Secure Parking Solutions / DCB Legal Claim x 2

Hamish_123

WITNESS STATEMENT OF DEFENDANT 

  

1.      I, [NAME], of [Address], 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 on my 

own knowledge. 

2.      In my Statement I shall refer to Exhibits XX - XX 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: 

  

Preliminary matter: The Claim should be struck out 

  

3.      I draw to the attention of the Judge that there are two very recent and persuasive 

Appeal judgements to support dismissing or striking out the Claim. I believe that 

dismissing this meritless Claim is the correct course, with the Overriding Objective in 

mind. Bulk litigators 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 using powers pursuant to CPR 3.4., based on the following persuasive 

authorities (I append transcripts of both – plus multiple area court ‘strike outs’ of 

parking claims that reflect those authorities – in Exhibits XX-XX). 

4.      The first recent persuasive appeal judgment in Civil Enforcement Limited v Chan 

(Ref. E7GM9W44) would indicate the Particulars of Claim fails to comply with Civil 

Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. 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”. (See 

Exhibit 01.) 

5.      The second recent persuasive appeal judgment in Car Park Management Service Ltd. 

v Akande (Ref. K0DP5J30) would also indicate the POC fails to comply with Part 16. 

On the 10th of May 2024, in the cited case, HHJ Evans held that “Particulars of Claim 

have to set out the basic facts upon which a party relies in order to prove his or her 

claim”. (See Exhibit 02.) 

6.      I believe 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 CPRs. 

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. 

Hamish_123

Facts and sequence of events 

  

7.      Date and time of the Incidents: It is admitted that on XX/XX/XX I was the registered keeper of the vehicle XXXXX, and I was driving on these occasions. 

8.      Parking Notice: The Claimant pursues a claim for a vehicle not authorised to park. I do recognise the location of the alleged parking violations as King Street, Dudley. On the occasion in question when I stopped the vehicle, I did so in good faith, believing that the space was a legitimate parking area. The bay in question did not have clear or distinguishable markings indicating that it was not a designated parking spot. The absence of clear signs led me to reasonably assume the space was available for parking. The bay in question did not have sufficient markings or visual indicators to indicate that it was unmarked, unauthorised or not compliant (See Exhibit XX), any signs or markings must be easily recognisable and visible to any reasonable person. I submit that the lack of clear signage could have led to confusion, which is why I stopped my vehicle there without any intention to violate parking rules. 

9.  Parliament agrees. The Claimant has ignored the Parking (Code of Practice) Act 2019 first published in February 2022, due to be finalised after a Judicial Review delay engineered by the parking industry, who did not object to the following clause which remains unchanged: 

10.  The definition of a “parking period” specifically excludes dropping off/picking up passengers. Clause 2.24 defines a parking period as: "the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). This is not the period between a vehicle being recorded as entering and departing controlled land." 

111.  Inadequate signage: I have observed poor signage regarding parking regulations. The signage present at the car park was positioned too high and the text is too small and cannot be easily read from inside a moving vehicle (see Exhibit XX). Signs that set out parking restrictions must be placed in a location that is clearly visible to motorists at a reasonable height and angle. In this instance, the height of the signage made it difficult – if not impossible – to read without exiting the vehicle. This creates an unfair situation where a motorist is expected to comply with rules that they may not have had a reasonable opportunity to read. Similar cases have previously been dismissed where inadequate signage was a key issue, as clear, well-positioned signage is essential for enforceability. This is highly visible, clear and legible signs seen in ParkingEye v Beavis [2015] UKSC67 (“the Beavis case”). (See Exhibit XX) 

Hamish_123

Exaggerated Claim and “market failure” currently examined by UK 

Government 

  

13.  The alleged “core debt” from any parking charge cannot have exceeded £100 (the industry cap set out in the IAS Code of Practice). I have seen no evidence that the added damages/fees are genuine. 

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

i)             The alleged breach, and 

ii)            A breakdown of how they arrived at the enhanced amount claimed. 

15.  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”. The case is a classic example where the 

unjust enrichment of exaggerated feeds encourages the “numbers game” of 

inappropriate and out of control bulk litigation of weak or 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. 

16.  The Department for Levelling Up, Housing and Communities (the DLUHC) first 

published its statutory Parking Code of Practice on the 7th of 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.” 

17.  Despite legal challenges delay 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 the 30th of 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 

18.  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. 

19.  With that sum in mind, 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 I take that position. 

20.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre- 

action letter-chains 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 their debt firms who stood to 

gain from it. 

21.   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 Beavis. Also, 

ParkingEye Ltd. v Somerfield Stores Ltd. ChD [2011] EWHC4023(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”. 

22. 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. 

23. 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 2024 to scrutinise every aspect of claims 

like this one. 

24. 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 (the CRA). 

CRA breaches 

 

25. 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. 

26. 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 dusk/darkness) and all terms must be unambiguous and contractual obligations clear. 

27. 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 that there has 

to be a finding of bad faith). 

28. 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 v 

Wilkinson. (See Exhibit 09) 

Hamish_123

The Beavis case is against this Claim 

 

29. 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 and black warning signs 

– (See Exhibit 08) – set a high bar that this Claimant has failed to reach. 

30. 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 not “concealed pitfalls or traps”. (See Exhibit 10 for paragraphs from the 

Beavis case.) 

31. In the present case, the Claimant has fallen foul of these tests. There is one main issue 

that renders this parking charge to be purely penal (i.e. no legitimate interest saves it) 

and thus, it is unenforceable: 

i) Hidden Terms: 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 Government bans it. The driver 

thus has no idea about any risk, nor even how much may be added on top. 

Court of Appeal authorities which are on all fours with a case involving a lack 

of “adequate notice” of a charge include: 

ii) Spurling v Bradshaw [1956] 1 WLR 461 (“red hand rule”) and 

iii) Thornton v Shoe Lane Parking Ltd. [1970] EWCA Civ2, both leading 

authorities confirming that a clause cannot be incorporated after a contract has 

been concluded; and 

iv) 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”. 

Alternative Dispute Resolution (“ADR”) 

 

32. The Claimant asserts that I was unwilling to mediate and, therefore, it is unreasonable for me to suggest that they failed to offer Alternative Dispute resolution (“ADR”). I refute this claim and provide the following response: 

i) Contrary to Claimant’s assertion, I attended the mediation session as arranged by the court. I fully engaged in the process in good faith and was willing to explore a fair resolution. 

ii) During the mediation, the Claimant put forward an offer that I considered unreasonable based on the circumstances of the case, including: 

a. The lack of adequate signage within the parking area. 

b. The unclear nature of the allegedly unmarked bay, making it unreasonable to expect a motorist to recognize it as a non-parking space. 

iii) Mediation is a process that aims to reach fair and reasonable compromise. However, I am under no obligation to accept an offer that is excessive or unjustified, particularly when the parking charges themselves are disputed on legitimate grounds 

 
Conclusion 

 

33. In conclusion, the Claimant has failed to provide clear evidence that a contract was 

formed, nor has it shown that the parking charge notices were validly issued. The lack 

of adequate signage and the unlawful nature of the additional charges further 

invalidate the Claim. The Claimant’s attempt to impose liability for these inflated 

charges is unsupported by both statutory law and leading case precedents. I ask the 

court to dismiss the Claim and award appropriate costs for the time and effort 

expended in defending against these unjust claims. 

34. I ask the Judge to read the persuasive Judgement from His Honour Judge Murch 

(August 2023) in the Civil Enforcement Ltd. v Chan case, and deliver the same 

outcome given this Claimant has submitted a similarly vague POC. It is worth noting 

that in that case the POC, while still ambiguous, did contain a subtle indication of the 

alleged contravention, specifically regarding the duration of the 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 Ltd. v Chan case, full costs 

were awarded to the motorist and the claim was struck out. 

35. There is now ample evidence to support the view – long held by many District Judges 

– that these are knowingly inflated 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. For HMCTS to only disallow those costs in the tiny percentage 

of cases that reach hearings whilst other claims 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. I strongly believe 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. 

36. 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)).” 

 

 

 

Costs Assessment 

 

Given the significant time and effort required to defend against this unjust claim, I 

respectfully request that the court consider awarding costs under CPR 27.14(2)(g). I have 

spent considerable time researching, preparing this Statement, and attending the hearing. My 

estimated costs for this are as follows: 

- Research and preparation of Defence and Witness Statement (X hours): XX 

- Travel expenses (return journey to hearing, XX miles @ 45p/mile): £XX 

- Time away from work (XX hours @ £XX/hour): £XX 

 

Totalling £XXX 

 

I request that the court considers these costs in its Judgment, given the Claimant’s 

unreasonable behaviour in pursuing this meritless Claim. 

 

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. 

 

Defendant’s Signature: 

 

Date: 

ChirpyChicken

Don't submit any witness statement until around the deadline sate

Le_Kirk

If your POC were sparse, you could also use Akande. See here
https://www.dropbox.com/scl/fi/v2lrfnk408u2qavuokcej/Chan_Akande.pdf?rlkey=o92ljo06yf0ehhyg1j9ayxla2&e=1&st=um09mews&dl=0

Coupon-mad

Hamish_123 said:

Exaggerated Claim and “market failure” currently examined by UK Government 

 

15.  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”. The case is a classic example where the unjust enrichment of exaggerated feeds encourages the “numbers game” of inappropriate and out of control bulk litigation of weak or 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. 

16.  The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on the 7th of 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.” 

17.  Despite legal challenges delay 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 the 30th of 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 

18.  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. 

19.  With that sum in mind, 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 I take that position. 

20.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains 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 their debt firms who stood to gain from it. 

Remove the above heading and the above paragraphs, as it's old and was probably in your defence. Not needed. Adds nothing!

Your para 8 and 9 don't really make sense together because in para 8 you haven't alleged that you weren't 'parked' or (maybe) were just there minutes (pulled over) or loading or setting down a passenger, so how does para 9 make sense? What did Parliament 'agree' with?

Remove this too; you don't have to state what their case is:

"Parking Notice: The Claimant pursues a claim for a vehicle not authorised to park"

Hamish_123

Le_Kirk said:

If your POC were sparse, you could also use Akande. See here
https://www.dropbox.com/scl/fi/v2lrfnk408u2qavuokcej/Chan_Akande.pdf?rlkey=o92ljo06yf0ehhyg1j9ayxla2&e=1&st=um09mews&dl=0

Thanks @Le_Kirk - My POC simply states "Reason: Unauthorised vehicle" - Would the Akande transcript be a suitable addition? I've referenced Akande in point 5 of my draft.

Hamish_123

Coupon-mad said:

Hamish_123 said:

Exaggerated Claim and “market failure” currently examined by UK Government 

 

15.  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”. The case is a classic example where the unjust enrichment of exaggerated feeds encourages the “numbers game” of inappropriate and out of control bulk litigation of weak or 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. 

16.  The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on the 7th of 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.” 

17.  Despite legal challenges delay 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 the 30th of 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 

18.  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. 

19.  With that sum in mind, 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 I take that position. 

20.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains 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 their debt firms who stood to gain from it. 

Remove the above heading and the above paragraphs, as it's old and was probably in your defence. Not needed. Adds nothing!

Your para 8 and 9 don't really make sense together because in para 8 you haven't alleged that you weren't 'parked' or (maybe) were just there minutes (pulled over) or loading or setting down a passenger, so how does para 9 make sense? What did Parliament 'agree' with?

Remove this too; you don't have to state what their case is:

"Parking Notice: The Claimant pursues a claim for a vehicle not authorised to park"

Thanks @Coupon-mad - I've removed the above, the whole of para 9, and the sentence at the beginning of para 8 as suggested.

Coupon-mad

Yes I think that's OK to use - just about - but you do need to deny the allegation and give more detail about why you were there, as I explained in my last reply.