Please delete Thread

Coupon-mad

No - you are using a 5 year out of date Statement of Truth.

Worse, you've copied a form of words about setting aside a CCJ!  That wasn't the section of the NEWBIES thread you were signposted to read.

JW1994

Coupon-mad said:

No - you are using a 5 year out of date Statement of Truth.

Worse, you've copied a form of words about setting aside a CCJ!  That wasn't the section of the NEWBIES thread you were signposted to read.

Okay, I'm sorry I'm trying my best here. I spent about 4 hours trying to find the right way to do this. I took it from the exemplars that I was told to use and felt it was the closest to my case. 

Would you be able to help in telling me the correct newbies thread I should be looking at?

Is it the below? As this is the part I've been trying to use,

JW1994

LDast said:

Have a look at this perspective from GSV and. Take a drive from the roundabout to the drop off area. Along the whole aapproach, I cannot find a single sign that mentions a £100 charge. Only signs that warn that there is a fee to be paid. The approach images are all from June 2023. Once you reach the drop off in GSV the photos are too old, from 2020, but the point is to show that the signage is inadequate to form a contract.

https://maps.app.goo.gl/Tso14ThShBzLjLa99

Thanks so much

Gr1pr

Yes that is the correct section from the newbies sticky thread 

Earlier in the previous WS you posted you said it was a defence, its not, that was submitted months ago 

You are looking at the exemplars to pick out relevant parts for your own WS , so they are examples used by those members, not templates 

So when people are not sure what a WS looks like, it's good to study ones by other people that were applauded, especially if they were successful 

Like any examples or even templates, the best approved ones are recent ones, not 5 or ten years old ones 

Coupon-mad

JW1994 said:

Coupon-mad said:

No - you are using a 5 year out of date Statement of Truth.

Worse, you've copied a form of words about setting aside a CCJ!  That wasn't the section of the NEWBIES thread you were signposted to read.

Okay, I'm sorry I'm trying my best here. I spent about 4 hours trying to find the right way to do this. I took it from the exemplars that I was told to use and felt it was the closest to my case. 

Would you be able to help in telling me the correct newbies thread I should be looking at?

Is it the below? As this is the part I've been trying to use,

Yes.  Correct.

But no it wasn't those ones you used! You seem to have scrolled lower down to the CCJ exemplars and you used one of those by mistake.

JW1994

Coupon-mad said:

JW1994 said:

Coupon-mad said:

No - you are using a 5 year out of date Statement of Truth.

Worse, you've copied a form of words about setting aside a CCJ!  That wasn't the section of the NEWBIES thread you were signposted to read.

Okay, I'm sorry I'm trying my best here. I spent about 4 hours trying to find the right way to do this. I took it from the exemplars that I was told to use and felt it was the closest to my case. 

Would you be able to help in telling me the correct newbies thread I should be looking at?

Is it the below? As this is the part I've been trying to use,

Yes.  Correct.

But no it wasn't those ones you used! You seem to have scrolled lower down to the CCJ exemplars and you used one of those by mistake.

Thanks so much! Not sure how I've managed to do that lol time to go again on the weekend.

JW1994

I have re-done the witness statement. From the facts and sequences I have copied from other witness statements in the newbies thread, it seems that all of this does work with my case but I just wanted to post on here for sure as a lot of the wording goes over my head.

IN THE COUNTY COURT AT: Central London, RCJ Thomas More Building, Royal Courts of Justice, Strand, London, WC2A 2LL

NATIONAL CAR PARKS (EUK) LIMITED (Claimant)

And

MR xxxxxxx(Defendant)

CLAIM No: xxxxxxx

Witness Statement of Defendant:

1. I am xxxxx and 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 own knowledge.

2. In my statement, I shall refer to (Exhibits 1- ) 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. 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.

4.       A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16.  On the 15th 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. (See Exhibit xx-01)

 

5.       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. (See Exhibit xx-02)

 

6.       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. (See Exhibit xx-03)

 

7.       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 lacking 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. (See Exhibit xx-04)

 

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. It is admitted that on the material dates, I was the registered keeper of the vehicle. I did not however receive any pre-claim correspondence as all letters were sent to an old address.

 

10: I suggest the claimant did not make reasonable enquiries as to my current address before making claims against me especially considering they had good reason to believe they did not hold my current contact details. Furthermore, considering they received no response from me to their correspondence this should have been a clear indication of the obsolescence of the address xxxx

 

 

 

 

11. I have included below a photo of the only visible sign I could see with a moving car. This sign does not mention any of the charges that National Car Parks have mentioned.

 

 

12. At first I was fully in belief I had paid as I have never not paid for anything like this. I explained it must’ve been through another card as I had many credit cards and two of which had been cut up since. When I first received the letters to the correct address (this was over 6 months later), I phoned them straight away and explained I was happy to pay the correct amount, they asked to take the matter back from BW Legal but this was refused. I was never given a chance to pay other than a £250 charge which I don’t believe is fair.

JW1994

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

 

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

 

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

(i) the alleged breach, and

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

19.            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 and lines.

(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;

20.    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.

 

21.    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."

22.    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

 

23.    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.

 

24.    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.

 

25.    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.

 

26.    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.

 

27.    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.

 

28.    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.

 

29.    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

30.    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.

 

31.    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.

 

32.    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).

 

33.    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  xx-07)

 

The Beavis case is against this claim

34.    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, in particular, the brief, conspicuous yellow & black warning signs - (See Exhibit xx-08) - set a high bar that this Claimant has failed to reach.

 

35.    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 xx-09) for paragraphs from ParkingEye v Beavis).

 

36.    In the present case, the Claimant has fallen foul of those tests. There are two main issues that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Concealed pitfall or trap:

The signage in this case required customers to enter their vehicle registration number at a kiosk inside the store. Unfortunately, this kiosk was inaccessible to me as the store was closed, rendering compliance impossible.  I also wish to highlight the presence of a sign in the parking area that mentioned clamping. The use of clamping as a penalty for parking violations was made illegal under the Protection of Freedoms Act 2012. The inclusion of such outdated language on a parking sign raises questions about the relevance and validity of the signage in the parking area.  This sign, which suggested that 'Others will be clamped,' directly contradicts current parking regulations and creates further confusion regarding the penalties associated with parking violations. It is reasonable to assume that the parking operators responsible for the signage failed to update their notices to reflect the changes in the law.  Given this discrepancy and the fact that clamping is no longer a legally permissible penalty, it further underscores the uncertainty surrounding the parking terms at the location in question. I believe this is another critical factor that should be considered by the court when evaluating the legitimacy of this case.

 

(ii). 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 Civ2both 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

 

37.    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.

 

38.    The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's 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 v Chan case, full costs were awarded to the motorist and the claim was struck out.

 

39.    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.

 

40.    With the DLUHC's ban on the false 'costs' 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.

 

41.    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. 

( c ) for a days lost wages to be added to the total of £125.00

 

42.    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))."

 

 

 

Statement of Truth:

I believe that the facts stated in this Witness Statement are true.

KeithP

Your Statement of Truth is several years out of date.

1505grandad

As stated in a previous post by @Gr1pr:-

"You are looking at the exemplars to pick out relevant parts for your own WS , so they are examples used by those members, not templates>"

Therefore a heads-up   -  when using copy and paste make sure it is relevant to your case  -  i.e. para 36 states "kiosk", "clamping signs" etc.