Unpaid CCJ letter received from DCBL today

Le_Kirk

The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant me in any way

This is a witness statement so should be written in First Person, therefore "I", "m2" not "the defendant".

UncleThomasCobley

Preliminary matter: The claim should be struck out

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.

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

remzeh1

Witness Statement of XXXXX

1.   I am Mr xxxxxx, ( Address:....) 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 XX1-XX10) 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:

Facts and Sequence of events

3.       This matter relates to a parking charge issued to my vehicle (registration: XXXXX) on XXXXX when I was parked in my own bay in the underground resident’s car park of the apartment complex I lived in. It is admitted that I was the registered keeper and driver of this vehicle. I confirm the vehicle was parked in bay number XX at all times.

 

4.   Despite being a tenant/leaseholder to Apartment XXXXX and relevant parking bay number XXXX, in accordance with the parking related terms within the respective AST/Lease (Exhibit XX-1), a parking charge was issued to the vehicle by the Claimant.

5.        At all material times, I parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, were incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of my lease. 

 

6.   Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (Full AST supplied to the Court along with this Witness Statement, with the specific terms relating to the parking space found in Section 4 on Page 19, also shown in Exhibit XX-1 for ease) that exists between the tenant (myself in this instance) and their landlord extends to the use of the specified parking space and overrides any purported contract conveyed by the Claimant’s insufficient, demonstrably illegible signage (Exhibit XX-2). The Claimant never requested or received my consent to operate on my property and therefore the use of the parking bay by the Claimant was never permitted.

 

7.   The AST/Lease makes no assertion that a permit must be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so. The AST/Lease specifically states the following, and only the following, regarding the parking space (Section 4 on page 19):

• Only park roadworthy and taxed private motor vehicles

• Only park in the allocated space

• Not sublet or share the car parking space

• Not to work on any vehicles parked in allocated spaces beyond normal day to day issues such as checking oil levels, refilling screen wash bottles.

8.   I contend, therefore, that the Lease agreement provides an unfettered right for the AST/leaseholder (myself in this instance) to park in their assigned bay. This cannot be superseded, altered, or ignored by a parking management company post hoc. A permit was therefore not required and the parking charge is therefore invalid.

9.        Even had the lease required a permit to be displayed, accordingly, I still believe that had this been the case, I never breached any contractual terms whether express, implied, or by conduct. When I lived in the apartment, I used to display a permit out of courtesy, rather than an obligation, however, the one on display at the time of the alleged parking event was out of date as I had just returned from holiday and had gone to take my luggage up to my apartment and then gone to retrieve a new, in-date, permit from the concierge office. Upon my return to the vehicle, I found I had been issued with a parking charge notice from the Claimant. Even if I had been required to display a permit by the AST, I still did not breach the parking conditions when taking into consideration the BPA Code of Practice, as going to retrieve an in-date permit was allowable under the Consideration Period which allows at least 5 minutes to retrieve a valid permit. The Claimant has evidenced they were only present at the vehicle for 1 minute as shown by the timestamps on their photos (Exhibit 3).

 

10.   The Claimant’s signage (Exhibit XX-2) is effectively offering the parking bay I was the leaseholder for, to anyone, at a daily charge of £100. Thus, they appear to have been running a business on my property without my consent.

 

11.   I recall receiving all of the correspondence from the Claimant, however, ignored their letters thinking that this was a scam and that it surely wasn’t possible to have been charged for parking in a bay to which I was the leaseholder and had an unfettered right to park within. I do recall however that the majority of the correspondence received from the Claimant, their debt recovery partners, and their representation, has been threatening, misleading, and in several instances, absolutely duplicitous.

 

12. Accordingly, it is maintained that I have no liability for this debt and that the Claimant has acted immorally and deceitfully on several occasions, pursuing the alleged debt in an aggressive and intimidating fashion, with the singular intention of coercing the debt from the me with continued threats of legal action. No effort was made whatsoever to address the very reasonable assertions made by myself that the driver had every right to park in the bay in question; if this particular parking management company truly aimed to protect the rights of residents, this matter could have been resolved amicably and swiftly, without the need of involving the courts.

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

13. 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.

14. 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.

15. 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.

16. 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."

17. 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

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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

25. 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.

26. 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.

27. 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).

28. 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-06)

The Beavis case is against this claim 

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

30. 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-05 )for paragraphs from ParkingEye v Beavis).

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

Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) 'costs' are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top.  None of this was agreed by me, let alone known or even seen as I parked in my own designated bay which I was allowed to do under the terms of my AST without displaying a permit. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

1. 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

1. 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".

remzeh1

Lack of landowner authority evidence and lack of ADR

32.   DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref:KADOErules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

33.I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). TheAppeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.

The Civil Enforcement VS Ming Tak Chan Judgment is against this Claim

34. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case.  The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond.

35. 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 the Practice direction to 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 Defendant asserts that this Claim is based upon an agreement by conduct. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the POC. (See Exhibit XX-07)

36. 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-08)

37. 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-09)

38. 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-10)

39. The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

Conclusion

40. 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 myself. 

41. In line with the well-established legal principle of primacy of contract, I had an unfettered right to park within Bay number XX in accordance with the parking related terms in my AST/Lease, which had no mention of displaying a permit. Therefore, at all material times, I parked in accordance with the terms granted by the lease and the erection of the Claimant's signage, and the purported contractual terms conveyed therein, were incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of my lease. 

42. Even if the above in 33 did not apply, the parking charge would still remain invalid because I was exercising my rights in line with the BPA Code of Practice’s Consideration Period to park my vehicle within the car parking bay and go to retrieve an in date permit, following my return from holiday. The Claimant did not take this matter into consideration, evidenced by the fact that they have shown they were only present at the vehicle for around 1 minute, shown by the timestamps on their photos.

43. The Claimant’s signage fails to meet the standards set by the Supreme Court in the Beavis case where the £85 charge was in the largest font with a contrasting colour. As I have shown, the Claimant has failed to meet the standards set by the Supreme Court in this instance as therefore it is unenforceable.

44. I draw attention to the fact that the POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. This is highlighted in numerous examples of similar cases, which I have included, whereby the Claims were struck out and full costs awarded to the Defendant.

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

(a) The previously reserved costs of £315, and

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

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

46.  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

Coupon-mad

I think 35-39 should be near the top!  You can also add the new Norwich one.  New in today!

Le_Kirk

Coupon-mad said:

I think 35-39 should be near the top!  You can also add the new Norwich one.  New in today!

And as advised by @UncleThomasCobley - preliminary matter - just upthread.

remzeh1

Hi both

Thanks for the suggestion

So, do we think I should add this as the first section after my 'Facts and sequence of events'

Shall I therefore add the paras that Uncle Thomas has put above and remove 34-39

Or should I just move 34-39 to be the first section after 'Facts and sequence of events' ?

Am I nearly good to go after changing this?

Thanks all

UncleThomasCobley

The Preliminary Matter should come after para #2. In fact, it could be the very first item, hence the word "preliminary".

remzeh1

I've moved 34-39 to come after my facts and sequence of events 

I think the ultimate bullet in this instance is my primacy of contract and I feel that should come first, so I want that to be the first section the Judge reads - I think that should do it and the rest I have to fall back on

Can I just ask if anyone else has any other recommendations before I tidy this all up and get it sent to the Court tomorrow - It's not due until the 11th but I'm going on holiday on Saturday so I just want to get this out of the way tomorrow

One other question - the costs - I've copied in someone else's costs section where I've referred to the reserved costs of £315 - does this figure have any generic significance or would it have been specific to someone else's claim? What should I have down for the costs sought?

Thank you everyone, hopefully this will finally see the back of 4 years of fighting these scum, having been through 2 CCJ nightmares with them and now being on a clean slate on my credit record I am ready to leave this behind for good

UncleThomasCobley

You have signed a statement of truth. Why would some "generic" figure of £315 be a "truthful" estimate of your costs?