Witness Statement & Evidence and costs assessment stage question.

Bachelorplace

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-07)

 

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-08) - 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-09) for paragraphs from ParkingEye v Beavis).

 

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

(i). Concealed pitfall or trap:

The signage in this case required customers to enter their vehicle registration number at a kiosk inside the store. Unfortunately, this kiosk was inaccessible to me as the store was closed, rendering compliance impossible.  I also wish to highlight the presence of a sign in the parking area that mentioned clamping. The use of clamping as a penalty for parking violations was made illegal under the Protection of Freedoms Act 2012. The inclusion of such outdated language on a parking sign raises questions about the relevance and validity of the signage in the parking area.  This sign, which suggested that 'Others will be clamped,' directly contradicts current parking regulations and creates further confusion regarding the penalties associated with parking violations. It is reasonable to assume that the parking operators responsible for the signage failed to update their notices to reflect the changes in the law.  Given this discrepancy and the fact that clamping is no longer a legally permissible penalty, it further underscores the uncertainty surrounding the parking terms at the location in question. I believe this is another critical factor that should be considered by the court when evaluating the legitimacy of this case.

 

(ii). 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. 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

32.    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.

 

33.    The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

 

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: 16 January 2024

 

Bachelorplace

Is there a google search term to find the cases or the exhibits that are not my own exhibits please? I tried looking under the case number or claim number to no avail? 

Coupon-mad

Don't know which ones you mean.  You don't need transcripts for well known high level cases like Spurling v Bradshaw or ParkingEye v Beavis.

Usually a WS bundle can't exceed 50 pages!

1505grandad

You must make sure that any copy and paste statements actually apply to your case  -  for instance para 31 states kiosk, store closed, sign with clamping on it etc. Please check that your WS only has your case details.

Just checking  -  has the Defence filed been posted verbatim on here?

Le_Kirk

Bachelorplace said:

Is there a google search term to find the cases or the exhibits that are not my own exhibits please? I tried looking under the case number or claim number to no avail? 

In your post here https://forums.moneysavingexpert.com/discussion/comment/80534033/#Comment_80534033 you state you have submitted your WS yet are still asking questions about finding exhibits!

Bachelorplace

Le_Kirk said:

Bachelorplace said:

Is there a google search term to find the cases or the exhibits that are not my own exhibits please? I tried looking under the case number or claim number to no avail? 

In your post here https://forums.moneysavingexpert.com/discussion/comment/80534033/#Comment_80534033 you state you have submitted your WS yet are still asking questions about finding exhibits!

Yes confused about WS and Defence. I will post my defence which has been sent to the courts as per. 

Bachelorplace

IN THE COUNTY COURT

Claim No.: NUMBER

Between

UK PARKING CONTROL LTD

(Claimant)

- and -

NAME

(Defendant)

_________________

DEFENCE

 

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

The charge and the claim were 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'.

Bachelorplace

 

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 casesthat the parking industry desperately rely upon (Britannia v Semark-Jullien, One ParkingSolution 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 inone 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 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

Bachelorplace

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 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:

Date: 30TH MAY 2023

Bachelorplace

Coupon-mad said:

Don't know which ones you mean.  You don't need transcripts for well known high level cases like Spurling v Bradshaw or ParkingEye v Beavis.

Usually a WS bundle can't exceed 50 pages!

For example - an exhibit is mentioned here. 

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-09) for paragraphs from ParkingEye v Beavis).