County Court Claim for parking outside Debenhams - Parking Control Management

Coupon-mad

Fully explained in the NEWBIES thread (the deadline for WS and evidence submission by BOTH parties).

A normal stage you (in fact the Defendant company) were prepared for when you read the section under the red capitals heading 'IMPORTANT: KNOW WHAT HAPPENS WHEN'.

I see that the Defendant isn't a person but is a Ltd company.  Has a Director got to attend a hearing at the court of PCM's choice? Or is it near to you?

It looks like you haven't thought this defence through properly, as paragraph 23 above tells me that a third party individual defended this claim and not the actual named Defendant (the company).

You cannot defend this as an individual.

Are you the Director of the Ltd company?  

qwertyoffice

Sorry I sent another post straight after that I must have not submitted correctly as it is missing!

They will not be attending the court case - is this normal as I always thought that looks bad?

Yes, I made a mistake and responded as myself without explaining I am the director of the ltd company. 
Can I correct this in my WS please? 

Castle

According to Gladstones's WS, they are referring to a "parking event" which happened on 7th March 2020; but, the POC refers to a "parking event" on 16th July 2021-is there more than one claim?

qwertyoffice

Yes there are two claims for the same place - I did not want to create a new post of the same issue.
The later claim has not reached this stage yet. 

Coupon-mad

qwertyoffice said:

Sorry I sent another post straight after that I must have not submitted correctly as it is missing!

They will not be attending the court case - is this normal as I always thought that looks bad?

Yes, I made a mistake and responded as myself without explaining I am the director of the ltd company. 
Can I correct this in my WS please? 

Yes you can.

Yes it's normal. Gladstones never attend. Read some threads where cases have already been won v Gladstones.

They might send a legal rep.

It doesn't make sense if their WS is talking about the wrong parking event.  Or is it the right parking event and you showed us the other POC?

qwertyoffice

Well actually I pulled in the carpark to read the signs and all the T's and C's of parking and when I see it was a staff carpark, I went to leave but was blocked by another vehicle.  

I had the leave my vehicle to speak to the driver of the vehicle blocking my exit.
By the time I returned to my vehicle the parking officer must have taken the photos showing my vehicle was parked.
There was no PCN left on my windscreen.

The vehicle blocking me can me seen on the claimants WS.

Coupon-mad

That's a MUCH better stance.

qwertyoffice

ok deleted!

Can you advise if this WS is ok please?

 

Parking Control Management (UK) ltd

(Claimant) 

?????? Distributions ltd

 (Defendant)

_________________

WITNESS STATEMENT OF DEFENDANT FOR COURT HEARING ON 20/09/24

 

1. I am Mr ??? ????? of Billericay, Essex, and I am the director of the defendant ltd company 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 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

3. I drove to Debenhams Access Road, 27 High Street, Chelmsford CM1 1DA on 07/03/20 and pulled in the car park.

 

4. There were no signs to indicate it was a private car park at the entry point of the area.

 

5. Only after I drove into the car park, I noticed it was a staff car park after reading the small sign on the wall.
I got back in my vehicle to leave but could not reverse out as I was blocked from another vehicle.

6. I left my vehicle to speak to the driver of the vehicle blocking my exit to ask them to move, as can be seen in the evidence on the claimant's witness statement (Page 17, Image for case PC15835538).

7. By the time I returned to my vehicle the parking officer must have taken the photos showing my vehicle was parked. There was no PCN left on my vehicle's window, so I did not even know this PCN had occurred.

 

8. As soon as the vehicle blocking my exit departed, I moved my vehicle off the staff car park.

 

9. In the sparse/generic POC in this case compared to the sudden (different and accusatory) allegations in the Claimant's legal representative's witness statement, my alleged lack of intelligence was not pleaded; certainly not an embarrassing and unjustified accusation about my intelligence and ability to understand my own defence, no matter how I researched it, to which I take offence and which constitutes a personal attack and an unpleaded ambush defying any reasonable explanation.
Unjustified attacks in witness statements like this should affect costs.  It is not a paralegal's place to suddenly attack me with bald assertions and hypocritically using their own template for their Witness Statement.
Further, I ask that the Judge might consider striking out all or part of the so-called witness statement of the paralegal who has most likely never been to the car park in question.  The person making these unpleaded and unevidenced allegations is not a true witness, nor are they even an employee of the Claimant.  The court requires the witness statements of the 'parties' and there is nothing from the Claimants themselves, who are also unlikely to attend the hearing.

 

10. If the Claimant's Witness Statement is allowed to stand, and bears scrutiny at the hearing, naturally I believe that less weight should be given to it than to my own account.

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

11. 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 (Exhibit xx-01).

12. 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.

13. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests (See Exhibit xx-02 for paragraphs of ParkingEye v Beavis).

 14. In the alternative, if the Claimant alleges signage was present, I aver that the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. 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

(ii) 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 the Claimant alleges a sign was present, my position is that the signs and terms the Claimant is relying upon were not clear, 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. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver 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 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

 21. 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 wellknown 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.

22. My stance regarding this punitive add-on is 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.

 23. Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 27), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the roboclaim race to court and to side-step the £50 legal fees cap set in the Small Clams Track.

24. Adding debt recovery/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."

25. This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite

indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly

disproportionate and unincurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

26. 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."

27. 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 (also in February 2022), 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, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

 28. This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

29. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.30. These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

31. 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.

32. 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.

--- Rest deleted as too long to post ----

Coupon-mad

qwertyoffice said:

It was for parking in the Debenhams staff parking in Chelmsford back in July 2021.
They closed down in May that year 

Just reminding us all of the POC above.

Remove para 23 onwards (yes all of it that you have shown) as it is very wordy, probably a verbatim repeat of your defence(?) and it's out of date because there is no ban (yet) on adding the extortionate £70 'contractual costs' even though you should append the Excel v Wilkinson transcript to make the point that the add-on is disproportionate double recovery  

Add before your 'sequence of events' section this, under a sub-heading:

Preliminary Matter:

3. It is my contention as Director of the Defendant company, that the claim should be dismissed for one or more of the following reasons:

(a) the Particulars of Claim ('POC') fail to plead the conduct which allegedly caused a parking charge to arise. No location town is given, no breach or terms are specified and it has not been pleaded whether or not the Claimant is relying upon the Protection of Freedoms Act 2012, Schedule 4 ('the POFA'), despite it being impossible that a Limited company Defendant can be presumed to be 'the driver'. The Claimants can only use the POFA in this case but that law is not even specified in the POC, hence my confusion. This is why I defended it in my name because I could not understand from the POC, the basis of claim or liability sought. Two persuasive claim Appeal cases - Civil Enforcement Ltd v Chan and Car Park Management Service Ltd v Akande both confirm that poorly pleaded parking claims such as this should be struck out (see both transcripts in Exhibit xx1). 

(b)  Whilst the Claimant's purported Witness Statement attempts to now (too late) specify information which was not in the POC, this is both an ambush and is not a statement of fact from 'the party' (as was required by the Hearing Order).  As is explained in more detail in paragraph x below, the signatory is not a 'witness' and will not turn up at the hearing, so their bundle is hearsay at best. There is effectively no witness statement from the Claimant.

(c). Because the Defendant is a Limited company and cannot have been the driver (even though I will be heard to say that I was, I am not the Defendant named 'person' and the case is not brought against me personally) the Claimants have the burden of showing that they fully complied with the applicable law for 'keeper liability'. They did not comply with the POFA, thus there is no legally possible cause of action against the Ltd company. There was a lack of 'adequate notice of the parking charge' no fair grace period was allowed for the circumstances and there was not even a 'parking period' because I was in slowly moving traffic, trying to leave. Therefore, there is an absence of a 'breach of a relevant obligation or contract' which is a pre-requisite condition of the POFA.

(d). Further, given that Debenhams had closed months before 16th July 2021 (a date which was during the third UK COVID lockdown) even if there was a purported requirement on an unseen old sign (and I'm having to guess) to display a 'staff permit' then this term was out of date and void for impossibility.  I could not comply (no driver could, as there were no Debenhams staff by then) which is why I left immediately, without accepting a contract. The Claimants boilerplate non-witness solicitor's statement addresses none of this.  There was no contract, no possible obligation in July 2021 and no breach.

Coupon-mad

Also remove the sub-heading

Abuse of process - the quantum