UKPC Set Aside Hearing

Johnersh · 14 November 2023 at 10:18PM

This can be vastly improved. Paras 22-24 are just a rant and add nothing.

What is the ye factual position. Was a badge displayed and/or is the car an obviously adapted or motability car etc?

Isn't the point that the claimant sat on this case for 5 years and only then issued proceedings. Where do you make that point? Any post that they had sent was by now being returned or left unanswered. It wasn't just possible that you had moved it was in fact *more likely than not.* It is 6.9(3) that imposes a duty to take reasonable steps to search for the correct address. That the claim has gone unanswered is as a result of their failure to perform their obligations prior to issue.

Don't forget to fight the charge, the bolt ons the fact that interest is incorrectly calculated (any charges, if permitted, being engaged at different points)

Coupon-mad · 14 November 2023 at 10:34PM

As above. @Johnersh is a solicitor so follow his steer.

My point was really to say do not repeat your first WS. This isn't what we suggested. I read your draft thinking, why are you repeating all that?

Call this second one a Supplementary Witness Statement 'provided to narrow the issues, in response to the Hearing Order dated xx/xx/2023.' Keep it on point.

Then answer what the Hearing Order says. Make sure you use Johnersh's words and add CEL v Chan as well, which is a recent persuasive appeal case in a CCJ set aside parking case with poorly pleaded POC.

Chesterfield1970 · 14 November 2023 at 10:57PM

Thank you for helping me. I will take another look tomorrow after work. @Johnersh i have a blue badge but it wasn’t displayed

Coupon-mad · 14 November 2023 at 11:00PM

Chesterfield1970 said:

Thanks for your help, i know im rushing it.

Just noticed you need a draft defence too.

Le_Kirk · 15 November 2023 at 10:17AM

Are you now defending the underlying claim? Your defence should be against the POC on the original claim form and the witness statement should be backing up and supporting your new defence, it surely does not need to refer to the set-aside, which has already been granted - or am I reading your posts incorrectly?

Chesterfield1970 · 15 November 2023 at 12:14PM

HI Le_Kirk unfortunately im not sure. I have a set aside hearing in January and the above is what I am being asked to provide by the 20th?

I have reviewed the templates and examples provided and drafted the defence below but is this too much at this stage?

IN THE COUNTY COURT

Claim No.: xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant)

- and -

Defendant named on claim (can’t be changed to driver now)

(Defendant)

_________________

DRAFT DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The fact that the claimant as sat on this case for over 4 years before issuing proceedings means that the Defendant is unable or recollect, based on the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised, and it is admitted that the Defendant was the registered keeper.

3. The Defendant confirms that they are a blue badge holder due to having a disability.

4. As the Defendant has a disability and is a blue badge holder, the Defendant has protected characteristics under the Equality Act 2010 (“the Act”) and therefore has a right to park in an accessible parking bay. The Act has strict requirements and states that the Defendant is entitled to reasonable adjustments. The Claimant has failed to anticipate the needs of a disabled motorist and failed to implement any reasonable adjustments for the Defendant which is indirect discrimination.

5. The Claimant refers to the Contract in their Particulars of Claim ("POC"). The Defendant’s rights under the Act takes precedence over the Contract and therefore the Claimant is in breach of the Act. Therefore, if the Claimant is to continue this claim, it would constitute direct discrimination against the Defendant.

6. The POC are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; and (c) how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum.

7. No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either.

8. In view of it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is respectfully invited to strike this claim out."

9. 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.

10. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

11. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap). It is denied that any 'Debt Fees' or damages were actually paid or incurred.

12. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

13. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

14. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: LINK

The Ministerial Foreword is damning: "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."

15. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here: LINK

16. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

17. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

18. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent. MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it.

19. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis. 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 ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

20. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

21. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight. It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

21. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

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 from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

24. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

25. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3): LINK

26. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

27. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of 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

28. Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.

29. The Supreme Court held that 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 alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps'). This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities 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''.

30. Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t."

Lack of standing or landowner authority, and lack of ADR

31. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

32. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report). This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

33. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm. The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it. The claim is entirely without merit and the POC embarrassing. The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

34. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5.

35. Attention is drawn 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))."

Coupon-mad · 15 November 2023 at 1:09PM

This is your first hearing for your application to set aside the CCJ and hopefully see your costs back AND the whole claim dismissed.

As a 'draft defence' anything goes and that's not too much and in fact not enough because you've missed out the Chan case and transcript.

It's specially stated in my comments right there in the Template Defence itself, paragraph 3 with extra wording already linked and written. Please give me feedback as to why people keep missing it?! I don't understand why defendants keep bypassing the link in para 3 and not stating CEL v Chan first.

Think I'd add here:

35. Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. This is very common from bulk litigating parking firms after a CCJ is set aside, if the claim is not also dismissed in that hearing. ...
(The rest as template)

Chesterfield1970 · 15 November 2023 at 1:52PM

HI Coupon-mad

Thank you so much for your time and support and that of others on this board, it is appreciated.

I've added the CEL v Chan paragraph and my only thoughts are that you need to highlight or spell out that they MUST (where applicable is suppose) use the additional paragraphs contained within the link. Most people who are stretched for time will just try and get away with using your template without accessing the link, if that makes sense. I might be wrong.

I have added the paragraph as recommended and would appreciate your guidance on whether the wording in bold in paragraph 2 should remain please?

Can you also advise whether i need to complete a supplementary witness statement that covers the blue badge, the fact they have taken 4 years etc in addition to this defence please?

Chesterfield1970 · 15 November 2023 at 1:52PM