Court Claim Help - Another One Bites the Dust

Coupon-mad

I think the Preliminary Matter should be dumped and remove everything in paras 2-11. The POC in this case are OK as they plead the breach.  That's not what your WS should talk about.

Your main defence is breach of the Equality Act 2010. Adduce in evidence your Blue Badge and a URL link to the EHRC 'Statutory Equality Act Code of Practice for Service Providers' and point the Judge to the 'indirect discrimination' section example about 'tours' which confirms that that service providers have a duty to enable disabled persons to have more time to undertake a visit to premises. Fixed time limits are illegal; there must be a mechanism for claiming more time.  There was no such offer on the cluttered signs.


Also read this post:
https://forums.moneysavingexpert.com/discussion/comment/81041986/#Comment_81041986

There are clauses in the Code of Practice that help you too. As well as the law.

FraggleRoxy

Ok, here’s my newest WS attempt. (Minus references). Fingers crossed I’m nearly there, as I’m approaching my deadline for sending it. 

Any advice would be greatly appreciated. 

1. My name is XXXXXXXXXXXXXXX, and I reside at XXXXXXXXXXXXXX. I am the Defendant in these proceedings and this Defence Statement is made from my own knowledge and research. I confirm that the facts stated within it are true to the best of my knowledge and belief. 

THE BASIS OF THE DEFENCE

Equality Act 2010 - Disability Discrimination 

2. Whilst I am the keeper of the vehicle, I was not the driver on the date of the alleged contravention. However, the driver also has a protected characteristic under the Equality Act 2010 due to their disability. The driver, like myself, has mobility issues and I also have cognitive impairments. Therefore, both the driver and I are entitled to reasonable adjustments under the Equality Act.

3. On arrival, the driver and I had to unload both an electric wheelchair and a mobility scooter from the vehicle in order to do our shopping - which is difficult as we both have mobility issues. Though it is not nearly as difficult as getting the mobility equipment back into the vehicle after use, especially as only the electric wheelchair is compatible with the hoist fitted in the vehicle. 

4. This all takes time, as does recovering from handling the mobility equipment. Add to that the extra time it takes to get around shops - especially those with narrow aisles and/or merchandising in the aisles - and it is little wonder that it takes me a long time to do my shopping. 

5. Under the Equality Act 2010, businesses have a legal duty to make reasonable adjustments to ensure that disabled individuals are not disadvantaged. On the date in question, I needed more time to carry out tasks at the site due to my disability, but the Claimant failed to provide reasonable adjustments such as an extension of the grace period, effectively penalising me due to my disability.

6. The Equality and Human Rights Commission’s (EHRC’s) ‘Equality Act 2010 Statutory Code of Practice Services, public functions and associations’ publication helps service providers understand their responsibilities under the Equality Act. See https://www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf 

7. Chapter 5 explains Indirect Discrimination, and gives examples of how it can occur and be avoided. 5.4 states ‘Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.’ This is particularly relevant when a time limit is applied across the board, but disabled people struggle to access the service within the time limit because of their disability. 

8. Page 82 provides the following example which examines time limits and disabled service users, and supports my view that allowing disabled people extra time to access services is imperative. There must be a mechanism for claiming more time. There was no such offer on the cluttered signs placed by the defendant. 

9. ‘A stately home has guided tours of grounds which depart at 30 minute intervals. The guides are told to follow a strict timetable and to complete the tours within 45 minutes. Disabled people with mobility impairments are put at a disadvantage by this practice. When challenged by a group of disabled persons, the park management realise:

• That  the practice is indirectly discriminating against such disabled persons and that they need to consider whether there is any justification for the practice;

• That making reasonable adjustments by permitting one group more time would be incompatible with the policy, as groups following on the slower group would be held up;

• They could achieve the same level of profit from guided tours by removing the strict timetable and permitting tours to overlap; and

• The indirectly discriminatory effect on persons with a mobility impairment is unnecessary because they can achieve their business aim of profit by adopting other means of achieving tour group volumes.

As a result they remove the practice of following a strict timetable not just in the case of persons with mobility disabilities, but for all visitors.’

10. The alleged overstay was only minor and should have been considered within a reasonable extension to the grace period, especially in light of the driver's and my disabilities. The Claimant’s failure to accommodate this constitutes unlawful discrimination.

11. Where a disabled person can park is not always a choice. In order to access the same freedoms as a non-disabled person, they have to consider many factors. They can't always just park a bit further away. Even when you factor in Blue Badge on-street parking, they can only do that if there are spaces available, if the space is big enough to use the hoist at the rear of the vehicle, and safe enough to enter and exit the vehicle. Parking in the only close-by car park with disabled bays isn't always a choice, it's often an only option. If I knew in advance that, on that day, I could not complete my shopping, and leave the car park, in under two hours, I could have left the car park without doing any shopping - in which case the car park regulations would still have been a barrier to me accessing the shopping area like a non-disabled person could. 

12. The defendant is a member of the IPC and as such they have agreed to abide by their Code of Practice. See https://irp.cdn-website.com/262226a6/files/uploaded/IPC Code of PracticeV9 V4.pdf  In section 10.1 code states that ‘operators have a duty to make ‘reasonable adjustments’ to assist disabled people to use any services they provide ’ Section 10.2 then describes operator responsibilities for the physical environment. The fact that physical environment responsibilities are defined separately indicates that the “reasonable adjustments” from section 10.1 are more comprehensive than just the physical environment.

FraggleRoxy

Exaggerated Claim and 'Market Failure' Currently Examined By the Government

13. 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 ‘debt collection’ costs are genuine. The £70 additional ‘debt collection’ costs appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015] UKSC67, parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £70 is neither justified nor explained.

14. The Claimant has provided no breakdown or explanation of how this amount was calculated or why it is appropriate. It can only be viewed as a punitive charge designed to penalise defendants like myself, which is contrary to established legal principles that prohibit excessive and unfair contractual penalties.

 

15. In my opinion, these fees were not paid out or incurred by this Claimant, who is to put strict proof 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.

16. 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.

17. 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."

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, 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’.

 

21. 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 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.

 

24. 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.

 

25. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 (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

26. 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.

 

27. 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. See https://assets.publishing.service.gov.uk/media/5a7f8b58ed915d74e33f716e/Unfair_Terms_Main_Guidance.pdf

28. Images XXXXXX  show the unfair nature of the signage, and the lack of signage where we parked. The short video XXXXXXXXX shows the view from the exact bay we were parked in, showing that was very difficult to see, and impossible to read the signage from the disabled parking bay. 

 

29. The CRA has been breached due to unfair/unclear terms and notices, pursuant to section 62 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).

 

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

The Beavis Case is Against This Claim

31. 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 XXXXXXX) - set a high bar that this Claimant has failed to reach. 

 

32. 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 XXXXXX for paragraphs from ParkingEye v Beavis).

 

33. In the present case, the Claimant has fallen foul of those tests. The one main issue that renders this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable is ‘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 DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’); and

(ii) 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

(iii) 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".

CONCLUSION

34. The Claimant has continually failed to take notice of their legal responsibilities to mak  provision for disabled people to receive adequate time provision to access services, despite my appeals to them both directly, and via th  Independent Appeals Service (IAS).

35. The Claimant has thus far failed to satisfy the fundamental burden of proof in this matter. Despite making various assertions about the alleged contraventions and my supposed liability, the Claimant has not provided adequate evidence to support their claim. Specifically:

36. Failure to Comply with Civil Procedure Rules (CPR) 16.4: As detailed earlier, the Claimant’s Particulars of Claim (PoC) are woefully deficient and do not comply with the requirements of CPR 16.4. The PoC fails to provide sufficient detail about the alleged contravention, preventing me from fully understanding the case against me. Recent persuasive cases, such as CPMS v Akande [2024] and CEL v Chan [2023], demonstrate that such failures warrant the striking out of the claim.

37. I noted that the initial NTK letter arrived 16 days after the event in question. POFA S4, 9.5 requires charge notifications to be received within 14 days. I received the NTK on 1/9/2023, and have evidence to support this. (Ref XXXXXXXX)

38. As the PoC is so weak, and I have yet to receive a Witness Statement from the defendant, I have also included other evidence that I may need to rely upon in court. This evidence includes;

* ref XXXXXX - bank statement showing purchases from shops on the retail park in question on the day of the alleged breech

* Ref XXXXXX - my blue badge, which was displayed on the day in question

* Ref XXXXXX - Images of our mobility equipment in the car

* Ref XXXXX - Images of my photo card driving licences, showing that I didn’t have to valid license on the date in question, so could not have been the driver of the vehicle. 

39. Both the Claimant, and the Claimant’s legal representatives used intimidating and threatening language in both the initial PCN and the subsequent letters received from them. They threaten ‘debt recovery action', inflated costs and ‘debt recovery and/or court action'. The threat of debt recovery is overly aggressive and alarmist, especially given that when I hear the term ‘debt recovery’ my mind instantly thinks of bailiffs visiting my home, which is particularly frightening. I know I am not alone in thinking debt recovery equates to bailiffs, and I believe the Claimant uses such terms to scare people into paying their inflated charges. I have both physical and cognitive impairments including chronic fatigue, which affects their memory and concentration. Coping with everyday tasks can be overwhelming, so this claim has been alarming and stressful. It has negatively impacted both my physical and mental health. 

40. I did not have any in-depth knowledge of parking laws prior to receiving this PCN, so gathering understanding, research and preparing documents for this court case has been particularly challenging. My disabilities mean that I struggle with concentration, particularly doing paperwork, and find that I can only work on this for short periods, or spend hours working on the case and achieve very little. Consequently I have had to spend many hours over an extended period of time preparing for this. I have counted well over 40 hours just in the time since the case was filed with the court, so this doesn’t include time spent on my initial appeal to the Claimant, or my appeal through the IAS.

41. I respectfully request that the court dismisses the Claimant’s claim in its entirety due to the Claimant’s failure to meet the burden of proof and their failure to comply with the requirements of the Civil Procedure Rules. The court should also consider the Claimant’s unreasonable conduct throughout these proceedings when making any assessment of costs.

42. In the matter of costs, I ask:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

43. 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 Civil Procedure 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))."

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.

Coupon-mad

. Also, you will need to add reference to this comparison of the sign to the Beavis sign to show breaches of the IPC CoP and the CRA how the charge is most definitely not brought to the drivers attention:

Are you using the above image as an exhibit? You should!

Your WS also needs some quotes from the Equality Act 2010 itself to define indirect discrimination (unless I missed those?) and to confirm that a discriminatory term is UNENFORCEABLE.

And some quotes from the DLUHC temporarily withdrawn statutory Code where it talks about telling disabled persons how to claim more time. You could show another ParkingEye sign as a demonstration of best practice:

See the "3 hours free" offer is followed by "need longer?" and instructions on how to claim exemption.  Compare that to your sign.

And bring para 37 up to become para 26 instead, placing it before the sub-heading 'CRA BREACHES' and add some more words to that paragraph, taken from another case that you find when you search the forum for:

VCS Edward Gargan HHJ Smith

There can be no keeper liability from a VCS NTK.  Can you show us the NTK, do you still have it?

FraggleRoxy

Thanks for all your help Coupon-mad. 

I have included both ParkingEye signs, though updated the first to show a comparison with the current VCS signs at the site. 

I’ve added EA and DLUHC quotes. 

Here are the pics of my NTK, if it too doesn’t stand up to keeper liability, I’ll add in the VCS v Edward 

https://ibb.co/StbhWDn

https://ibb.co/K0fhXJd

Coupon-mad

You've redacted the dates on the NTK so we can't tell. And why is it addressed to the Company Secretary?  That's not you.

FraggleRoxy

The Company Secretary?? I have no idea, I’m not one and never have been. 

Contravention date - 16/8/23
NTK issued - 24/8/23

Le_Kirk

Your paragraph #1 calls it a defence statement whereas it is a witness statement.

Gr1pr

FraggleRoxy said:

The Company Secretary?? I have no idea, I’m not one and never have been. 

Contravention date - 16/8/23
NTK issued - 24/8/23

Presumably its a Motability vehicle. ?  ( They always state that sentence on Motability vehicles, no Biggie . )

FraggleRoxy

Does anyone know where I can find a transcript or other evidence from the case ‘Car Park Management Service Ltd v Akande (Ref. K0DP5J30)  [2024]’?
Many posts say to use this case in WS, but I have been unable to locate it.


Also, I am unsure as to how to include such information in my WS exhibit section. Can I give hyperlinks to them, or should they be fully included in the WS, or just include relevant sections?

I am concerned that I need to keep my WS to under 50 pages, but currently have 8 cases referenced, which just won’t fit in when some are 10 pages long. 

The cases I have currently are:
ParkingEye Ltd v Beavis
ParkingEye Ltd v Somerfield Stores Ltd ChD
Excel v Wilkinson

Spurling v Bradshaw [1956]

Thornton v Shoe Lane Parking Ltd [1970] 

Vine v London Borough of Waltham Forest

Car Park Management Service Ltd v Akande

Civil Enforcement Limited v Chan

Help!!