Private PCN

Lakoko

@1505 grandad. The answer to your question is YES, they are from the claimant. All their 4 photos of my car parked has exactly the same time/date to second. Please need your advice to counter this.

Secondly, I have a question. I was served a notice to the keeper dated 14th June 2023 ( This was issued within 14 days of car park alleged breach date )  under POFA 2012 Schedule 4 Para 9 by post. No notice of driver was issued or attached to the car. However, after 13 days of receiving the first Notice to the Keeper, I received a second notice to the keeper dated 27th June 2023 as a final reminder stating discount period has gone and now liable for £100., I thought they need to wait for 28 days after issuing the first Notice to the keeper before they can issue the second notice to the keeper in line with POFA 2012 Schedule 4 Para 9 . Am I wrong?

Coupon-mad

You are wrong on that, so forget it.  The discount only had to be on offer for 14 days and sending a 'reminder' around that time is normal.

The answer to your question is YES, they are from the claimant. All their 4 photos of my car parked has exactly the same time/date to second. Please need your advice to counter this.

You don't need our advice to counter that; it just needs putting in simple English in your own words. It is clearly impossible that the time stamps on those photos are genuine. It follows that they are deliberately or negligently falsified and you must state this.

Good spot as usual, by @1505grandad

1505grandad

@Lakoko -  for your info re DVLA ban in 2015 and 2018:-

https://www.independent.co.uk/news/uk/home-news/uk-parking-control-dvla-suspension-misuse-of-data-a8325941.html

LDast

Lakoko said:

Secondly, I have a question. I was served a notice to the keeper dated 14th June 2023 ( This was issued within 14 days of car park alleged breach date )  under POFA 2012 Schedule 4 Para 9 by post. No notice of driver was issued or attached to the car. However, after 13 days of receiving the first Notice to the Keeper, I received a second notice to the keeper dated 27th June 2023 as a final reminder stating discount period has gone and now liable for £100., I thought they need to wait for 28 days after issuing the first Notice to the keeper before they can issue the second notice to the keeper in line with POFA 2012 Schedule 4 Para 9 . Am I wrong?

The NtK has to have been deemed given (Delivered) to the keeper within 14 days. It can only be deemed as given two working days after the issue date. So, go back and figure out the date of the alleged contravention then figure out the issue date plus two working days and count the number of days. If it comes to 14 or less, it complies with PoFA as far as the dates are concerned. If it is more than 14 days, then the NtK is not PoFA compliant.

Only the original NtK counts. Any subsequent reminders are irrelevant.

One final question... why did you redact your whole body instead of just your face?

Lakoko

Exhibit 7 – Particulars of Claim 

Coupon-mad

1505grandad said:

@Lakoko -  for your info re DVLA ban in 2015 and 2018:-

https://www.independent.co.uk/news/uk/home-news/uk-parking-control-dvla-suspension-misuse-of-data-a8325941.html

Use this against UKPC when pointing out the falsified timestamps.

Lakoko

My WS, Please need your comments and advice. Exhibits 4,5,6,7,8, and 9 are available on comments page 3 and 4

Table of Contents

Table of Contents --------------------------------------------------------------Page 1

Witness Statement 01 of Defendant --------------------------------------Page 2 - 11

Exhibit 1 - Civil Enforcement Limited v Chan ---------------------------Page 12 -15

Exhibit 2 - Parallel Parking Limited v Anon ------------------------------Page 16

Exhibit 3 - District Judge Sprague Judgement -------------------------Page 14

Exhibit 4 - Signage at the location -----------------------------------------Page 15

Exhibit 5 – My parked car and distance to signage on the wall-----Page 16

Exhibit 6 – Car parking bays and the signage--------------------------Page 17

Exhibit 7 – Photo 01 of my parked car -----------------------------------Page 18

Exhibit 8 - Photo 02 of my parked car ------------------------------------Page 19

Exhibit 9 – Particulars of Claim ---------------------------------------------Page 20

Exhibit 10 - PCM-UK v Bull --------------------------------------------------Page 21

Exhibit 11 – Defendant’s Cost ----------------------------------------------Page 22

1. I am xx of the address xxx, and I am the defendant against whom this claim is made against. I work as a xxxxx. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. Exhibits 4, 5, 7 and 8 are evidence downloaded from the claimant website (https://paycharge.co.uk/Payment/Review ) on the 19th of May 2024 with reference number xxxxxx. My defence is repeated, and my witness statement is outlined below:

Preliminary matter: The claim should be struck out

3. As a preliminary matter, I would like to bring to the Court's attention that the Claimant's Witness Statement, signed by [Paralegal or Solicitor's Name] of [Solicitor Firm name] Solicitors, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As [Paralegal or Solicitor's Name] does not have direct involvement and knowledge in the events in question, the Witness Statement fails to meet these requirements. Considering this non-compliance, the Defendant respectfully requests that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

4. The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant 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 in the following persuasive authority.

5. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) (Refer to Exhibit 1) 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.

6. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v Anon, Refer to Exhibit 2) and struck the Claim out without a hearing.

7. 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 (Refer to Exhibit 3).

8. 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 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. 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

9. Firstly, I have appended the actual signage at the location, refer to Exhibit 4. The Defendant had gone to pick her daughter in a primary school (Advance Education) which was part of the complex that have access and use of the car park area where the Defendant parked the car. 

10. The signage (Exhibit 4) was fixed to a wall, far away from the position the car was parked. The signage which states that: No Roadway Parking with reference to car parking bays (No parking on yellow lines or in an area with hatched markings).

11. The driver parked on the side of the road with the signage far away from where the car was parked, as there were parking bays very close to the signage, I originally thought the signage relates to the car parking bays (refer to Exhibit 5, my car xxxxxxx position in relation to the distance of the signage on the wall and Exhibit 6 showing the parking bays and the signage). 

12. Additionally, the sign is confusing and contradictory as it is not very clear where parking is restricted due to the following reasons: 

13. The writings on the signage (Exhibit 4) are not very legible from the position of where I parked my car.

14. The “No Roadway parking” writing on Exhibit 4 has an image of a road with “white markings and a red cross” on the image to denote no parking. The road where I parked has no “white dotted and bold lines markings” on it. I refer to Exhibit 7. This shows clearly that the road I parked on is not the road referenced in the roadway image on the signage (Exhibit 4). The signage (Exhibit 4) is therefore not in line with the BPA Approved Operator Scheme Code of Practice section 19, Signs: subsection 19.5 of the version 8 dated January 2020 which clearly stated that “The wording you include on your specific parking terms signage is your decision. However, you should try to use plain and intelligible language in all your signs and information”.

15. It is therefore denied that the signs used by the claimant can have created a fair or transparent contract with a driver in any event hence incapable of binding me to as the claimant failed to comply with the BPA code of practice   signs requirements subsection 19.3, “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. I have already demonstrated above that the sign in Exhibit 4 is not clear and not of intelligible wordings and images.

16. The signage Exhibit 4 states that No parking ON yellow lines… I did not park “ON THE YELLOW LINES”. Exhibits 7 and 8 indicates clearly that the car xxxx was parked BESIDE THE YELLOW LINES. 

17. The signage Exhibit 4 states that No parking in an area with hatched markings. I refer to Exhibit 7 which indicate clearly that I did not park the car xxxx in an area with hatched markings. The whole basis of the claimant claims as detailed in the Particulars of Claim (Exhibit 9) was that I parked on yellow lines/hatched area. Evidence downloaded from the claimant website Exhibit 5, 7, and 8 shows clearly that was not the case. These exhibits 5, 7, and 8 are enough justification for the claim to be struck out.

18. Different photos of my parked car as downloaded from the claimant website Exhibits 4, 5, 7,8 shows the same timing (15:32:49) for all the four different photos taken of my parked car. This clearly indicated that my car was parked for less than a minute to collect my daughter from the school.

19. In addition, the presence of the yellow lines where I parked is evidence that I thought that this section of the highway was a public highway because there are no traffic regulations, byelaws, and traffic orders regulating or enforcing double yellow lines on private roads or land. So, this is another confusion and I thought I was parking on a public highway.

20. The BPA Approved Operator Scheme Code of Practice section 14 Misrepresentation of authority subsection 14.1 of the version 8 dated January 2020 clearly stated that “You must give clear information to the public about what parking activities are allowed and what is unauthorised. You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority. You will be breaching the Code if you suggest to the public that you are providing parking enforcement under statutory authority”. Exhibits 4 and 5 are CLEAR EVIDENCE that the claimant has breached this section of the code by using “double yellow lines” on a private road to misrepresent public authorities use of double yellow lines. Hence, the claim should be struck out because the claimant has not complied with the code of practise regulating parking on private lands.

21. The signs present on the site are perplexing and actually work against the formation of a contract. Not only do we encounter restrictive signs, which are incapable of constituting a contract as seen in the case of PCM-UK v Bull et al B4GF26K6, 2016 (I refer to Exhibit 10), but they are juxtaposed with "No Parking" signs which similarly fail to establish a contract. Displayed in Exhibit 4 is one such sign from the site at that time. Once more, I urge the Court to acknowledge that no contract has been established, rendering any breach irrelevant. In the previously mentioned case above, the signage was ruled as prohibitive, thereby denoting a mere act of trespass that falls under the jurisdiction of the landowner.

22. Furthermore, the same signage as displayed in Exhibit 4 corresponds to the signage showcased in PCM-UK v Bull et al B4GF26K6 2016 (I refer to Exhibit 10). The judge presiding over the case concluded that this sign does not carry the weight of creating a contract, leading to the dismissal of the case. Therefore, it can be inferred that the driver did not engage in any 'charge agreement,' nor did any form of consideration pass between the parties, ultimately resulting in the absence of a contract. The establishment of a contract mandates an offer, acceptance, and consideration between the parties involved. What, then, is actually being offered by that sign?

Lakoko

23. The foundation of contract law relies on the principles of offer, consideration, and acceptance. Given the lack of any offer concerning parking, the absence of consideration to be acknowledged is apparent, thereby eliminating any possibility of acceptance.

24. The Defendant denies that the signs at this location meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. For a driver any terms relating to a parking contract would have had to have been extremely clear in all places within the site, in very large letters to ensure all drivers were 'bound to see' the terms. The text used to display the £100 PARKING charge is very small and unreadable compared to the ‘NO ROADWAY PARKING’ text in Exhibit 4.

25. The claimant has not produced any evidence to show that they have the written authorisation of the landowner to carry out parking management of the land in question as required by the BPA Approved Operator Scheme Code of Practice section 7 and all its subsections of the version 8 dated January 2020.

26. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question. 

27. The Claimant is put to strict proof in the form of a valid contract, between Vehicle Control Services and the landowner, that shows it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. 

28. If in the alternative it is the Claimant's case that his claim is founded in trespass (which is in any event denied) then any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and deminimis. 

29. As part of the BPA Approved Operator Scheme Code of Practice subsection 22.4 of the version 8 dated January 2020, the claimant is obliged to follow the guidelines from the Information Commissioner’s Office on the use of CCTV since the parking charge was issued relying on the use of CCTV. One of the ICO guidelines is that operators of CCTV must tell people they may be recorded, usually by displaying signs, which must be clearly visible and readable. The signage (Exhibit 4) only has a tiny image of CCTV at the corner of the signage with no readable wordings warning the public of CCTV in operation. Therefore, the signage has not made the CCTV sign clearly visible and readable to comply with both the BPA code of practise and the ICO guidelines on use of CCTV.

30. According to the BPA Approved Operator Scheme Code of Practice subsection 22.5 of the version 8 dated January 2020, the claimant is obliged to sign up to the Surveillance Camera Commissioner’s Code of Practice and adopt the Guiding Principles which are detailed in Appendix F of the Code. The guiding principles detailed in Appendix F required the claimant to carried out a privacy impact assessment (PIA) and publish the PIA. I trawled the claimant website https://www.ukparkingcontrol.com/ on the 6th of June 2024 at 16:49 hrs and I cannot find any published PIA document on their website. This shows the applicant have not complied with the legal basis to use the CCTV images for this claim. Therefore, the claim should be struck out.

31. Note on the version of the BPA Approved Operator Code of Practice quoted in my witness statement – British Parking Association (BPA) on their website https://www.britishparking.co.uk/code-of-practice-and-compliance-monitoring has confirmed that BPA Approved Operator Code of Practice 2012 Version 8, January 2020  will be referred to in relation to any issues of non-compliance taking place up to but not including 1st February 2024.  I am referring to this version 8 because I am citing the claimant non-compliance with the code of practise before 1st February 2024.  

Exaggerated Claim and 'market failure' currently being addressed by the Government.

32. 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.

33. 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.

34. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

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

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

(iii).  Interest appears to be miscalculated on the whole enhanced sum from day one as if the entire sum was 'overdue' on the day of parking.

35. 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.

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

37. 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 

 

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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).

Conclusion

 

44. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

 

45. The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case (Exhibit 1), and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation in terms of period of time and extent length of parking duration.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

46. There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

 

47. There is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

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

(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. (Refer to Exhibit 11).

 

49. 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))."

50. Finally, the claimant has breached and failed to comply with 5 important and fundamental BPA codes as highlighted in paragraphs 14, 20, 25, 26, and 27, on which the whole arguments of the claimant are based. These breaches of the BPA codes mentioned above are enough justification for the case to be struck out.

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: 

Exhibit 11 - DEFENDANT’S SCHEDULE OF COST

Ordinary Costs

Loss of earnings through attendance at court hearing: £95.00.

Further costs for Claimant’s misconduct

In pursuant to Civil Procedure Rule 44.11 in carrying out research, preparation, postage, and drafting of documents (15 hours at Litigant in Person rate of £19 per hour): £285.00.

TOTAL COSTS CLAIMED: £380.00.

Signature: 

Date:

LDast

I sincerely hope you are going to fill in the details in the square brackets in your para #3. You can only use that if you have already seen the Claimants WS and it was indeed signed by a paralegal and not the Claimant themselves.

Lakoko

@LDast Thanks. I know. So I have make notes in my draft. Thanks