NPM/Gladstones Case - WON AT COURT

AdamBliss

troublemaker22 said:

2.  Para 28 (now 26)  talks about Jopson but lacks an exhibit number.

3. You need to send a transcript of Jopson with your witness statement.  If you haven't got one, you can download it here https://we.tl/t-kniLdyt1eV>.

I did manage to find this. https://www.parkingcowboys.co.uk/wp-content/uploads/2016/12/JOPSON-V-HOMEGUARD-2906J-Approved.pdf

Should I add all of this to my witness statement exhibit? 

troublemaker22

Attach the whole PDF

Coupon-mad

Remove para 29.

You still have none of the usual exhibits seen in the NEWBIES thread.

AdamBliss

@Coupon-mad just added some exhibits from the exemplar WS newbies sections and editted out some paragraphs.
Any new improvements? 

Draft 3 WS: 1 of 2: 

IN THE NORTHAMPTON COUNTY COURT

Claim No.: xxxxxxx

Between

NATIONAL PARKING MANAGEMENT LIMITED

(Claimant) 

- and -

xxxxxxxxxx

(Defendant) 

 

                                                  WITNESS STATEMENT

I, [name] of [address] will say as follows: 

1. 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 knowledge.

2. In this statement, I will refer to Exhibits xx01 - xx18 provided with this statement                                                                   I will indicate page and reference numbers as necessary.

 

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 on 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 of August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (Exhibit xx-01)

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. (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. (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 lack of 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. (Exhibit xx-04)

8. 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. It remains uncertain whether the claim pertains to my 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 at the kiosk. 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

9. I am a courier delivery driver and have been since 2018. I work for Uber and Stuart. (Exhibit xx05)

10. On Friday, 31st December 2021, deliveries were required to be unloaded and dropped off to a customer at the snooker club. The vehicle was parked at the Snooker Club site since it is the safest and most convenient location for delivering packages to this business.

11. After delivering the packages to the customers at the snooker club, I returned to my vehicle and left the site. The entire process took around 5 minutes.

12. There were no clear, large and prominent signs at the entrance of the car park, and this is still the case to this day. (Exhibit xx06)

13. There were no large and clear signs on the wall in front of where the vehicle was parked. (Exhibit xx07)

14. There were no large and clear signs on the fence directly behind where the vehicle was parked. (Exhibit xx08)

15. There is a tree branch next to one of the signs, which covers it and reduces visibility. (Exhibit xx09)

16. To this day, there are no illuminated signs to aid visibility for drivers during darker hours, such as evenings and winter afternoons. (Exhibit xx10)

 17. There are no clear boundaries on the site. It is very difficult to determine the boundaries of the site since there are no markings or signs at the entrance indicating any. The land is also in extremely poor condition, as evident in the pictures. The lack of large, visible signs can make it challenging for drivers to notice the terms and conditions, especially since large vehicles can block any signs present. (Exhibit xx11)

18. The evidence above clearly shows that the site lacks sufficient and clear signs, especially large and prominent signs that detail the terms and conditions in a clear and large font. The Claimant’s exhibit demonstrates that the sign is unclear, particularly with regards to the small print terms and conditions which are unreadable. 

19. Based on the facts above, it is evident that the Claimant has failed to maintain and improve their signage. Despite years passing, no effort has been made to enhance the visibility of the signs and assist drivers in reading them. One simple solution to this problem could be to set up large, easily readable and illuminated signs at the site's entrance indicating the boundaries. This way, drivers can make an informed decision about whether to enter the site or not. However, no measures have been taken, and given the Claimants' practices, I don't think necessary measures such as this will be implemented anytime soon.

20. The Claimant cannot prove that I did not display a ‘’valid permit’’ as there are no close-up pictures of the vehicle windscreen.

21. The Claimant’s ticketer did not attach a PCN to the windscreen of the vehicle. The ticketer simply took pictures of the vehicle parked and also pictures of the vehicle leaving the site within a few minutes. (Exhibit xx12)

22. There was no consideration period and there is no evidence of this. 

23. The ticketer did not allow for the 10-minute grace period outlined in section 13 of the International Parking Community (IPC) guidelines that NPM is a part of. (Exhibit xx13)

24. There are no statements from the ticketer or attendant who was present during the incident. 

25. I received the notice to keeper through the post after 14 days from the date of the incident. The Date of Sending is 13th January 2022, I received the letter 2 working days after this date. (Exhibit xx14)

26. The agreement with the landowners (Gordon Nobles Builders Ltd) was presented as evidence by the Claimant, which outlines the terms of their contract and authority/permission to issue Parking Charge Notices (PCNs) on vehicles in the Snooker Club site has a commencement date of 01/10/2022. (Exhibit xx15)                                                    However, the alleged parking contravention took place almost two years prior on 31/12/2021. (Exhibit xx14)

The Claimant has therefore utterly failed to present any evidence proving their authority/permission to issue parking tickets on the relevant land at the time of the alleged parking contravention in 2021 for which they are claiming an exorbitant amount of money. 

27. It is denied that the Claimant has the authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Gordon Nobles Builders Ltd.

a) Gordon Nobles Builders Ltd are not the lawful occupier/owner of the land. 

b) A valid contract with the lawful owner of the land being produced by the Claimant or a chain of contracts showing authorisation stemming from the lawful owner of the land is absent. I have the reasonable belief that the Claimant did not have the authority to issue parking charges on this land in their own name and that they therefore have no legal standing to bring this case.

28. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:

a) The Claimant has no commercial justification.
b) The Claimant did not follow the IPC Code of Practice.
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unethical.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

29. The Claimant did not provide all the data they hold on their system as a result this affected my defence and my case in general. I reported this to the Information Commissioner’s Office (ICO) and upon review the ICO confirmed my complaint: ‘’We have considered the issues you have raised with us. Based on this information, it is our view that National Parking Management Limited has infringed their data protection obligations’’ – (Exhibit xx16)                                                                                                                                

This statement provides additional evidence of the Claimant's unethical and disturbing practices.

                    

AdamBliss

2 of 2:

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

30. The Claimant has not provided any evidence of the additional charges. The Claimant has at no time provided an explanation of how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £190.61. The Claimant has inexplicably added 'costs or damages' bolted onto the alleged PCN, despite using a solicitor to file the claim, who must be well aware that the CPR 27.14 does not permit such 'admin' charges to be recovered in the Small Claims Court.

31. In any event, the Beavis case confirmed that a parking firm not in possession cannot plead their case in damages and could only collect the already inflated parking charge (in that case, £85) which more than covered the very minimal costs of running an automated/template letter parking regime. The Claimant is put to strict proof to show how any alleged costs/damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was in fact, expended. To add vague damages plus alleged 'legal costs' on top is a wholly disingenuous attempt at double recovery, and the Defendant is alarmed by this gross abuse of process.

32. 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.

33. 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.

34. 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.

35. The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here: 

https://www.gov.uk/government/publications/private-parking-code-of-practice

"Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

 36. 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

37. 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.

38. 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.

39. 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.

40. 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.

41. This Claimant has not incurred any additional costs because the full parking charge (after expiry of the 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 the pre-action stage, even if and when the Government reduces the level of parking charges.

42. 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.

43. 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

44. 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.

45. 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.

46. 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).

47. 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. (Exhibit xx17)

48. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

49. I would like to draw the attention of the honourable judge to the following case that resembled my own: Laura Jopson v Homeguard.Securities, case number: 9GF0A9E. This case was also handled by Gladstones Solicitors, and it was determined by His Honour Judge J Harris QC at Oxford Court that loading and unloading is not considered parking. This is a court of appeal case, and its decision is influential on the lower courts. (Exhibit xx18)

50. The claimant has accused me of using the internet for my defence. I fail to see what the issue is, as I am not legally represented and seeking advice online is my only option since I cannot afford legal representation.

51. Ultimately the Claimant is claiming a total of £275.61 This is clearly a grossly unfair and exorbitant amount to pay for a single parking ticket for only 5 minutes of unloading.

52. Based on the lack of substantial evidence supporting the claim, especially the mere fact that the Claimant had no permission/authority from the landowner to issue parking charges in 2021 in the first place. It would therefore be reasonable to conclude that the claim must be rejected.

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: 3rd January 2024

AdamBliss

troublemaker22 said:

Attach the whole PDF

Thank you!

Coupon-mad

Change this:

This is a court of appeal case, and its decision is influential on the lower courts. (Exhibit xx18)

to this (it is NOT 'Court of Appeal'):

This is an appeal case, and this decision is persuasive on the lower courts. (Exhibit xx18)

AdamBliss

Coupon-mad said:

Change this:

This is a court of appeal case, and its decision is influential on the lower courts. (Exhibit xx18)

to this (it is NOT 'Court of Appeal'):

This is an appeal case, and this decision is persuasive on the lower courts. (Exhibit xx18)

@Coupon-mad

Done. Got the exhibits in order too. 

A couple of questions if you don't mind me asking now:
1) Should I include my cost assessment in the WS or separately? 
2) Do I need to send a skeleton argument?

Le_Kirk

Cost assessment can be supplied with WS but it can be later, doesn't need statement of truth, must be sent to claimant.  Skeleton argument only required if your case is complicated. Write yourself a crib sheet so you know what you want the judge to consider with references to the relevant page/paragraph so you can quickly find it.

AdamBliss

Le_Kirk said:

Cost assessment can be supplied with WS but it can be later, doesn't need statement of truth, must be sent to claimant.  Skeleton argument only required if your case is complicated. Write yourself a crib sheet so you know what you want the judge to consider with references to the relevant page/paragraph so you can quickly find it.

Appreciate the advice! Good thing I included cost assessment/schedule of losses on my WS