MET PARKING FINE at NUFFIELD CLUB

12b3

Ok I am drafting at the moment , not my area of expertise so struggling a bit , any holes from the redacted Claimant's WS I posted that I can talk about in my WS ?

https://drive.google.com/drive/folders/1cqnX_SCY_ohmkmtcP4IdQ2avpbLi8scU

12b3

I have an email from the gym which is also the listed landlord I believe from the below contract document sent by MET Parking lawyer in their WS  , saying that they acknowledge me as a paying member and I can use this email to contact them to cancel the fine , secondly at the time the email was sent they also called the parking firm asking them to cancel the fine , they just replied that they will take the original amount not the increased amount , the gym just relayed me the message of course I refused to pay.

My question is even if the landlord is not wanting to claim why is the parking firm still pursuing it and going all the way to small claims court ? Is this just bullying 





 

Coupon-mad

Yep, because they know bullying works on most victims.

12b3

Do I need to attach the copy of the ruling for each of the below  cases in the exhibit section? where can I find a copy of these , I searched and they seem to be behind a paywall 

.       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 xx-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 xx-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 xx-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 xx-04)

12b3

Hi All 

I have prepared the below WS and want to submit it asap , can you please review it and let me know if any thing to add / remove from this 

Many thanks in advance for your help 

IN THE COUNTY COURT

Claim No.:  xxxxxxx

Between

MET Parking Services Ltd

(Claimant) 

- and -  

xxxxxxx

 (Defendant)

_________________

 

Witness Statement of Defendant

 

1.       I am xxxxxx, (address:xxxxxx) 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 1-9) within the evidence supplied with this statement, referring to page and reference numbers where appropriate.

 

 

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 xx-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 xx-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 xx-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 xx-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. 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 as know to the Defendant:

9.It is admitted that the defendant was the registered keeper and driver of the vehicle.

 

Car Reg: XXXXXX

Location car was parked: Nuffield Health Brondesbury Park Fitness & Wellbeing Gym,

Sidmouth Rd, London NW2 5JX

Date Parked: XXXXXX

Date / time ticket issued: XXXXXXX

No ADPR on site

 

 

10. The Defendant is a paying member of the gym on whose premises he is visiting as a member and parked for the past five years. He, being a regular member of the gym parked as per usual on the above date and entered the reg number on this visit as he does on each visit in the number plate iPad recorder. See exhibit () detailing defendant’s direct debit membership payments from to date.

 

 

11. The Claimant has in all these years never issued a similar fine to the claimant See exhibit ()

of defendants SAR obtained from the claimant’s legal department proving the defendant is familiar with and has always complied with the terms and this being the only parking ticket issued to him in all years of use

 

12. The claimant in their statement inaccurately mentions that the members need to sign in at reception to register their car, failing to mention that the means of registering is an electronic device in the form of an iPad located on the front desk See Exhibit

 

13. The defendant entered his car reg on 11/10/2021 at around 1900 as per usual and in compliance with the terms, however on this occasion the iPad didn’t seem to have recorded this entry. The defended contends that it is not his responsibility that the electronic device failed to record the entry on this or any other occasion.

 

14. At 11/10/2021 21:15 PM the defendant discovered a ticket on the window of the car and complained to the gym manager XXXX  the next day who admitted that the fine was incorrectly issued and said that sometimes the keypad fails to correctly record the VRM, he took the ticket off the defendant and told him that he will get this sorted and the fine removed. 

 

 

15.The defendant believed the matter was closed as far he was concerned and was unable to appeal to the claimant as the manager had taken the ticket off him, Since then claim letters and court letter came and the defendant followed up the matter with the gym and learnt that Hatim had left the business and not made the current manager aware of the ticket  , As per Exhibit () the email dated shows that the gym acknowledges the defendant as a paying member and does not wish to pursue any charges as the landlord. The manager, XXX said he would follow up with the parking firm to get the matter resolved.

 

16. On 16th June 2023 next day after the email the defendant got a call from the gym saying that they have spoken to the claimant and the claimant will be happy to take the initial reduced amount of £60. The request of the claimant to still ask for £60 on 16th June 2023 shows that they are simply trying to bully genuine customers who have not breached any contract despite the parking operator's principal (landowner – Nuffield leisure centre) requesting to cancel the fine.

 

17.The claimant in their WS alleged the defendant failed to communicate with the parking firm, this statement is untrue as the defendant chose to communicate via the landlord as he saw it as their responsibility to maintain any recording equipment on their site and also the fact that defendant looks after two sons who have an autism diagnosis and couldn’t spare much time responding to these unwarranted claims. See exhibit ( ) from community peads doctor of children’s diagnosis

 

....continued in next post...

12b3

Lack of standing or landowner authority, and lack of ADR

 

 

18. Above evidence suggest the claimant is attempting to extort anyone who do not go to the lengths of going to small claim court, even if there isn’t a breach of contract, these predatory practices must be stopped in the interest of the public and consumer.

 

DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that this Claimant (an agent of a principal) has authority from the landowner to issue charges in this place in their own name.  The Claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name.

 

19.The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new incoming statutory Code shows that genuine disputes such as this would see the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair appeal was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

 

20.The facts in this witness statement come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience, and they cannot be criticised for using, in part, pre-written wording suggested by a reliable online help resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

 

21. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  In breach of the pre-action protocol for 'Debt' Claims, no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts and specific breach allegations, which makes it difficult to respond in depth at this time; however, this claim is unfair, generic and inflated.  

 

 22.This Claimant continues to pursue a disproportionate fixed sum (routinely added per PCN) despite knowing that this is now likely to be confirmed as banned by the Government this year. It is denied that the purported 'damages' or 'debt fee' sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  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 (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

 

This finding is underpinned by the Government, who stated in 2022 that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

 

Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 

9. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as this claim: "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."

 

 

23. The DLUHC consulted for over two years, considering evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt/robo-claim firms operate on a 'no win, no fee' basis, seeking to inflate these claims with 'costs/damages' in addition to the strictly capped legal fees the small claims track allows.  

 

 

24.. This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an 'automated letter-chain' business model that generates a healthy profit.  In Beavis, there were 4 or 5 letters including reminders.  The parking charge was held to cover that work.

 

 

25.POFA and CRA breaches

 

Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred. 

 

Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

 

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, and all terms unambiguous and obligations clear. The Defendant avers that 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. 

 

 

26.ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

 

ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must each be determined on their own facts.  That 'unique' case met a commercial justification test, and took into account the prominent yellow/black uncluttered signs with £85 in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach.

 

 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'.

 

 In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous 'penalty' was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both 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'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).  

 

27. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." 

 

CONCLUCSION

 

The claim is entirely without merit. 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.

Le_Kirk

12b3 said:

Do I need to attach the copy of the ruling for each of the below  cases in the exhibit section? where can I find a copy of these , I searched and they seem to be behind a paywall 

Use the Judgments link which can be found via NEWBIE sticky second post but I have repeated it for you.

12b3

Thank you @Le_Kirk

Anyone has any comments on the WS draft ? will be sending it off today with the evidence exhibits 

12b3

WS sent to Court email with Claimant solicitor Cc'd in 

  

Gr1pr

12b3 said:

Thank you @Le_Kirk

Anyone has any comments on the WS draft ?  

A bit late now, but running a spelling checker over it could have been a good idea, starting with 

Conclusion