Text from Empira Ltd (Gladstones) - CCJ

tunm153

Thanks, I need to submit it ASAP, I'm happy go out tonight to the location and take some photos and then submit it. After my number 13, I've kept 13, 14 and 15 in from the template, should I remove them? Rough draft:

·         District Enforcement Ltd                                                                          (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 1-11) 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.

 

 

Facts and Sequence of events

9.      Date and Time of the Incident: 30th July 2022, 31st July 2022, 11th August 2022, and 15th August 2022.

On the date of the alleged parking events, I was the registered keeper of the vehicle.

 

10.  The parking incidents occurred at night when visibility of any signage was significantly reduced. I assert that no contractual signs were seen nor were they prominent. If clear and illuminated signs had been present, I would not have parked there and would not have repeated this in August.

 

11. I did not receive any correspondence from the Claimant regarding the Parking Charge Notices (PCNs) or subsequent legal actions because they were sent to my previous address. Consequently, I was unaware of the Default Judgment until receiving a text from Empira Ltd on [date] January 2024. Upon checking my credit report, I noticed the CCJ.

 

12. I did not receive any windscreen PCNs affixed to the car on any of the occasions in question. This lack of consumer notices, both in the form of clear signs and windscreen PCNs, means that the alleged parking restrictions were not fairly drawn to my attention until it was too late.

 

13. The Claimant has not provided evidence that the signage met the requirements set out in the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice for nighttime visibility. Proper illumination and clear placement of signs are essential for informing motorists of parking terms, especially at night.

 

 

12.  The Claimant has stated in Point 21 of their Witness Statement ‘The Defendant does not dispute being the Keeper of the Vehicle. My Company reasonably believes that the Defendant was the Driver, because they would otherwise have nominated a driver, and therefore the Defendant is pursued on that basis. My Company has complied with POFA and can pursue the Defendant as Keeper in the alternative’. As multiple individuals were authorised by me to use the vehicle at the time, and given the PCNs in question relate back to 2021, I am unable to nominate a driver given the length of time that has surpassed since the alleged contraventions.                       

 

13.  The Claimant has stated in Point 24.iii of their Witness Statement ‘In any event, the Defendant appealed the charge admitting to being the Driver. A copy of the same is exhibited to this statement at “EXHIBIT 6”.’ Exhibit 6 of the Claimants Witness Statement clearly shows appeals to both PCN’s stating ‘Relationship To Vehicle – Registered Keeper’.                                                                                                                       

14.  The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

 

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but dd not. Mr Smith's appeal was allowed and Excel's claim was dismissed (See Exhibit 07).

 

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed (See Exhibit 08).

 

           

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.

 

 

 

tunm153

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.   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.

 

 

24.   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.

 

 

25.   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.

 

 

26.   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

27.   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.

 

28.   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.

 

 

29.   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).

 

 

30.   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 09)

 

 

The Beavis case is against this claim

31.   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 10) – set a high bar that this Claimant has failed to reach.

 

32.   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 11) for paragraphs from ParkingEye v Beavis).

 

 

33.   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

 

34.   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.

 

35.   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.

 

 

36.   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.

 

 

37.   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.

 

 

38. two

 

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

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

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

 

39.   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

1505grandad

What did you state in your Defence re driver?  -  in the above WS you state:-

"On the date of the alleged parking events, I was the registered keeper of the vehicle.

 

10.  The parking incidents occurred at night when visibility of any signage was significantly reduced. I assert that no contractual signs were seen nor were they prominent. If clear and illuminated signs had been present, I would not have parked there and would not have repeated this in August."

But then also state in para 12:-

" As multiple individuals were authorised by me to use the vehicle at the time, and given the PCNs in question relate back to 2021, I am unable to nominate a driver given the length of time that has surpassed since the alleged contraventions."

tunm153

Yeh, 12, 13 and 14 need to removed most likely, but just wanted to be sure, I got that from someone else's template. This was the 'defence' part of my defence:

"
1. On [date], the Court ordered that the default judgment against the Defendant be set aside on the condition that the Defendant submits a fully particularised defence by 4pm 24/05/2024. 2. The Defendant has not received the Particulars of Claim from the Claimant, which are necessary to provide a fully particularised defence. This lack of necessary information has prevented the Defendant from meeting the 4pm deadline set by the court. 3. The Defendant contends that the Claimant's failure to serve the Particulars of Claim constitutes a breach of Civil Procedure Rules and denies the Defendant the opportunity to understand the case against them fully.

2. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability'.

The facts known to the Defendant:

3. The parking incidents occurred at night when visibility of any signage was significantly reduced. The Defendant asserts that no contractual signs were seen nor were they prominent. If clear and illuminated signs had been present, the Defendant would not have parked there and would not have repeated this in August.

4. The Defendant did not receive any correspondence from the Claimant regarding the Parking Charge Notices (PCNs) or subsequent legal actions because they were sent to the previous address. Consequently, the Defendant was unaware of the Default Judgment until receiving a text from Empira Ltd on xx January 2024. Upon checking his credit report, the Defendant noticed the CCJ.


5. The Defendant did not receive any windscreen PCNs affixed to the car on any of the occasions in question. This lack of consumer notices, both in the form of clear signs and windscreen PCNs, means that the alleged parking restrictions were not fairly drawn to the Defendant's attention until it was too late.

6. The Claimant has not provided evidence that the signage met the requirements set out in the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice for nighttime"

tunm153

I've got the below evidence to attach, exhibit 1 being multiple images of poor visibility, nighttime images etc. I don't think my template includes all of the below, though what's already on the template may be enough.

KeithP

tunm153 said:

I've got the below evidence to attach, exhibit 1 being multiple images of poor visibility, nighttime images etc. I don't think my template includes all of the below, though what's already on the template may be enough.

If your Witness Statement doesn't mention a particular exhibit then that exhibit should not be included.

tunm153

Thanks, in that case I'll simply replace exhibits 5-9 with my own pictures, I'm using Citizen_K's template. For point 38 it simply say's 'two' currently, got that from the template.




 i

tunm153

With the photos I've taken, I'm not sure if the signs are 'badly lit', though you certainly wouldn't be able to see what the entire sign says without going close to it, since it's just a leaflet type thing stuck to the wall. Not sure whether to include those images or not

tunm153

What do you think @Coupon-mad? When I went to take the photos, there was another car parked in the spot where I got the parking charges 2 years ago. I've seen others park there at times and I also don't recall seeing the 'P' sign before.

Coupon-mad

Yep unclear signs.

Remove 5, 6 and 7 and all those exhibits and use the judgments link instead.  It is in the thread by @Le_Kirk and it now includes another persuasive appeal decision, so change para 4 to reflect the TWO appeal judgments.