Court Claim - Forbidding Parking PCN - 5 years ago

KeithP

Paragraphs 32 to 51 are missing.

Paragraph 54 mentions the Independent Parking Committee - a long extinct body.

tygrysek

Coupon-mad said:

"I am using the newest ‘template’ WS" 

There isn't one.  Just checking: you aren't accidentally using the Template Defence are you?  The above is confusing.

There are 5 links to 2023 exemplar WS linked in the NEWBIES thread and an a-f list of suggested exhibits, but no template.

@Coupon-mad Thanks for pointing it out! Apologies, I didn't mean the 'template' but the 'example' witness statement recommended in the newbies thread - the first one that was recommended. I will paste the whole thing in a moment as indeed it may look very confusing....

tygrysek

KeithP said:

Paragraphs 32 to 51 are missing.

Paragraph 54 mentions the Independent Parking Committee - a long extinct body.

@KeithP thank you for your comments. The paragraphs are missing as I copied those missing paragraphs from the 'example' WS which some of the people on here would have already reviewed. I will paste the whole thing in a moment, but paragraphs 1-8 and 32-50 I mostly copied so can be disregarded conscious of time it may take to review.

Oh thank you for the comments re Independent Parking Committee - I took it from the Claimant's contract, but will remove the reference if it's no longer valid.

KeithP

The IPC changed it's name early in 2016 - i.e. nearly eight years ago.
NPM Ltd needs to catch up.

tygrysek

Below is the full WS, I still need to complete the Exhibits and correctly number them but just wanted to gather any comments on the below text. Paragraphs1-8 and 32-50 i have copied form other recommened WS in newbies thread so they can be disregarded.

1.      I am xxxxx 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-X) 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 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. (See Exhibit 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 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 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.

 

Facts and Sequence of events

9.     On Friday, March 16th, 2018, at approximately 4:22 PM, I parked my car (registration number xxxxx) on Old Towcester Road to visit my brother, a resident of the nearby flats adjoining the road. I was there for about half an hour as evidenced by my Google Maps record (Exhibit xxx). I was a permitted visitor, to evidence that I had a valid visitor permit provided by my brother and displayed in my windscreen, as evidenced by the photograph supplied in the Claimant's (Exhibit XX).

10.  Crucially, I selected this specific parking location because I had no reason to believe it contravened any regulations. No evident signage indicated the area's private nature, nor were there any clear entrance signs. Had adequate and conspicuous signage been present, I would not have parked there and thus wouldn't have entered into any implied contract leading to this significant charge.

Inadequate Signage and Ambiguous Restrictions

11.  The lack of clear signage at the entrance and along the Old Towcester Road managed by the Claimant failed to effectively communicate parking restrictions to drivers.

12.  The only sign on the nearby building was inconspicuous, with small fonts and insufficient visibility from a distance. Even upon closer inspection, the sign did not specify the restricted area or make it evident that the restrictions applied to roadside parking. The provided photos of the signs confirm this ambiguity (Exhibit xxx).

13.  As per the map supplied by the Claimant (Exhibit xxx), the Claimant only controlled a part of the Old Towcester Road. The remaining part of the road was not under Claimant’s control and without any parking restrictions at the time. Please see the full length of Old Towcester Road (Exhibit xxx). Please also see the Google Maps snapshot from October 2018 to confirm the parking on Old Towcester road was unrestricted (Exhibit xxx). Without proper entrance signs or sufficient signage, it was impossible for motorists to discern the private nature of that part of the Old Towcester road or any parking restrictions.

 

IPC Code of Practice Violations:

14.  The Claimant is contractually bound to adhere to International Parking Community (IPC) rules (Exhibit of Claimants contract with Bellway Homes xxx). IPC rules explicitly outline requirements for entrance signs, clear signage, and appropriate text size (Exhibit xxx IPA’s code of conduct Signage section snapshot).

15.  The IPC Code of Conduct stipulates: "Entrance Signs should make it clear that the Motorist is entering onto private land and refer them to the signs within the Car Park displaying full terms and conditions." Furthermore, signs must be placed at the entrance or within the Car Park to be obvious to motorists.

16.  The IPC Code of Practice (CoP) also states that ‘The size of the text on the sign must be appropriate for the location of the sign and should be clearly readable by a Motorist having regard to the likely position of the Motorist in relation to the sign’ (Exhibit xxx). On the date of the parking charge, the available signage was unclear and featured terms and conditions in a font size that rendered them illegible from the roadside. These signs were solely located on a building a few meters from the road.

17.  The inadequate signage, the absence of entrance signage or clear directions to terms and conditions on the Land managed by the Claimant directly violates IPC guidelines, revealing a breach by the Claimant and significantly undermining their case.

 

Observations Regarding Signage During Subsequent Site Visit on May 23, 2023

18.  On May 23, 2023, I revisited the location of the alleged parking contravention on March 16, 2018, to gather evidence for this case. I observed significant changes to the signage in the area which I wanted to draw court’s attention to:

• Exhibit XXX: New signage is now displayed directly next to the road at the location where I received the PCN. This signage explicitly identifies the area as private land and outlines parking restrictions. This signage was not present at the time of the alleged contravention.
• Exhibit X: The previous signage, which I believe was poorly placed and lacked sufficient visibility, has been removed from the side of the building.
• Exhibit XXX: New signage located closer to the road was since added, mounted on the fencing, it also now clarifies that parking restrictions apply to both sides of the road. The original signage, also located at a significant distance from the road (on the building) did not provide such clear information regarding the designated area.
• Exhibit XXXX: A new sign was added since and positioned near the entrance to the part of the road claimed to be managed by the Claimant, indicating the commencement of parking restrictions. This signage was not present at the time of the alleged contravention.

19.  This information is provided for the court's consideration regarding the signage at the time of the parking event compared to the signage observed on my return visit. I believe such significant changes to the signage raise questions about the adequacy of the signage in March 2018.

 

No Contract, No Breach:

20.  In the absence of clearly visible and adequate signage, the Defendant contends that no valid contract can be established. The Defendant denies entering into a legally binding contract.

21.  The Claimant's notices purport to make a forbidding offer, which, in essence, is not an offer at all. Consequently, no contract can be said to exist. The Claimant lacked the authority to offer a contract, as there was no meeting of minds or exchange of consideration. None of the essential elements necessary for the formation of a contract were present, rendering the alleged contract impossible. At most, the Defendant was granted a license to park. If the Claimant asserts a breach of this license, it would be a matter of trespass, not a breach of contract, which can be pursued only by the landowner.

22.  In PCM- UKv Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company. This case relates to this claim, as the signs are forbidding (Exhibit xxx), and thus no contract was in place.

 

Section 69 of the Consumer Rights Act 2015

23.  I draw attention to Section 69 of the Consumer Rights Act 2015, which addresses contract terms that may have different meanings.

The Consumer Rights Act 2015 reads (Exhibit xxx):

“Section 69: Contract terms that may have different meanings

Contract terms can be ambiguous and capable of being interpreted in different ways, especially if they are not in writing or in an accessible format. In these cases, this section ensures that the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that is used.”

24.  In the context of the insufficient signage in this case, the signage is a crucial aspect of the contract between myself and the parking company. Ambiguities in the signage, particularly when they are not in writing or in an accessible format, should be interpreted in a manner most beneficial to the consumer, as outlined in Section 69.

25.  The signage provided by the parking company lacks clarity and is open to different interpretations. The absence of clear entrance signs, ambiguous directions, and small font size render the terms ambiguous and challenging for a motorist to comprehend. As per Section 69, in cases of ambiguity, the interpretation that is most beneficial to the consumer should prevail.

26.  Despite being pointed to the signs only after receiving the Parking Charge Notice (PCN), the ambiguous nature of the signage fails to communicate parking restrictions effectively. The lack of prominent entrance signs, in violation of the Consumer Rights Act 2015, hinders a clear understanding of the terms and places an unfair burden on the consumer.

27.  In light of Section 69, I request that the court interprets any ambiguities in the signage in a manner that is most advantageous to me as the consumer. This aligns with the principles of fairness and consumer protection enshrined in the Consumer Rights Act.

 

Unreasonable Delay and Disproportionate Interest Charges

28.  As stated in my Defence, as well as denying that the Claimant is entitled to parking charges, I deny that the Claimant has incurred any ‘damages’ or ‘debt recovery fees’. Then there is the extortionate attempt to harvest several years’ interest, which must surely be dismissed by the court. Interest is discretionary, not an absolute entitlement and it has been falsely calculated from day one on the whole amount.

29. I take the point that enhancing their claim to interest on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

30. Furthermore, the Claimant has unreasonably delayed initiating proceedings for five years, seemingly aiming to benefit from an overly inflated 'reward' by default, had I not contested the claim. In the improbable event of the claim's success, I assert that interest should either be disallowed or substantially reduced, as per the precedent set in Claymore Services Ltd v Nautilus Properties Ltd [2007] BLR 452  (Exhibit Number xxx.

tygrysek

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

31.  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.

32.  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.

33.  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.

34.  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."

35.  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

36.  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.

37.  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.

38.  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.

39.  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.

40.  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.

41.  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.

42.  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

43.  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.

44.  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.

45.  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).

46.  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)

The Beavis case is against this claim

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

48.  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) for paragraphs from ParkingEye v Beavis).

 

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

(i). Hidden Terms:

50. 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. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

(i)             Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii)            Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(iii)           Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space".

 

Conclusion

51.  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.

52.  Striking Out the Claim: The Defendant urges the court to consider the persuasive appeal judgment in Civil Enforcement Limited v Chan and subsequent cases that indicate the inadequacy of the Particulars of Claim (POC). The Claim should be struck out under CPR 3.4 due to non-compliance with CPR 16.4 and Practice Direction Part 16, as supported by the Chan judgment and similar cases.

53.  Inadequate Signage and Ambiguities: The evidence presented highlights the lack of clear signage, including small fonts and inconspicuous signs, which failed to communicate parking restrictions effectively. The Defendant argues that, without proper signage, no valid contract could be established, and the Claimant's case is undermined.

54.  IPC Code of Practice Violations: The Claimant's breach of the International Parking Community (IPC) rules, is emphasized. The absence of sufficient signage, clear entrance signs, adequate size of the text and directions to terms and conditions on Controlled Land directly violates IPC guidelines, compromising the Claimant's case.

55.  Consumer Rights Act 2015 - Section 69: The Defendant invokes Section 69 of the Consumer Rights Act 2015 to emphasize that any ambiguity in signage should be interpreted in the manner most beneficial to the consumer. The lack of clarity in the signage places an unfair burden on the consumer and should be interpreted accordingly.

56.  Exaggerated Claim and 'market failure': The Defendant contests the inflated claim amount, asserting that the alleged 'core debt' cannot exceed £100 and challenging the legitimacy of the added damages and fees. Reference is made to the draft Impact Assessment by the Department for Levelling Up, Housing and Communities, indicating excessive 'Debt Fees' charged by parking firms.

57.  CRA Breaches: The Defendant argues that the Claimant has breached the Consumer Rights Act 2015 by claiming costs on an indemnity basis, which is deemed unfair. The Defendant asserts that the signage and notices were not prominently displayed and lacked clarity, violating the CRA's requirements.

58.  The Beavis Case and Penal Nature of the Charge: The Defendant contends that the Supreme Court's Beavis case sets a high bar for justifying parking charges. The present case falls short of this standard due to hidden terms, including the £100 penalty clause buried in small print, making the charge purely penal and unenforceable.

In summary, the Defendant calls for the dismissal of the meritless claim, highlighting multiple legal grounds, including inadequate signage, breaches of codes of practice, and violations of consumer protection laws. The evidence presented demonstrates the lack of a valid contract, rendering the claim untenable.

Defendant’s fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 40.

59.  As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs (Exhibit xxx). I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

60.  41.The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.'

 

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

tygrysek

Hi all, thank you so much for everything to date, it's been super useful.

I was wondering if anyone else had a chance to take a quick look if anything stands out that may need changing. Or if you can please give me a go ahead ahead of tomorrow / Fri WS deadline. Many thanks!

Le_Kirk

Witness statements are written in the first person, you have at least two instances of "the defendant" rather than "I"

tygrysek

Thank you @Le_Kirk that's appreciated, I'll get that changed. 

tygrysek

Hi all, just double checked the date and deadline for WS is today. Any other advice would be much appreciated.