PCN LBC - Need help

Coupon-mad

The xx is your initials and a number.  Exhibit 1, 2, 3  and so on.  The Chan case is already one of the judgments linked in the a-f list of suggested exhibits, in the NEWBIES thread.

BumpyC

I don't see where the suggested exhibits are listed? I have used the 'ctrl F' search function to search 'exhibits' and see nothing listed as suggested exhibits?

Coupon-mad

Odd.  That word is the WS & evidence section of the Newbies thread second post.  You don't need to search.  It's all sequential in order of what happens when.

BumpyC

I've included these sections as these are appropriate 
(g) the IPC or BPA Code of practice, where it supports your case (e.g. grace periods) but be sure to use the RIGHT version for the date of parking.

(h) Pay & Display ticket, if the driver paid. DON'T argue 'no loss'!

(i) paras 98, 193 and 198 from Parking Eye v Beavis copied & pasted onto a single sheet.

Is this the section you were referring to?
They have specified the term breached so I haven't quoted CEL v Chan 

Coupon-mad

Yes, sounds right for an Elms Legal case.  Is this Excel or VCS?  Have you got their WS yet?  What is the case all about?

BumpyC

It's Excel, I haven't received a WS from them yet. 
I pulled into their car park to turn around and go the other way, but ended up breaking down in the middle of the car park. I arranged breakdown cover before paying for a ticket, so the ticket was purchased after the 5 minute timeframe given

Coupon-mad

What's your WS deadline?

Show us your draft. Your case sounds strong.

BumpyC

1. I am XXXX of XXXX, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2. In my statement, I shall refer to exhibits (XXX) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

Preliminary matter: The claim should be struck out

3.The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of a breakdown occurring). The Defendant believes that dismissing this meritless claim is the correct course, with the overriding objective in mind.

 

Facts and Sequence of events

8. It is admitted that on the material dates, I was the registered keeper and driver of the vehicle in question. It is known that this vehicle entered and left the car park at the stated times.

 

9. It is also known that whilst attending this car park, the car in question broke down, and was subsequently unable to move. The clutch was stuck down, and the defendant so spent a couple of minutes trying to unstick it before calling RAC to come out and look at it. (See exhibit xx-01)

 

10. After this time, a parking ticket was purchased, and the full price of the stay was paid. (See exhibit xx-02)

 

11. As soon as the RAC had been, the car left the car park immediately.

 

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

12. The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

 

13. I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and

(ii) a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

 

14. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs.

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

 

15. This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

 

16. The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here:

https://www.gov.uk/government/publications/private-parking-code-of-practice

"Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

17. Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: ttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

 

18. Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

 

24. 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.

 

25. 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.

 

26. 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.

 

27. 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.

 

28. 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.

 

29. 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).

 

CRA Breaches

30. 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.

31. 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.

32. 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).

33. 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-03)

This is so far - i was going to add Beavis next but i'm not sure if it's totally relevant? I'm going to check the car park signage this evening.

My deadline is Monday (15th) 4pm. 

Edited to add: I've attached proof of breakdown and a copy of the car park ticket that i bought

Coupon-mad

It jumps from para 3 to para 8 and paragraph 3 makes no sense (there is no such judgment).

BumpyC

The information and paragraphs have changed a lot so i haven't finished labelling everything yet - shall i just strike paragraph three out and start with facts and sequence of events?