Defense Help needed for civil court Parking Claim - DCB Legal

SimHelp

Ok thanks I thought this was a witness statement 

Gr1pr

It clearly stated DEFENCE at the beginning and at the end 

A witness statement is written in the first person and contains numbered exhibits , it clearly states that it is a witness statement at the beginning and at the end too

There are 5 names listed in the WS section of post 2 in the newbies thread, study their cases

SimHelp

Thank you again for your help on this. It is easy when you know what you are doing but I am obviously clueless in all of this and finding it a challenge.  I went through each of the treads but found the same documents which must have been defense docs which is why I was struggling to re-write mine another way.  This makes more sense now I have found and read over the witness statements - I had taken some time off work to go over it this afternoon.  Back to start again so will try again this evening.  

1505grandad

A heads-up  -  your claimant is a BPA AoS member (not IPC as stated in some of the exemplars). Therefore make sure if referring to the Code of Practice that you use/quote from the BPA CoP.

Coupon-mad

Choose one if the 5 exemplars which is about a BPA firm. That'll make it easier.

SimHelp

I HAVE SORTED MY WITNESS STATEMENT NOW - please can you take a look and let me know what you think?

SimHelp

                                                                 

Table of Contents   Witness Statement of Defendant.................................................................... 2 Exhibit 01 – Civil Enforcement v Ming Tak Chan Judgment....................... 10 Exhibit 02 – Parallel Parking v Anon............................................................ 14 Exhibit 03 – Another Badly Pleaded Parking Claim 1................................. 15 Exhibit 04 – Another Badly Pleaded Parking Claim 2................................. 16 Exhibit 05 – Ticket Machine NOT IN USE .................................................. 18 Exhibit 06 – Valid Parking Ticket.................................................................. 18 Exhibit 07 – Signage to front of store ............................................................ 19 Exhibit 08 – Entrance.................................................................................... 19 Exhibit 09 – Disabled Parking Machine (Dec23)......................................... 20 Exhibit 10 – Excel v Wilkinson Case Transcript.......................................... 21 Exhibit 11 – The Beavis case sign for comparison...................................... 31 Exhibit 12 – ParkingEye Limited v Beavis................................................... 32

 

 

 

 

 

SPRING PARKING                                                                                                          (Claimant)

                                                                           V

   x                                                                                                          (Defendant)

 

Witness Statement of Defendant

 

1.      I am xxx, (xxx) 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 1-12) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defense 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 are far worse than the one seen on Appeal).  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 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 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 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 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 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.

 

 

Facts and Sequence of events

9.      Date and Time of the Incident: Wednesday 2nd June 2021, at approximately 12:30PM.

On the date of the alleged parking event, I stopped to pick up some shopping at *****. The purpose of my stop was pick up food from the store as a regular customer and member of Co-Op.  This particular car park is the front and side of the store – it was previously a free car park with no requirement for a parking ticket but had recently changed to need needing a ticket to enable 3 hours of free parking arrived and parked but the ticket machine was not in use with a large yellow cover (Exhibit 5). As I walked to the front of the Co-Op I noticed the other parking ticket machine did not have a cover so obtained a ticket for free parking (Exhibit 6) and went into the shop.  On returning to my car I noticed a PCN on my car as the ticket had not been displayed.  The PCN was issued at 12.44.

10.   Parking Notice: The claimant pursues a claim for ‘Not Displaying a Valid Pay and Display Ticket’.  On 11th June I contacted the Claimant with the ticket I obtained for parking clearly showing date 02/06/21 and time 12:18 (the ticket was valid until 15:18).  (Exhibit 6)

 

11.   No Contract, No Breach: Without a 'relevant obligation' stipulated by such signage, there can be no breach. A reasonable person could reasonably infer that the inadequate signage, machine out of use and surrounding free parking shows a relaxed regulation for those using the car park in good faith as a customer of the shops at the shopping centre.   Even if this might be thought to be ambiguous, the Consumer Rights Act 2015 confirms:

“Section 69: Contract terms that may have different meanings

Contract terms can be ambiguous and capable of being interpreted in different ways, especially if they are not in writing or in an accessible format. In these cases, this section ensures that the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that is used.”

 

 

12.   Entrance sign: Upon entering the vicinity, I observed a sign near the entrance that, unfortunately, added to the confusion rather than providing clear guidance. The wording on the sign was ambiguous and did not distinctly indicate the location to which it pertained. Given the lack of specificity and previous lack of parking restirictions to the rear of the store, it was unclear whether the sign applied to the front of the store only and the side and rear were free parking.  The rear car park is not Private Property managed by SPRING PARKING and is a free to use Council owned car park with no time restrictions.  The ambiguity of the sign created an environment of uncertainty, leaving me with the impression that parking restrictions might be associated with the adjoining car park rather than where I chose to stop my vehicle.  Despite this I collected a ticket from the machine at the front as insurance against and problems (See Exhibit 05/06/07/08).

 

13.   New signage installed at a later date: Furthermore, I would like to draw attention to the fact that subsequent to the alleged parking event, the ticket machine was disabled, and now new signs have been installed within the car park and it is now not necessary to obtain a ticket for 3 hours free parking – as was the case previously.  I am unsure how long the requirement to obtain a ticket for free parking T&C were in place but after speaking to Co-op store they had so many complaints and therefore changes were made to car parking restrictions.  This post-event installation now attempts to outline the parking regulations in the area. The presence of newly erected signs and ease of use implies a recognition of the need for clarification and suggests that the prior signage (or lack thereof) and restrictions may have been inadequate in conveying the parking rules at the time of the alleged event. The subsequent changes and installation of a clearer sign within the car park underscores the evolving understanding of the need for unambiguous information. (See Exhibit 05) & (See Exhibit 09) to show both machines are now not in use.

 

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

14.   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.

 

15.   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.

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/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 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."

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 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

 

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, 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.

 

21.   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.

 

22.   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.

 

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).

SimHelp

CRA Breaches

1.      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.

 

2.      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.

 

3.      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).

 

4.      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  10)

 

The Beavis case is against this claim

5.      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, in particular, the brief, conspicuous yellow & black warning signs - (See Exhibit 11) - set a high bar that this Claimant has failed to reach.

 

6.      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 12) for paragraphs from ParkingEye v Beavis).

 

7.      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.  None of this was agreed by me, let alone known or even seen as I attempted to gain entry to the store. 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

 

8.      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.

 

9.      The Defendant asks 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 defendant's 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.

 

10.   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.

 

11.   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.

 

12.    

(a) The previously reserved costs of £315, and

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

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

 

13.   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.

 

Defendant’s signature:

Gr1pr

In 12a , I don't think that there are any previously reserved costs, just possible current and future ones , in which case the statement at the bottom cannot be true, not until it's been checked and fixed 

SimHelp

Oh thank you that bit confused me shall I just remove 12a - I have the amount of the claim, so do I need to include that?