Defence Template Feedback

nhussa22

Hi,

I am compiling my WS today and having read the instructions, I'm unsure what I need to include and what not to include. All the WSs I've seen start by mentioning poor PoC but in my case, it appears to have been made clear what the breach of the t&c was. 

If anyone can assist, it'd be much appreciated.

Coupon-mad

Just use the ones linked in the NEWBIES thread which certainly don't focus on poor POC.

Le_Kirk

Coupon-mad said:

Just use the ones linked in the NEWBIES thread which certainly don't focus on poor POC.

................ and remember that your witness statement backs up and supports what you put in your defence and includes evidence.

nhussa22

I have looked at all the tagged WS in that thread and they all refer to PoC? It also asks to exhibit things like Schedule 4 of POFA but doesn't say how or what to refer to it? Same goes for point (i) and having read it, I'm unsure how it helps me?

Sorry for the many questions but I want to make sure my WS is solid before submitting it.

Coupon-mad

Coupon-mad said:

I'd add this to your paragraph 3:

The pre-action protocol was not adhered to; no copy of the contract (sign) was supplied and no attempt was made to re-issue the PCN to the correct address for service in order to avoid litigatiion. The Defendant has seen no PCN and no photographs of the alleged breach, nor evidence that the car was in fact parked and left for a period of time 'outside of bay markings' as opposed to (for example) loading, unloading or setting down a passenger.  No timings are given in the POC.  Further, the vague street address given on the claim form does not specify a town, city or postcode, nor whether this location is a car park or a private road. When the Defendant googled the address as stated on the claim form it brings up a non-local city. When the Defendant attempted to narrow the issue and searched for what may be the actual address (the Defendant being reduced to guessing where the incident relates to) it comes up with a neighbouring property/public highway and not a private location with marked bays.  The Defendant is unable to admit or deny the loosely pleaded allegation in the POC. 

You had the above in your defence so your POC were certainly inadequate.

VCS are also silent about whether they think they can rely upon the POFA or not, and you said you cannot recall (from a year ago) who was driving. So you should state - if true - that more than one person drives this car.

Attach a copy of your insurance (only if it names more than one driver) and state that VCS failed to comply with paragraph 9 of Schedule 4 of the POFA 2012.

No Notice to Keeper (NTK) was served at all and no copy has been provided in pre-action phase nor to date, however most VCS NTKs seen in other reported cases merely use a form of words that attempts to 'assume' the keeper was the driver.  This is the opposite of the POFA keeper liability provisions, and indeed, if it were that simple, there would have been no need for Parliament to even create Schedule 4.

You can find this all over the forum if you search for a few keywords based on the above. You'll find witness statements including that sort of wording.

Also search the forum for:

VCS Edward Excel Smith HHJ 

nhussa22

Please find attached a draft of my Witness Statement. Any feedback is much appreciated. Need to send this off today. 

1.        I am XXXXXXX 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 knowledge.

2.        In my statement, I shall refer to (Exhibits 1-7) 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.        The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here.) The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) 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 based in the following persuasive authority.

 

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 stated that ‘it is common ground that the space for the particulars of claim is limited as to the number of characters which can be inserted. Inevitably, one therefore sees in cases commenced using this procedure a degree of simplicity in the way that claims are put. Quite often, they are grammatically inexact, even if it is argued that they set out in terms the bare bones of the claim such as to comply with the rules. It is of course though always open to a claimant – if of the view that the space by way of character allowance is insufficient – to file and serve separate particulars of claim serving them either with the claim form or in accordance with the rules at a later date.’ 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 1)

 

5.        Similarly, in January 2023, District Judge Sprague, sitting at the County Court at Luton, struck out a badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit 2)

 

6.        The PoC on the Claim Form dated XX November 2023 provided by the Claimant states that they ‘seek the recovery of the parking charge notice, contractual costs and interest’ with no breakdown of these costs. CPR 16.4 states that (1) Particulars of claim must include (a) a concise statement of facts on which the claimant relies; (b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2). Paragraph (2) states that if the claimant is seeking interest, they must (a) state whether they are doing so (i) under the terms of a contract; (ii) under an enactment and, if so, which; or (iii) on some other basis and, if so, what that basis is; and (b) if the claim is for a specified amount of money, state (i) the percentage rate at which interest is claimed; (ii) the date from which it is claimed; (iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued; (iv) the total amount of interest claimed to the date of calculation; and (v) the daily rate at which interest accrues after that date. This has not been stated in the PoC. (See Exhibit 3)

 

7.        The Claimant is a member of the International Parking Community (IPC). The IPC’s  Code of Practice (Version 8 - 1st July 2021) https://irp.cdn-website.com/262226a6/files/uploaded/Code_of_Practice_v8-821f63d6.pdf for which the Claimant is a member of, states at 13.2 that, “Before a Parking Charge is issued, Motorists must be allowed a Grace Period save and except when 13.3 is applicable.” The Grace Period stated is 10 minutes. 13.3 is not applicable in this case, which states that “A Grace Period is not required when the Permitted Period of Parking does not exceed 1 hour providing that the signage on the site makes it clear to the Motorist, in a prominent font, that no Grace Period applies on that land.”  (See Exhibit 4)

 

8.        As per the photo evidence provided by the Claimant on XX May 2024, the first photo of the vehicle registered XXXXXXX is timestamped as 17:26:12 and the final photo is timestamped as 17:28:08. This is less than 2 minutes.

 

9.        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 breaching basic CPRs. The specifics of this case lack clarity, as no evidence has been provided which shows the car was in fact parked and left for a significant period of time, as opposed to (for example) loading, unloading or setting down a passenger. Furthermore, the Claimant has clearly not followed their own rules.

 

 

 

Facts and Sequence of events

 

10.  Date and Time of the Incident: XX June 2023, at approximately XXXX (according to the Claimant).

 

On the date of the alleged parking event, I am unsure who the driver was but I can confirm that I was the registered keeper of the vehicle XXXXXX. Both myself and my partner were insured and had access to the vehicle in June 2023. As I had only heard about the alleged parking event in the Letter Before Claim dated XX September 2023, I do not recall who was driving on XX June 2023. To note, I did not receive any of the correspondence before this date and whilst the Claimant has provided copies in their Witness Statement, there is no evidence seen that these were in fact posted to me (i.e. no proof of postage has been provided). It is likely that the visit to the English Institute of Sport at Coleridge Road, Sheffield, S9 5DA (the PoC and Witness Statement submitted by the Claimant still does not reference the name of the venue; has misspelt the road name, and does not state the city/postcode) was in relation to my 5 year old child’s athletics class. This is not a fact but an assumption as the incident took place almost a year ago and so I do not recall the exact incident, nor if I was even the driver at the time. It is regularly seen that the car park gets full and having seen vehicles stop/unload/park at the same place where my vehicle was found, it may have been that it was used to unload my child and take them inside the venue (as I and my partner would often do).

 

11.  Parking Notice: The Claimant pursues a claim for “Not parked wholly within the markings of a designated bay.” Having visited the car park since the incident, there is no clearly visible signage indicating parking restrictions or regulations. In the absence of contractual signs located next to this space, clearly visible and easily readable from within the vehicle or immediately upon exiting, the absence of any contractual agreement becomes evident. As a matter of fact, there is a sign which states “DRIVERS, please switch off your engines. Protect the environment and your customers.” This would reasonably suggest that a vehicle can be set down at this space. (See Exhibit 5).

 

12.  No Contract, No Breach: Without a ‘relevant obligation’ stipulated by such signage, there can be no breach. A reasonable person could reasonably infer that having seen vehicles stopped and/or parked at this space when the car park is full, along with the sign shown at Exhibit 5, vehicles stopping, unloading, loading and/or parking here is permissible.

 

13.  Lack of Markings: Moreover, there are no markings on the floor signifying restricted access or parking limitations. Furthermore, this space does not block access to other road users. Given the lack of any clear instructions at this space or in the immediate proximity, I contend that the decision to stop in this location was reasonable and made in the absence of evident restrictions. (See Exhibit 6).

 

14.  Entrance: If this incident was in relation to my child’s athletics class, I (or my partner) would have entered the car park from a certain point. As it is coming off a busy road and with a car park full, lots of cars coming in and out, it is almost impossible to see any sign indicating any parking restrictions. Having visited the venue again recently to take pictures, Exhibit 7 shows the view of the road and the entrance to the car park. The proximity of the sign next to the trees and with a big sign on the other side of the entrance stating “Welcome,” it is unreasonable to expect anyone to read the terms and conditions on the sign (which itself has small text on).

 

Exaggerated Claim and 'market failure' currently examined by the Government

 

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

 

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

 

(i)                          the alleged breach, and 

 

(ii)                       a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event. 

 

17.  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. 

 

18.  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." 

19.  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

20.  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. 

 

21.  With that sum in mind, it is clear that 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 the Defendant takes that position.

 

22.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually 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.

 

23.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually 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.

 

24.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually 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.

 

25.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually 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.

 

26.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually 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.

nhussa22

Conclusion

 

27.  The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court’s time and that of the Defendant.

 

28.  The Defendant asks the Judge to read the persuasive Judgement 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 time and duration of the defendant’s parking on the premises. In contrast, the PoC in this case does not state the time nor the duration of the alleged violation. In the Civil Enforcement v Chancase, full costs were awarded to the motorist and the claim was struck out.

 

29.  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.

 

30.  With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

 

31.  In the matter of costs, the Defendant asks:

 

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

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

 

32.  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.

nhussa22

The Claimant has sent me a copy of their Witness Statement along with attached evidences showing the contract they have with the venue, pictures of the car park, a site plan etc. I have just noticed on the contract that it states "The Client grants the Company a non-exclusive licence to occupy the Car Park and the Company will provide a parking control service at the Car Park for a fixed period of 36 months from the 30th day of May 2018 ("the Term").

My "parking" violation happened in June 2023. That's more than 36 months after they signed the contract so do they even have the right to issue PCNs anymore?!

Nellymoser

Your paragraph 22 is repeated at 23, 24, 25, 26.

nhussa22

Nellymoser said:

Your paragraph 22 is repeated at 23, 24, 25, 26.

Thanks for the spot, no idea what happened there!