DCBL Letter of claim

NorthWalian

Same question for the entry logs on the Puregym app 

Coupon-mad

NorthWalian said:

Coupon-mad said:

To read about WS and find the standard a-f list of recommended exhibits, go back to the second post of the NEWBIES thread and read the second half of the info in that post.

Posters need to search the forum for a recent Witness statement example or ten. I'm not posting exemplars as things change and people copy old stuff.

I saw what I should include but I am not really sure which of them apply to this case considering how my circumstances are quite unique.

As my defence mentioned the location of the keypad should I include that too?

Circumstances are never unique.

Your WS supports your Defence.

NorthWalian

Coupon-mad said:

NorthWalian said:

Coupon-mad said:

To read about WS and find the standard a-f list of recommended exhibits, go back to the second post of the NEWBIES thread and read the second half of the info in that post.

Posters need to search the forum for a recent Witness statement example or ten. I'm not posting exemplars as things change and people copy old stuff.

I saw what I should include but I am not really sure which of them apply to this case considering how my circumstances are quite unique.

As my defence mentioned the location of the keypad should I include that too?

Circumstances are never unique.

Your WS supports your Defence.

What should the exact length be?

Gr1pr

NorthWalian said:

Coupon-mad said:

NorthWalian said:

Coupon-mad said:

To read about WS and find the standard a-f list of recommended exhibits, go back to the second post of the NEWBIES thread and read the second half of the info in that post.

Posters need to search the forum for a recent Witness statement example or ten. I'm not posting exemplars as things change and people copy old stuff.

I saw what I should include but I am not really sure which of them apply to this case considering how my circumstances are quite unique.

As my defence mentioned the location of the keypad should I include that too?

Circumstances are never unique.

Your WS supports your Defence.

What should the exact length be?

Less than the maximum limit set by your chosen civil court 

Coupon-mad

50 sides of A4

Le_Kirk

NorthWalian 

my circumstances are quite unique.

No! Unique can never be quite or almost or nearly or any sort of qualifier! Posted on behalf of Captain Pedantic, although he would say it is important to use correct spelling and grammar especially on legal documents. 

NorthWalian

Le_Kirk said:

NorthWalian 

my circumstances are quite unique.

No! Unique can never be quite or almost or nearly or any sort of qualifier! Posted on behalf of Captain Pedantic, although he would say it is important to use correct spelling and grammar especially on legal documents. 

What I meant was that the of the suggested contents, I’m not really sure what parts I can include other than maybe about the POC.

NorthWalian

Le_Kirk said:

NorthWalian 

my circumstances are quite unique.

No! Unique can never be quite or almost or nearly or any sort of qualifier! Posted on behalf of Captain Pedantic, although he would say it is important to use correct spelling and grammar especially on legal documents. 

What I meant was that the of the suggested contents, I’m not really sure what parts I can include other than maybe about the POC.

Coupon-mad

Read newest examples, not ones from months ago. Try searching the forum for:

repeated say as follows witness true

and change the results to NEWEST.

Do that first. Read about ten newest results.

There is also a whole a-f list of exhibits in the NEWBIES thread that for some reason a lot of posters completely miss.  Literally all of the suggestions keep being overlooked. Add them all as numbered exhibits and talk about them in the WS.  Plus any other relevant evidence bespoke to your case.

NorthWalian

What is your opinion on this draft

DCB Legal Ltd (Claimant)

 

V

 

X (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, 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. (See Exhibit 01 which includes the persuasive judgment in Chan and a host of other judgments and orders made before, or at, hearings in 2023 and 2024)

 

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, 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.

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.

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

11.  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:

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

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

14.  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.

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

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

17.  "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."

18.  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

19.  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.

20.  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.

21.  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.

22.  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'.

 

23.  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

 

24.  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.

 

25.  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.

 

26.  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.

 

27.  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.

 

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