NEED HELP BIGTIME

adamlfc

Debszzzz2 said:

It is still not clear who the an actual named defendant is. Whose name is on the Claim form? Is it you or your dad? Any initial correspondence about this would have gone to the registered keeper (RK). In whose name is the V5C logbook of the vehicle. Is it in your or your dads name? 

You must understand that only the named defendants the claim form can defend the claim. It says on the claim form that they are pursuing the "driver". At any stage was the identity of the driver revealed? This is asked because the "driver" and the "registered keeper" are two separate entities in law.

There are a few possibilities that need clearing up...

1. Are you the RK and your dad was driving on the day?

2. Is your dad the RK and he was driving on the day?

No. Dad is the registered keeper and dad was driving that day. They have a picture of him leaving the vehicle and heading out the car park. They have a few pictures. But they dont have a picture of him entering the car park. So potentially he went inside the shop done a shop. Popped it into car and walked out carpark for a few minutes. 

adamlfc

Johnersh said:

Ok so the case went to a mediation and, presumably, didn't get resolved.

You have posted p1 of the order dated 24/1 but not any additional wording on the back of that.  The 24/1 order is the live one and the full order would probably be helpful to see 

You have posted both sides of the earlier dispute resolution order dated 12/12. I'm guessing that if a summary before that hearing was prepared no witness statement was.

Yep went to mediation and never got resolved as i had not sent any paperwork to the claimant or the court so the judge ordered a final hearing. Were i need to post the documents that i will rely on in court to both the claimant and the court.  

adamlfc

Can someone please confirm. 

The paperwork needs to be sent off by Tuesday? 

Also were is the best place to write up the witness statement? Word? 

Then i need to convert that to a pdf file along with the pictures  and evidence and then forward it to court and gladstone solicitors? 

If my dads rehearsing is on the 20th feb whats my deadline for sending documents. Tuesday? 

Coupon-mad

Your Dad's WS bundle must be filed (local court) and served (cc to claimant's solicitor) not less than 2 weeks before the hearing.

Email is fine. Don't post it, due to delays.

Example WS to copy and adapt are linked by username in the NEWBIES thread, next to the a-f list of suggested exhibits.  

adamlfc

N THE COUNTY COURT AT BIRMINGHAM

Claim No:  xxxxxxx

Between:

EURO PARKING SERVICES LTD

- and -                        

MR xxxxxxxxxxx

_________________

WITNESS STATEMENT OF MR xxxxxxxxxx (DEFENDANT)

Witness Statement of Defendant

1. I am xxxxxxx xxxxxxx 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 own knowledge.

1. 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', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

1. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver.

2. The defendant did not receive any letters through the post stating he had breached any parking contraventions. The first letters that the defendant received through the post were on Febuary 6th 2023 from the claimants legal team saying money owed is £160! When a call was made saying the defendant does not now about the fine he was told he had to pay the £160 or will be taken to court in a quite threatening manner. If I had received the first 2 letters directly from Euro Parking services I would of gone back into the supermarket and the manager and owner would have had the ticket cancelled for me as they have done for many customers.

1. The defendant when received the letter from claimants legal team went directly to the supermarket and complained but they said if you had come earlier we would of cancelled the charge with the parking firm but that was not possible as the defendant did not receive any letters from Euro parking services regarding the charge. If he had he would of gone to the supermarket and it would have been dealt with as they know me personally as I am a regular shopper at the supermarket and I have a witness statement from the manager of the place too.

1. The defendant shops at the said supermarket GOLDENS SUPERMARKET 3-4 times a week and has been for the last 15-20 years if not more. The defendant lives about ¼ a mile away from supermarket and this is his local place were he does all his shopping so to be expected to pay £266 for leaving the car park for 4-5 minutes is not right in my opinion. I have attached photocopies of some of the receipts the defendant has found in his car just to show he does shop here regularly.

1. From the pictures seen from Gladstone solicitors it shows me leaving the car park I will not argue that point but it does not show me a picture of my vehicle coming onto the car park so on that particular day I am not 100% sure I actually shopped in the supermarket but my normal routine is to shop at the supermarket and collect my medicine once I have placed my shopping back into the car which I have been doing for many years now with no issue from landowner or manager of store.

1. There is no picture of me driving into the car park which I would like to see so I can see if I had indeed shopped that day or not at the supermarket.

1. After going back to the car park once I had received the threatening letters from Gladstone solicitors regarding payment I noticed the signage is so poor and confusing especially for someone my age. I have attached pictures showing how poor the signage is and even some of the signage is missing and some of the signage is so high and such small writing how can they expect a 74 year old to read that?

1. The defendant is not well at the moment and showing early signs of Parkinsons disease and this is causing him a lot of stress and his son has emailed the solictors and called them to make them an offer to pay £100 so he does not have to go to court but the solicitors firm said the defendant has to pay the full amount or go to court.

1. The defendant has spoke to the owner of the supermarket and he has apologised and said due to so many upset regular customers they have cancelled the contract with the parking firm. So I would like to see the signed contract euro parking services have with landowner and would like know when it started and when it ended.

1. The defendant would like the court to be shown the full signed contract Euro Parking services has with Golden Supermarket and also would like to see record of a recent car park audit to show how often the signs are maintained as my pictures prove the signs are missing from some of the locations in the car park and the ones which are visible are nearly 8ft high with very small writing indeed.

1. The claimant claims that because the defendant has left the car park he could not be a patron of the store. How can they say that if the defendant shops very often inside store and then leaves car park for less then 5 minutes to pick up his medication.

1. The claimant claims that on the terms and conditions the contravention broken by defendant was that patrons must stay on premises whilst shopping? But if you look at the pictures defendant has attached the main big sign whilst you enter the car park does not say patrons must stay on premises. That is written in the 'Hidden signs' in small print.

1. The terms and condition signs say in small writing patrons must stay on premises but that's written in such small writing to confuse people which needs to stop.

1. Also some of the signage is missing and the signage which is situated near to were the defendant parked his car is a small sign which is approximatley 8ft high which is difficult for a normal person to read never mind a 74 year old.

1. This carpark also had a kiosk system were by the customers had to put in the number plate on a touch screen by the till so they do not get a parking charge which is what I always did but that touch screen has been out of order so is no longer used which confused the defendant. The defendant is not sure what dates that touch screen system was used and why it was stopped so would like to know why this was stopped by Euro Parking. Was it to catch more customers out?

17. The defendant would like to see from the claimant if that touch screen was in operation on the day of the parking charge notice.

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

18. 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.

19. 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

1. 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.

20 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.

21. 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."

22 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

22. 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.

23. 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.

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. 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.

26. 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.

27. 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.

28. 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).

adamlfc

CRA Breaches

29. 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.

30. 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.

31. 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).

32. 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 xx-14)

The Beavis case is against this claim

33. 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 xx-15) - set a high bar that this Claimant has failed to reach.

34. 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'.

35. In the present case, the Claimant has fallen foul of those tests. The main issues that 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 the defendant , let alone known or even seen. 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

1. 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

2. 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".

36. I maintain that no contractual agreement existed between myself and Euro Parking Services Ltd, and the Claimant will concede that no financial loss has arisen. The charge imposed, in all the circumstances is a penalty (not saved by the ParkingEye v Beavis case, which is fully distinguished). In addition to the fact that the sum claimed under purported 'contract' is disproportionately exaggerated, additionally the interest is inflated as interest appears to be miscalculated on the whole enhanced sum from day one as if £160 or £170 was 'overdue' on the day of parking;

37. Gladstones indisputably issue tens of thousands of inflated parking claims every year and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims. Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Gladstones and nothing to do with the Claimant's alleged £100 PCN. I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit.

Conclusion

38. The claim is entirely without merit as the defendant was not bound by the terms and conditions as he clearly did not see them and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

39. 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.

40. 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.

41. 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 defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature:

Date:

adamlfc

Its not the best i know but something is better then nothing. 

I have this written in word how do i get this on drop box and then add the photos,. Is there some were were i can read a tutorial or something. i want to try and get as much done tonight as possible. 

Coupon-mad

No that's a defence. 

That IS NOT what we said he needs to do. 

adamlfc

Whats best method to make this into pdf form and add pictures and to send to both court and claimant. 

Dropbox is not free to use it it? Its saying i need to pay. Is there a free app to use to send dovunents. 

Any advise would greatly appreciate it. 

Coupon-mad

Dropbox is free. I use it all the time.

BIN THAT DEFENCE.

I told you exactly where to find the WS & exhibits examples.