Court Claim for 15 minute duration in car park

donthurtmenomore

37. 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.

38. 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.

39.  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).

40. CRA Breaches

41. 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.

42. 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.

43. 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).

44. 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-11)

The Beavis case is against this claim

45. 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-12) - set a high bar that this Claimant has failed to reach.

46. 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-13) for paragraphs from ParkingEye v Beavis).

 

Hidden Terms:

47. The £100 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

48. 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.

49. The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

50. 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



-continued 

donthurtmenomore

Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

51.  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.

52.  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. 

 

53. 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 defence 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.

Signature:

Date:

Intended exhibit list:
Exhibit xx-01 Ref. E7GM9W44 Civil Enforcement Limited v Chan
Exhibit xx-02 K3GF9183 (Parallel Parking v anon)
Exhibit xx-03 January 2023 District Judge Sprague
Exhibit xx-04 Manchester District Judge McMurtrie and District Judge Ranson 
Exhibit xx-05 food order receipt for 04-July-2024
Exhibit xx-06 Jopson v Homeguard [2016] 9GF0A9E
[exhibit xx-07] email from hotel dated 19-Oct-2023
Exhibit xx-08 email from hotel dated 23-Oct-2023
Exhibit xx-09 Excel v smith transcript
xx-10 VCS v Edward transcript.
xx-11 Excel v Wilkinson
xx-12 Beavis case warning sign
xx-13 Paragraphs from ParkingEye v Beavis

LDast

CEL v Chan and the other cases you have quoted in the preliminary statement don't apply to this case as the PoC do contain a very concise statement of facts although they do not fully comply with other parts of CPR 16.4.

donthurtmenomore

Also now included:
Redacted version of the claimant's response to defence.

Coupon-mad

Remove the Preliminary Matter and all the stuff about Chan.  The claim has been clearly pleaded plus followed by a reply to defence.

You don't appear to have included what I reminded you to include and wrote for inclusion in your WS earlier today.

You've copied an old example because there is no ban yet:

" With the DLUHC's ban on the false 'costs' "

REMOVE that but use that exact sentence as keywords to search the forum, to see the exact same comment made to dozens of posters this year, who re-wrote their draft WS accordingly. Copy what they wrote instead.

donthurtmenomore

Coupon-mad said:

Remove the Preliminary Matter and all the stuff about Chan.  The claim has been clearly pleaded plus followed by a reply to defence.

You don't appear to have included what I reminded you to include and wrote for inclusion in your WS earlier today.

You've copied an old example because there is no ban yet:

" With the DLUHC's ban on the false 'costs' "

REMOVE that but use that exact sentence as keywords to search the forum, to see the exact same comment made to dozens of posters this year, who re-wrote their draft WS accordingly. Copy what they wrote instead.

Thanks, will rework later this afternoon. I thought I had included the point you mentioned in paragraph 24, but perhaps I could spell it out better.

1505grandad

"Statement of Truth

I believe that the facts stated in this defence are true."

Make sure you state the correct doc in SoT.

Le_Kirk

You are writing a witness statement and it should be in the First Person, therefore "I" did this and that, NOT "the defendant"

donthurtmenomore

Link to draft witness statement:

https://www.dropbox.com/scl/fi/u7ec0atsi0q2ew2pjcuay/2024-09-04-ParkingEye-REDACTED-defendant-Witness-Statement.pdf?rlkey=6ux7h0uxrr8hopxue5uqoghmc&st=yw013zby&dl=0

Key Changes:
-Removed preliminary matter section and references to Chan
-Replaced references to defendant to first person.
-SOT - replaced "defence" with "witness statement"
-Added paragraph 15 and an associated exhibit showing that the car park entrance signage doesn't clearly state terms or the parking charge. Although this is from Google streetview dated August 2022, the signs here are consistent with the parking signage that Parking Eye submitted as part of their reply to defence.
-Added paragraph 18, 19, 21 to explain on unfair costs being added.
-Edited conclusion paragraph 47 to reference DLUHC impact assessment rather than a ban which has not happened yet.

-Added table of contents and exhibits

Defendant cost assessment added - is there a Cap on costs that can be claimed? I seem to remember seeing it in a post, but can't find a reference anymore.

donthurtmenomore

I have an accompanying witness statement from the driver's point of view. It doesn't add any new information, but does provide corroboration of my witness statement:

https://www.dropbox.com/scl/fi/i7ap2rwky8o8tiathubdj/2024-09-04-REDACTED-ParkingEye-Witness-Statement-Driver.pdf?rlkey=wrjf3pj05ugiibypqirscuzc9&st=0939ffv9&dl=0