract between the Claimant and the landlord could supersede or alter the rights granted to the Defendant, without their prior agreement.  

 

Coupon-mad

Remove 5, 6 and 7 and change para 4 to talk about TWO persuasive appeals cases instead.  Search the forum.  You want ONE exhibit of Chan and Akande and those two appeal judgments are what you talk about in the first few paragraphs.

Change the subheading to this. which is what I advised already (not just 'estoppel'):

CAUSE OF ACTION ESTOPPEL

Change 'The Defendant' to "I" everywhere in the WS.

Where are the usual exhibits shown the a-f list of recommended exhibits in the NEWBIES thread?

What is currently happening with the third claim?  Is this hearing just for Claim 2?

nadsterstar

So, the first claim was Judgement in Default (I missed the claim letter - my kid picked it up and hid it somewhere) So when I got the letter through, I paid in full.

The second and third claims I submitted separate Defences for, but the judge ruled that these should be heard together. So this WS is for the second and third claims.

nadsterstar

So, the first claim was Judgement in Default (I missed the claim letter - my kid picked it up and hid it somewhere) So when I got the letter through, I paid in full.

The second and third claims I submitted separate Defences for, but the judge ruled that these should be heard together. So this WS is for the second and third claims.

nadsterstar

Thanks for your comments @Coupon-mad. I have updated, and added an additional para 23, which may add some weight to it. The DLA letters which I could use in evidence are addressed to my old house where my ex lives, although we equally share care of my youngest. Thoughts? 

Full defence so far:

UK Parking Control Ltd (Claimant)

V

XX (Defendant)

 

Witness Statement of Defendant

1.     I am XX, 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 01-09) 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:

Preliminary matter: The claim should be struck out

3.     I draw to the attention of the Judge that there are two very recent and persuasive Appeal judgments to support dismissing or striking out the claim (and the first is about this same Claimant).  I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators 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 using powers pursuant to CPR 3.4., based in the following persuasive authorities (I append transcripts of both - plus multiple area court 'strike outs' of parking claims that reflect these authorities (See EXHIBIT 1)

 

4.     The first 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(1)(e) and Practice Direction Part 16.7.5. 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'. 

 

5.     The second recent persuasive appeal judgment in Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would also indicate the POC fails to comply with Part 16. On the 10 May 2024, in the cited case, HHJ Evans held that 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim'.

 

6.     To illustrate just how poorly the POC’s are in this particular case, even the road name where the alleged breach of terms took place, is not included on two of the three claims. The Claimant has included completely different road names. (See POC at paragraph X)

 

7.     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. 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

Facts and Sequence of events

8.     Date and Time of the Incident: It is admitted that on the material dates, I was the registered keeper and driver of the vehicle XXXXXX.

 

9.     Inadequate Signage: I have observed a lack of clear and visible signage regarding parking regulations. The two signs that are present on the road, are placed in obscure locations, approximately 10ft from the ground, making them difficult to notice, far from a typical line of sight. One of the signs is set at least 15ft away from the road. Additionally, the signage features very small text, making the terms and conditions impossible to read, even when standing up close. The poor placement and legibility of these signs make it extremely difficult for anybody to be aware of or comply with the parking rules. (See Exhibit 02 & Exhibit 03).

 

10.  Entrance sign: A sign near the entrance to the road indicates that this road is a ‘Private Estate’ for ‘Permit Holders Only’. I am a resident of the estate and a permit holder, and was displaying my permit at the time the PCN’s were issued (See Exhibit 04).

 

Cause of Action Estoppel

11.  The claimant has inexplicably made these two additional claims despite the set of circumstances have striking similarities to their previous claim ([CLAIM-01-REF]), including the same particulars, same road, same vehicle and same reasons provided. The first claim ([CLAIM-01-REF]) is dated over one month after the PCN dates referenced within [CLAIM-03-REF]. Therefore, all PCN’s were known to the claimant when they originally advanced their first claim.

 

12.  Being legally represented, the Claimant knows, or should know, that by detaching or allowing to remain detached, elements of alleged debts and issuing separate claims, each which rely upon essentially duplicate particulars and facts, is an abuse of the civil litigation process.  

 

13.  By filing three separate claims (for parking charges with exact same facts) the claimants have multiplied the costs and court time wasted. This can also be considered as a tactic for intimidation against me. The POC’s have been reproduced below:  

 

[CLAIM-01-REF], Dated 27/03/2023 – Paid by the Defendant

 Particulars of Claim

1. The Defendant(D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle XXXXXX at XXXXX Estate XXXX Close,XXXX Close, XXXX 2. The PCN details are 21/11/2021, XXXXXXXXXXX 3. The PCN(s) was issued on private land owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).4. The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper.

Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

AND THE CLAIMANT CLAIMS

1. £160 being the total of the PCN(s) and damages. 2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.02 until judgment or sooner payment. 3.Costs and court fees

[CLAIM-02-REF]), Dated 02/05/2023

Particulars of Claim

1. The Defendant(D) is indebted to the Claimant(C) for a Parking Charge(s) issued to vehicle XXXXXXX at XXXXXX Estate XXXXX XXXX,XXXX Close, XXXXXX. 2. The PCN(s) were issued on 01/06/2022,02/06/2022 03/06/2022,04/06/2022,04/06/2022,05/06/2022.

3. The PCN(s) was issued on private land owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).4. The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper.

Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

AND THE CLAIMANT CLAIMS

1. £1020 being the total of the PCN(s) and damages. 2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.13 until judgment or sooner payment. 3. Costs and court fees

[CLAIM-03-REF]), Dated 10/10/2023

Particulars of Claim

1. The Defendant(D) is indebted to the Claimant(C) for a Parking Charge(s) issued to vehicle XXXXX at XXXXXXX Estate, XXXXXXXX, XXXXX Close, XXXX Close, XXname of streetXX Close, XXXXXX, XXXXXX. 2. The PCN(s) were issued on 30/12/2022 31/12/2022,24/02/2023. 3. The PCN(s) was issued on private land owned or managed by C.

The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).4. The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper. Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

AND THE CLAIMANT CLAIMS

1. £510 being the total of the PCN(s) and damages. 2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.07 until judgment or sooner payment. 3. Costs and court fees

 

14.  In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”

 

15.  In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:

(i) when a matter becomes subject to litigation, the parties are required to advance their whole case;

(ii) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;

(iii) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

16.  Multiple claims were raised on behalf of the claimant where one would have sufficed; which has multiplied the waste to court time.

 

17.  The Claimant filing the first claim and failing to advance the whole case, any cause of action was immediately extinguished for any other similar fact Parking Charges against me. The courts may estop a second claim where the cause of action is substantially the same.

 

18.  I invite the court to dismiss the second and third claim under the grounds of cause of action estoppel. In the alternative, the Court is respectfully invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.

 

DEFENCE - LEASE WORDING

19.  I wish to highlight here all wording related to car parking from the signed Property Lease from my address (EXHIBIT XX). This contains the following exact wording:

13        Car Parking and Storage

13.1      To park private vehicle(s) only at the Property.  If the Tenant is allocated a car parking space, the Tenant will only park in the space allocated to the Property.

13.2      Not to park or store any boat, Caravan or commercial vehicle at the Property or in any communal car park or parking space without the prior consent of the Landlord or the Agent which will not be unreasonably withheld but which may be withdrawn upon giving reasonable Notice.

13.3      It is the Tenant’s responsibility to verify whether they are eligible for any Residents Parking Scheme operated by the relevant local authority. The granting of this Tenancy does not imply a right to obtain a Resident’s Permit

20.  It should be noted that there are no allocated car parking spaces on the road, and since this is a private road, the local authority does not manage or provide Residents Permits.

 

21.  Further, the landlord of the property issued to me, a notice from ‘XXXX XXXX Management Limited’ (the landlord of the private road) titled ‘Use of the Communal Grounds’(EXHIBIT XX). The wording in that notice relating to parking, reads:

THE RULES

For the conservation of the Estates gardens and avoidance of undue disturbance, the following activities are not permitted: -

9          Parking more than one private motor vehicle on the estate

10        Leaving untaxed or SORN vehicles anywhere on the estate other than a private garage.

***If you sublet your property, please ensure your tenants are aware of these regulations.***

22.  There are no terms within the lease, or the notice from the landlord of the estate, requiring lessees to display parking permits, to park in particular places, or to pay penalties to third parties, such as the Claimant.

 

23.  It should be noted that I specifically chose to sign the lease at this location due to the parking allowance. This private road is surrounded by a local authority controlled zone, and as a father with two children in receipt of Disability Living Allowance with mobilty requirements, it was essential that I could park on the road where we lived.

 

24.  Through the Lease, I had primacy of contract, therefore no third-party contract between the Claimant and the landlord could supersede or alter the rights granted to me, without their prior agreement.  

 

 

nadsterstar

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

25. The alleged 'core debt' for any parking charge cannot exceed £100, per the industry cap at the time. I have not seen evidence that justifies the added damages or fees.

 

26. I say that fees were not paid out or incurred by this Claimant, who must provide strict proof of:

(i) the alleged breach, and

(ii) a breakdown of the claimed sum, including how interest has been calculated. The interest appears to be misapplied to the inflated sum from the date of the alleged incident.

27. The Claimant must prove a 'legitimate interest' beyond mere compensation for loss and show that 'adequate notice' of the ‘penalty clause’ charge was provided, which, in the case of a car park, requires prominent signs and lines.

 

28. Interest appears to be miscalculated on the whole enhanced sum from day one as if the entire sum was ‘overdue’ on the day of parking.

 

29. The Claimant routinely adds a disproportionate fixed sum per PCN, despite Parliament's intention to ban or substantially reduce such ‘debt fees’. This claim appears to be a classic example and part of a bulk-litigation model that avoids pre-action checks and balances to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

 

30. The Department for Levelling Up, Housing and Communities (DLUHC) published a statutory Parking Code of Practice on 7th February 2022, which criticises misleading signage, aggressive debt collection, and unreasonable fees designed to extort money from motorists. (See: https://www.gov.uk/government/publications/private-parking-code-of-practice)

 

31. The DLUHC's draft Impact Assessment (published 30th July 2023) reveals that parking firms report the true cost of debt recovery at just £8.42 per case. (See: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf)

 

32. 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'.

 

33. 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.

 

34. 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’.

 

35. 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.

 

36. 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.

 

37. 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

38. 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.

 

39. 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.

 

40. 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).

 

41. 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

42. 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 (See Exhibit xx-11) as no term appears plainly and prominently.

 

43. 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).

 

44. In my 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.

 

Hidden Terms

45. The penalty clause is positively buried in small print, as seen on the signs in evidence (See Exhibit xx-11). 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. 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 Civ2 both 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

46. This claim is entirely without merit, and I urge the Claimant to discontinue now to avoid unnecessary costs and wasted court time and that of myself.

 

47. 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.

 

48. 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 which cause the consumer harm on a grand scale.

 

Costs

49. In the matter of costs, I seek:

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

(b) costs due to the Claimant’s unreasonable conduct, pursuant to CPR 46.5.

 

50. Attention is drawn to the (often-seen) distinct 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: XXX
Date: XXX

nadsterstar

I have also read through the Judgements PDF and found claim K2KF3D4D - Met Parking Services Ltd v Defendant, where the same District Judge Keating at Croydon  (same Judge and Court as my hearing) requested an amended POC, and then struck out the case.  I should probably point this out in the WS right? I could add something like this at Para 6:

6.     Furthermore, at the County Court at Croydon in Met Parking Services Ltd v The Claimant (Ref. K2KF3D4D), the claim was struck out, without a hearing, on the grounds of poorly pleaded PoC. On 13th April 2024, in the cited case, HHJ Keating held that ‘particulars of claim as amended are not capable of demonstrating a contract between the claimant and driver of vehicle because paragraphs 3-6 do not contain sufficient information to demonstrate that a valid contract could have been formed’  

Coupon-mad

That's a good idea to add the MET case (even though there is no transcript) but here you need to change it to "Defendant":

'Met Parking Services Ltd v The Claimant (Ref. K2KF3D4D)'

I don't think you need to prove the DLA because it doesn't affect this alleged contract.

I'd remove para 48 because there's no DLUHC ban (yet) and the para could be deleted and the WS would still flow well.

That is a very good WS!

1505grandad

A heads-up:-

"2.     In my statement I shall refer to (Exhibits 01-09)......."

However in paras 43 etc. you state higher Exhibit numbers.

nadsterstar

Thanks for your input! 

Couple of other questions:

1. Should i change all references to 'Lease' etc to 'Tenant / Tenancy / Tenancy agreement' etc?
2. There are a couple of unspecific items in the tenancy agreement, should these be of any concern?

• The Tenant Agrees : Head Lease - To comply with the obligations of the Head lease
• The Landlord agrees: To comply with all the obligations imposed upon the landlord by a Superior Landlord if the property is held under a Superior Lease, and To take all reasonable steps to ensure that the Superior Landlord complies with the obligations of the Superior Lease

I haven't seen or been issued with any of these Head / Superior Leases, which may be given to the Landlord. So I assume I can ignore this.

3. My page count is quite high, do I need to include the Tenancy Agreement in full in the exhibits, or just the page relating to the car parking? Could print out some copies in full and bring to the court?

4. Should I change  Paragraph 36 to  'in a phrase which should be a clear steer for Courts in since 2023 to scrutinise every aspect of claims like this one.'

5.  Should I include some detail on the circumstances 'default in Judgement' that led to me paying the first claim? Being unable to defend it due to missed Court Order etc?

6. I suspect that the claimant may raise the point that I was parked on a double yellow. Is it worth getting ahead of this in the WS and include something around that? I'm sure the guidance would be to look for signs around the restriction, which are not clear. Navigating Double Yellow Lines on Private Land: Understanding the Rules and Regulations – roadmarkingsuk.co.uk

Many thanks as always