County Court Claim Form - MET Parking via DCB Legal

1505grandad

"3.       The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim ........."

Pedantic suggestion  -  as there are two cases involved amend the above to:-

"3.       The Defendant draws to the attention of the court that there are now two persuasive Appeal judgments to support striking out the claim ...."

Denji11

Thanks again will correct these comments later today.

Just had a missed call and voicemail from DCB and an email... 

"DCB legal, ringing to discuss the file you've got with us, please call back" 

Email: Another settlement offer, this time another £100 less than the previous...

Are they flapping? This seems to follow the exact steps as per:

• Phone call from DCB Legal to defendant - Yes
• Email to defendant from DCB Legal with 'Without Prejudice Offer to Settle' - Yes  (Second one now with further reduction" 
• If no response from/refusal by defendant, email from DCB Legal - 'Notification of Discontinuation' - No
• Confirmation of discontinuation from the court follows - No

Coupon-mad

It is coming! Show us the actual NoD when it arrives (not the covering email).

Denji11

Hello again,

Draft 3 WS below. 

Should I also update it to be either first or third person ? 

MET Parking Services LTD (Claimant)

V

XXX XXX (Defendant)

 

Witness Statement of Defendant

 

1.       I am XXX, (ADDRESS) 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 1-11) 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 are now two persuasive Appeal judgments to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

4.       The first recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref.E7GM9W44) would indicate the POCs fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. (See Exhibit xx-01)

5.       The second recent persuasive appeal judgment in Car Park Management Service Ltd v Akande(Ref. K0DP5J30) would also indicate the POCs fail to comply with Part 16. On 10th May 2024, in the cited case, HHJ Evans held that 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim'. (See Exhibit xx-02)

6.       The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

 

Facts and Sequence of events

7.   On each of the dates my vehicle was parked at xxxxxxxx , directly adjacent to the then xxxxxxxxx construction site. I was working at the construction site at the time along with numerous other site workers. There was no on-site car park for site workers.

8.   I arrived very early each day, typically around 6:00–6:30am and left 5:30-6:00pm when it was pitch black winter darkness. This is important because any signage relied upon by the Claimant would have needed illumination to be visible. None were illuminated.

9.  A large number of site workers, including myself, routinely parked in the same area opposite the construction site. This created a reasonable assumption that parking there was permitted or tolerated. Tickets did not appear every day, and it was not clear when or why tickets were sometimes issued and sometimes not.

10. At the same time, it was widely known among workers that on certain days some vehicles received tickets in that area. The environment was chaotic, with vehicles arriving in darkness from around 6am and many leaving after 17:00. I personally observed occasions where tickets placed on vehicles were removed by unknown individuals, thrown onto the ground, or even placed onto other vehicles. Workers frequently discussed this happening. This created significant uncertainty about whether a ticket seen on a vehicle at an early time actually remained on that vehicle throughout the day.

11. In my own case, I do not recall tickets attached to my vehicle at the end of the working day (typically 17:30). Had I seen one, I would have stopped parking there immediately. The Claimant relies only on photographs timestamped in the morning, before midday, and has provided no evidence that a Notice remained on the vehicle when I returned to it. Based on the conditions at the site and the observed interference with tickets, I dispute that any Notice was effectively served or that the ticketing they rely on reliably demonstrates a genuine parking contravention.

 

Inadequate and Unlit Signage

12.    On all three dates, it was too dark to see any signage. Any signs that later appeared in the Claimant’s photographs were taken in bright daylight. Even in the day time, it is clear that the signs have no illumination in darkness and with very small-font. There is also evidence that a single lamppost was the only source of light which is located nowhere near the tiny signs. (See Exhibit xx03)

13.   Using Google maps, I was able to view signage at the car park from 2016 to 2022 proving no change in signage across that period. The photos also show how the signs would have looked from a vehicle which is near impossible to read all the text-heavy information. (See Exhibit xx04)

14.    I do not recall seeing any sign that resembled clear contractual terms. The font on the signs was extremely small, and in darkness it was impossible to read any text at all. (See Exhibit xx05)

 

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

15.    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.

16.    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.

 

17.    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 and lines.

(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;

 

18.    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

19.    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.

 

20.    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.

 

21.    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).

 

22.    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-06)

 

The Beavis case is against this claim

23.    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-07) - set a high bar that this Claimant has failed to reach.

 

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

 

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

(i). Hidden Terms:

The 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

 

26.    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.

  

27.    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. 

 

28.    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:

 

 

Coupon-mad

Very good! I was only really able to skim-read it but it all seems relevant to your case.

1505grandad

An observation  -  "2    In my statement, I shall refer to (Exhibits 1-11) "  -  I could only see reference to 8?

Le_Kirk

Witness statements are written in the first person as you are the witness; you seem to have a mix of both.

Denji11

Thanks again all for your comments and assistance. Final version below ready to be submitted tomorrow/Thursday. 

Just two questions;

1. Where is the best place to find all the mentioned exhibits ? Within this forum? 
2. I've added a bit more to 27.b costs due to how long this has been going on for (7 Years!) Please let me know if its OK? 

 

MET Parking Services LTD (Claimant)

V

XXX XXX (Defendant)

 

Witness Statement of Defendant

 

1.       I am XXX, (ADDRESS) 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 1-8) 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.       I draw to the attention of the court that there are now two persuasive Appeal judgments to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

4.       The first recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref.E7GM9W44) would indicate the POCs fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. (See Exhibit xx-1)

5.       The second recent persuasive appeal judgment in Car Park Management Service Ltd v Akande(Ref. K0DP5J30) would also indicate the POCs fail to comply with Part 16. On 10th May 2024, in the cited case, HHJ Evans held that 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim'. (See Exhibit xx-2)

6.       I believe the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

 

Facts and Sequence of events

7.   On each of the dates my vehicle was parked at xxxxxxxx , directly adjacent to the then xxxxxxxxx construction site. I was working at the construction site at the time along with numerous other site workers. There was no on-site car park for site workers.

8.   I arrived very early each day, typically around 6:00–6:30am and left 5:30-6:00pm when it was pitch black winter darkness. This is important because any signage relied upon by the Claimant would have needed illumination to be visible. None were illuminated.

9.  A large number of site workers, including myself, routinely parked in the same area opposite the construction site. This created a reasonable assumption that parking there was permitted or tolerated. Tickets did not appear every day, and it was not clear when or why tickets were sometimes issued and sometimes not.

10. At the same time, it was widely known among workers that on certain days some vehicles received tickets in that area. The environment was chaotic, with vehicles arriving in darkness from around 6am and many leaving after 17:00. I personally observed occasions where tickets placed on vehicles were removed by unknown individuals, thrown onto the ground, or even placed onto other vehicles. Workers frequently discussed this happening. This created significant uncertainty about whether a ticket seen on a vehicle at an early time actually remained on that vehicle throughout the day.

11. In my own case, I do not recall tickets attached to my vehicle at the end of the working day (typically 17:30). Had I seen one, I would have stopped parking there immediately. The Claimant relies only on photographs timestamped in the morning, before midday, and has provided no evidence that a Notice remained on the vehicle when I returned to it. Based on the conditions at the site and the observed interference with tickets, I dispute that any Notice was effectively served or that the ticketing they rely on reliably demonstrates a genuine parking contravention.

 

Inadequate and Unlit Signage

12.    On all three dates, it was too dark to see any signage. Any signs that later appeared in the Claimant’s photographs were taken in bright daylight. Even in the day time, it is clear that the signs have no illumination in darkness and with very small-font. There is also evidence that a single lamppost was the only source of light which is located nowhere near the tiny signs. (See Exhibit xx3)

13.   Using Google maps, I was able to view signage at the car park from 2016 to 2022 proving no change in signage across that period. The photos also show how the signs would have looked from a vehicle which is near impossible to read all the text-heavy information. (See Exhibit xx4)

14.    I do not recall seeing any sign that resembled clear contractual terms. The font on the signs was extremely small, and in darkness it was impossible to read any text at all. (See Exhibit xx5)

 

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

15.    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.

16.    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.

 

17.    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 and lines.

(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;

 

18.    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

19.    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.

 

20.    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.

 

21.    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).

 

22.    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-6)

 

The Beavis case is against this claim

23.    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-7) - set a high bar that this Claimant has failed to reach.

 

24.    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-8) for paragraphs from ParkingEye v Beavis).

 

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

(i). Hidden Terms:

The 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

 

26.    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 me, the Defendant.

  

27.    In the matter of costs, I respectfully request:

(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 and/or CPR 27.14(2)(g). This claim has been pursued in a manner that I submit amounts to unreasonable conduct. The alleged events date back over seven years, and the Claimant’s prolonged delay in issuing and pursuing proceedings has caused significant prejudice. The Claimant has also filed defective Particulars of Claim (as recognised in CEL v Chan and CPMS v Akande), forcing me to spend considerable additional time addressing procedural deficiencies. Should the Court find unreasonable conduct, I seek my litigant-in-person time costs at the prescribed rate of £19 per hour for work reasonably undertaken in the defence of this claim.

 

28.    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:

 

 

Coupon-mad

NEWBIES thread post 2.

Sometimes I think I wrote the section on WS and the recommended exhibits list for fun. Nobody bothers to read it.

That WS you have used is 3 years out of date though.

Denji11

Ah sorry I didn't think to go back there my mistake...

The entire WS is out of date?