Defence help - Civil National Business Centre - Anchor Security Services Limited T/A Ocean Parking

TribalHarv

I have an almost identical claim form (same claim form dates, same location, same claimant, same lawyers) to which I am just about to email a verbatim defence today. I'd be keen to keep in touch @ednsade as our trajectory will likely be the same. 

Coupon-mad

TribalHarv said:

I have an almost identical claim form (same claim form dates, same location, same claimant, same lawyers) to which I am just about to email a verbatim defence today. I'd be keen to keep in touch @ednsade as our trajectory will likely be the same. 

Good stuff.

No need for a thread of your own until you are past the basic first 12 steps in the Template Defence thread.  You will need a new thread at WS stage.  Not sooner. The first steps are covered in the sticky thread. 

TribalHarv

Cheers @Coupon-mad, your help is really appreciated!

TribalHarv

Had a letter today to state that the client has made a commercial decision to discontinue proceedings and issued a Notice of Discontinuation. 

Thanks for everyone's help on this forum. Forever indebted! 

Coupon-mad

Another CST Law discontinuance.  This is getting fishy.  Same MO as DCB Legal:

file hundreds of claims and watch the money and CCJs roll in and then discontinue the tiny % of cases that are well defended, with little or no demonstrated intention of taking any cases to any hearing.

That MO (certainly seems to be DCB's aim, maybe CST Law too) is an abuse of the court system IMHO.

I hope the CJC took heed of our submissions in January to their Call for Evidence, and have taken on board what needs to be done to rescue the county court system from this parking roboclaim abuse which has caused the CNBC to pretty much crash.

ANYWAY - woohoo! You won!

ANOTHER CST LAW ONE BITES THE DUST!

ednsade

Hi all, unfortunately there is no discontinuance of my case and I have been given a hearing date (10th Sept), just trying to get my WS ready so will post this once I have done the first draft - as there has been a discontinuance of @TribalHarvcase which they said was similar to mine, could I use their discontinuance as evidence in my WS? To basically state they are not treating each case the same? also why do you think they have discontinued theirs but not mine?

Coupon-mad

No, you can't use a commercial decision made in another case in your WS.  Not relevant.

ednsade

Ok so first draft of WS done, would everyone especially @Coupon-mad take a look please? Hearing date is 10th September 

ANCHOR SECURITY SERVICES LIMITED T/A OCEAN PARKING (Claimant)

V

XXXX (Defendant)

 

Witness Statement of Defendant

 

1.       I am XXXX of XXXX 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 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 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. It remains uncertain whether the claim pertains to my alleged parking outside of a designated bay, failure to remain on the premises, incorrect bay parking, overstaying the allotted time, or perhaps a technicality associated with the entry process at the kiosk. 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 and Defence

9.   On 29/10/21 and 2/1/22 the defendant utilised the drive-through McDonalds at the site to order, pay and wait for their food. On both occasions the drive-through was very busy and the defendant queued in their car to make their order, then continued to queue to pay for their order and on both occasions, after paying for their order they were told to park in the Waiting/ Grill car bays by McDonalds staff and that their food would be bought out to them. On both occasions there was a significant wait for their food. On both occasions the defendant did not leave their vehicle. On the first occasion (29/10/21) the defendant was on site for around 22 minutes and left the site as soon as their food was delivered to their car at the waiting/ grill car bay, without stopping to eat. On the Second occasion (2/1/22) The defendant was on site for just under 35 minutes, the defendant waited for their food in the allocated waiting/grill space and then ate their food whilst still in the allocated waiting/grill bay. They did not leave the allocated waiting/grill space during the time on site. All time on stie was spent at the McDonalds drive-through location. The defendant states they have not utilised this car park to park, they did not leave/park their vehicle in any of the bays where the parking charges apply and where therefore not required to purchase a ticket as they were a legitimate user of the site due to visiting McDonalds.

10.   With reference to Paragraph 3 of the Claimants Reply to defence, The claimant states that they have been granted full authority to manage the parking facilities at the site. There are a number of spaces within this site that are not classed as the ‘parking facilities’ and are therefore not subject to the claimant’s authority. The defendant was therefore not parked in a regulated space or a space that is subject to the terms and conditions. Section 3.0 of the Car Park Management plan obtained from Walsall Council states: (See Exhibit 05):

The parking restrictions will be applicable 24 hours a day, 7 days a week but will only be enforced for spaces 1-12, 15 to 32 and A, B, C, D. The exceptions to the restrictions will be:

· Hotel spaces 33 to 45. Guests will be permitted a 24-hour duration of stay;

· McDonald’s spaces 46 to 54 and grill spaces (13 and 14). The grill spaces will be actively managed by McDonald’s.

12.   The Grill spaces are not subject to management by Ocean Parking. The Claimant has no authority to issue parking charge notices for space 46 to 54 and grill spaces (13 and 14). Car Park Management plan (See Exhibit 05) states in Section 9.0 Enforcement will only apply to the shared spaces 1 to 12, 15 to 32 and spaces A, B, C, D (hatched spaces on the plan in Attachment 1.0). The defendant was parked in Grill Space 13 for the duration of both dates. Car Park Management plan (See Exhibit 05) Section 8.0 states Grill bays (spaces 13 & 14) Free (operational use by McDonald’s only). Car Park Management plan close up of car park space (See Exhibit 06) Circled grill spaces. Therefore, I maintain that no contractual agreement existed between myself and ANCHOR SECURITY SERVICES LIMITED T/A OCEAN PARKING, and the Claimant will concede that no financial loss has arisen.  

13. Paragraph 5 of the Claimants Reply to Defence states signage clearly reflects the terms and conditions for that business area of the car park. The defendant denies this claim and disputes the adequacy of the signage at the site and states that the terms and conditions of parking are unclear and contradictory. The copies of parking signage provided by the Claimant within the Reply to Defence (AS2) do not reflect the signage that was on the site for the 2 alleged dates of 29/10/21 and 2/1/22. The Date Stamps for the sites Signage provided in the Reply to defence are dated 6/10/22 and 2/12/22. These are 9 months after the second alleged offence. The signage at the time of the alleged offenses is different.

14. Google Street view images of the signage at the entrance to the site and the entrance to the drive through relevant to how the site looked on 29/10/21 (See Exhibit 07) Google Street view images of the signage at the entrance to the site and the entrance to the drive through relevant to how the site looked on 2/1/22 (see Exhibit 08)

15.  Signage provided by the Claimant within the Reply to Defence (AS2) shows two signs at the entrance to the drive through, one being specifically for McDonalds customers. These additional signs relevant to McDonalds customers were not present on the dates of the alleged offenses and were subsequently added after these dates. Signage on site on the dates of the alleged offenses are small and illegible and certainly unreadable from within the car.  The approach to the car park has no clear signage and is not visible from the driver’s side when pulling into the car park from the direction the defendant entered the site.  Signage at the drive through differs on both dates of the alleged offenses.

16. New signage installed at a later date: Furthermore, I would like to draw attention to the fact that subsequent to the alleged parking events, new signage has been installed throughout the site. This post event installation now attempts to outline the parking regulations in the area. The presence of these newly erected sign implies a recognition of the need for clarification and suggests that the prior signage or lack thereof may have been inadequate in conveying the parking rules at the time of the alleged events. The subsequent installation new signage relating to McDonalds customers underscores the evolving understanding of the need for unambiguous information.

17. The defendant would like to raise the issue that the Claimant has provided differing time stamps and information relating to the time the Defendant spent on site throughout this process, drawing into question the accuracy of their records and reported information. The claimant’s response to defence states in Paragraph 10: On 29/10/2021 the defendant’s vehicle entered the site at 12:05:42 and exited 12:28:20. The Parking Charge time has a different time stating 12:05:43 to 12:28:20 (22m:37s). The claimant’s response to defence states in Paragraph 11. The Defendants entered the site at 16:20:12 and exited at 17:04:04 The Parking charge time has a different time stating 16:29:12 to 17:04:04 (34m 52s).

18. The International Parking Community code of practice Code_of_Practice_v8-821f63d6.pdf (cdn-website.com) states: 13.2 Before a Parking Charge is issued Motorists must be allowed a Grace Period save and except when 13.3 is applicable. A Grace Period is a 10-minute period at the end of a Permitted Period of Parking. 13.3 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. The Defendant has confirmed in Paragraph 7 of the response to defence, that McDonalds customer has 20 minutes permitted period of parking. The signage does not advise that no Grace Period applies on this site, therefore with the addition of the Grace Period of 10 minutes applied, the first alleged offence of 22minute 37s falls within the Grace Period and should be struck out. If the Grace period is applied to the second alleged offence of 34minutes and 52 seconds, then the entire basis of the Claimants Claim is based upon the defendant being present on site for a period of 4 Minutes and 52 seconds. The defendant reiterates that they were also not parked in an area liable for parking charges or subject to enforcement.

19. Paragraph 13 of the Claimants response to defence states that their solicitors provided further details as to the conventions on 20/2/24 to counter the defendant’s allegation that the Particulars of the claim are insufficient. The Defendant did not receive this information and the next contact recorded from the Claimants solicitors on 11/3/24 makes no mention of this. The Claimant asks that the judge strikes out this claim as the Claimants Particulars are insufficient.

20. The defendant would like to draw the Judges attention to the numerous national and local news reports, local MP involvement, and the public petition for this site. There is significant press coverage raising concerns about the management of this site, which has concluded that the conditions at this site have changed on a number of occasions, that the signage provides conflicting terms and conditions, and the terms of parking are unclear. (See Exhibit 9).

 

ednsade

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

21. 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.

22.  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.

23. 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.

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

25. 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

26. 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.

27. 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.

28.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.

 29.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.

 30.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.

 31.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.

 32.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

33.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.

 34.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.

 35.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).

 36.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

37.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.

 38.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).

 39.In the present case, the Claimant has fallen foul of those tests and render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

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".

 Concealed pitfalls or traps:

Failure to provide external signage to make McDonalds customers aware that they can input their vehicle registration into a tablet which is located inside the McDonalds to gain 60 minutes free parking.

 Conclusion

 40.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.

41.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.

 42.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.

 43.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.

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

(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. 

 45.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:

 Date: xxx

Gr1pr

One thing that I noticed is the constant use of the words ,,,,  the defendant, third person 

Witness statements are written in the first person, meaning ,,,, I