Witness Statement & Evidence and costs assessment stage question.

Bachelorplace

Ok thank you so much Keith. I find it highly soothing. If I may - I am also considering a matter outside of the parking realm - it is a very long shot, but wondered if there were, not saying there are, any judges, or lawyers or ex anything among these walls, I wonder if maybe you or someone might PM me. They might know someone who knows someone who knows someone who might chat to me for a small fee of course about it. Long shot but there is a lot of wisdom around, and this forum is a hive of networking.  

KeithP

Bachelorplace said:

Ok thank you so much Keith. I find it highly soothing. If I may - I am also considering a matter outside of the parking realm - it is a very long shot, but wondered if there were, not saying there are, any judges, or lawyers or ex anything among these walls, I wonder if maybe you or someone might PM me. They might know someone who knows someone who knows someone who might chat to me for a small fee of course about it. Long shot but there is a lot of wisdom around, and this forum is a hive of networking.  

I think that's the first time one of my posts has been noted as 'highly soothing'.

Now that you have put out that invitation, be very careful about who might reply.
Some of the responders may not have your best interests at heart.

In this murky world of private parking there are apparently a lot of people out to make a fast buck doing whatever it takes.

Your choice of course, but my suggestion is to stick with the guidance you will find on this forum.

Bachelorplace

Oh no no - It's a word of mouth lawyer I need for a contract issue - nothing to do at all with parking. I would not go anywhere else for that - legends over here. 

Bachelorplace

OK thank you. I think I have already submitted it, but I will double check. 

Bachelorplace

Hi friends - back again with this which appears to say "Unless the claimant prepares a proper xyz etc"

Would you care to advise if I need to take any action please?

Looks like I will be attending the hearing then.... 

KeithP

What about the second page of that Notice of Allocation?

Is there not a paragraph something like:

Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ . . . ] [14 days before the hearing].

Those 'documents on which you intend to rely' are your Witness Statement and evidence.

yetneveragain

Bachelorplace said:

Looks like I will be attending the hearing then....

Highly doubtful that you'll be attending any hearing. If you submitted the robust template defence, you will find that DCB Legal will begin to try and contact you shortly to offer to settle the claim. Ignore them and just wait for the eventual discontinuation as can be seen in the nearly 250 similar cases in this thread:

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations

Coupon-mad

KeithP said:

What about the second page of that Notice of Allocation?

Is there not a paragraph something like:

Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ . . . ] [14 days before the hearing].

Those 'documents on which you intend to rely' are your Witness Statement and evidence.

And  @Bachelorplace  when you do the WS, they will discontinue.

Therefore: crack on, do it early!  As seen in the NEWBIES thread which explains WS stage.

Bachelorplace

KeithP said:

What about the second page of that Notice of Allocation?

Is there not a paragraph something like:

Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ . . . ] [14 days before the hearing].

Those 'documents on which you intend to rely' are your Witness Statement and evidence.

Yes it does... hidden away in there. I have submitted my WS. Checking how I send WS to the various - I will do so by email and make sure I re send to the court. 

Bachelorplace

 1.       I am ME 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 1-7) 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 xx-01)

 

5.       Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit xx-02)

 

6.       Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit xx-03)

 

7.       Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s 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-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. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

 

Facts and Sequence of events

9.     It is admitted that on the material dates, I was the registered driver of the vehicle either registration mark ending in xxx or xxx. It is unknown which car I was in as the PCN dates back to 2018. I drive many cars for my work as a xxxx and have change my car regularly.

 

10.  I recognise the site as a car park for a cinema which I attended occasionally. I was under the assumption after noting signage that I was parking in a car park to pay and watch a film. i.e. as a paying patron to the advertised parking branded by the Cinema. (See Exhibit xx-05)

 

11. I entered via a long ramp to the first floor of the car park to my right I recall there was a a large Cineworld branded sign. There were no private parking signs visible. I note now the entrance has been changed and the Cineworld sign is no longer there. (See Exhibit xx-06 and 7) This now looks today, less like an official car park of a cinema and more rather a car park for Regent Circus.

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

12.    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 

13.    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.

14.            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.

(iii).  Interest appears to be miscalculated on the whole enhanced sum from day one as if the entire sum was 'overdue' on the day of parking;

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 7thFebruary 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 the Defendant takes 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).