Claim form - no PCN no NTK received - Acting on behalf of father - WS Stage DISCONTINUED

durdledoor91

Hello Forum, so it's been a while but the Notice of Allocation arrived yesterday with a date 22 May. I have until 4 April to confirm my email address to the court - I have the info@dcblegal.co.uk email address as they state all parties should be copied in. I also have an individual email from when they tried to offer in October 24 and found another one of response@dcblegal.co.uk. Does anyone have any views on which email address best to use or should I use all of them?
Thanks again, I will now get started on the witness statement as that is due 23 April so will likely be back for more advice. 
All best wishes

durdledoor91

Interesting I also just had an email from DCB offering £100 to settle vs original claim of £259.68 - best to ignore or respond saying no?

Gr1pr

Best to ignore,  probably to be followed with a discontinuation before the hearing fee date 

durdledoor91

Morning all, so getting ahead on the Witness Statement because I have a deadline of 4pm on 23rd April to submit and the next few weeks are busy! I am hoping its another discontinuation but if not....want to be prepared.
I have mainly focused on the issue with the marked bay and the inflated costs but please let me know if I should include other elements. 

IN THE COUNTY COURT AT XXXX

Claim No. XXXXXXXXX

Date of Hearing: XXXXXX

Between

XXXXXXX

(Claimant)

– and –

XXXXXXXX

(Defendant)

______________________________________

WITNESS STATEMENT OF DEFENDANT

______________________________________

Table of Contents Witness Statement of Defendant 2 Exhibit 01 – Car Park Signage – Bay Marking 1. 6 Exhibit 02 – Car Park Signage – Bay Marking 2. 6 Exhibit 03 – Car Park Signage  7 Exhibit 04 – Department of Transport – Inclusivity Guidance. 8 Exhibit 05 – British Parking Association Guidance. 8 Exhibit 06 – The Beavis case sign for comparison. 9 Exhibit 07 – ParkingEye Limited v Beavis. 10

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 1-7) 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:

Facts and Sequence of events:

3.      It is admitted that on the material date DD MONTH YEAR, I was the registered keeper of the vehicle XXXX XXX.  I have only visited the LOCATION on one occasion and on arrival I recall parking for a short period and that the site was undergoing construction at the time.

4.      At no time, neither on the alleged date of the offence nor later did I receive any PCN (Parking Control Notice) or NTK (Notice to keeper). This matter was first brought to my attention on receipt of the Claim Form issued on DD MONTH YEAR. This lack of notification meant I had no opportunity to appeal the incident through the correct channels of recourse or revisit for evidence gathering, as the claimant’s contract to manage parking ended in July 2024.

5.      The Claimant is seeking £174.68 in charges, rising to £259.68 inclusive of court and legal fees. 

Inadequate Signage and Markings:

6.      The claimant alleges that the vehicle was parked in a designated disabled person’s parking place in the LOCATION without displaying a valid disabled person’s badge.  

7.      Exhibits 1 & 2 provided by the claimant in their letter in response to my defence dated DD MONTH YEAR are photographs of the vehicle in the bay at the time of the alleged infraction. These images show no markings to identify the bay as being a designated disabled person’s parking space which according to guidance outlined in the Department of Transport’s Inclusive Mobility A Guide to Best Practice on Access to Pedestrian and Transport Infrastructure published in 2021 https://assets.publishing.service.gov.uk/media/61d32bb7d3bf7f1f72b5ffd2/inclusive-mobility-a-guide-to-best-practice-on-access-to-pedestrian-and-transport-infrastructure.pdf must be clearly marked with the International Symbol of Access, commonly known as the wheelchair symbol, positioned at the centre of the bay and made visible using high-contrast, non-slip paint for clarity in all conditions. The guidance also states that in addition to ground markings signage should be installed at an appropriate height to make it clear that the space is reserved for disabled individuals. It also advises the importance of signage in busy car parks, where markings alone may not be visible due to parked vehicles or adverse weather.  Exhibits 4 & 5 are extracts from the Inclusive Mobility guidance referenced and from the British Parking Association Bay Sizes Guidelines https://www.britishparking.co.uk/write/Documents/Library%202016/Bay_Sizes_-_Jul_2016.pdf

8.      Exhibit 3 provided by the claimant is a photograph of the inadequately sized and visible parking sign taped to the pillar which can also be seen in Exhibit 2 to size and scale. This image shows the International Symbol of Access which by its usage infers this symbol would be in use to identify the designated bays.

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

9.      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.

10.  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 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.

11.  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.

12.  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."

13.  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

14.  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.

15.  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.

16.  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.

17.  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.

18.  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.

19.  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 to scrutinise every aspect of claims like this one.

20.  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:

21.  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.

22.  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.

23.  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).

The Beavis case is against this claim

24.  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 6) - set a high bar that this Claimant has failed to reach.

25.  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 7) for paragraphs from ParkingEye v Beavis).

Conclusion

26.  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 markings 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.

27.  Attention is drawn specifically to the (often seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

Costs Assessment:

Given the significant time and effort required to defend this unjust claim, I respectfully request that the court consider awarding costs under CPR 27.14(2)(g). I with the assistance of my lay representative have spent considerable time researching, preparing this statement, and attending the hearing.

My estimated costs for this are as follows:

·       Research and preparation of defence and witness statement (8 Hours @ £10 per hour): £80

·       Travel expenses (Petrol for 41.8 miles @45p per mile): £18.81

·       Time away from work for lay representative (5 hours @ £25/hour): £125

Totalling: £223.81

I request that the court considers these costs in its judgment, given the claimant's unreasonable behaviour in pursuing this claim without merit.

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: DAY MONTH YEAR

Coupon-mad

I'd remove these:

5.      The Claimant is seeking £174.68 in charges, rising to £259.68 inclusive of court and legal fees. 

6.      The claimant alleges that the vehicle was parked in a designated disabled person’s parking place in the LOCATION without displaying a valid disabled person’s badge.  

And change 'visible' in para 8 to illegible.

durdledoor91

@Coupon-mad Thank you for reviewing so quickly - it much appreciated  - can you confirm advice is because 5 and 6 are already clear in the claimant's notes so superfluous to the WS? 
Any other thoughts welcome - do you think its solid enough, nothing else needed?

1505grandad

"4.      At no time, neither on the alleged date of the offence nor later did I receive any PCN (Parking Control Notice)..."

A PCN is "Parking CHARGE Notice".

Coupon-mad

durdledoor91 said: can you confirm advice is because 5 and 6 are already clear in the claimant's notes so superfluous to the WS? 

Yes, no need to restate their case!

Where your Dad talks about his exhibits, they should have his initials then the number. Where you talk about their exhibits, refer to those by their own identifier (probably provided as their initials then a number?).

I would also link the court to ParkingEye Ltd v Somerfield Stores Ltd as a URL, BUT MAKE SURE IT'S THE HIGH COURT VERSION WITH THE SUB HEADING 'IS IT A PENALTY?' BEING THE RELEVANT SECTION.

Not the Court of Appeal transcript (although they did agree the findings and didn't overturn the HC judgment).

Coupon-mad said:

Runs of accessible bays at retail parks almost never have ANY t&cs signs. Looks like they deliberately target the vulnerable. Evidence pics to prove a lack of t&cs (full) signs in that whole area would be good.

A person over 80 might be considered vulnerable if he is frail or suffers from long term conditions.

Add the above too and maybe also append exhibit evidence of his medical conditions to make the point that he does meet the definition of disability (assuming he parked there, not you?).

durdledoor91

Thanks again @Coupon-mad - I hope its ok to just check a couple of things with you:

1. On this Where your Dad talks about his exhibits, they should have his initials then the number. Where you talk about their exhibits, refer to those by their own identifier (probably provided as their initials then a number?) should this be in the exhibit list in the table of contents as well as in the statement itself i.e Exhibit 01 UKPC 

2.  On this: I would also link the court to ParkingEye Ltd v Somerfield Stores Ltd as a URL, BUT MAKE SURE IT'S THE HIGH COURT VERSION WITH THE SUB HEADING 'IS IT A PENALTY?' BEING THE RELEVANT SECTION.  I think I have found the document here but can't seem to locate the sub heading reference you mention? I found another doc that references paragraphs 414-428 is that the right section?
 https://www.casemine.com/judgement/uk/5a8ff76260d03e7f57eabf43#:~:text=The court also held that,and awarded damages to ParkingEye.

Can you also confirm where I should reference it within the statement - under Exaggerated Claim and 'market failure' currently examined by the Government: or under CRA breaches 

3. Yes it was him. He is over 80 but no illness or issues . I have found another statement that references in conclusion the impact and worry so potentially will include something to that effect

Coupon-mad

should this be in the exhibit list in the table of contents as well as in the statement itself i.e Exhibit 01 UKPC 

Yes.

2.  On this: I would also link the court to ParkingEye Ltd v Somerfield Stores Ltd as a URL, BUT MAKE SURE IT'S THE HIGH COURT VERSION WITH THE SUB HEADING 'IS IT A PENALTY?' BEING THE RELEVANT SECTION.  I think I have found the document here but can't seem to locate the sub heading reference you mention? I found another doc that references paragraphs 414-428 is that the right section?

https://www.casemine.com/judgement/uk/5a8ff76260d03e7f57eabf43#:~:text=The court also held that,and awarded damages to ParkingEye

You need the actual court transcript to the Judge's findings at the High Court, with paragraphs 414-428. 

Can you also confirm where I should reference it within the statement - under Exaggerated Claim and 'market failure' currently examined by the Government:

Yes under that bit.