DCB legal claims form- Bank Park (oxford road reading)

youngillion

I, xxxxxxx, of xxxxx, state as follows: -

1. I am a Director, employed by Bank Park Management Limited (“my Company”). I am duly

authorised to make this Statement on my Company’s behalf.

2. I make this Statement in support of the Claimant’s Claim and in response to the Defence.

3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise.

I believe them to be true. Where I refer to information supplied by others, the source is identified.

Facts and matters derived from other sources are true to the best of my knowledge and belief.

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Parties

4. My Company provides private car park management services to private landowners, to manage the

way motorists are permitted to park on their private land. My Company does so by issuing parking

charge notices to any vehicle parked in a way the landowner does not permit.

5. The Defendant is the recipient of a parking charge notice (“PCN”) issued by my Company. The

details are set out herein.

Accreditation

6. At all material times, my Company was accredited by the Accredited Trade Association (“ATA”)

known as the International Parking Community (“IPC”). The IPC has a Code of Practice (“Code”)

that its members are expected to adhere to, or otherwise face potential sanctions. My Company

operates in accordance with the Code

7. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency

(“DVLA”) my Company must be a member of an ATA. It is therefore essential for my Company to

comply with the Code.

Background

8. My Company issued a PCN (“Charge”) to the Vehicle (“Vehicle”) with details listed below:

PCN No. Location (“Land”) VRN Issue Date Reason for Issue

RG30 1AP

 26/03/2023 Failure To Claim Free

Parking Session

9. At the time of issue, my Company was instructed by the owner of the Land (“Landowner”) to

manage parking on the Land. A copy of my Company’s agreement with the Landowner (“Landowner

Agreement”) is exhibited to this Statement at “EXHIBIT 1”.

10. I refer to the decision in One Parking Solution Ltd v Wilshaw [2021] (“Wilshaw”) whereby it was

found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a

valid cause of action to recover the PCN, what is required is proof that there is a binding contract

between the Claimant and the Defendant. Further, it was found in Wilshaw that the contract between

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the Claimant and the Freeholder (Landowner) does not affect the validity of any contract between the

Claimant and the Defendant.

Contract

11. At the time of issue, my Company was prominently displaying signs on the Land setting out the

Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”.

The signs formed the basis of the Contract with the driver (“Contract”).

12. The following was a term of the Contract: -

“30 minutes free (with a ticket from machine).”

“ If you are claiming your free 30 minutes of parking ensure to enter your vehicle registration into

the machine within 15 minutes of entering the car park.”

13. In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being

the Consideration. It is evident from the photographic evidence exhibited to this Statement at

“EXHIBIT 3” that the driver entered the Land at 15:56 and exited at 16:22. As per the pay and

Display Ticket Log (“PDT Log”) at “EXHIBIT 4”, the driver failed to obtain a ticket from the

machine to cover their 30 minutes free parking. As such, the Terms of the Contract were breached.

14. The Contract provides that a charge is payable by the driver upon breach, with payment falling due

within 28 days.

15. A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at

“EXHIBIT 5”.

16. A copy of the Notice to Keeper and Reminder Notice is exhibited to this Witness Statement at

“EXHIBIT 6”.

Defendant’s Liability

17. Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.

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18. My Company uses Automatic Number Plate Recognition (“ANPR”) technology on the Land to

manage the parking. Cameras capable of accurately recording vehicle registration numbers are

constantly monitoring the entrance and exit to the Land. A photograph is taken of each vehicle as it

enters and exits the Land. Any vehicle found to have breached the Terms of parking will be issued

with a PCN.

19. In order to issue a PCN, my Company requests the details of the Registered Keeper from the DVLA

to send notices compliant with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). Upon

receipt of those details, Notice is sent to the Keeper via the post in accordance with paragraph 9 of

POFA. The Notice to Keeper is followed up with other reminder notices. Copies are with “EXHIBIT

6”.

20. The Defendant does not dispute being the Driver or Keeper of the Vehicle. My Company reasonably

believes that the Defendant was the Driver, because they would otherwise have nominated a driver,

and therefore the Defendant is pursued on that basis. My Company has complied with POFA and can

pursue the Defendant as Keeper in the alternative.

Defence

21. The Defendant was afforded a 21-day period in which they could appeal. An appeal was lodged

which was unsuccessful. A copy of the appeal and response issued is exhibited at “EXHIBIT 7”. The

Defendant was able to submit a second appeal to the ATA’s appeals service and it is accepted that

they did so. I can confirm that the Defendant’s successful appeal was also unsuccessful.

22. The Defendant has filed a widely available templated Defence, rather than dealing with the

substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my

Company’s time.

23. Notwithstanding the above, I respond to the issues raised in the Defence by way of sub-headings as

follows (as the defence is quite repetitive, I will only deal with each point once, but for the avoidance

of doubt nothing within the defence is accepted unless I specifically state otherwise): -

The Contract

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i. The Defendant alleges that there is no contract between them and my Company. It is my

Company’s position that there is and the details of which are set out above. Parking Eye -v-

Beavis established that this form of contract is perfectly workable.

Defendant’s Allegations

ii. The Defendant alleges that they parked in a bay they believed to be for customers of Subway.

Respectfully, the signs make it clear that the Land where the Defendant parked was private

and subject to parking restrictions. Regardless of whether or not the Defendant parked on the

Land to go to Subway, it is submitted that they are still required to adhere to the Terms of the

Contract. The evidence shows that they did not and I therefore submit that the Defendant

remains liable for the PCN.

iii. The Defendant alleges that the Land is not adequately sign-posted and that the signs fail to

indicate that ANPR technology is in use on the Land. This is denied. The signs at “EXHIBIT

2” clearly state the following: -

“Parking enforcement in operation ... CCTV and ANPR technology in use”

iv. The Defendant is reminded that the onus is upon them to familiarise themselves with the

Terms and Conditions on the Land before parking their Vehicle. Had the Defendant taken the

time to do this, they would have been well aware that ANPR technology was in use on the

Land. I intend to address the Defendant’s allegations in respect of inadequate signage in the

“Signs / Unfair Contract Terms” section below.

CPR Compliance

v. The Defendant questions whether the Particulars of Claim comply with the Civil Procedure

Rules. I submit that the Claim was issued via the County Court Business Centre and in this

regard, I refer to Practice Direction 7C (“the PD”) which specifically provides the guidelines

for doing so. I respectfully submit that the Particulars of Claim (“the Particulars”) are in

keeping with the PD. The following sections are of relevance: -

5.2(1) provides a limited character count for the Particulars of Claim; and

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5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for

documents to be attached to the particulars of contract claims does not apply to claims

started using an online claim form.

vi. It is my Company’s position that the Particulars were sufficient to allow the Defendant to

identify the subject matter of the Claim. The Defendant could not have submitted a Defence

with the detail it contains if the Particulars were so insufficient as to prevent them from

understanding the claim. Further, with respect, if the Defendant were of the genuine belief

that the Particulars of Claim were insufficient, the correct procedure would have been to make

an Application to the Court. The Defendant has chosen not to do so.

vii. In addition to the above, I also refer to CPR 1 and respectfully remind the Defendant of their

obligation to deal with the case justly and at proportionate cost. Bearing in mind the claim

amount, my Company has taken proportionate steps to recover the debt.

Signs / Unfair Contract Terms

viii. The Terms on the signs were adequate in respect of overall size, font size, plain English,

location and content. The Plan demonstrates where the signs were located and it is submitted

they are adequate to constitute notice of the Terms to the Driver. If the Defendant did not

understand the Terms on the signs, they should have exited the land and found alternative

parking.

ix. The signs clearly outlined the Terms of parking and the Defendant was on notice of the Terms

upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These

Terms state that if breached, the Defendant agrees to pay within 28 days of issue.

x. In respect of the ‘terms’, as per Schedule 2 of the Consumer Right Act 2015, specifically

referred to: -

Term 6 – It is submitted the sum is not disproportionate for the reasons set out within the

‘amount claimed’ section of this Statement, nor is it ‘compensation’.

Term 10 – As is evident from the Plan, signs were displayed throughout the Land. The

Driver was aware of the fact that parking was managed from the point of entering the

Land and could leave if they did not agree to the Terms. It is not unreasonable for the

Driver to need to potentially walk no more than 10 meters to fully familiarise themselves

with the full Terms. This would have all happened before the conclusion of the contract.

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Term 14 – The price is stated on the sign.

Term 18 – The fact the Driver was able to park means my Company fulfilled its

obligations.

xi. The Terms clearly stated what would happen if payment was not made: -

“If payment is not received within 28 days then additional costs will be added, including

any costs incurred through debt recovery action/or court enforcement.”

xii. With no concession made in this regard, if a Driver ever does not understand the Terms on the

signs, they can exit the land and find alternative parking. They are under no obligation to park

on the Land.

xiii. The phrase ‘double recovery’ suggests the same amount is being recovered twice. This is not

what is claimed, as explained later in this Statement.

Penalty / Amount Claimed

xiv. In respect of the Defendant’s allegation that the claim is a penalty, my Company is not

seeking more than the original charge as the core debt. The core charge remains the same for

each PCN (i.e. £100); however, my Company is now also seeking further costs/damages.

xv. My Company is instructed to manage the Land, the Landowner agreement previously referred

to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation.

The Landowner’s legitimate interest in managing the Land is because it is a pay and display

car park. If motorists were permitted to park on the Land in breach of the Terms, then the

Land could not be used for its intended purpose. Because there is a clear legitimate

interest/commercial justification, the same as that established in ParkingEye -v- Beavis

[2015], this case does not fall foul of the penalty rules established in that case.

xvi. The amount charged is in line with the guidelines given by the ATA. Part E, Schedule 5 of the

COP states “Parking charges must not exceed £100 unless agreed in advance with the IPC”.

It is my Company’s position there is no requirement for the amount of the charge to bear any

relevance to the actual or potential cost of parking. The PCN is a fee charged by my Company

for providing the service and it stays within the guidelines given by the ATA. As with many

other ‘services’; the service provider is entitled to charge as they deem appropriate.

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youngillion

xvii. The PCN was not paid within the prescribed 28 days or indeed at all. In view of this the sum

of £60 is also claimed as a contractual cost pursuant to the Contract which states “If payment

is not received within 28 days then additional costs will be added, including any costs

incurred through debt recovery action/or court enforcement.” The Defendant was on notice

of the fact that the outstanding amount may increase as a result of any necessary debt

recovery action. In support I draw the Court’s attention to paragraph 45 of Chaplair Limited v

Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it

was stated: -

“There is nothing ... which enable[s] the rules to exclude or override that contractual

entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to

assess the costs free from any restraints imposed by CPR 27.14”.

xviii. The sum added is a contribution to the actual costs incurred by my Company as a result of the

Defendant’s non-payment. My Company’s employees have spent time and material

attempting to recover the debt. This is not my Company’s usual business and the resources

could have been better spent in other areas of the business, generating profit. Had the

Defendant paid as per the Contract, there would have been no need for recovery action so the

amount due would not have increased.

xix. With respect to Parking Eye -v- Beavis [2015], whilst it is accepted the original charge is

designed to include the ‘operational costs’; this was with reference to maintaining the land,

taking payment or sending the relevant POFA compliant notices. It was never intended to

include the need to pursue the debt in Court to recover it. If that were the case, it would

override the Civil Procedure Rules (allowing fixed costs and recovery of court fees) which of

course is not the case. The Defendant has misunderstood the phrasing ‘operational costs’.

Alternative Dispute Resolution (“ADR”)

xx. The Defendant alleges that my Company has failed to engage in any genuine ADR. This is

denied. My Company’s solicitor provided the Defendant with the opportunity to request ADR

prior to the Claim being issued. The Defendant responded to the Letter of Claim and

requested that the matter be placed on hold in accordance with the Pre-Action Protocol for

Debt Claims. This hold was allowed, however, the Defendant failed to engage any further

with my Company’s solicitors at this stage. It is submitted that if the Defendant genuinely had

doubts regarding liability, they would have engaged further with this opportunity.

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Private Parking Code of Practice

xxi. The Defendant refers in detail to the Private Parking Code of Practice in respect of the

additional costs incurred in this matter. I respectfully submit that the Private Parking Code of

Practice has been withdrawn since 07/06/2022. The Defendant also acknowledges that it is

not retrospective guidance. I therefore submit that it does not apply to this matter and I do not

intend to comment on this point any further.

Dismissal of Claim

xxii. The recent successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW

Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the claim

does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that

was not the point in discussion in that case. The appeal also concluded that the inclusion of

such a charge in a claim of this type does not constitute an abuse of process that would allow

for the entire claim to be struck out.

24. In view of the above, it is my Company’s position that the Defendant breached the Contract as set out

in this Statement and as such the Defendant is liable.

Conclusion

25. My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any

event.

26. In the alternative to the contractual costs set out above, my Company reserves the right to claim

additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the

robust appeals procedure in place, should not have been necessary. It is my Company’s position that

this is unreasonable behaviour and it is respectfully requested that the Court considers whether they

conclude the same.

27. It is my respectful submission that the Defence is entirely without merit and as such it is requested

that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith.

28. I may not be able to attend the forthcoming hearing. Should this be so, an advocate will attend on my

behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1). If I am unable to

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attend, please decide the claim in my absence, taking into account the advocate’s submissions, this

Statement, and any other evidence filed. This paragraph demonstrates my compliance with CPR

27.9(1)(a)-(b).

29. In the event an advocate does attend the hearing, I request their fee be added to the amount sought.

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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.

youngillion

these are some of the picture they use as proof for sufficient signage.
but little do they know that these signed haven't been there for the last 3 years

youngillion

as can be seen the main sign  on entrance hasn't been there since at least august 2021 as seen by images from google maps from those dates and pictures taken by me earlier on this year

KeithP

A couple of comments on their Witness Statement...

In paragraph 8 you have left the PCN number and the vehicle's reg no visible.

Paragraph 20 is nothing more than a guess at the driver's identity...
"20. The Defendant does not dispute being the Driver or Keeper of the Vehicle. My Company reasonably

believes that the Defendant was the Driver, because they would otherwise have nominated a driver, 
and therefore the Defendant is pursued on that basis".

The last sentence of paragraph 21 is just carelessness...
"I can confirm that the Defendant’s successful appeal was also unsuccessful".


I've skipped the bit where they're pulling apart the Defence, but this statement about costs caught my eye...

"26. In the alternative to the contractual costs set out above, my Company reserves the right to claim

additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the

robust appeals procedure in place, should not have been necessary. It is my Company’s position that

this is unreasonable behaviour and it is respectfully requested that the Court considers whether they

conclude the same".

They are proposing that if a motorist dares to try and defend themself against a court claim, then that should be considered 'unreasonable behaviour'.
What a joke. Never seen anything quite that ridiculous before!

youngillion

well it seems they are really annoyed with all the beatings they have taken recently, and thus require me to bend over and take a spanking. Do you believe I have a case with the fact that there is no signage on entry.
any pointers would be really appreciated. 

Coupon-mad

KeithP said:

I've skipped the bit where they're pulling apart the Defence, but this statement about costs caught my eye...

"26. In the alternative to the contractual costs set out above, my Company reserves the right to claim

additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the

robust appeals procedure in place, should not have been necessary. It is my Company’s position that

this is unreasonable behaviour and it is respectfully requested that the Court considers whether they

conclude the same".

They are proposing that if a motorist dares to try and defend themself against a court claim, then that should be considered 'unreasonable behaviour'.

What a joke. Never seen anything quite that ridiculous before!

I have. OPS v Wilshaw.

The ultimate joke fudgement swallowing EVERYTHING said by OPS whose barrister argued with incorrect (decades out of date) old law, old signs, no entrance sign in view, no properly signed WS. Compounded by naive assumptions by HHJ Simpkiss, who lapped up every damn word from OPS' smarmy barrister and made Mrs W pay £3k for believing in the first Judge's findings and the 'unreasonableness' of not rolling over in the face of the appeal application.

Anyway, I digress but that case was BAD.  HHJ Simpkiss was so very, very wrong that I'd be embarrassed if I were him. Hey ho!

@youngillion

I'd actually add to (or even completely replace) your point that the yellow entrance sign wasn't there.  Think about it!

That sign is DYNAMITE because it has completely different terms on it.

Nothing about having to get a ticket.

Just three terms & conditions.

None were breached.

I would stay schtumm that the yellow sign isn't there and instead point out the above.

KeithP

Coupon-mad said:

KeithP said:

I've skipped the bit where they're pulling apart the Defence, but this statement about costs caught my eye...

"26. In the alternative to the contractual costs set out above, my Company reserves the right to claim

additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the

robust appeals procedure in place, should not have been necessary. It is my Company’s position that

this is unreasonable behaviour and it is respectfully requested that the Court considers whether they

conclude the same".

They are proposing that if a motorist dares to try and defend themself against a court claim, then that should be considered 'unreasonable behaviour'.

What a joke. Never seen anything quite that ridiculous before!

I have. OPS v Wilshaw.

The ultimate joke fudgement swallowing EVERYTHING said by OPS whose barrister argued with incorrect (decades out of date) old law, old signs, no entrance sign in view, no properly signed WS. Compounded by naive assumptions by HHJ Simpkiss, who lapped up every damn word from OPS' smarmy barrister and made Mrs W pay £3k for believing in the first Judge's findings and the 'unreasonableness' of not rolling over in the face of the appeal application.

That was different. That incident with HHJ Simpkiss was an appeal hearing.

In the case being discussed in this thread, the Claimant is suggesting that if the Defendant dares to try and Defend himself then the court should mark that as unreasonable behaviour.

Coupon-mad

Yep, I see that.  They get worse

I think they are particularly emboldened by the inability of the Government (so far) to regulate them.

youngillion

Although I have till the 17th to submit my ws the pressure is starting to mount.
this is the actual entrance sign in question  from what I can read from the grainy pictures submited in the claimants ws I think it says look for further signage for t&c