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

youngillion

These are the other signs being relied on by the claim stating they are scattered aroud the car park. Without the first sign i did not see or know to look for further signage about a contract.  

LDast

Here is something for your WS:

PRELIMINARY MATTER - The Claim should be struck out

1. I respectfully submit that before proceeding with the hearing, the Court should consider a Preliminary Matter: striking out the claim due to the Claimant’s failure to comply with CPR 16.4(1)(a), which requires a concise statement of the facts. The Particulars of Claim (PoC) provided by the Claimant are so deficient that I, as the Defendant, was expected to prepare a defence without a proper understanding of the facts and allegations against me.

2. The PoC states that the reason for the claim is "Failure to claim free parking session." However, there is no explanation provided as to how this supposed failure occurred, nor is there any information regarding the specific terms of the contract that were allegedly breached. No details are provided about how the vehicle's parking session could have been "claimed," nor is there any factual basis or evidence provided to support the claim.

3. The Claimant's solicitor, using a bulk litigation process, should be fully aware of the need to comply with the Practice Direction. The vague and generic nature of these PoCs is prejudicial to me as the Defendant, as it is impossible to fully understand the case or prepare a detailed defence.

4. Dismissing the claim is the correct course of action, particularly considering the Overriding Objective. Bulk litigators issuing poorly pleaded claims should not be surprised when courts strike out their claims, based on the following persuasive authorities:

5. In Car Park Management Services Ltd v Akande [2024] [K0DP5J30], heard on 10th May 2024, HHJ Evans at Manchester County Court held that:

"It cannot be right that the fundamental basic rule that Particulars of Claim must set out the case which a defendant has to meet can somehow be swept away by the character limit imposed by the MCOL system. It does not take many characters to say 'did not buy a ticket' or 'did not display permit,' but if the Claimant really cannot fit that into the 1080 character limit then the remedy is to serve detailed Particulars of Claim."

The same principle applies here. (See Exhibit XX-01: CPMS v Akande judgment)

6. In Civil Enforcement Ltd v Chan [2023] [E7GM9W44], heard on 15th August 2023, HHJ Murch at Luton County Court 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 issues are present in this case. (See Exhibit XX-02: CEL v Chan judgment)

7. Other courts have consistently struck out similarly poorly pleaded claims both at the allocation stage and during hearings. (See Exhibit XX-03: Other CPR 16.4 judgments)

Failure to Comply with CPR 16.4

8. These are the woefully inadequate PoC as provided to me by the Claimant through their solicitor utilising MCOL:

• 1. THE DEFENDANT (D) IS INDEBTED TO THE CLAIMANT (C) FOR A PARKING CHARGE(S) ISSUED TO VEHICLE [REDACTED] AT OXFORD ROAD, READING, RG30 1AP.
• 2. THE PCN(S) WERE ISSUED ON 26/03/2023.
• 3. THE DEFENDANT IS PURSUED AS THE DRIVER OF THE VEHICLE FOR BREACH OF THE TERMS ON THE SIGNS (THE CONTRACT). REASON: FAILURE TO CLAIM FREE PARKING SESSION.
• 4.  IN THE ALTERNATIVE, THE DEFENDANT IS PURSUED AS THE KEEPER PURSUANT TO POFA 2012, SCHEDULE 
• AND THE CLAIMANT CLAIMS:
• 1. £160 BEING THE TOTAL OF THE PCN(S) AND DAMAGES.
• 2. INTEREST AT A RATE OF 8% PER ANNUM PURSUANT TO S.69 OF THE COUNTY COURTS ACT 1984 FROM THE DATE HEREOF AT A DAILY RATE OF £0.02 UNTIL JUDGMENT OR SOONER PAYMENT.
• 3.COSTS AND COURT FEES.

9. As evidenced, there is a lack of precise detail in the PoC in respect of the factual and legal allegations made against me such that the particulars of claim do not comply with CPR 16.4(1)(a). The Claimant attempts to excuse their failure to comply with CPR 16.4(1)(a) by relying on the fact that the claim was issued via the County National Business Centre (CNBC) using the Money Claim On Line (MCOL) system, which imposes a limited character count for the Particulars of Claim. However, as established in recent case law, the character count limit does not absolve a claimant from their obligation to provide a concise statement of the facts.

10. In CPMS v Akande [2024] and Civil Enforcement Ltd v Chan [2023], courts held that vague and inadequate PoCs which failed to provide essential details such as the specific terms breached, or any supporting evidence, were grounds for striking out the claim. The same deficiencies are present in the PoC provided in this case.

11. The PoC lacks the following essential information:

• The specific terms of the contract that were allegedly breached.

• The precise nature of the contravention ("Failure to claim free parking session" is not sufficiently explained).

• How and when the alleged breach occurred.

• Any supporting documentation as required by CPR PD 16(7.5), such as evidence of signage or the original Parking Charge Notice (PCN).

12. The Claimant’s failure to comply with CPR 16.4 has significantly prejudiced my ability to understand the case against me or to prepare a detailed defence. If the Claimant were unable to provide compliant PoCs within the MCOL character limit, the appropriate remedy would have been to serve more detailed PoCs separately, as suggested by case law.

13. The Claimant cannot rely on the procedural limitations of the MCOL system to justify non-compliance with the Civil Procedure Rules. As referenced in the judgments above, the failure to provide sufficient particulars should result in the striking out of this claim.

Claimant’s Assertion Regarding My Defence

14. In paragraph (v) of the Claimant’s Witness Statement, the Claimant alleges that I filed a "widely available templated Defence" and suggests that my response lacks substance, wasting both the Court’s and the Claimant’s time. I respectfully submit that this assertion is incorrect.

15. My Defence primarily addresses the fundamental issue of the inadequacy of the Claimant’s PoC. The PoC provided to me was vague, non-compliant with CPR 16.4, and failed to provide the necessary details to allow me to fully understand the allegations against me. My Defence therefore focuses on pointing out the deficiencies in the PoC and the Claimant's failure to meet their legal obligations under the Civil Procedure Rules.

16. The Claimant further suggests that I should have made an application to the Court if I believed the PoC were insufficient. However, this is a mischaracterisation of the situation. It is the responsibility of the Claimant to provide clear and compliant particulars at the outset, not the Defendant's duty to correct procedural failings. The Defendant should not be expected to incur additional costs or delay by making an application to rectify the Claimant's inadequacies.

17. The Claimant’s argument that my Defence indicates an understanding of the claim is misplaced. My Defence is based on the limited information I have been provided, which is insufficient for me to prepare a substantive defence to the allegations. The fact that my Defence addresses the procedural failures of the Claimant does not suggest that I have full knowledge of the facts of the case, nor does it negate the Claimant's obligations to comply with CPR 16.4.

The Inadequacy of the PoC

18. The PoC provided to me states the following as the basis of the claim: "Failure to claim free parking session". However, it provides no details about how this "failure" occurred, the terms of the alleged contract, or any evidence of signage or notification regarding the parking conditions. There is no indication of how the claim amount has been calculated or how I, as the Defendant, allegedly breached any contract.

19. The Claimant has failed to attach relevant documents such as the contract, signage terms, or any correspondence indicating an initial Parking Charge Notice (PCN) as required by CPR PD 16(7.5). This violates the requirement to provide a concise statement of facts under CPR 16.4(1)(a).

Request for Strike Out or Further Particulars

20. I respectfully submit that the Court strike out the claim due to the insufficiency of the PoC.

21. Should the Court not agree that the claim should be struck out, I respectfully request that the Claimant be ordered to provide further particulars that, for the avoidance of doubt, must include:

(a) A copy of the contract between the Claimant and Defendant relied on.
(b) The exact wording of the clause (or clauses) of the terms and conditions of the contract that is allegedly breached.
(c) Copies of all PCNs issued and relied on.
(d) A statement of how the PCNs were brought to my attention.
(e) A detailed breakdown of the alleged breach, including the full address, date, time, and duration of the alleged parking session.
(f) A precise calculation of any claimed statutory interest.
(g) A statement indicating whether the claim is brought under the Protection of Freedoms Act 2012 (PoFA), and if so, how PoFA compliance was achieved.

22. Should the Claimant fully comply with the order and the claim is not struck out, I should be allowed to provide an amended defence based on all the facts provided by the order.

youngillion

thank you so much!! really appreciate the help.

Coupon-mad

I think I'd add a paragraph distinguishing this unfairly weighted clause "you only get 30 minutes free if you take a ticket" with the Supreme Court case of ParkingEye v Beavis. In the latter case, the court found that the penalty rule is always engaged with a private parking claim but that the operative clause - in the Beavis case - was not a penalty.  This was primarily due to the 'legitimate interest' of encouraging motorists to vacate car parking spaces after 2 hours.

The Supreme Court gave valuable guidance as to what could constitute a legitimate interest of a party (or third party) seeking to uphold a clause. Applying that test, in the extant case there is no such legitimate interest to save the clause from being unenforceable. There can be no reason to impose a burden on motorists to have to display a 'ticket' to claim free time when the car park ANPR system already calculates the stay and should simply exempt all vehicles that leave the site within 30 minutes (plus a grace period). 

youngillion

Firstly would like to thank everyone who contributed so far to helping me with this unnecessary burden. 
Attached is a link to my final reducted WS, would appreciate any feedback, i plan to send it over by Tuesday next week.
https://docs.google.com/document/d/1oPmKwNaNmC7SIrmE1YXsYvyVJZ48eMir/edit?usp=drive_link&ouid=100667177820841570821&rtpof=true&sd=true
Again thank you all from the bottom of my heart.

Coupon-mad

I recommend you remove EVERYTHING including the Preliminary Matter heading right down to para 23.  All of that is huff and puff and NOT RELEVANT FOR YOUR CASE.

And remove exhibit 1 because the PoC states that the reason for the claim is "Failure to claim free parking session."  This is not inadequate POC.

After your intro paragraph, start with what was para 23 but put what I gave you about Beavis, not just the bottom half of my post. You have to explain the Beavis case first (like I did in my post. First paragraph).

youngillion

I think this is what you mean,

1.       I am xxxxxx, 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.

 

 

 

 

 

 Unfairly Weighted Clause

2. “You only get 30 minutes free if you take a ticket"; with the Supreme Court case of ParkingEye v Beavis. In the latter case, the court found that the penalty rule is always engaged with a private parking claim but that the operative clause - in the Beavis case - was not a penalty.  This was primarily due to the 'legitimate interest' of encouraging motorists to vacate car parking spaces after 2 hours.

3.The Supreme Court gave valuable guidance as to what could constitute a legitimate interest of a party (or third party) seeking to uphold a clause. Applying that test, in the extant case there is no such legitimate interest to save the clause from being unenforceable. There can be no reason to impose a burden on motorists to have to display a 'ticket' to claim free time when the car park ANPR system already calculates the stay and should simply exempt all vehicles that leave the site within 30 minutes (plus a grace period). 

Facts and Sequence of events

4.  Incident: The vehicle entered a parking space on the day on which the claimant suggests in order to purchase food from a fast-food restaurant   for the young occupants of the vehicle who were very hungry. On approach there was no signs to indicate that this was an ANPR controlled car park (See Exhibit 02 (1-4)) , on entry the car was parked in the first bay near the restaurant. The occupants of the car spent a few minutes eating and then left with out noticing any signage that indicated that there was any breach of parking as alleged by the claimant.

5.  Inadequate Signage: As stated above and indicated with Exhibit 02(1-4), there is a lack of clear and visible signage regarding parking regulations. Contrary to the exhibits (Claimant Exhibit 2) sent to the court by the claimant the signage supposedly installed on 3rd November 2020 at the entrance no longer exists as shown by Exhibit 02(1-4) with video evidence available if required by the court. It is also evident that despite the countless complaints on the claimants google review page seen in Exhibit 02(5) and appeals lodged by the defendant and others nothing has been done about it. Dare I say the parking spaces have been used as the firm’s name suggest as a way to make BANK, rather than to provide a useful service for the local populus. And any complaint falls on deafened ears and are brought to court wasting all those involved precious time. Close to four years have passed since the initial installation and the claimant has failed to check if they are still compliant with the Code of Practice, they say they are so strongly bound by.

Exaggerated Claim and ‘market failure’ currently examined by the Government.

6.        This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

 

7.        The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here:

https://www.gov.uk/government/publications/private-parking-code-of-practice

"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."

8.        Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

 

9.        Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

 

10.    With that sum in mind, the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and I take that position.

 

11.    The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

 

12.    In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). 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 later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

 

13.    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.

 

14.    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.

 

15.    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

16.    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.

 

17.    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.

 

18.    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).

 

19.    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. 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, particularly the brief, conspicuous yellow & black warning signs 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'. for paragraphs from ParkingEye v Beavis).

 

22.    In the present case, the Claimant has fallen foul of those tests. There is one 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 £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

 

23.    In conclusion, the claimant has failed to provide clear evidence that a contract was formed, nor has it shown that the parking charge notices were validly issued. The lack of adequate signage and the unlawful nature of the additional charges further invalidate the claimant’s claim. The claimant’s attempt to impose liability for these inflated charges is unsupported by both statutory law and leading case precedents. I ask the court to dismiss the claim and award appropriate costs for the time and effort expended in defending against these unjust claims.

 

24.    I ask 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 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.

 

25.    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.

 

26.    With the DLUHC (now the MHCLG)'s impending 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. I believe 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.

 

27.    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))."

Costs Assessment

Given the significant time and effort required to defend this unjust claim, I respectfully request that the court consider awarding costs under CPR 27.14(2)(g). I have spent considerable time researching, preparing this statement, and attending the hearing. My estimated costs for this are as follows:

• Research and preparation of witness statement (5 Hours): £50
• Estimated Travel expenses (Taxi to and from): £50
• Loss of a Days Wages (Pharmacist): £252

Totalling: £352

I request that the court considers these costs in its judgment, given the claimant's unreasonable behaviour in pursuing this claim without merit.

 

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: 10th October 2024

Car1980

In typography and design there is a practice known as "hierarchy of information."

At the top of the hierarchy on that sign is "Welcome". The largest communication has no bearing on anything whatsover. 

Everything else, and there is a hell of a lot, is given equal weighting, with the exception of the small print right at the bottom.

It's nothing but visual noise.

Coupon-mad

2. “You only get 30 minutes free if you take a ticket"; with the Supreme Court case of ParkingEye v Beavis.

No that's the opposite of what Beavis was about. My first paragraph was there to be copied (almost verbatim).

youngillion

In layman's terms. the guidance is the charge is justifiable if its used in the interest of the business and customers to make sure parking is available for fair use. But in this case , they have all the information for the free 30 minutes and as such it doesn't follow the guidance of the supreme court guidance. Do I understand you?.
i think this is what you meant:

2.Distinguishing this unfairly weighted clause "you only get 30 minutes free if you take a ticket" with the Supreme Court case of ParkingEye v Beavis. In the latter case, the court found that the penalty rule is always engaged with a private parking claim but that the operative clause - in the Beavis case - was not a penalty.  This was primarily due to the 'legitimate interest' of encouraging motorists to vacate car parking spaces after 2 hours.

3.The Supreme Court gave valuable guidance as to what could constitute a legitimate interest of a party (or third party) seeking to uphold a clause. Applying that test, in the extant case there is no such legitimate interest to save the clause from being unenforceable. There can be no reason to impose a burden on motorists to have to display a 'ticket' to claim free time when the car park ANPR system already calculates the stay and should simply exempt all vehicles that leave the site within 30 minutes (plus a grace period).