Witness Statement & Evidence and costs assessment stage question.

Bachelorplace

Hi there, 

I have prepared and submitted defence and am now at the Directions Questionnaire stage and a letter referring to client potential settling the case. 

My defence as advised is enclosed: 

The offending "ticket" was issued in 2018... so some 7 years ago. And I do not remember the exact details but presumed it was when I visited a cinema car park. The cinema have been contacted ... it is a Cineworld... has their been any cases of Cineworld cancelling. I obviously after 7 years do not have any evidence. I do remember making contact with Cineworld and them telling me to jump off a cliff. 



---

I wondered if you might be kind enough to recommend or guide a tip or two in relation to my witness statement in consideration of the above???

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Defence.

IN THE COUNTY COURT

Claim No.:

Between

(Claimant)

- and -

(Defendant)

_________________

DEFENCE

1. The parking charges referred to in this claim did not arise from any agreement of terms.

The charge and the claim was an unexpected shock. The Defendant denies that the Claimant

is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver

was a breach of any prominent term and it is denied that this Claimant (understood to have a

bare licence as managers) has standing to sue or form contracts in their own name. Liability is

denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the

Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle.

3. It is plausible that the defendant attended this area to watch a film at the Cineworld

Cinema. The defendant parked in what appeared to be advertised as the car park for the

cinema complex. Being around five years ago it is challenging to recall exactly. The defendant

did not recall receiving a parking ticket, correspondence or evidence that relates to this

claim.

4. The facts in this defence come from the Defendant's own knowledge and honest belief. To

pre-empt the usual template responses from this serial litigator: the court process is outside

of the Defendant's life experience and they cannot be criticised for using, in part, pre-written

wording suggested by a reliable online help resource. The Claimant is urged not to patronise

the Defendant with unfounded accusations of not understanding their defence.

5. With regard to template statements, the Defendant observes after researching other

parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent

statement of case. In breach of the pre-action protocol for 'Debt' Claims, no copy of the

contract (sign) accompanied any Letter of Claim. The POC is sparse on facts and specific

breach allegations, which makes it difficult to respond in depth at this time; however, this

claim is unfair, generic and inflated.

6. This Claimant continues to pursue a disproportionate fixed sum (routinely added per PCN)

despite knowing that this is now likely to be confirmed as banned by the Government this

year. It is denied that the purported 'damages' or 'debt fee' sought was incurred or is

recoverable. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015]

UKSC67. 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 (sitting at the High Court; later ratified by the CoA) held in paras

419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

7. This finding is underpinned by the Government, who stated in 2022 that attempts to gild

the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling

Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of

Practice, found here: https://www.gov.uk/government/publications/private-parking-code-ofpractice

8. Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated

that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain

banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) statutory

Code of Practice says: "The parking operator must not levy additional costs over and above

the level of a parking charge or parking tariff as originally issued."

9. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as this

claim: "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."

10. The DLUHC consulted for over two years, considering evidence from a wide range of

stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for

false fees to be scrapped altogether; this despite the parking industry flooding both public

consultations, some even masquerading as consumers. Genuine consumer replies pointed

out that successful debt recovery does not trigger court proceedings and the debt/roboclaim

firms operate on a 'no win, no fee' basis, seeking to inflate these claims with

'costs/damages' in addition to the strictly capped legal fees the small claims track allows.

11. This Claimant has not incurred any additional costs (not even for reminder letters if any

were sent) because the parking charge more than covers what the Supreme Court

in Beavis called an 'automated letter-chain' business model that generates a healthy

profit. In Beavis, there were 4 or 5 letters including reminders. The parking charge was held

to cover that work.

12. The driver did not agree to pay a parking charge, let alone these unknown costs, which

were not quantified in prominent text on signage. Moreover, what person would agree it

would be fair and reasonable to pay a charge to watch a film all then pay a charge to park?

There were at least three cinemas within the region the defendant could have visited and

often did; none of these cinemas including one of the same chain imposed any charges for

using their car park.

13. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the

self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing

(not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A

clear steer for the Courts which it is hoped overrides mistakes made in a few appeal cases

that the parking industry desperately rely upon (Britannia v Semark-Jullien, One Parking

Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).

14. Far from being persuasive, regrettably these one-sided appeals saw Circuit Judges led in

one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the

wherewithal to appeal. In case this Claimant tries to rely upon these, the Defendant avers

that errors were made in every case. Evidence was either overlooked (including signage

discrepancies in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice and

the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out

and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency

stop out of the control of the driver was unfairly aligned with the admitted parking contract

in Beavis. Those learned Judges were not in possession of the same level of information as

the DLUHC, whose incoming statutory Code of Practice now clarifies such matters as a

definition of 'parking' as well as consideration and grace periods and minor matters such as

'keying errors' or 'fluttering tickets/permits' where a PCN should not have been issued at all,

or should have been cancelled in the pre-action dispute phase.

POFA and CRA breaches

15. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the

POFA') the sum claimed exceeds the maximum potentially recoverable from a registered

keeper, even in cases where a firm may have complied with other POFA requirements

(adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant

contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC -

the Claimant is put to strict proof of full compliance and liability transferred.

16. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms

Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015

('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and

'consumer notices'. In a parking context, this includes signage and all notices, letters and

other communications intended to be read by the consumer.

17. 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, and all

terms unambiguous and obligations clear. The Defendant avers that 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.

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

18. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive,

however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking

cases, which must each be determined on their own facts. That 'unique' case met a

commercial justification test, and took into account the prominent yellow/black uncluttered

signs with £85 in the largest/boldest text. Rather than causing other parking charges to be

automatically justified, the Beavis case facts set a high bar that this Claimant has failed to

reach.

19. 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'.

20. In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs

have vague/hidden terms and a mix of small font, and are considered incapable of binding a

driver. Consequently, it remains the Defendant’s position that no contract to pay an onerous

'penalty' was seen or agreed. Binding Court of Appeal authorities which are on all fours with

a case involving unclear terms and a lack of ‘adequate notice’ of a parking 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'' (NB: when parking operator

Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words

about the Respondent’s losing case, and not from the ratio).

21. Fairness and clarity of terms and notices are paramount in the statutory Code and this is

supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will

Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t.

If it’s clear to one person but not another, there is no clarity. The same is true for fairness.

Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either

fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful

opportunity to provide clarity and fairness for motorists and landowners alike."

Lack of standing or landowner authority, and lack of ADR

22. DVLA data is only supplied to pursue parking charges if there is an agreement flowing

from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a

principal) has authority from the landowner to issue charges in this place in their own

name. The Claimant is put to strict proof that they have standing to make contracts with

drivers and litigate in their own name.

23. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution

(ADR). The Appeals Annex in the new incoming statutory Code shows that genuine disputes

such as this would see 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 appeal was ever on offer.

The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider

facts or rules of law and reject almost any dispute: e.g. the IAS upheld appeals in a woeful 4%

of decided cases (IPC's 2020 Annual Report).

Conclusion

24. The claim is entirely without merit. 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.

25. 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 intimidating pre-action threats.

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

(a) at the very least, for 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.

27. Attention is drawn specifically to the (often-seen from this industry) distinct possibility of

an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is

liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply

to claims allocated to the small claims track (r.38.6(3)). However, the White Book states

(annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a

case allocated to the small claims track serves a notice of discontinuance although it might be

contended that costs should be awarded if a party has behaved unreasonably

(r.27.14(2)(dg))."

Statement of Truth

I believe that the facts stated in this defence 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:

Coupon-mad

2018 is 5 years ago, which I think is what you meant to type.

What you've shown us is the Template Defence but you have already submitted a defence.  You did that in response to the Claim Form, or you wouldn't have reached N180 DQ stage.

As such, we can only advise you properly what your later WS bundle can say, if you show us what you put in as the Defence.

If you already have a thread about this PCN / Claim please reply there instead.  I guess not?  I only see a Euro Car Parks thread and they never sue.

Tell us more about the claim:

- which PPC

- which solicitor

- what exactly did you put in the defence box, WORD FOR WORD?  Or is it the above?

Bachelorplace

Hello : I am happy to start a new thread if required.   

1. Yes it is the N180 but it is not marked with a number.
2. The PPC is UK Parking control
3. Solicitor DCB legal. 
4. Yes as above.

As it was 5 years ago yes. I don't recall anything. I don't even know what car I owned 5 years ago. 

Bottom line was the carpark is marked with a giant Cineworld logo - I rushed in there to see a film. The other cinemas are free car parks this was my first visit having misread the showing times on the two same cinemas and first arriving at the wrong one. I do that a-lot! Don't recall seeing any payment signs or pay machines, but obviously they are there. I probably didn't look in a rush. 

I do not recall getting a ticket - but i may have done and angrily binned it as I do many of them or did in the past before I met you guys. 

I wrote to the cinema I recall and was told to go jump off a bridge so today am sending this. 

 

 

Cineworld Customer Service.

 

July 8th 2023

 

Subject: Urgent Request for Parking Charge Notice (PCN) Cancellation and Addressing Previous Concerns

 

Dear Cineworld Customer Service,

 

I hope this letter finds you well. I am writing to urgently request the cancellation of a Parking Charge Notice Claim Number: --- that was issued to me for an incident that occurred in 2018 at the parking lot on the premises of the Cineworld Regent Circus, Swindon. The issuer is UK Parking Control Ltd Union House, 111 New Union St, Coventry CV1 2NT 0333 220 1070. Their legal firm is DCB Legal 0208 838 7038.

 

I must express my deep disappointment with the response I received from Cineworld's management when I contacted them regarding a similar matter in 2019. The response I received strongly suggested that Cineworld has no control over the car park and lacks the means to contact the landowner, which I have since learned is not the case. It is disheartening to hear that Cineworld may not be fulfilling its duty of care to customers in terms of ensuring that the car park is clearly marked and reminding customers that parking is not free, whereas it is free at many other Cineworld locations including Swindon.

 

UK Parking Control and DCB Legal have garnered significant attention on Google with a striking number of one-star reviews. UK Parking Control has received 598 one-star reviews, while DCB Legal has accumulated 215 similar reviews. These figures are indicative of a substantial dissatisfaction among customers and reflect the concerns that both companies may be operating on tenuous legal grounds. The frequency with which their practices have been questioned in court cases further reinforces the notion that their operations may lack the necessary legal foundations. These reviews and court citations raise important questions about the ethics and legitimacy of the practices employed by UK Parking Control and DCB Legal.

 

It is essential for Cineworld, as a business, to take responsibility for ensuring that customers are informed and aware of the parking regulations in place. Clear signage and reminders about parking charges would help prevent such incidents from occurring in the future. As a loyal patron, I believe Cineworld has a duty to provide a safe and transparent parking environment for its customers.

 

It is worth mentioning that in some cases, businesses like Starbucks have demonstrated a customer-focused approach by promptly cancelling Parking Charge Notices (PCNs) for minor overstays. These instances, where companies take swift action to rectify such situations, are well-documented. It highlights the importance of businesses prioritizing customer satisfaction and maintaining a fair and reasonable approach to parking enforcement. As a customer, I believe that Cineworld has an opportunity to learn from such practices and adopt a similar customer-centric approach when addressing PCNs, ensuring a positive experience for its patrons.

 

In light of the aforementioned concerns and the potential negative impact on Cineworld's reputation, I kindly request the immediate cancellation of the PCN associated with my vehicle registration --- or any vehicle associated with --- name. It is imperative that Cineworld addresses this matter promptly and resolves it to my satisfaction.

 

I would appreciate a written response within 7 days addressing my concerns, confirming the cancellation of the PCN, and outlining the steps that Cineworld will take to improve parking awareness and prevent similar incidents from occurring in the future. Clear communication and transparency regarding parking regulations will contribute to a positive customer experience and avoid unnecessary frustration and inconvenience.

 

Should I not receive a satisfactory response within the specified timeframe, I regrettably feel compelled to pursue this matter further through alternative channels, including sharing my experience with the Swindon Advertiser and other media outlets. It is my belief that highlighting these issues will encourage Cineworld and other businesses to prioritize the well-being and satisfaction of their customers.

 

I look forward to your immediate attention to this urgent matter and a swift resolution.

 

Yours faithfully,

 

Coupon-mad

But you are past defence stage, so I'm still not clear: what did you put in the defence box?

B789

@Bachelorplace, please answer the questions asked by Coupon-mad. If you can't be bothered reading the questions and answering them, it is difficult to provide advice.

Also, if you're going to use ChatGPT to write your letters for you, you may want to put a bit of effort into them as it is very obvious that the AI you are using writes letters that think they are sentient. "I hope this letter finds you well" is the give away. 

Coupon-mad

I really hate ChatGPT letters..!  They read really badly.

Bachelorplace

Hi Coups 

Noted. Agree they do. Thanks for your note. 

The defence box - if you are referring to the box on the submit defence instructions online, I believe I followed this to the letter. 

i.e. 'I intend to defend all of the case" I think was the recommended options in the newb process. I also then sent my defence to the court as suggested by email using and amending a defence I found in the newbs section. 

A letter was then received last week which again which says: "our client has read your defence, and would like to continue with the case" "if you would like to settle out of court make contact with us".

With the letter a separate form Directions Questionnaire was enclosed which I am told to complete in the newb section and when returning it also include my WS.  

I found a WS and amended it and was concerned I don't really have much of an excuse and hence thought maybe as my defence is weak I would post it on the forum for potential second opinion. 

I feel I am following the steps as laid out in the kind newb forum. 

Umkomaas

With the letter a separate form Directions Questionnaire was enclosed which I am told to complete in the newb section and when returning it also include my WS. 

Nope!  You wait for your own DQ, sent to you by post by the CCBC. The CCBC is well behind with their admin, so could take some time for you to receive yours. Watch your MCOL history to check when they send it. See point #7 in the 12-point list in the first post of the Template Defence Announcement. 

You do not send your WS with your completed DQ. That doesn't happen until you've had your hearing venue confirmed and a date for it given - possibly two separate notifications. 

Please read the NEWBIES FAQ Announcement, second post, 'Important, know what you must do and by when' to get you on the right track so you don't go off on things prematurely!

Coupon-mad

Indeed. Doesn't sound like you are yet at WS stage.

Bachelorplace

Oh ok - so they are trying it on sending me the form. Got it. They are trying to move things along. Interesting. 
Ok so I will carry on. And I shall wait. Thanks for your help very much. I shall do nothing until I hear from the CCBC. 
Is it therefore prudent to begin preparing some form of WS in the mean time or not really? 
Quite strange to get this far - I have had notification of non continuance before by now. Quite scary really. 

Umkomaas

Is it therefore prudent to begin preparing some form of WS in the mean time or not really? 

You can start work on it now, as memories are fresher today than they will be tomorrow. But to start you off with an exemplar WS from which to develop your own, check out that by @aphex007, where you will find lots of the work is already done for you.