ANOTHER ONE BITES THE DUST

Gr1pr

Please alter the thread title to something more suitable like 

Total Car Parks court claim,  WS Stage  

Kd80

Hi, I received the WS from total car parks yesterday. Could someone have a look at my WS and let me know what you think please. My hearing is on the 16th Sept so have till 2nd to send it off. Thank you

Couple of questions: Claimants WS mentions a different court to the one on my notice of allocation form. Is this an issue and does it need to be pointed out?

Some of my exhibits are taken at a later date does this need to be stated? 

IN THE COUNTY COURT

Claim No: xx

Between

Total Car Parks Limited

(Claimant)

- and -

xxxx
(Defendant)

____________________

WITNESS STATEMENT OF DEFENCE

1. I am XXXXXXX, and I am the Defendant against whom this claim is made. The facts 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. Preliminary matter: The claim should be struck out

As a preliminary matter, I wish to bring to the Court's attention that the Claimant's Witness Statement, signed by XXXXXX of Total Car Parks Ltd, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As XXXXX does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this non-compliance, I respectfully request that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

Facts and Sequence of Events:

4. On 23 December 2023, I drove to The Maltings, Colchester, to visit the Knight Pavilion Restaurant, which is located above the underground car park in question. I turned left into the car park from Haven road Exhibit 1 and Exhibit 2 confirms the signage that was visible to me.

5. I was both the registered keeper and the driver of the vehicle on the date in question.

6. My visit to the Knight Pavilion Restaurant was for the purpose of dining there. I continued into the car park to the left and used a parking space designated for the restaurants customers. Exhibit 3 confirms this.

7. I then followed the signs to the restaurant and followed the instructions on the signage. There were 2 signs next to each other. One stated in large font: “2 Hours Free Parking” in smaller text underneath is stated “charges apply for all vehicles after 2 hours”. The other sign next to it on the left was not clear and the wording “up to 2 hours Free” stood out. The car park was poorly lit and this was the information that I relied upon. Exhibit 4 confirms this.

8. At the restaurant I then downloaded the Parknony App and added and paid for the additional time of 4 hours from 19.30 – 23.30. Exhibit 5 confirms this.

9. I also download the invoice I received. Exhibit 6 confirms this.

10. I also received a text message to confirm my parking payment and times. Exhibit 7 confirms this.

11. I received a parking charge notice from Total car parks and appealed they rejected the appeal Exhibit 8 confirms the reply I received.

12. I also received letters from DCB Legal Limited, Exhibit confirms this.

13. The British Parking Association (BPA) Code of Practice (and the DLUHC Parking Code of Practice, reflects industry standards) requires that parking terms are:

• “Clear, prominent and unambiguous.”

• “Legible in all lighting conditions.”

14. The signage at this location was ambiguous and contradictory. One sign, in large font, communicated 2 Hours Free Parking, while another in smaller print stated different terms. This is misleading and fails the test of transparency.

15. As a consumer, I was entitled to rely on the more prominent wording “2 Hours Free Parking” and acted accordingly.

16. I acted in good faith and paid for the parking before the 2-hour period, exactly as the prominent sign led me to believe was required.

Any alleged breach arises solely from the Claimant’s failure to present clear and consistent terms, not from any deliberate or negligent conduct on my part.

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

17. 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.

18. 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

(ii) a breakdown of how they arrived at the enhanced amount 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.

19. 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.

20. The Supreme Court considered the application of the rule against penalties in precisely this situation in the leading case of  ParkingEye Limited v Beavis ([2015] UKSC67):

The true test [of whether a term is a penalty] is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (per Lords Neuberger and Sumption at paragraph 32).

21. The Supreme Court held that the £85 parking charge in Beavis was a secondary obligation that engaged the penalty rule but was saved by the special circumstance of the parking arrangements in that case.

The £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable Parking Eye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. (Lord Neuberger and Lord Sumption at paragraph 98).

In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.

The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.(ibid at paragraph 99)

22. Those purposes are not served by the secondary term in this case. The Claimant charges motorists for parking at this car park, from which it receives an income stream. There is no purpose of deterring motorists from occupying parking spaces for long periods. On the contrary, the legitimate commercial interests of the operator are served by encouraging motorists to stay, and pay, for long periods. In short, the Beavis exception cannot apply to failure to pay the tariff in a pay-to-park car park and with the added point that the Claimant's own system made the contract void for impossibility, the secondary obligation in the present case is, therefore, a penalty and unenforceable.

23. 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.

24. 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.

25. 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 to scrutinise every aspect of claims like this one.

26. 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).

CRA Breaches:

27. 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.

28.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.

29. 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).

The Beavis case is against this claim

30. 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, particularly the brief, conspicuous yellow & black warning signs - (See Exhibit 1) - set a high bar that this Claimant has failed to reach.

31. 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 2) for paragraphs from ParkingEye v Beavis).

Conclusion

32. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 Government IA analysis shows (from data from this industry) that the usual letter-chain costs eight times less than the sum claimed for it. The claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.

Statement of Truth

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.

Car1980

Add a bit about section 69 of rhe CRA 2015:

"69

Contract terms that may have different meanings

(1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail."

 https://www.legislation.gov.uk/ukpga/2015/15/pdfs/ukpga_20150015_en.pdf

Kd80

That's great I will add that in. Does the WS sound ok? Panicking as I have hearing on the 16th can anyone offer some feedback please? 

Car1980

Looks good.

You could add in another challenge against the £70 add-on:

the Late Payment of Commercial Debts (Interest) Act 1998 allows businesses to charge statutory interest and compensation on late payments from other businesses, with a default payment period of 30 days if no other term is agreed. The Act applies to commercial transactions, including sole traders and limited companies, but not to consumer transactions.

If the intention of Parliament was for companies to have the power to add on "debt recovery" fees they a) wouldn't have specifically excluded consumer contracts from this legislation and b) would have created specific legislation explicitly allowing such add-on invoice fees.

The £70 overnight extra charge has literally come into being due to the Claimant's trade association dreaming it up as an extra chunk of profit for its subscription paying members.

Coupon-mad

Remove para 3 and 12. You can't say a TCP employee isn't a witness/has no knowledge. And you certainly don't need to exhibit DCB letters.

Then remove EVERYTHING (except the Statement of Truth!) after and including the words 'Exaggerated Claim' which is old stuff. Instead, add in paras 4-10 of the Template Defence, which is the new concise version of that long chunk of words you're deleting.

Claimants WS mentions a different court to the one on my notice of allocation form. Is this an issue and does it need to be pointed out?

No - it needs checking urgently! Maybe they're right? Ring the court to be sure where the WS needs to be emailed to and where the hearing will be.

Some of my exhibits are taken at a later date does this need to be stated?

Nope you must add the metadata to every photo. Easy to do - screenshot your photos and it shows the date/time they were taken.

Do not exhibit undated photos.

Kd80

Thanks, confirmed court and send to DCB legal do I need to send it to total car parks as well?

Car1980

No, just DCB. The parking company is hands off for court procedure, which is why they've hired solicitors.

Kd80

Thanks @Car1980 and @Coupon-mad finally completed ws and sent off. Now for the hearing!

Kd80

Morning, I have received an email from dcb legal with an attached index bundle which they intend to file and serve by the 09th September. They have asked if I agree to it.
It contains the following:
Claim form 
My Defence
N180 - Claimant
N180 - from me on this I asked for Ipswich Court but Court confirmed Chelmsford and so did my instructions from Court although WS from total car parks stated Ipswich. Do I need to do anything else here?
Notice of Transfer of Proceedings
Notice of Allocation - Chelmsford Justice Centre
Total Car Parks WS
My WS

Is there anything else I need to do?  

Thank you