County Court Claim MET Parking/QDR Solicitors

damncold

Thanks so much for the quick reply! I will call them tomorrow and have emailed on their enquiry email address for the correct email address to send it to. Below is the POC, would Chan and Akande apply to this POC?

Coupon-mad

No.        

damncold

Okay, thanks. I have left Chan Akande off my WS. I have drafted my WS as can be seen below. I have included the entirety of my lease and as can be seen from the table of contents it is quite lengthy at 40 pages. This has boosted my WS + Exhibits to 70 pages, is this too much?

Table of Contents 

Witness Statement of Defendant …………………………………………………………………. 1

Exhibit XX-01 – Official copy of register of title ………………………………………………..... 8

Exhibit XX-02 – Official copy of the lease ……………………………………………………….. 10

Exhibit XX-03 – PROPERTY Forecourt ………………………………………………………..... 50

Exhibit XX-04 – Jopson v Home Guard Services ……………………………………………….. 61

Exhibit XX-05 – Parking sign at PROPERTY ………………………………………………….. .. 62

Exhibit XX-06 – Signage heights at PROPERTY ………………………………………………. 63

Exhibit XX-07 – Excel v Wilkinson Case Transcript ……………………………………………... 68

Exhibit XX-08 – The Beavis case sign for comparison ………………………………………… 69

Exhibit XX-09 – ParkingEye Limited v Beavis …………………………………………………… 70

Claim No.:  XXX

Between

MET Parking Services Limited

(Claimant) 

- and -  

XXX

 (Defendant)

_________________

Witness Statement of Defendant

 

1. I am XXX, PROPERTY 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 1-9) 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. It is admitted that on the material date, I was the registered keeper and driver of the vehicle XXX.

4. I am the owner of PROPERTY and have provided proof of ownership with an official copy of register of title from the Land Registry (See Exhibit XX-01).

5. As the owner of the flat I am the leaseholder and owner of the lease and have provided an official copy of the lease (See Exhibit XX-02).

6. Under the terms of the lease I have easement rights and privileges granted, which include Right of Way. 

“The full and free liberty for the Tenant at all times by day or by night and for all purposes incidental to the occupation and enjoyment of the Flat but not further or otherwise to go pass and repass on foot over the pathways and other areas providing access to the Flat from the adopted highway whether with or without vehicles laden or unladen over along and across the roads and forecourts leading to the Building from the adopted highway in common with the Lessor and all others authorised by them to use the same and in common with all others having a like right”

7. PROPERTY is split over four floors and my flat is on the fourth floor as is stated in the Property register section of the official copy of register of title. To access the flat I have to walk up the stairs from the building entrance to the fourth floor as there is no lift. I then have to walk along the corridor to get to the flat. As someone with asthma this journey can take a few minutes to complete. 

8. On the material date I was accessing my flat and unloading my vehicle as is my right, under the terms of the lease. In order to be able to unload my vehicle I had to momentarily stop the vehicle on the forecourt outside the building entrance. The forecourt does not have any marked parking bays, it is just a concrete forecourt with no markings (See Exhibit XX-03).

9. I refer to the case of Jopson v Home Guard Services (Exhibit XX-04), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. The Jopson judgment is on point and persuasive on county court level decisions.

10. I did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage (See Exhibit XX-05). It comes too late when purported debt recovery fees are only quantified after the event.

11. Parking signage at PROPERTY is inadequate with very small lettering on signs placed over three metres high from the ground (See Exhibit XX-06). Signage as you enter the grounds and forecourt from the highway is also inadequate.

12. Management and maintenance of the site at PROPERTY, including the common parts and the forecourt, has been transferred to a Right To Manage company, PROPERTY RTM Company Limited with the date of acquisition on XXX. I am a director of PROPERTY Right To Manage company as can be seen on Companies House here: https://find-and-update.company-information.service.gov.uk/company/XXX/officers 

The Claimant does not have authorisation to operate at PROPERTY from the Right To Manage company, PROPERTY RTM Company Limited. The signs on the site have been installed without permission and are there illegally.

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 any interest has been calculated.

15. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

16. 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.

 

17. 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."

18. 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

 

19. 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.

 

20. 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.

 

21. 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.

 

22. 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.

 

23. 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.

 

24. 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.

 

25. 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).

damncold

CRA Breaches

26. 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.

 

27. 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.

 

28. 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).

 

29. 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-07)

 

The Beavis case is against this claim

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

 

31. 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-09) for paragraphs from ParkingEye v Beavis).

32. In the present case, the Claimant has fallen foul of those tests. The main issue that renders this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable are, hidden terms. 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 by myself, which their evidence shows doesn't warn me about a possible £100 charge. 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

33. 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. 

34. There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

 

35. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

 

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

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

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

 

37. 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: XX November 2024

Coupon-mad

"35. With the DLUHC's ban"

There is no ban on DRA fees yet and this tells me that you've copied from an older case from 2 years ago.

I think this 'landmark' case could also be very useful to you. I found it this week when randomly Googling:

DUCHESS OF BEDFORD HOUSE RTM COMPANY LIMITED & ORS V CAMPDEN HILL GATE LTD [2023] EWCA Civ 1470

It reaffirms residential parking rights using not only a fair interpretation of the lease but also section 62 of the Law of Property Act 1925.

It's a Court of Appeal authority (the Supreme Court refused an application to appeal it):

https://www.edwincoe.com/blogs/main/the-supreme-court-has-effectively-confirmed-the-approach-of-the-court-of-appeal-in-applying-the-rule-in-newman-v-jones-and-on-how-to-interpret-lease-clauses/

https://www.casemine.com/judgement/uk/6576d76952aae60ac079d0bd?utm_source=amp&target=amp_jtext

That case reaffirmed leaseholders' rights under section 62 to use 'first come first served' bays in a car parking area at their estate:

"The residents of Duchess of Bedford House are relieved and delighted at this decision. After having had their right to park restricted by parking tickets and even clamping for periods over the last 30 years, they can park in the road outside their flats with full confidence in their right to do so."

Even Shakespeare Martineau blogged about it:

https://www.shma.co.uk/our-thoughts/duchess-of-bedford-house-case-have-we-gone-parking-mad/

damncold

I have now removed that outdated part from my WS.

Thanks for that. That’s a very interesting case and I have used it in my WS to support my claim and added the transcript. I have tried to find an email address for MET Parking but the only one I can find is the DPO I used for the SAR. I know this email address works as they replied on that. If I can’t find any other email address for them, will the DPO one be acceptable to send my WS and exhibits to?

Coupon-mad

You aren't dealing with MET Parking. They aren't solicitors. They don't handle court stuff.