Parking court claim

Coupon-mad

And also from their defence:

"The Defendant is using a generic defence which can be found on the internet and it is highly doubtful that the Defendant would understand the complexities of all the references of the Civil Procedure Rules etc"

All the way I am feeling that I am in sh*t

Errr no.  This puts them in the sh*t.

Please just search the forum for that wording...

Castle

LDast said:

Goodprof said:

The Claimant always say that they won't be attending. They will however send a "rent-a-rep" from some local firm who will have little to no idea about the claim.

Regarding the slanderous claim about the 'generic internet defence' and the witnesses assumption that the claimant  is some sort of bumbling yokel who is unable to understand it all, that is up to you whether you want to respond to that claim. Personally, if they'd put that in a WS to a claim I was defending, I'd be submitting a SWS asking the court to have the claimants WS struck out for that slanderous assumption which is tantamount to unreasonable behaviour. Their witness has no idea who you or I are and what level of education we have achieved and whether we are able to understand the legal process or not.

I think you meant Defendant; we already know what the claimant is.

Coupon-mad

Castle said:

LDast said:

Goodprof said:

The Claimant always say that they won't be attending. They will however send a "rent-a-rep" from some local firm who will have little to no idea about the claim.

Regarding the slanderous claim about the 'generic internet defence' and the witnesses assumption that the claimant  is some sort of bumbling yokel who is unable to understand it all, that is up to you whether you want to respond to that claim. Personally, if they'd put that in a WS to a claim I was defending, I'd be submitting a SWS asking the court to have the claimants WS struck out for that slanderous assumption which is tantamount to unreasonable behaviour. Their witness has no idea who you or I are and what level of education we have achieved and whether we are able to understand the legal process or not.

I think you meant Defendant; we already know what the claimant is.

              

Goodprof

Started to draft WS. Would be apprecieate if you could help with formulation or if I need to add or remove something

   

3.    On xxx, I visited “school name” dancing school for the class for 1 hour, which is located in "Business Centre Name" that allows to visitor to park on the stated parking.

4.    It was a night time and the car park had poor lighting (See Exhibit 1) that makes it difficult to find and read the parking rules. I can assure that there was even less light on the time of parking, and as you can see the photograph was maked with a flash. Also the main sign on the main entrance was on the ground detached from its established place (See Exhibit 2) which reduces the chances of seeing it.

5.    It says that I must supply my full and correct vehicle registration number to the reception desk within 10 minutes of arrival on site (See Exhibit 3), but as it was out of business hours I can declare responsibly that no one was present at the reception desk at that time and I was unable to contact anyone at this case. The claimant confirms that  a daily pass can be requested from the Main Office during working hours only in their response to my appeal (See Exhibit 4)

6.    The “school name” dancing school's staff haven’t been informed about parking policy and couldn’t provide the permission for their visitors.

7.    A windscreen PCN was placed on the car (See Exhibit 5)

8.    The “school name” dancing school staff have tried to help to resolve the dispute providing unreliable information, including the information in my appeal (See Exhibit 6) where I have mentioned that I am their staff, which is not true but which I followed thinking they know better.

9.    I have received a reply from National Parking Management where it says that a daily pass can be requested from the Main Office during working hours only (as I mentioned above) or obtaining a pass from “school name” (See Exhibit 3), but no one could help me with this.

10.  I was placed in a stalemate between two companies and after “Razzle Dazzles” assurance that they will resolve everything, I just had to wait, and that was a result of this case.

A bit worrying, because the story a bit conflicts with my defence

Coupon-mad

I think that's fine, and it doesn't conflict with the defence.  Seems quite consistent.

Typo here:

photograph was maked with a flash. 

should be:

photograph was taken with a flash.

What other exhibits are you using? All the ones listed in the NEWBIES thread a-f list of exhibits?

Whose WS did you base this on? Which one are you copying for the second half?

Goodprof

Coupon-mad said:

I think that's fine, and it doesn't conflict with the defence.  Seems quite consistent.

Thank you for your help, thats really important for me

Coupon-mad said:

What other exhibits are you using? All the ones listed in the NEWBIES thread a-f list of exhibits?

Whose WS did you base this on? Which one are you copying for the second half?

Going to copy from one of the cases found here. 

Something like this

Will post here the final WS before sending it.

Coupon-mad said:

Anyway, something urgent for you, and it is in your interests:

As you appealed and they refused to cancel it and sued you instead, please earn yourself £60 and help regulate the parking industry.

Short notice but do the survey now (and then a short & friendly video call next week) to tell the Government's consultancy outsourced firm your experience of 'appealing' and being told to get lost:

https://forums.moneysavingexpert.com/discussion/6528490/official-dluhc-paid-research-have-you-ever-appealed-a-parking-charge-notice#latest

URGENT - help us push the regulation of the parking industry and new appeals service over the line.

There should be appeal (ADR) available at ALL stages to keep cases out of court.  Your experience would be useful for the research. 

I will be v grateful if people pleeease take part in the research if you have tried to appeal,  As long as the link is still working, the research survey is working. The online calls are going on for two weeks, into June.

They particularly want a diverse group if respondents including different ages abd people for whom English isn't their first language.

Ok, will have a look when I finish WS, thanks.

Goodprof

xxx

Claimant

V

xxx

Defendant

 

 

WITNESS STATEMENT OF DEFENDANT

 

1.    I am (name) of (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 (See Exhibits 01-11) 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 is now a persuasive Appeal judgment 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.    A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16.On the 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'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4. (See Exhibit 01)

 

5.    Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit 02)

 

6.    Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit 03)

 

7.    Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit 04)

 

 

8.    The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking Claimant knowingly breaching CPRs.

 

Facts and sequence of events

 

9. On xxx, I visited “(school name)” dancing school for the class for 1 hour, which is located in (business park name) that allows to visitor to park on the stated parking.

 

10. It was a night time and the car park had poor lighting (See Exhibit 05) that makes it difficult to find and read the parking rules. I can assure that there was even less light on the time of parking, and as you can see the photographs were taken with a flash. Also the main sign on the main entrance was on the ground detached from its established place (See Exhibit 06) which reduces the chances of seeing it.

 

11. It says that I must supply my full and correct vehicle registration number to the reception desk within 10 minutes of arrival on site (See Exhibit 07), but as it was out of business hours and I can declare responsibly that no one was present at the reception desk at that time and I was unable to contact anyone at this case. The claimant confirms that a daily pass can be requested from the Main Office during working hours only in their response to my appeal (See Exhibit 08), rendering compliance impossible..

 

12. The  “(school name)”  dancing school staff haven’t been informed about parking policy and couldn’t provide the permission for their visitors.

13. A windscreen PCN was placed on the car. (See Exhibit 05)

14. The “(school name)” dancing school staff have tried to help to resolve the dispute providing unreliable information, including the information in my appeal (See Exhibit 09) where I have mentioned that I am working for  “(school name)”. Although I wasn’t their stuff I should mention now that I was a candidate. However it does not make any difference, because the parking is free for all, the staff and for other visitors.

 

15. After my appeal I have received a reply from xxx(Claimant) (See Exhibit 08) where it says that a daily pass can be requested from the Main Office during working hours only (what I mentioned above). They also stated that it could be done obtaining a pass from “(school name)”, but I was unable to find this information anywhere else and dancing school didn’t confirm that.

 

16.  I was placed in a stalemate between two companies and after “(school name)” assurance that they will resolve everything, I just had to wait, and that was a result of this case.

 

CRA breaches

 

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 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.

 

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. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

 

19. 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).

 

The Beavis case is against this claim

 

20. 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 10 - set a high bar that this Claimant has failed to reach.

 

21. 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 11 for paragraphs from ParkingEye v Beavis).

 

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

 

(i). Concealed pitfall or trap:

 

The signage in this case required customers to supply their vehicle registration number to the main reception desk. However, the office was out of hours on the time I was visiting the business centre, rendering compliance impossible.

 

(ii). Hidden Terms:

 

The main sign on the entrance was detached from its established place making it inaccessible. The car park’s poor lighting makes it difficult to find and read the parking rules during the night time. The purported added (false) 'costs' are 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

 

23. 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.

 

24. 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.

 

25. 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))."

 

26. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. 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.

 

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:

Could it be something like this? Havent added anything about defendant's expencies, not sure if I need so. Also not sure about all of the references due to my specific case. Tryed to adapt 22 paragraph to my case.

Coupon-mad

The lower bit is out of date as you say "With the DLUHC's ban on the false 'costs" which is in fact suspended for review.

Did you use one of the 5 linked exemplars? Go back to the NEWBIES thread and change the bottom half to match a more recent one that doesn't say the DLUHC has 'banned' the DRA fee.

Goodprof

Yes, this is taken from one of the 5. Links for some of them are not available anymore. 

Can I just remove 26 paragraph then? Will have a look again this afternoon.

Goodprof

Checked the pictures again and not sure now if I can say that the lighting conditions have been insufficient. What do you think? Should I delete it from WS?