Assistance with Defence Letter

Le_Kirk

You have copied and pasted the whole of the template defence; what parts have you added or amended, we only need to see those parts.  There is no time for regulars to read and check ALL of that.

Coupon-mad

However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

I'd remove the above. Not needed in your case. Apart from that, your defence looks fine now.

fightpcn

I have submitted  the Defense  now we wait 

fightpcn

IN THE COUNTY COURT

Claim No.:  xxxxxxx

Between

Parking Control Management Ltd

 (Claimant)

- and -

xxxxxxxxxx

(Defendant)

_________________

Witness Statement of Defendant for Court Hearing

 

1.     I am [Name], [Address] 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 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:

3.     Facts and Sequence of Events

4.     It is admitted that I was the registered keeper of vehicle of [reg] on 29‑Janurnay‑2023.

5.     I was not the driver of vehicle [reg] on 29-Januray-2023.

6.     The driver of the vehicle on the 29-Januray-2023, [driver name]

7.     the defendant sent proof of pcn to the driver via whatsapp,

8.     the driver asked the about pcn amount the defendant replied £60

9.     the defendant send link of PCM (Parking Control Management) payment to the driver,

10. the driver asked the defendant how many dose he has to pay £60 reply defendant said 7 days

11. The driver said  thank you bro folded hands emoji.       

12. The driver has block the The Defendant has no contact or address to him.

13. The Defendant  wasn’t even in the area can proof with google tracking

14. Exaggerated Claim and 'market failure' currently being addressed by UK Government

15. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  I have seen no evidence that the added damages/fees are genuine.

16. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. A new tactic, only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £20 which was not on the signs.  The Defendant takes the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

17. As The Defendant  was not the driver of the vehicle, the only way the claimant can hold me as the keeper liable is by complying with Sch4 POFA, which only allows (under certain circumstances) keeper liability to a maximum of the sum of the parking charge as appeared on the sign when the driver was in site that day (£100). Attention is drawn to Excel v Smith (Exhibit xx-09) and VCS v Edward (Exhibit xx-10)

18. I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

19. (i) the alleged breach, and

20. (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.

21. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

22. (i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

23. (ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

24. (iii).  Interest appears to be miscalculated on the whole enhanced sum from day one as if the entire sum was 'overdue' on the day of parking;

25. 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.

26. The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7thFebruary 2022, here:

27.  https://www.gov.uk/government/publications/private-parking-code-of-practice

28. "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."

29. 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

30. 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.

31.  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.

32. 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.

33. 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.

34. 
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.

35.  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.

36.  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).

37.  CRA Breaches

38.  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.

39.  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.

40.  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).

41.  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-11)

42.  The Beavis case is against this claim

43.  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-12) - set a high bar that this Claimant has failed to reach.

44.  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 xx-13) for paragraphs from ParkingEye v Beavis).

 

45.  Hidden Terms:

46.  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. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

 

b.     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

 

c.      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".

47.  Conclusion

48.  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.

49.  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.

50. 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.

51. 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.

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

                                                    i.     standard witness costs for attendance at Court, pursuant to CPR 27.14, and

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

 

53. 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))."

 

 

54. Statement of Truth

55. 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.

56. Signature:

57. Date:

58.

fightpcn

I have received a Notice of Allocation to the Small Claims Track. I have already submitted my witness statement (WS) and evidence, as required, before the 15th of October. PCM (represented by Gladstones Solicitors) has also submitted their WS and evidence, and they have indicated that they will not be attending the court hearing. However, the Notice of Allocation does not include a court hearing date. any last advice before submit this ?
https://postimg.cc/dkkDdXLV
https://postimg.cc/ctG13LpF

KeithP

You have shown us a document entitled...
           Witness Statement of Defendant for Court Hearing

But your Statement of Truth says...
           55. I believe that the facts stated in this defence are true.

1505grandad

Also make sure the correct name of the claimant  -  as stated on the claim form  -  is on the heading

Coupon-mad

You can't put paragraph 11 before a Judge!

fightpcn

KeithP said:

You have shown us a document entitled...
           Witness Statement of Defendant for Court Hearing

But your Statement of Truth says...
           55. I believe that the facts stated in this defence are true.

Meant be WS i will change 

fightpcn

Coupon-mad said:

You can't put paragraph 11 before a Judge!

I will remove it