DCBL Letter of claim

Coupon-mad

More people will look at copy&paste posts rather than a link.  It's a lot easier for us to pick bits out to reply about.

NorthWalian

Total Parking Solutions Ltd (Claimant)

 

V

 

 (Defendant)

 

Witness Statement of Defendant

 

1.      I, x, am the defendant in this matter against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based on my on knowledge. My defence is repeated and I will say as follows.

Preliminary matter: The claim should be struck out

2.      The Particulars of Claim ('POC') fail to plead the conduct which validly causes a parking charge to arise. No terms are specified and as I used the Puregym as seen in exhibit 8, I did not exceed the maximum stay time of 3 hours. Therefore, I could not understand from the POC, the basis of claim or liability sought. Two persuasive claim Appeal cases - Civil Enforcement Ltd v Chan and Car Park Management Service Ltd v Akande both confirm that poorly pleaded parking claims such as this should be struck out

 

3.      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 of 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 judgments, and multiple similar judgments and strike out Orders demonstrate the path taken by many District Judges in the English Courts since 2023. The Court should strike out the claim, using its powers pursuant to CPR 3.4.

4.      The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form. The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  I trust that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

Facts and sequence of events

 

5.      It is admitted that on the material dates, I was the registered keeper and the driver of the vehicle.

 

6.      These parking charge notices occurred at a time where all buildings on the car park, other than the Puregym were closed to the public due to it being late at night. As can be demonstrated in the attached screenshot from the Puregym app in exhibit 8, I only parked at the premises for the purpose of using the gym and left the premises as soon as I finished using the gym.

7.      Other than an A4 sign, there was no notice informing users of the gym of the need to register their number plate to allow for a 3 hour stay (the sign seen in exhibit 4 had not yet been put in place in 2023). Exhibit 4 demonstrates the remote location of the tablet which is also on the right side of the gym away from the weights and the stairs to the upper floor.

8.      While very easily possible, the car park does not place the details of registered number plates into a whitelist and instead arbitrarily requires registration upon each visit.

9.      Instead of promptly pursuing the supposed breach, the claimant spent many months sending vague letters with the aim of intimidation with a ‘’As seen on TV’’ slogan unnecessarily included on the bottom.

10.  The particulars of claim in addition to being generic, fail to account for this context or include any details. In addition, wildly inflationary charges have been added which lack any true basis for their inclusion, as outlined below.

NorthWalian

(IGNORE THE PARAGRAPH NUMBERS)

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

1.      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:

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

3.      (ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines. As exhibits 5 and 6 show, the signs are both relatively small with a large amount of small print and only single-sided. While the claimant may wish to rely on Beavis, exhibit 7 demonstrates the difference between these two cases as in Beavis, the key terms were displayed in a manner clearly visible to the user.

4.      As exhibits 1-3 show, parking charges exist for the purpose of both deterring abuse of the car park and allowing spaces to remain available for customers to use. As was previously mentioned, the fact that only the gym remained open meant that almost all parking spaces were open at the time and as exhibit 8 shows, the car park was parked so that the gym on the premises could be used.

5.      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.

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

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

8.      "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."

9.      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

10.  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.

11.  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 His 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.

12.  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.

13.  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'.

 

14.  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.

Conclusion

 

15.  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.

 

16.  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.

 

17.  In the matter of costs, the Defendant asks...

 

Statement of Truth

 

18.   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.

 

Signed:  Date: 30 September 2024

Coupon-mad

I'd remove para 16 as it us a repetition of your early exhibit (Chan) and just interrupts the flow.

Here I would add the words shown:

intimidation with a ‘’Can't Pay? We'll Take it Away! As seen on TV’’ slogan..."

And I didn't see any of the recommended a-f list of exhibits set out in the NEWBIES thread section all about WS and evidence stage.

NorthWalian

Coupon-mad said:

I'd remove para 16 as it us a repetition of your early exhibit (Chan) and just interrupts the flow.

Here I would add the words shown:

intimidation with a ‘’Can't Pay? We'll Take it Away! As seen on TV’’ slogan..."

And I didn't see any of the recommended a-f list of exhibits set out in the NEWBIES thread section all about WS and evidence stage.

I have an exhibits list but just omitted it as I am unsure of how the pictures would load.

They are shown in the dropbox version.

I have done the other suggestions though.

Coupon-mad

Good. So you have Excel v Wilkinson and the Beavis case sign and quotes?

NorthWalian

Coupon-mad said:

Good. So you have Excel v Wilkinson and the Beavis case sign and quotes?

I have the latter but not the former.

Where in the thing should I put Excel v Wilkinson?

Coupon-mad

Copy any recent WS where they included it, and search the forum for the transcript.

Read it and understand the arguments. 

LDast

I suggest you number your exhibits in the order they arise in your WS. In what you've shown us, your first mention of an exhibit is #8 in your para #2.

NorthWalian

LDast said:

I suggest you number your exhibits in the order they arise in your WS. In what you've shown us, your first mention of an exhibit is #8 in your para #2.

Good thinking