Third Claim by NPM/Gladstones - Got CCJ cleared - WON AT COURT - Case Dismissed

Castle

Section 51 of the Companies Act 2006 states that any contract entered into before the company has been incorporated is deemed to be a personal contract with the person signing the contract:-
Companies Act 2006

(I should also add that it is an offence under "The Companies (Trading Disclosures) Regulations 2008" Act
not to disclose the company's registered name, number and office address in a contract).

AdamBliss

Le_Kirk said:

The below, which is an extract, is frequently posted by @Fruitcake, check his profile to find the complete post.

"In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court  are being asked to interpret the contract.

https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision..."

With regards to the contract, it fails the requirements of the Companies Act 2006, and therefore is not a valid contract.

Section 43 of the above Act.

Companies Act 2006 (legislation.gov.uk)

43 Company contracts

(1) Under the law of England and Wales or Northern Ireland a contract may be made—

(a) by a company, by writing under its common seal, or

(b) on behalf of a company, by a person acting under its authority, express or implied.

(2) Any formalities required by law in the case of a contract made by an individual also apply, unless a contrary intention appears, to a contract made by or on behalf of a company.

The document purporting to be a contract is incapable of forming a contract in accordance with the above Act because: -

1 (a) The document has not been signed under either company's common seal.

1 (b) The claimant has not signed the document at all. 

The managing agent has not provided express authority because : - 

(i) the signatory has not been specifically authorised by an officer of the company (owner, director, company secretary, or person with significant interest in the company) to form a contract on its behalf.

(ii) the position of the signatory within the company (Associate property manager) has not been given implied authority by an officer of the company (as mentioned above) nor mentioned within documentation such as the company's Articles of Association.

2 It is reasonable to assume that any formalities required by law would include the authority to form a contract with another party.

https://www.legislation.gov.uk/ukpga/2006/46/section/44

Does the contract they have shown you comply with the above?

Thank you for this.
I dont think it complies with everything. especially: 

Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision..."

ii) the position of the signatory within the company (Associate property manager) has not been given implied authority by an officer of the company (as mentioned above) nor mentioned within documentation such as the company's Articles of Association.

AdamBliss

WS Draft 1 of 4

 @Castle @Le_Kirk @Coupon-mad @Johnersh @h2g2

Any improvements? I would greatly appreciate it. Thank you. 

IN THE NORTHAMPTON COUNTY COURT

 

Claim No.:  xxxxxxx

 

Between

NATIONAL PARKING MANAGEMENT LIMITED

(Claimant) 

- and -

xxxxxxx

(Defendant) 

 

WITNESS STATEMENT

I, xxxxxxxxx will say as follows: 

 

1. 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 knowledge.

 

2. In this statement, I will refer to Exhibits xx01 – xx39 provided with this statement.               Page and reference numbers are indicated as necessary.

 

Preliminary matter: The claim should be struck out

 

3. It is denied that the Claimant has the authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to the Claimant (National Parking Management Limited). 

‘’WHITBREAD -00021’’ is not the lawful owner of the land and there is no evidence of this.
A valid contract with the lawful owner of the land being produced by the Claimant or a chain of contracts showing authorisation stemming from the lawful owner of the land is absent. 

I have the reasonable belief that the Claimant did not have the authority to issue parking charges on this land in their own name and that they, therefore, have no legal standing to bring this case. 

4. The HM Land Registry (TR1) document provided by the Claimant indicates the landowner of the site is ‘’LIONACRE PROPERTIES LIMITED’’. (Exhibit xx01)

However, the parking agreement is with ‘’WHITBREAD -00021’’ and not the lawful landowner (Lionacre Properties Limited). (Exhibit xx02)

This indicates that the Claimant does not possess a valid contract with the lawful landowner.

There is no definitive evidence to establish a valid contract between the lawful landowner and the Claimant that would authorise the Claimant to issue Parking Charge Notices to motorists utilising the land. Consequently, the Parking Charge Notices (PCNs) in question, along with the related claim, lack legal standing. It is therefore requested that the honourable judge to strike out this claim.

5. The alleged landholder agreement (Parking Scheme Agreement) supplied in the Claimants Witness Statement Exhibit GS1 - is redacted. 

The redactions mean there is no proof that the signatories had the authority to form a contract with another company. In any case, the landholder, Whitbread -00021, is not the landowner. It is alleged they are acting for the landowner, but the latter is not named/identified, nor is there a copy of a contract between Whitbread -00021 and the landowner (Lionacre Properties Limited).

6. The fact that the signatories have been redacted gives rise to the belief that they were not authorised in accordance with the Companies Act 2006 to sign/form a contract with another party. (Exhibit xx03)                                                                                                                There is no valid reason otherwise to redact them.                                                              The Claimant was put to strict proof to provide a contract in the Defendant’s Witness Statement but has not, despite ample time to do so.

7. The Defendant respectfully brings to the attention of the honourable Judge the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court is being asked to interpret the contract. 

https://www.judiciary.uk/wp-content/uploads/2022/07/Hancock-draft-judgment-final-14-July-2020-1.pdf Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision... (Exhibit xx04)

 

8. The Defendant has included a copy of Sections 43 and 44 of the Companies Act 2006, which sets out the criteria for defining a contract. The Defendant asserts that the Claimant's alleged landholder agreement does not fulfil the requirements for a valid contract that would authorise the issuance of Penalty Charge Notices (PCNs) on the subject land and, as such, does not provide grounds for the Claimant to initiate a claim against the Defendant.    (Exhibit xx03)

8.1. The agreement provided by the Claimant does not meet the requirements outlined in the Companies Act 2006; therefore, it cannot be considered a valid contract.

Section 43-44 of the above Act states:

(1) Under the law of England and Wales or Northern Ireland a contract may be made—

(a) by a company, by writing under its common seal, or

(b) on behalf of a company, by a person acting under its authority, express or implied.

(2) Any formalities required by law in the case of a contract made by an individual also apply, unless a contrary intention appears, to a contract made by or on behalf of a company.

 

8.2. The document purporting to be a contract is incapable of forming a contract in accordance with the above Act because: -

1) (a) The document has not been signed under either company's common seal.

1) (b) The claimant has not signed the document at all. 

The managing agent has not provided express authority because : - 

(i) The signatory has not been specifically authorised by an officer of the company (owner, director, company secretary, or person with significant interest in the company) to form a contract on its behalf.

(ii) the position of the signatory within the company (Associate property manager) has not been given implied authority by an officer of the company (as mentioned above) nor mentioned within documentation such as the company's Articles of Association.

2) It is reasonable to assume that any formalities required by law would include the authority to form a contract with another party. 

8.3. In consideration of the aforementioned factors, it is evident that the alleged contract has not been executed in accordance with the stipulations outlined in paragraph 1, Section 43/44 of the Companies Act 2006. Specifically, neither party has affixed its common seal, and the document has not been duly signed by two representatives from each company, nor by a director and a witness from each entity, as required by paragraph 2. Furthermore, the contract lacks signatures from authorised signatories as defined in paragraph 3. (Exhibit xx03)\https://www.legislation.gov.uk/ukpga/2006/46/section/43

https://www.legislation.gov.uk/ukpga/2006/46/section/44

 

9. In his ruling concerning case number F1DP92KF, adjudicated at Truro County Court on July 3, 2020, District Judge Simon Middleton stated, "Claire Williams could not have executed the contract on behalf of the owner, as she does not hold a directorial position within the organization. This assertion serves as further evidence to support the previously articulated points.”

10. Additionally, the Parking Scheme Agreement between The Claimant and ’WHITBREAD -00021’’ (who is not the lawful landowner) has a date of commencement of 1st October 2012. (Exhibit xx05)

However, the Claimant was not incorporated under Companies House until 2nd October 2012. (Exhibit xx06)

This is a of the Companies Act 2006, which clearly states that a business cannot operate as a limited company until it has been incorporated at Companies House.

https://www.gov.uk/government/publications/incorporation-and-names/incorporation-and-names#:~:text=A%20business%20cannot%20operate%20as,accounts%20and%20a%20confirmation%20statement. (Exhibit xx07)

 11. In ParkingEye Limited v Beavis [2015] UKSC 67: The Supreme Court noted that ParkingEye had a contractual license to operate and issue charges on the land, implying that proper authority from the legitimate landowner is essential for the enforcement of such charges. The information presented herein, in conjunction with the evidence outlined previously clearly indicates that a legitimate landowner agreement is essential for the enforcement of parking charges. However, the alleged agreement provided by the Claimant not only lacks the lawful and legitimate landowner but is also entirely invalid. The Claimant has, therefore, failed to meet the requirements outlined in the Companies Act 2006, particularly Sections 43 and 44, and as such, the contract cannot be considered valid. Consequently, all the evidence provided unequivocally demonstrates that the claim is invalid, as the Claimant does not possess the necessary legal standing to initiate this action.

12. The Defendant respectfully brings to the attention of the honourable Judge that this now marks the third claim filed against me by the same Claimant.                                                                      The Defendant would like to emphasise that the court has struck out the two previous claims pertaining to the same Claimant and the same car park, referenced as:                                         xxxxxx (Exhibit xx08) and xxxxxxx (Exhibit xx09)                                                                                                                             Thus, I believe this "new" duplicated claim warrants dismissal due to the principle of Cause of Action estoppel. As the Claimant is legally represented, they are expected to understand that detaching or allowing to remain detached components of alleged debts and issuing separate claims—each relying on essentially duplicative particulars and facts constitutes an abuse of the civil litigation process.                                                                                                                            

In Henderson v. Henderson [1843] 67 ER 313, the court articulated several key principles: (i) Once a matter is in litigation, parties are obligated to present their entire case; (ii) The Court shall not allow the same parties to revisit the same subject of litigation regarding matters that could have been raised in earlier proceedings but were not due to negligence, oversight, or error; (iii) This prohibition applies to all matters, including those adjudicated in previous litigation as well as those that could have been advanced with reasonable diligence.

 

13. The Claimant has not fulfilled the requirements for keeper liability under the Protection of Freedoms Act 2012 (POFA). As a result of this non-compliance, the Claimant is unable to hold the registered keeper accountable for the alleged parking charges. 

Furthermore, the Claimant has not established the identity of the driver and has failed to provide all the requisite evidence to meet the stringent criteria outlined in POFA. Therefore, liability cannot be transferred from the driver to the keeper. Consequently, the claim is devoid of merit and should be dismissed by the honourable judge.

 

14. The Defendant draws to the attention of the court that there are now two persuasive appeal judgments to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims and the extant Particulars of Claim (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 on the following persuasive authority.

15. The first persuasive appeal judgment to support striking out the claim is:                                        Civil Enforcement Limited v Chan [2023] (Ref. E7GM9W44) and 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 judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4. (Exhibit xx10) 

AdamBliss

WS Draft 2 of 4

16. The second persuasive appeal judgement is: CPMS v Akande [2024](Case No: K0DP5J30) in this judgement the court unequivocally determined that vague and inadequate particulars of claim (PoCs) failing to provide essential details are grounds for striking out the claim. The Claimant's PoC in this matter clearly suffers from the same critical deficiencies, as it neglects to include crucial information such as the specifics of the alleged contravention, the terms purportedly breached, and any supporting evidence. (Exhibit xx11)

I respectfully submit that the Claimant’s continued reliance on these deficient PoCs should result in the court giving no weight to their justification, and I once again refer the court to the persuasive appeal cases I have cited, Civil Enforcement Limited v Chan [2023] and CPMS v Akande [2024], which I have included above as evidence. 

 

17. 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. (Exhibit xx12)

 

18. 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. (Exhibit xx13)

 

19. 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 lack of 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. (Exhibit xx14)

 

20. 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 Civil Procedure Rules (CPR). 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. It remains uncertain whether the claim pertains to the alleged parking outside of a designated bay, failure to remain on the premises, incorrect bay parking, overstaying the allotted time, or perhaps a technicality associated with the entry process at the kiosk. 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

 

21. I am the registered owner of the vehicle in question; however, I was not operating the vehicle at the time of the alleged parking violations that occurred five years ago in 2020. 

 

22. In 2023, I received two claims by this same Claimant to my old address where I was residing at the time: 2xxxxxxxxL. I moved house shortly after, and I therefore requested the Claimant to update my address on their systems.                   (Exhibit xx15)

I received a confirmation letter by the Claimant stating that they have updated my address on their systems. (Exhibit xx16)

23. After the claims were struck out, I received a letter by the Claimant on February 2024 informing me that they have enclosed a cheque which was for my costs for travel and parking costs on the day of the hearing. (Exhibit xx17)

 

24. However, despite all this, just a couple of months later in April 2024, I discovered that my credit score was significantly impacted in a negative manner. (Exhibit xx18) 

Upon further investigation, I discovered that the Claimant had sent a new duplicated Claim to my old address and as a result, a default CCJ letter was sent to my old address.                (Exhibit xx19).  

Despite having updated my address and receiving confirmation from the Claimant regarding the update, the Claimant nevertheless still proceeded to file a new duplicated claim to my previous address. Due to this severe negligence, I experienced a default CCJ which severely impacted my credit score negatively. 

 

25. I contacted the claimant to inquire about the rationale for submitting the claim to my previous address, despite updating my address and the Claimant confirming they had updated my address in 2023. However, I have not yet received a response regarding this matter.

With all this evidence against the Claimant, I therefore have no other reason but to believe that this is a gross and intentional attempt by the Claimant to pressure me into making a payment especially after losing the two previous duplicated Claims they filed against me a year prior. As a result of all this, my credit score has suffered significantly, preventing me from opening a new bank account, obtaining a loan, and obtaining a new sim contract.  

 

26. I made the Claimant and the court aware of this whole situation and as a result, the court correctly set aside the default judgment. (Exhibit xx20)  

 

27. I received the amended claim form in October 2024 at my correct address (xxxxxx xxx). In this, the Claimant is claiming almost £800 for just three alleged Parking Charge Notices (PCNs) from five years ago in 2020. (Exhibit xx21)

 

28. In light of the aforementioned points, it is evident that the Claimant has not complied with the pre-action protocol or the Civil Procedure Rules. Therefore, it is respectfully submitted that the claim should be struck out by the honourable judge.

 

29. I was never aware of these PCNs as I was not the driver at the time of the alleged parking contraventions. Furthermore, given that this incident took place over five years ago, I have no recollection of receiving any correspondence regarding the alleged PCNs. 

The car park lacks sufficient signage 

 

30. There are no signs at the entrance of the car park.(Exhibit xx22)

AdamBliss

WS Draft 3 of 4

31. There are no signs anywhere near the vehicle parked on the left half of the car park. 

(Exhibit xx23)

 

32. In fact, there are no signs whatsoever on the left half of the car park. 

(Exhibit xx24)

 

33. There are also no signs at the back of the car park. (Exhibit xx25)

 

34. There are no signs at the right corner of the car park. (Exhibit xx26)

 

35. There is a very limited number of signs and they are all on the right side of the car park and are in very poor condition and are not large nor clear and definitely not easily readable from even a short distance away, especially for those who are visually impaired. Furthermore, cars can easily block the signs, making it impossible for drivers to notice any signs in an already signage-limited car park.

(Exhibit xx27)

 

36. Moreover some of the signs have been ripped out and have not been replaced to this day.

(Exhibit xx28)

 

37. To this day, there are no illuminated signs to aid visibility for drivers during darker hours, such as evenings and winter afternoons. (Exhibit xx29)

 

38. There are no clear boundaries on the site. It is very difficult to determine the boundaries of the site since there are no markings or signs at the entrance indicating any. The land is also in extremely poor condition, as evident in the pictures. The lack of large, visible signs can make it challenging for drivers to notice the terms and conditions, especially when even small vehicles can block the signs. (Exhibit xx27)

 

39. Even the Claimant’s own witness statement, which includes the site map, confirms there are no signs at the entrance, no signs at the back and no signs at the left half of the car park.

(Exhibit xx30)

 

40. The evidence above clearly shows that the site lacks sufficient and clear signs, especially large and prominent signs that detail the terms and conditions in a clear and large font.                              The Claimant’s exhibit demonstrates that the sign is unclear, particularly with regard to the small print terms and conditions which are unreadable for even those with no visual impairments. 

 

41. Based on the facts above, it is evident that the Claimant has failed to maintain and improve their signage. Despite years passing, no effort has been made to enhance the visibility of the signs and assist drivers in reading them. One simple solution to this problem could be to set up large, easily readable and illuminated signs at the site's entrance indicating the boundaries. This way, drivers can make an informed decision about whether to enter the site or not. However, no measures have been taken, and given the Claimants' practices, I don't think necessary measures such as this will be implemented anytime soon.

 

42. On 2020/08/13 the Claimant’s ticketer took the first picture of my vehicle at 16:43:51 and the last picture was taken at 16:44:06. 
There was therefore no grace nor consideration period and there is no evidence of this whatsoever. Furthermore, the Claimants ticketer did not attach a PCN to the windscreen of the vehicle. The ticketer simply took pictures of the vehicle parked within just a one minute period. (Exhibit xx31)

 

 

43. On 2020/08/06 the Claimants ticketer took the first picture of my vehicle at 15:17:20 with no large and visible signs near the vehicle and the last picture at 15:17:56 showing a close up of a sign. The Claimant’s ticketer yet again did not attach a PCN to the windscreen of the vehicle. The ticketer once again simply just took pictures of the vehicle within just a one minute period. (Exhibit xx32)

 

44. On 2020/03/05 the Claimant’s ticketer took the first picture of my vehicle at 17:06:09 and the last picture was taken at 17:07:07. Yet again the ticketer simply took pictures of my vehicle within a one minute period and did not allow a consideration period nor a grace period. (Exhibit xx33)

 

45. The ticketer did not allow a grace/consideration period outlined in section 13 of the International Parking Community (IPC) guidelines that NPM is a part of. (Exhibit xx34)

Upon examination of the signage, it has become apparent that there is no explicit information in a clear ‘prominent font’ indicating that a grace period does not apply therefore the Claimant’s ticketer should have followed this IPC guideline. 

https://irp.cdn-website.com/262226a6/files/uploaded/IPC%20Code%20of%20PracticeV9%20V4.pdf

 

46. There are no statements from the ticketer/patrol who was present during the incidents.

 

47. Paragraph 10 of the Claimant’s witness statement reads: ‘’Exhibit reference GS2 The Terms and Conditions of the site, Inter alia, express the following conditions for any motorist using the Site: A VALID PERMIT MUST BE DISPLAYED CLEARLY IN THE FRONT WINDSCREEN’’. However, there is absolutely no mention of this in the aforementioned exhibit mentioned. (Exhibit xx35)

 

48. The Claimant’s witness statement makes absolutely no mention of an electronic permit (NPM E-Permit) as shown on their digital sign in Exhibit GS2. (Exhibit xx35)

An E-permit allows users to park, without the need to display a physical permit on the vehicle’s dashboard. 

The Claimant has not indicated whether the driver possessed an E-Permit. 

Instead, the statement provided by the Claimant solely refers to the driver as having "parked…without displaying a valid permit" in their witness statement (paragraphs 17-19).

Is the Claimant not aware that an electronic permit cannot be physically displayed?

It is the responsibility of the Claimant and the Claimant’s ticketer/patrol to verify the availability of an E-permit on their system; however, they have failed to do so and have overlooked this critical issue and ignored it entirely. 

 

49. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:

a) The Claimant has no commercial justification.
b) The Claimant did not follow the IPC Code of Practice.
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.

d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unethical.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

 

50. The Defendant sent a Subject Access Request to the Claimant requesting all my data on all their systems. However, the Claimant did not provide all the data they hold on their systems. 

I reported this to the Information Commissioner’s Office (ICO) and upon review the ICO confirmed my complaint: ‘’We have considered the issues you have raised with us. Based on this information, it is our view that National Parking Management Limited has infringed their data protection obligations’’ (Exhibit xx36)                                                                                                                                 This evidence, along with many others as previously mentioned, provides clear and undeniable proof of the Claimant's unethical and disturbing practices.

 

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

 

51. The Claimant has not provided any evidence of the additional charges. The Claimant has at no time provided an explanation of how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £300 to £799.27. 

The Claimant has inexplicably added 'costs or damages' bolted onto the alleged PCN, despite using a solicitor to file the claim, who must be well aware that the CPR 27.14 does not permit such 'admin' charges to be recovered in the Small Claims Court.

 

52. In any event, the Beavis case confirmed that a parking firm not in possession cannot plead their case in damages and could only collect the already inflated parking charge (in that case, £85) which more than covered the very minimal costs of running an automated/template letter parking regime. The Claimant is put to strict proof to show how any alleged costs or damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was in fact, expended. To add vague damages plus alleged 'legal costs' on top is a wholly disingenuous attempt at double recovery, and the Defendant is alarmed by this gross abuse of process.

 

53. 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.

 

54. 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 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.

AdamBliss

WS Draft 4 of 4

55. 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.

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

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

"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."

 

57. 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

 

58. 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.

 

59. 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.

 

60. 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.

 

61. 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.

 

62. This Claimant has not incurred any additional costs because the full parking charge (after the expiry of the discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a significant 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 the pre-action stage, even if and when the Government reduces the level of parking charges.

 

63. 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.

 

64. 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

 

65. 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.

 

66. 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, the Claimant has evidently not adhered to this requirement, as demonstrated earlier.

 

67. 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).

 

68. Now for the first time, the DLUHC's draft IA exposes that the template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel Parking Services Ltd v Wilkinson. (Exhibit xx37)

 

69. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

 

70. The claimant has accused me of using the internet for my defence. I fail to see what the issue is, as I am not legally represented and seeking advice online is my only option since I cannot afford legal representation.

 

 

71. The Defendant respectfully brings to the attention of the honourable Judge that in April 2023, His Honour Judge Mark Gargan, sitting at Teesside Combined Court (on appeal re claim H0KF6C9C), held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver because the POFA does not invoke any such obligation.  HHJ Gargan held:
"The finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established.  If this were not the case car parking companies could simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper, to identify the driver or at least set out a positive case in order to avoid responsibility himself.

 

72.1. In my judgment that was not the position before [the POFA] was in force; my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."

72.2. Mr Edward's appeal succeeded and the Claim was dismissed.  In the extant case, this Claimant has launched 'roboclaim' cut & paste proceedings saying vaguely that the Defendant was 'keeper and/or driver' and waited to see if the registered keeper has the nous to research the POFA and to meaningfully defend, or if they could gain a default CCJ (as happens in 90% of small claims).  It is a lucrative gamble with the odds of wrongful success heavily weighted in parking operators' favour, but this is plainly an abuse of the court process.  

This baseless claim demonstrates precisely the behaviour that HHJ Gargan identified in 35.1. This claim has no basis in law and neither the court nor the Defendant should be troubled with a hearing. (Exhibit xx38)

 

73. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a total of £799.27 for three PCNs as the amount claimed (for which liability is denied). The Particulars of Claim does NOT include any cost amount presented as contractual costs pursuant to PCN terms and conditions. We can then well assume that the figures calculated as those plucked from their imagination and as such hold no legal justification. 

 

74. Ultimately the Claimant is claiming a total of £799.27 from the registered keeper and not the driver. This is not only unjust and abusive; it also entails an excessively high financial burden for merely three alleged parking contraventions, of which the Defendant was not even the driver of the vehicle at the time of the incidents. 

(Exhibit xx39)

 

75. Based on the lack of substantial evidence supporting the claim, particularly the absence of landowner authority permitting the Claimant to issue Parking Charge Notices (PCNs), as well as the failure to adhere to the IPC's Code of Practice, the Claimant's position appears untenable. Furthermore, there is a lack of evidence regarding the identity of the driver, and the Claimant has not established a comprehensive, step-by-step compliance to the Protection of Freedoms Act (POFA). Additionally, there is no proof to support that the registered keeper received the correspondences from the Claimant, all of which allegedly transpired five years ago in 2020. Given these factors, it is reasonable to assert that the claim should be dismissed. This assertion aligns with the prevailing trends observed in numerous cases initiated by this specific Claimant.

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

a) The total costs incurred concerning this legal process amount to £1,492.                             This figure includes the time spent on drafting, researching, completing forms, printing, sending documents and emails etc, which amounts to 78 hours of time spent.                          The process commenced on April 19, 2024, when the claim form was submitted by the Claimant to my previous address. 

This total will additionally include the standard witness costs for attendance at Court, day off work, travel costs and costs of parking pursuant to CPR 27.14.                           

The provision to claim £19 per hour is in Practice Directions 46 (3.4) and CPR Rules 45.39 (5)(b) and 46(4)(b). My Schedule of Losses is attached to this statement. (Page 83)

 Statement of Truth 

1505grandad

https://forums.moneysavingexpert.com/discussion/comment/81121314/#Comment_81121314

"I need to fill in the DQ (Form N180) and send it by 2nd December."

Just checking  -  which local court did you state when you filed the DQ?

Le_Kirk

AdamBliss said:

There is no definitive evidence to establish a valid contract between the lawful landowner and the Claimant that would authorise the Claimant to issue Parking Charge Notices to motorists utilising the land. Consequently, the Parking Charge Notices (PCNs) in question, along with the related claim, lack legal standing. It is therefore requested that the honourable judge to strike out this claim.

Spare word there between judge and strike.  ALL paragraphs require a number.  Seems you have covered the agreement and signing issues well but IANAL

h2g2

Do I remember that you had a leasehold or tenancy agreement granting you occupation of that space? (Apologies I can't remember the details - I follow a lot of cases here. My bookmarks list has hit ~200...) If you do, that should be brought, since primacy of contract should be pretty strong as well.

BikingBud

Johnersh said:

Who's Whitbread? Is that John Whitbread, Wayne Whitbread or Jane Whitbread? Might it even be Whitbread PLC? Better still, type in Whitbread into companies house and look what happens. Why is there no company address or number?

A corporate entity is a person. If the contract fails to specify a person, who is it really with?

One might generously argue that a contract was implied through the PPC operating.... But would the CEO of Whitbread PLC even be aware of it, given that all revenue is kept by the PPC. In theory, this could all have been set up by a local pub landlord/coffee shop owner acting on a frolic of their own.

Always love that term: "a frolic of their own"

Wonderful!