Court claim

parkingcowboysbegone

Hi. Posted my witness statement above, any comments? Follows the format of recent witness statements, the only bit i've mostly written myself is the Facts and Sequence of Events.
Couple of questions:
1. The word document is about 40mb but will reduce to 13mb PDF. Shall I delete some of the strike outs to reduce the file size? I've included approx 30 pages of strike outs at this stage. My worry is it bouncing back from the court email on the day i'm sending it, unsure what file sizes they can accept.
2. What else do I need to send the court in addition to the witness statement and evidences. Do I need to send the PCN, my initial defence, claim forms etc? I know you have to send to the court any document you wish to rely on but what is normally included? I'm pretty happy with just my witness statement?
3. The court directions to send the witness statement 14 days before etc. If my court date was on the 27th Jan say. 14 days before would mean I need to send on the 13th Jan by 4pm?

I'd like to again thank all the contributors to this forum. The content and advice on here is invaluable, it is very much appreciated.

Coupon-mad

Para 14 needs to use the phrase 'cause of action estoppel' plus the date/number citation of Henderson. Search the forum.

As for Chan, Akande and the other strike-outs, to save pages I'd not put them as full exhibits.  You can instead provide the judgments link with them all on as a URL. It's a link provided in a thread by @Le_Kirk and linked in the NEWBIES thread section on exhibits.

A WS and attachments must not exceed 50 pages (sides) or the court will refuse to print it for the Judge.

You can also take a full printed version with you on the day if it's an in-person hearing.

1505grandad

Para 15  -  typo  -  " As stated in the N180 directors questionnaire ......."

Suggestion  -  check exhibit numbers in main body etc of WS  -  i.e.:-

Para 16  -  " This is in stark contrast to the highly visible, clear and legible signs seen in Parking Eye v Beavis (2015) UKSC67 (“the Beavis case”). (See Exhibit 08)."

Whereas Table of Contents state:-

"Exhibit 08: ANPR signage

Exhibit 09. Signage seen in ParkingEye v Beavis"

parkingcowboysbegone

IN THE COUNTY COURT AT XXXXXXXX

Claim No.XXXXXXXX

Date of Hearing: XXXXXX

 

Between

VEHICLE CONTROL SERVICES LIMITED

(Claimant)

V

MR. XXXXXXXXXXXX

(Defendant)

 

 

WITNESS STATEMENT OF DEFENDANT

 

 

TABLE OF CONTENTS

WITNESS STATEMENT OF DEFENDANT

Exhibit 01. Copy of parking receipt to Ring Go

Exhibit 02. Civil Enforcement v Ming Tak Chan Judgment

Exhibit 03. Car Park Management Service Ltd. V Charles Akande Judgment

Exhibit 04. Multiple area court “strike outs”

Exhibit 05. Entrance signage

Exhibit 06. Signage with Terms and Conditions

Exhibit 07. Ring Go signage

Exhibit 08: ANPR signage

Exhibit 09. Signage seen in ParkingEye v Beavis

Exhibit 10. Excel v Wilkinson Judgment

Exhibit 11. Excerpt from Parking Eye Ltd. V Beavis (paras 98, 193, 198)

 

 

WITNESS STATEMENT OF DEFENDANT

1.      I am XXXXXXXXXXX, 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 on my own knowledge.

2.      In my Statement I shall refer to Exhibits 01-11 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 Judgments 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 02-04).

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 with the Claimant would be able to bring a claim for breach of contract”. (See Exhibit 02.)

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 03.)

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.

 

Facts and Sequence of Events

7.      Date and time of the Incident: It is admitted that on XXXXXXXXXXXX I was the registered keeper of the vehicle XXXXXXX and I was driving on this occasion.

8.      On the date pleaded, namely XXXXXXXXXX I purchased a ticket to park my vehicle, registration number XXXXXXXXXXXX at Smyth Street Car Park. This ticket was purchased via the Ring Go mobile telephone app that allows a user to purchase a car parking ticket remotely and online without the need to display a ticket. Please see copy of parking receipt for the date in question attached. (See Exhibit 01).

9.      It is admitted that this ticket may not have been purchased immediately after parking. The Ring Go signage did not stipulate that a time period specifically applied for payment. (See Exhibit 07.)

10.  There were other spaces available at the time I parked.

11.  I left the car park prior to my ticket expiring. My ticket covers a 12 hour period, I parked for a period of XXXXXXXXXXXXXXXX hours, thereby allowing my space to be reused to the benefit of the claimant.

12.  The nature of the Claimant’s losses are not understood nor is the measure of loss, particularly in circumstances where:

(i)                 I had paid for a car parking ticket

(ii)              There were other spaces available at the time I parked

(iii)            I left the car park prior to my ticket expiring

13.  I had parked in Smyth Street car park on a number of occasions prior to this date, paid via Ring Go in the same manner and had no issues.

14.  The Claimant has issued another claim, number XXXXX against the Defendant with substantially identical particulars (except for dates). The Claimant has raised these claims separately despite the claims being almost identical in nature. The issuing of two separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long established case law in Henderson v Henderson (1843) 67 ER 313, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. In Arnold v National Westminster Bank plc (1991) 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties of their privies and having involved the same subject matter.” The decision is still good law, and has been cited with approval numerous times, including Aldi Stores v WSP Group PLC (2008) 1 WLR 748 and Henley v Bloom (2010) 1 WLR 1770. The Court is invited to strike out the second claim due to cause of action estoppel.

15.  It is my understanding that mediation was mandatory in this case. On the appointment date, the 23rd September 2024, the mediator called me at 12:07 and informed me that they were struggling to contact the Claimant. They informed me that they would continue trying to contact the Claimant and would call me back. The mediator called me at 12:35 stating that they had been unable to contact the Claimant and therefore the mediation appointment would have to be cancelled. This is a clear representation of the Claimants unwillingness to engage with the mediation service and shows their disregard for both the mediation service and my personal time.

It is my understanding in this case that mediation was mandatory. As stated in the N180 Directions Questionnaire “If you do not attend mediation, you may be subject to penalties. These could include the Judge ordering you to pay costs, or the Judge automatically ruling in favour of the other party(ies).

XXXXXXXXXXXXXXXXXXXX This point only applies to one no. claim.

16.  Inadequate signage: I have observed a lack of clear and visible signage regarding the parking regulations. The only sign visible at the entrance to the car park, which is otherwise unmarked, gives no information whatsoever as to the nature of the Terms and Conditions, merely that Terms and Conditions apply. The text which provides this limited information is very small and not clearly legible from inside a vehicle. (See Exhibit 05).

The car park is poorly maintained and unlit. At the time of writing the car park has no working external lighting and both pay machines are out of order. The signage which does provide information related to the Terms and Conditions is located in the middle of the car park, obscured from view behind parked cars, and printed in such small type as to be illegible unless very close. (see Exhibit 06).

The poor placement and legibility of these signs make it extremely difficult for anybody to be aware of or to comply with the parking rules. This is in stark contrast to the highly visible, clear and legible signs seen in Parking Eye v Beavis (2015) UKSC67 (“the Beavis case”). (See Exhibit 09).

 

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

17.  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.

18.  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

19.  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 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.

20.  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.”

21.  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 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/attachme nt_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

22.  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.

23.  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.

24.  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.

parkingcowboysbegone

25.      In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to pars 98, 100, 193, 198 of Beavis. (See exhibit 11). 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”.

26.      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.

27.      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.

28.      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

29.      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.

30.      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.

31.      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).

32.      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 10)

 

The Beavis case is against this claim

33.      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 09) - set a high bar that this Claimant has failed to reach.

34.  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 11) for paragraphs from ParkingEye v Beavis.

35.  In the present case, the Claimant has fallen foul of those tests. There is one main issue that render 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 DLUHC bans it in 2024/2025. 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:

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

(iii)            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

(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".

 

Conclusion

 

36.  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 claimant’s 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.

37.  I ask 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 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.

38.  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.

39.  With the DLUHC's impending 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. I 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.

40.  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))."

parkingcowboysbegone

Thanks for the responses guys, updated WS posted above. I'll tidy the layout up a bit and should be ready to go after Christmas.

Is the witness statement and exhibits the only thing I need to send to the court. Assume they will have the claim etc. (I will take everything I have as a hard copy on the day just in case).

Le_Kirk

parkingcowboysbegone said:

Is the witness statement and exhibits the only thing I need to send to the court. Assume they will have the claim etc. (I will take everything I have as a hard copy on the day just in case).

That is correct they will have the claim and your defence (unless they later write to you and say they cannot find it, which has been happening a lot recently!)

Coupon-mad

Obviously you must cc in the other side too.

What about your costs assessment sheet?

Is this still showing as 3 multiple page Exhibits rather than the URL I recommended because you've somehow managed to keep the whole bundle under 50 pages? 

Exhibit 02. Civil Enforcement v Ming Tak Chan Judgment

Exhibit 03. Car Park Management Service Ltd. V Charles Akande Judgment

Exhibit 04. Multiple area court “strike outs”

parkingcowboysbegone

Coupon-mad said:

Obviously you must cc in the other side too.

What about your costs assessment sheet?

Is this still showing as 3 multiple page Exhibits rather than the URL I recommended because you've somehow managed to keep the whole bundle under 50 pages? 

Exhibit 02. Civil Enforcement v Ming Tak Chan Judgment

Exhibit 03. Car Park Management Service Ltd. V Charles Akande Judgment

Exhibit 04. Multiple area court “strike outs”

Hi, Sorry for the late reply. Yes, i've included a costs sheet, i've managed to keep it under 50 pages. I just took some strike out examples out, there's still plenty of them included.

parkingcowboysbegone

Including something along the lines of the below in aswell. What do you think?

The Claimant in this case is “Vehicle Control Services Limited”. I don’t understand “Vehicle Control Services Limited” role in this case. All the signs in the car park are labelled as “Excel Parking” (See Exhibit 05 and 06). The Claimant claims that upon my vehicle entering the land, I accepted a Contract and agreed to be bound by terms. If any contract did exist it would be between myself and “Excel Parking”. Claiming that upon entering the land I entered into a contract with an un-named, un-known and irrelevant third party is unreasonable and unlawful.