LOST - MET PARKING - N1 CLAIM FORM RECEIVED

LDast

A brief look through that WS shows that the Claimant is being mendacious in paragraphs 10 and 16. Not that it will help the defendant at this point because the drivers identify was blabbed. However, in paragraph 10, the witness states that the NtK was issued in full compliance of PoFA. The location is not relevant land and therefore PoFA does not apply. The location is within the boundary of Stansted Airport and is therefore under statutory control (airport Byelaws).

Then again in paragraph 16, the witness outright fails to tell the truth by stating that the land is "relevant land" according to the definition of PoFA. It isn't. MET know this but continually claim that it is private land. The fact that it is private land does not detract from the fact that it is within the airport boundary and therefore cannot be "relevant land" for the purposes of PoFA.

These two points alone show that the witness cannot be relied on to tell the truth.

Also paragraph 22 does not absolve the claimant from the very obvious breach of CPR 16.4(1)(a). This must be raised as a preliminary matter in the WS and requires a strike out of the claim. 

F1OrangeField

Thanks LDast, am I right in thinking then that I have a fairly could chance of winning by leading with your point "the location is not relevant land therefore PoFA does not apply? 

Also please could clarify your last point, should that be raised for a strike out by the judge? 

LDast

You have more of a chance of the claim being struck out with the last point I made. If this actually gets to the hearing stage, you should lead with the preliminary matter of why didn't the allocation judge strike this out due to the claimant not complying with CPR 16.4(1)(a). This bit about the land not being "relevant" for the purposes of PoFA serves to show that the witness is mendacious and no reliance on their testimony being truthful should be made.

F1OrangeField

Hi all Witness Statment as below. Need to submit tomorrow if anyone can have a a quick skim, most of it is copy and paste, only bits that have been altered are, Paras 9 - 13

IN THE COUNTY COURT AT xxxxxxxxxxx

Claim No.:  xxxxxxxxxxx

Between

Met Parking Services Ltd

(Claimant) 

- and -  

xxxxxxxxxxxxxxx

 (Defendant)

 

Witness Statement of Defendant

1.      I am xxxxxxxxxx, 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 (Exhibits 01-09) 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.      I draw to the attention of the Judge that there are two very recent and persuasive Appeal judgments to support dismissing or striking out the claim.  I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators 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 using powers pursuant to CPR 3.4., based in the following persuasive authorities

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 xx-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 xx-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 xx-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 xx-04)

 

8.       The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation. 

Facts and Sequence of events

 

9. On the 30th of July 2022, I bought a meal in McDonalds and ate in the restaurant, upon leaving the car park I thought it best to use the restroom before my drive home and decided it would be easier going to BP as I could also buy a bottle of water for my journey home.  

10. I then left BP no more than 20 minutes later.

11. I am the driver and the registered keeper of the vehicle xxxxxxxx that is shown in the images and do not deny the vehicle being at this location.

 Inadequate signage 

12. I have observed a lack of clear and visible signage regarding the parking regulations. The only sign visible at the entrance to the car park, which is otherwise unmarked, gives no information whatsoever as to the nature of the Terms and Conditions, merely that Terms and Conditions apply. The text which provides this limited information is very small and not clearly legible from inside a vehicle. (See Exhibit xx-05).

13. The signage upon entering the site is visible during the day however during the night, almost impossible to make out any wording at all. (See Exhibit xx-06).

 

Exaggerated Claim and “market failure” currently examined by UK Government

14.  The alleged “core debt” from any parking charge cannot have exceeded £100 (the industry cap set out in the IAS Code of Practice). I have seen no evidence that the added damages/fees are genuine.

15.  I say that fees were not paid out or incurred by this Claimant, who is put to strict proof of:

(i)                 The alleged breach, and

(ii)              A breakdown of how they arrived at the enhanced amount claimed

16.  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 or 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.

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

18.  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 the 30th of 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/attachme nt_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

19.  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.

20.  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.

21.  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 their debt firms who stood to gain from it.

 

22.      In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to pars 98, 193, 198 of Beavis. (See Exhibit 09). Also ParkingEye Ltd. V Somerfield Stores Ltd. ChD [2011] EWHC4023 (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”.

23.      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.

24.      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.

25.      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).

F1OrangeField

CRA Breaches

26.      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.

27.      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.

28.      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).

29.      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 08)

 

The Beavis case is against this claim

30.      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 - (See Exhibit 07) - set a high bar that this Claimant has failed to reach.

31.  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 09) for paragraphs from ParkingEye v Beavis.

32.  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 2024/2025. 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:

(ii)              Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(iii)            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

(iv)             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

 

33.  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.

34.  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.

35.  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.

36.  With the DLUHC'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.

37.  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 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.

 

Signature:  

xxxx

 

KeithP

F1OrangeField said:

Hi all Witness Statment as below. Need to submit tomorrow...

Are you sure your filing deadline is tomorrow?
Almost all HMC&TS courts are closed until Monday.

F1OrangeField

KeithP said:

F1OrangeField said:

Hi all Witness Statment as below. Need to submit tomorrow...

Are you sure your filing deadline is tomorrow?
Almost all HMC&TS courts are closed until Monday.

Hearing is 10th January, so just took that as 14 days back from then... 

Coupon-mad

If you used our Template Defence, then dump all the second half of that WS. Not needed.

As you were driving, you were right to forget about the 'not relevant land' argument. Drivers can't use that point.

But you need the newer wording about Chan and Akande and remove para 3-8 as there is only need to mention the 2 appeal cases.  Instead of 4 exhibits, just link to @Le_Kirk's judgments link instead and take printed versions to the hearing...


...if it happens. Have you checked your junk email for a Notice of Discontinuance.

F1OrangeField

Coupon-mad said:

If you used our Template Defence, then dump all the second half of that WS. Not needed.

As you were driving, you were right to forget about the 'not relevant land' argument. Drivers can't use that point.

But you need the newer wording about Chan and Akande and remove para 3-8 as there is only need to mention the 2 appeal cases.  Instead of 4 exhibits, just link to @Le_Kirk's judgments link instead and take printed versions to the hearing...


...if it happens. Have you checked your junk email for a Notice of Discontinuance.

Nothing in junk, worth a look though. 

I did use the template defence - When you say the dump the second half, can you let me know para x to x to save confusion please.

F1OrangeField

Also cant seem to find the newer wording for Chan and Akande, tried filter searching those by 'newest' nothing coming up?