Excel Parking + ELMS Legal - Claim form from Money Claims Online received

Coupon-mad

No idea what the CCBC are doing but the ball is in Elms Legal's court and they'll tell the court it hasn't.  No action needed by you.

Lokisan88

As expected Excel are informing that Elms are no longer representing them  

Letter from Excel asking for £195, how kind of them!
Again, I will just file it.

Is looking like it's going in the right direction

Lokisan88

Hello again,

I've received the court documents with the court date. It will be a video conference call on the 7th of March.

On the front page of the documets it states that I have to produce a WS by no later than 4pm on 31 January 24, but on their instructions booklet attached it says to produce a WS no later than 28 days before the final hearing. Shall I stick to the deadline stated on the court documents?

In any case I will start working on it as soon as possible regardless.

KeithP

Yes.                           

Coupon-mad

You MUST obey a court Order. Not a leaflet!

Lokisan88

I have redacted my WS stating the events (1-7), cited a few point of the IPC Code of Practice (12) and added a few sections from a WS from @Coupon-mad from August 2023 that seemed relevant to my case (8-11, 13-28 and 31-37). I have left 29 and 30 to debate the Claimant's WS if it comes on time.

Questions:
- can I use ANPR photos to prove the car park is not lit or is best to use my own(the ANPRs are a lot darker than mine)?
- on Coupon-mad WS, on point 31 it shows "see exhibit XX", what should I put there? It refers to Excel v Wilkinson  
- when I mention previous cases, Code of Practice and DLUHC Code (with IA draft) do I have to provide a copy of each in the bundle? If yes what should I include? Just the relevant parts?
- since I mentioned that my partner was present, do I need to do anything about that? Or is it better not to include them as not relevant for my defence?
- should I state mine and my partner profession since we both are part of the Allied Health Professionals working for the NHS?

In the County Court at xxxxx

Claim Number: xxxxxx

 

 

 Excel Parking Services Ltd                           (Claimant)

V

xxxxxxxxxxxxxxx                                (Defendant)

WITNESS STATEMENT OF DEFENDANT FOR VIDEO CONFERENCE HEARING ON xx/xx/xxxx

 

1.     I, Mr. xxxx, (profession) of (address) 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 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:

Facts and sequence of events

3.     On November 24, 2022, at 19:20:58, I entered County House Car Park with my partner. It was nighttime, and the road leading to the car park was busy, with cars parked on the left-hand side of the pavement, typical for that time of night. Entering from a 30mph road, I could not safely stop the car to read the small signage at a sharp angle on either side of the entrance. The signs contain a lot of information in a minuscule size (see exhibit AM01). Inside, the car park was not illuminated (see exhibit AM02), making it challenging to see any signs from inside the vehicle. Since it was full, I waited for 10 minutes inside the car, without parking it, and eventually exited at 19:31:42 without finding a parking spot. I didn't notice any well-lit signs indicating ANPR cameras or mentioning a consideration period during my exit (see exhibit AM03). Had this been clear to me, I would have never waited more than the consideration period in order to avoid a PCN.

4.     Additionally, the only sign inside the perimeter of the car park is not lit. It is crammed with information written in tiny letters and is placed far from the exit. This makes it impossible to be read while in a moving vehicle at night. (see exhibit AM04).

5.     After receiving the PCN a month later, on the 23/12/2022 (see exhibit AM05), I started the appeal process to the parking company first and to the regulatory body, IPC, after. The appeal process felt to be biased toward the parking company from the beginning. It took over a month to come to the complete dismissal of my arguments without ever being addressed.

6.     On the 25/04/23 I received a demand for payment from the claimant inflating the original fee by an additional £70, justifying it as “debt collection costs”, with the total amounting to £170 (see exhibit AM06).

7.      Subsequently, I received a few intimidating letters threatening court proceeding (see exhibit AM07 and AM08) and demanding payment of the inflated balance.

Exaggerated claim

8.     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.

9.     I say that fees were not paid out or incurred by this Claimant, who is put to 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.

10.   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.

11.   I will mention again, as in my defence, a quote from The Department for Levelling Up, Housing and Communities ('the DLUHC') published in its statutory Parking Code of Practice on 7th February 2022:

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."

12.   The International Parking Community (IPC) Code of Practice, of which the Claimant is a member, includes the following which supports my case:

(i)    13.1 Motorists must be allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land;

(ii)   15.1 Parking Charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/or other documentation

(iii) Schedule 1 – Signage: If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting.

13.   The Claimant has submitted no evidence regarding a consideration period. A contract to park by conduct cannot be formed unless there is a consideration period to discover, read, understand and accept the contract.

14.   The Defendant maintains that the car was stopped for a very brief period of time consistent with a consideration period, and never left unattended which the Government's definition shows is not 'parking' and I moved from the private land, thereby signalling that I did not accept any contract (if such were to exist and be valid - but no such contract was seen or in view).

15.   In support of point 14 is useful to mention 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage and the event did not classify as 'parking'. The judge also stated that in any case £100 was not likely to be a true pre-estimate of loss. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

16.   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

17.   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 and argue against the efficacy of the inflated sum to act as deterrent.

18.   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.

19.   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.

20.   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'.

21.   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.

22.   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.

23.   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 breaches

24.   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.

25.   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.

26.   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).

ParkingEye v Beavis is distinguished

27.   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 AM09 - set a high bar that this Claimant has failed to reach.

28.   In the present case, the Claimant has fallen foul of those tests. 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 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".

Observations re this Claimant's Witness Statement

29.

30.

Lokisan88

31.      Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (see exhibit XX).

32.      I have found that parking Defendants are often ambushed by 'Chaplair v Kumari' but that case has no application in my case. To pre-empt this: Kumari concerns a lease where both parties signed/agreed a contract and knew about the terms. Completely different to predatory ticketing, unclear terms and pitfalls/traps set up by ex-wheel clampers and firms of their type, to catch out drivers in car parks.

33.      Similarly, my research has revealed that parking Claimants often cite 'One Parking Solution v Wilshaw' (a flawed judgment, wrongly missing the point whereby the DVLA requires mandatory landowner authority in parking cases, but it was a unique site where OPS had title in the land and were held to be 'tenants-at-will, unlike in this case).  That case seems to be used to mislead courts into thinking that no landowner contract is required (relying on an old and inapplicable 'I could sell you Buckingham Palace' argument). Quite the contrary.  Landowner authority is always required in these cases because it is a prerequisite of the DVLA KADOE rules before keeper data can even be obtained. The DLUHC Code reiterates this and it will be effectively cemented as a statutory requirement.

Conclusion

34.       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.

35.      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.

36.   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.

37.      Attention is drawn specifically to the (often-seen) 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 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

see exhibit XX", what should I put there?

Like your other Exhibits: AM and the next number.

Lokisan88

Coupon-mad said:

see exhibit XX", what should I put there?

Like your other Exhibits: AM and the next number.

Sorry, my question propbably wasn't very clear. What I'm asking is what kind of exhibit should I present at that point? Do I have to find the case and present it as exhibit or just the line supporting my point? I found a thread for this here https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2

If that's the case do I have t do it for all of the court cases that I'm citing in my WS? Or can I omit the most recognised one like Baevis? 

Le_Kirk

In the exemplar witness statements, such as @vincentvega27 you will find at pages 28, the full court judgment and transcript for Wilkinson.