dcb legal

Cody_09

okay, still worth arguing though. 

Coupon-mad

Cody_09 said:

okay, still worth arguing though. 

No, it is wrong. They are in the BPA AOS.

You obviously change the reference to the BPA CoP instead.  As seen in the WS example by @aphex007 which I think is about a BPA AOS member.

What you have shown us is a defence and really old case law (Crosby) that isn't relevant any more. Please use the WS bundle by aphex007 instead.

You are not writing a defence.

Cody_09

Coupon-mad, thank you. I am having to copy and paste from my earlier defence. How can I differentiate between WS and Defence please?

Coupon-mad

By not copying & pasting from your defence!  None of the advice says to do that.

The NEWBIES thread has a whole section on tips for evidence and how a WS differs from a defence.  You have read that?

Just don't use the old RobertCox example WS linked there. It's now superseded.

I have already signposted you and linked you to the username/profile that takes you to a thread with a 2023 good example WS.  

Cody_09

Revised WS

The facts as known to the Defendant:

1. On the day of the alleged contravention, it was raining quite heavily. When I entered the services, I parked at the first available space that I found. I did not see or notice any signage as I entered the site. I remained in my car throughout my stay at the location. I live in xxxxxxxxx which is 120 miles away from the location of the alleged contravention and so not familiar with the site. I believe that any signage at the time, was inadequate or unclear as I did not notice it.

 2. 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, let me state that the court process is outside of the Defendant's life experience, and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with unfounded accusations of not understanding their defence.

3. A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit EX-2 for comparison. In this case, the signage (EX-1), fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

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

4. 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 be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach. (see Exhibit EX-1)

5. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. 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 any 'concealed pitfalls or traps'.

6. In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs (see Exhibit EX-1), have vague/hidden terms and a mix of small font and are considered incapable of binding a driver. (see Exhibit EX-4 for paragraphs of ParkingEye v Beavis).

Consequently, it remains my 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. It was unsurprising that she did not see the sign, 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).

 7. 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."

If Claimant alleges that signs were adequate, it is my position that the signs and terms the Claimant is relying upon were not clear (see Exhibit EX-1), and were in fact, unfair and the Beavis case is fully distinguished.

POFA and CRA breaches

8. 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').

9. 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.

10. 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. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. 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 dealing and good faith.

Lack of landowner authority evidence and lack of ADR

11. 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 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.

12. I further aver that the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals 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.

Abuse of process - the quantum

13. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). 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', i.e. unrecoverable.

14. My position regarding this punitive add-ons in now underpinned by the Government, who have now stated 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-of-practice

15. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming 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."

16. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present 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."

17. The DLUHC consulted for over two years and considered 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. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

18. This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

19. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

20. 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.

21. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

22. In case this Claimant tries to rely upon those cases, significant errors were made. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras 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 contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

23. This Claimant knew or should have known, that by adding extra costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit – EX-4), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

24. Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all, but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

 

CPR 44.11 - further costs

25. I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

26. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

27. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)… are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing… a sum not exceeding £95 per day for each person.

 

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.

 

 

 

 

Coupon-mad

That's still copied from a defence.  I can tell from the start, which is not set out right.

Please use the one I linked you to already; the username obviously links to his profile and threads.

Cody_09

Okay. i was concentrating on the body maybe to focus on the start. Cheers. 

Cody_09

My WS version 3

The facts as known to the Defendant:

1. I am xxxxxxx 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. The facts in this statement come from my own knowledge and honest belief. To pre-empt the usual template responses from this serial litigator, let me state that the court process is outside of my life experience, and I cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with unfounded accusations of not understanding their defence.

3. In my statement I shall refer to exhibits 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:

 

Sequence of events

4. On the day of the alleged contravention, it was raining quite heavily. I was travelling Southbound on the M6. I entered the services for a rest, and I parked at the first available space that I found.

It is my contention that I did not see or notice any signage as I entered the site.

5. The alleged contravention occurred in February 2018. Using Google Street view, I found an image of the parking notice on the site, Exhibit EX-1. This image was captured in July 2018.

6. Having parked my car, I remained in the car throughout my stay at the location. I live in xxxxxxxx which is 120 miles away from the location of the alleged contravention and so not familiar with the site.

7. When I left the site, it was still raining. I believe that any signage at the time, was inadequate or unclear as I did not notice it.

8. A few weeks later, I received a PCN from the Claimant which came to me as a surprise.

9. I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 6 - October 2015 section 18.3 (Exhibit EX-3). This specifically states that signs with specific parking terms must be placed throughout the site, so that drivers are given the chance to read them at the time of parking or leaving the vehicle.

10. A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit EX-2 for comparison. In this case, the signage (Exhibit EX-1), fails to adhere to the standards laid out by the British Parking Association (BPA). The BPA code of Practice says, “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand”. It also states that “Signs play an important part in establishing a parking contract” with the driver.

11. It is therefore denied that I entered a legally binding contract as the signage was neither legible nor plentiful.

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

12. 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 be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach. (see Exhibit EX-1)

13. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. 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 any 'concealed pitfalls or traps'.

14. In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs (see Exhibit EX-1), have vague/hidden terms and a mix of small font and are considered incapable of binding a driver. (see Exhibit EX-4 for paragraphs of ParkingEye v Beavis).

Consequently, it remains my 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. It was unsurprising that she did not see the sign, 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).

15. 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."

If Claimant alleges that signs were adequate, it is my position that the signs and terms the Claimant is relying upon were not clear (see Exhibit EX-1), and were in fact, unfair and the Beavis case is fully distinguished.

POFA and CRA breaches

16. 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').

17. 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.

18. 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. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. 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 dealing and good faith.

Lack of landowner authority evidence and lack of ADR

19. 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 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.

20. I further aver that the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals 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.

Abuse of process - the quantum

SAME AS BEFORE

 

CPR 44.11 - further costs

33. I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

34. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

35. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)… are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing… a sum not exceeding £95 per day for each person.

 

 

Statement of truth:

 SAME

Coupon-mad

Remove this heading:
"The facts as known to the Defendant:"

...and please now re-post the missing bit that is headed 'abuse of process' because we can't tell if you've removed all the outdated stuff about the Southampton case et al, and have you now got the more relevant Excel v Wilkinson as an exhibit?

1505grandad

"5. The alleged contravention occurred in February 2018."

"9. I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 6 - October 2015 section 18.3"

A heads-up  -  you should be using/quoting BPA CoP V7 dated January 2018