Getting Defence Ready

Biscuits101

Continued...

Defence

 

22.   The Defendant was afforded a 28-day period in which they could appeal. An appeal was lodged which was unsuccessful. A copy of the appeal and response issued is exhibited at “EXHIBIT 6”. The Defendant was able to submit a second appeal to the ATA’s appeals service, but no successful second appeal has been made. The potential next step was clearly communicated to the Defendant in notices. It is respectfully submitted that if the Defendant genuinely believed the Charges had been issued incorrectly, they would have engaged with the appeals process further.  

 

23.   The Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my

Company’s time. 

 

24.   Notwithstanding the above, I respond to the issues raised in the Defence as follows (as the defence is quite repetitive, I will only deal with each point once, but for the avoidance of doubt nothing within the defence is accepted unless I specifically state otherwise): -

 

i. The Defendant questions whether the Particulars of Claim comply with the Civil Procedure Rules. I submit that the Claim was issued via the Civil National Business Centre and in this regard, I refer to Practice Direction 7E (“the PD”) which specifically provides the guidelines for doing so. I respectfully submit that the Particulars of Claim (“the Particulars”) are in keeping with the PD. The following sections are of relevance: - 

 

-       5.2(1) provides a limited character count for the Particulars of Claim; and

-       5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form.

 

It is my Company’s position that the Particulars were sufficient to allow the Defendant to identify the subject matter of the Claim. The Defendant could not have submitted a Defence with the detail it contains if the Particulars were so insufficient as to prevent them from understanding the claim. Further, with respect, if the Defendant were of the genuine belief that the Particulars of Claim were insufficient, the correct procedure would have been to make an Application to the Court. The Defendant has chosen not to do so; 

 

ii.              The Defendant has stated that they were parked at their place of residence and had permission under their Lease Agreement and from the letting agents that they could park. The Defendant has failed to provide a copy of their Lease Agreement, however, in any event, it is submitted that the Landowners have instructed my Company to manage the parking on the Land and subsequently all users, regardless of their residency, are subject to the Terms and Conditions that are in force. The Defendant does not own the Land in which we have been instructed to manage therefore any Lease Agreement between residents and the Landowner does not conflict with my Company’s ability to enforce the Terms and Conditions on the Land. My Company’s contract with the Landowner was orchestrated to work alongside the conditions of such an agreement. It is in the Landowner’s interest to ensure that there is no conflict between the contract with my Company and the Lease Agreements with the residents themselves. It is important to note that each Term and Condition that my Company enforces on the Land has been agreed to by the Landowner. A Lease Agreement does not therefore legally designate ownership of the parking spaces on site to the residents; the spaces are simply allocated to and a to be able to park on the Land a valid parking permit must be displayed. As per the aforementioned, the contract with my Company and the Landowner and the signage surrounding the Land clearly indicated that unless the Terms of parking are complied with, you are not authorized to park and doing so will result in a Parking Charge being issued; 

 

iii.            The Defendant has stated within their defence that they had recently moved into the property during the month that the Charges were issued and ‘a permit was obtained for use’. The Defendant has admitted that they were in possession of a parking permit knew that it had to be ‘used in the allocated parking space’. The Court is referred to the images at “EXHIBIT 3”, a permit was not displayed and consequently the Defendant was issued with Parking Charges, it is respectfully submitted that if the Defendant was aware that a permit was required, why did they not ensure that the same was displayed as stipulated by the clearly displayed Terms and Conditions?  

 

iv.             In addition to the above the Defendant has alleged that the ‘permit had fallen off the dashboard upside down’. To reiterate, the onus is on the users of the Land to ensure that they comply with the Terms and Conditions. The Defendant, clearly aware that a parking permit was required, ought to have made sure that the same was clearly displayed. By their own admission the permit was not displayed and therefore it is my Company’s position that the Defence is baseless and the Defendant remains liable; 

 

v.              The Defendant has alleged that the ‘signage on site are not clear and sufficient for its purpose’. This is denied in its entirety. It is submitted that the Terms on the signs were adequate in respect of overall size, font size, plain English, location and content. The Plan demonstrates where the signs were located, and it is submitted they are adequate to constitute notice of the Terms to the Driver. If the Defendant did not understand the Terms on the signs, they should have exited the land and found alternative parking; 

 

vi.             In addition to the above it is noted that the Defendant alleges that the signs do not form a 

Contract with users of the Land. This is, again denied. The Court is referred to the signs at 

“EXHIBIT 2” which clearly state: ‘By entering this private land, you the driver are entering into a contract with Vehicle Control Services Limited’. It is therefore submitted that there is a clear Contract formed between the Defendant and my Company and by the Defendant remaining on the Land in breach of the Terms and Conditions they agreed to ‘pay the Parking 

Charge’. It is my Company’s position that the Defendant remains liable; 

 

vii.           It is denied in its entirety that my Company’s conduct is a nuisance to residents. To reiterate, the Landowner instructed my Company to manage the parking on the Land and to issue Parking Charges to users found to have breached the agreed Terms and Conditions. On each date, the Defendant remained on the Land without a valid parking permit and was subsequently issued with the Parking Charges for which they remain liable; 

 

viii.         The Defendant’s reference to the Land being ‘narrow’ so ‘drivers and members of the public would infer that the area…is for the purpose of its residents’ bears no relevance to their liability for the Parking Charges. All users of the Land are subject to the Terms and Conditions. It is made clear on the signs that a valid parking permit must be clearly displayed and this was the same regardless of whether the Driver was a resident. Parking management was put in place by the Freeholder for the benefit of all of the residents. The Defendant, if they were a resident, therefore benefited from the parking management service. They could not reasonably expect to accept the benefit of the service, but at the same time refuse to comply with the requirements of it; 

 

ix.             It is respectfully submitted that any reference to other Parking Charges the Defendant may have been issued with bear no relevance to the matter being heard for Claim L5KF9E4A; 

 

x.              Whether the Defendant ‘invaded other residents parking spaces’ or not bears no relevance. The Terms and Conditions could not be clearer, and the evidence exhibited within this Statement clearly highlights that the Defendant failed to comply with the same. It is my 

Company’s position that the Charges were issued correctly, and the Defendant remains liable; 

 

xi.             In respect of the Defendant’s reference to the amount claimed, I respond as follows in consideration of the fact that this is a forum templated dispute: 

 

a.     In respect of the Defendant’s allegation that the claim is a penalty, my Company is not seeking more than the original charge as the core debt. The core charge remains the same for each Parking Charge (i.e. £100); however, my Company is now also seeking further costs/damages; 

 

b.     My Company is instructed to manage the Land, the Landowner agreement previously referred to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation. The Landowner’s legitimate interest in managing the Land is because it is a residential permit area. Because there is a clear legitimate interest/commercial justification, the same as that established in ParkingEye -v- 

Beavis [2015], this case does not fall foul of the penalty rules established in that case; 

 

c.     The amount charged is in line with the guidelines given by the ATA. Part E, Schedule 5 of the COP states “Parking charges must not exceed £100 unless agreed in advance with the IPC”.  It is my Company’s position there is no requirement for the amount of the charge to bear any relevance to the actual or potential cost of parking. The Parking Charge is a fee charged by my Company for providing the service and it stays within the guidelines given by the ATA. As with many other ‘services’; the service provider is entitled to charge as they deem appropriate; 

 

d.     The Parking Charge was not paid within the prescribed 28 days or indeed at all. In view of this the sum of £60 is also claimed as a contractual cost pursuant to the Contract which states “if payment of the Parking Charge is not made in accordance with the payment terms detailed on the Parking Charge, Vehicle Control Services Ltd will be entitled to charge a collection fee of £70.00 on an indemnity basis for costs incurred as a result of debt and/or legal recovery”. The Defendant was on notice of the fact that the outstanding amount may increase as a result of any necessary debt recovery action. In support I draw the Court’s attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: 

 

- “There is nothing … which enable[s] the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 

27.14”;

 

e.     The sum added is a contribution to the actual costs incurred by my Company as a result of the Defendant’s non-payment. My Company’s employees have spent time and material attempting to recover the debt. This is not my Company’s usual business and the resources could have been better spent in other areas of the business, generating profit. Had the Defendant of paid as per the Contract, there would have been no need for recovery action so the amount due would not have increased; 

 

f.      With respect of Parking Eye -v- Beavis [2015], whilst it is accepted the original charge is designed to include the ‘operational costs’; this was with reference to maintaining the land, taking payment or sending the relevant POFA compliant notices. It was never intended to include the need to pursue the debt in Court to recover it. If that were the case, it would override the Civil Procedure Rules (allowing fixed costs and recovery of court fees) which of course is not the case. The Defendant has misunderstood the phrasing ‘operational costs’; 

 

g.     The recent successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the claim does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a claim of this type does not constitute an abuse of process that would allow for the entire claim to be struck out. 

 

xii.            In respect of the ‘terms’ as per Schedule 2 of the Consumer Right Act 2015, specifically referred to:  

 

-       Term 6 – It is submitted the sum is not disproportionate for the reasons set out 

within the ‘amount claimed’ section of this Statement, nor is it ‘compensation’. 

 

-       Term 10 – As is evident from the Plan, signs were displayed throughout the Land. The Driver was aware of the fact that parking was managed from the point of entering the Land and could leave if they did not agree to the Terms. It is not unreasonable for the Driver to need to potentially walk no more than 10 meters to fully familiarise themselves with the full Terms. This would have all happened before the conclusion of the contract. 

 

-       Term 14 – The price is stated on the sign. 

 

-       Term 18 – The fact the Driver was able to park means my Company fulfilled its obligations. 

 

xiii.          The Terms clearly stated what would happen if payment was not made: -  

 

 

-     “If payment of the Parking Charge is not made in accordance with the payment terms detailed on the Parking Charge, Vehicle Control Services Ltd will be entitled to charge a collection fee of £70.00 on an indemnity basis for costs incurred as a result of debt and/or legal recovery”.

 

xiv.           With no concession made in this regard, if a Driver ever does not understand the Terms on the signs, they can exit the land and find alternative parking. They are under no obligation to park on the Land; 

 

xv.            The phrase ‘double recovery’ suggests the same amount is being recovered twice. This is not what is claimed, as explained later in this Statement. 

 

xvi.           The Defendant also alleges that my Company has no authority to bring the Claim. The Landowner instructed my Company to manage the parking on the Land and issue Parking Charges to any Vehicle found to be in breach of the Terms of parking. A copy of the agreement can be seen at “EXHIBIT 1”. It is respectfully submitted that my Company has the relevant authority to issue Parking Charges and bring Claims for such in the event the charges remain outstanding. In any event, the Defendant is a third party to the Landowner Agreement and privity of Contract applies; 

Biscuits101

Continued again...

xvii.         The Defendant alleges that my Company has failed to offer an Alternative Dispute Resolution 

(‘ADR’). This is denied in its entirety. A Notice to Keeper was sent to the address the DVLA confirmed was that of the Registered Keeper, which is the same address that the Claim Form was served to it is the Defendant’s responsibility, as the Registered Keeper, to ensure the DVLA is kept up to date with their current address at all times. A copy of the Notice to Keeper can be seen at “EXHIBIT 5”. The Notice to Keeper afforded the Defendant the opportunity to appeal the charge or nominate an alternative Driver, which they failed to do; xviii.        Further to the above, DCB Legal also sent a ‘Letter of Claim’ compliant with the Pre-Action Protocol for Debt Claims to the same address the Defendant has confirmed as their correct address for service. The ‘Letter of Claim’ afforded the Defendant 30 days to either dispute the matter or make payment. As no response was received, a Claim was issued. If the Defendant genuinely wished to participate in ADR, they would have made a greater effort to communicate this to my Company; 

 

xix.      The Defendant’s costs are denied in their entirety. Their costs are not supported by any documentation. Pursuant to CPR 27.14, costs are not ordinarily applicable to small claims. Notwithstanding the above, and without concession, the Defendant is put to proof that the costs claimed are true. 

 

25. In view of the above, it is my Company’s position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable. 

Coupon-mad

Biscuits101 said:

Draft

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 on my own knowledge.

2. In my Statement I shall refer to Exhibits 00-10 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:

 

3. I the Defendant denies that the Claimant is entitled to relief in the sum claimed, or

at all. It is denied that any conduct by the driver was in breach of any term. Further,

it is denied that this Claimant (understood to have a bare licence as agents) has

standing to sue or form contracts in their own name. Liability is denied, whether or

not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate

text in the Particulars of Claim ('the POC').

 

Preliminary matter: The Claim should be struck out

 

4. I draw the court’s attention to two previous and persuasive appeal judgments which support the dismissal or striking out of this claim. I respectfully submit that dismissing this meritless claim aligns with the Overriding Objective. It is my belief that 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 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 01 to 03).

 

5. The first persuasive appeal judgement in Jopson v Homeguard [2016], para 18, HHJ Harris states that the “respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease”. While this appeal refers to short stay parking on residential property, the judgement supports my view to residents having authority on this matter. (Exhibit 00)

 

6. The second persuasive appeal judgement in Pace Recovery v Mr N (2016) indicates that a tenancy agreement must rule over any variation made by a third party operator. I cite District Judge Coonan final judgement, para 18, that “the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed”. (Exhibit 00)

 

7. I believe that this claim should be struck out due to the represented parking firm’s failure to comply with the basic requirements of CPR, and because the claim has not set out clear and coherent facts as required by CPR 16.4. The claimant has not provided sufficient clarity to explain what specific contract term was allegedly breached, making it impossible for me to adequately respond.

 

8. I believe the claim should be struck out due to the represented parking firm’s failure to overrule the tenants right to park and that their sole desire is to profit off residents who live on site.

 

Facts and Sequence of events

 

9. Date and time of the Incidents: It is admitted that on the dates listed in the POC, I was the registered keeper of the vehicle XXXXX. 

 

10. Parking Notice: The Claimant pursues a claim for non-payment of five parking charges notices (PCN) on the premises at the location stated within the claim. At this time, I was a resident of the apartment building XXXXX and had moved in with my partner (XXXXX) this same month (XXXXX), who was already the current lead tenant. I was given permission that parking would be available as by the letting agent (Exhibit 00) and as a resident, it is reasonable to expect that I would be allowed a parking space on the premises at the location. There is also no mention within the pre-existing lease agreement that lists any conditions regarding parking on site managed through a third party or the display of a permit. (Exhibit 00)

 

11. Having a Permit: Within XXXXX I was given a permit by my partner, and this was placed within the car. The first attempt of a notice left on the vehicle by the claimant’s site enforcer, listed as a ‘Privacy Notice’, did not clarify of any offense. It only stated that images were taken of the vehicle and they “have reasonable cause that a contravention has occurred” (Exhibit 00). In my view at the time, because it was not clear I was in breach of any alleged offence, I had continued to park on the premises of the residency unaware there would be a concern regarding the display of a permit.

 

12. In the PCN dated XXXXX it is visible that a permit was present inside the car despite being upside down on the dash. Due to my job at the time which relied on other methods of transport, I did not frequently drive the vehicle everyday so was unaware the permit had fallen off the dash or was not clearly visible. Between the dates of the XXXXX, XXXXX and XXXXX this is clear in photos provided by the Claimant in their Notice to Keeper (NTK), sent through the post, as the car was in a stationary position for the three consecutive days. (Exhibit 00)

 

13. XXXXX, where the apartment building is located, is a very narrow one-way street leaving no room to park on during evenings and early mornings. The street is often found to be overcrowded ergo any space on the premises of the apartment building, XXXXX, is in my opinion designated for its residents (Exhibit 00). From my observation, the car park at the location is likely to fit over fifteen vehicles. During my residency while living there, the car park covering both the front and back of the property was never seen to be more than half full (Exhibit 00). I did not restrict access to any other residents of the property who needed to park themselves.

 

14. Previous Appeals: The claimant had also issued two other parking PCN’s to me which are not listed in this claim. This totals to seven PCN’s with all identical aspects. I had attempted to appeal all charges to the claimant at the time of receiving each NTK but was only allowed to appeal two of the seven through their online system due to not seeing some of the letters within their time frame for appeal. A permit was provided to the claimant in this appeal. In their response to both charges, the claimant stated “each Charge must be appealed separately” but then gave no option or explanation on how to appeal the other charges (Exhibit 00). 

 

15. In one of these PCN’s, the same vehicle named in the POC was parked at the back of the property which can only be accessed through a security gate with a keypad that only residents are aware of. (Exhibit 00)

 

 

Primacy of existing residential parking rights

 

16. Under the lease for the tenancy agreement, there are no terms within for the requirement of vehicles to display parking permits, or to pay penalties to third parties, such as the Claimant.

 

17. Within the agreement, under ‘Definitions’, the “Premises” includes reference to a parking space. (Exhibit 00)

 

18. The letting agency have also confirmed in a letter to myself that a tenant of the property is entitled to one allocated parking space. (Exhibit 00)

 

19. Both this letter and the tenancy agreement have already been sent to the claimant’s legal team but were never responded back to. 

 

20. With reference to the landholder contract, it is averred that the claimant does not have a contract with or flowing from the landowner, otherwise they would have produced it. The claimant is put to strict proof that the contrary is true.

 

Signage on site

 

21. The signage on site does not clarify that the ‘private land’ is for residents. Nor does it clarify that parking on site overrides the contract to residents who live at the property. (Exhibit 00). 

 

22. It states that the land is for “Valid Permit Holders Only” yet there is no mention on how to obtain a permit or gain access to the back area of the property through the locked gate. In my view, one would assume to obtain a permit is to be a resident at the property therefore the purpose of the “private land” must be for use of its residents. 

 

23. In failing to represent this through their signage on site, I have requested to the claimant’s legal team to provide me with this written confirmation between the claimant and the landowner that states they have authority that overrules the tenants right to park. This was ignored and never provided. 

 

24. Acknowledging the points above in paragraph’s 19 and 20, the claimant, a member of the IPC, has ignored it’s code of practice as under section 14.1 states, 

 

“Where controlled land is being managed on behalf of a landowner(s), before

a parking charge can be issued written confirmation must be obtained by the

parking operator from the landowner(s)”

 

25. I assert that the operator’s signs cannot 

(i) override the existing rights enjoyed by residents and their visitors

(ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. 

 

Unenforceable Additional Costs

 

26. In addition to the multiple disputed claim amount of £100 per PCN, the Claimant has added a sum of £70 that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is Exhibit 00). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued."

 

27. While in their NTK it states they accept a £60 fee within 14 days of the parking charge, the appeal reply (Exhibit 00) also stated that they were willing to accept a “reduced settlement charge of £20” if done so by the 20/02/2024. This is far past their initial 28-day period thus I struggle to comprehend how the inflated £70 fee for debt recovery is added to the original £100 charge. This is a clear act of double recovery

 

28. These additional costs appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015] (Exhibit 00), parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £70 is neither justified nor explained.

 

29. The claimant’s demand for additional costs of £70 per PCN is entirely baseless. It is not supported by any clear contractual term, it violates the CRA's requirements for fairness and transparency, and it constitutes an unlawful penalty charge. The court should strike out this portion of the claim as unenforceable.

CRA breaches

30. Claiming costs on an indemnity basis is unfair...

Etc etc

@Coupon-mad said

Lots of blurb copied from the Template Defence (can mostly be removed if you already used the Template Defence!)

-------------------------

Biscuits101 said:

 

I have a further update as I have received a WS from the claimant. Or rather from a Litigation Manager on behalf of the claimant. 

It discusses what you expect about managing parking on the land and so on. The major point raised is they have now provided the agreement between the landowner and their company. They assert this gives them the right to enforce parking and rely on a decision in One Parking Solution Ltd v Wilshaw. I did ask them to provide this to me before which was ignored. 

They state I failed to provide a copy of the lease agreement, which I did. They also state that I failed to respond to the LOC from DCBLegal, which again I did through email. 

Respond to their WS in your WS, calling out where they are saying things you say aren't true.

Add DJ Iyer's decision here as an exhibit about PARKINGEYE v SOMERFIELD being binding re added fake admin costs (write some words of your own to introduce this exhibit):

https://forums.moneysavingexpert.com/discussion/6576150/general-form-of-judgement-or-order-form

Search the forum for responses already written dozens of times re:

Chaplair v Kumari

and

OPS v Wilshaw HHJ Simpkiss

and 

Britannia v Semark Jullien

A couple of queries I have are...

- Should I keep in the detail about the previous two PCN's (not listed in the POC) and the original appeal from those? (para 14, 15 & 27)

ANSWER: yes in this case. But in 15 can't you attack their evidence re this back area? Lack of signs evidenced there? Can you get your own photos?


- I've seen some recent stuff on the Duchess of Bedford House case, should I add this in too? I wasn't sure if that was for residents who own the property themselves only or if it covers rental property too.

ANSWER: yes but why not include a footnote URL to it to stop your bundle exceeding the 50 page limit? Might assist you: it's a landmark case and you have rights too, they just flow from your tenancy agreement in your case (you also likely have easements & rights based on the Head lease, if you have a private landlord leaseholder)


- Should I file evidence of the email requesting the claimants contract with the landowner?

ANSWER: no, you'll have that now I think?


- I've seen a few WS include the “Exaggerated Claim and “market failure” currently examined by UK Government” section from the defence but I assume there is no need for this as it was already part of my defence.

ANSWER: I agree.

See my comment above where I've snipped quoting some of your draft WS because you could remove most of that blurb! TOO MUCH!

Biscuits101

@Coupon-mad

I have updated my WS. I've cut down some bits and added more in response to the claimants WS as well as the Duchess of Bedford House (Para 20) + DJ Iyer's decision (Para 29).

I found some interesting points regarding signage and bylaws on behalf of landowners in the IPC code of conduct (Para 26)

Added in paragraphs about Hearsay Evidence as I felt this was suited also re-worked the Conclusion section.

I also added in towards the start that I use to visit the premises numerous times before the dates as a visitor and never received a charge. 

Let me know if these points are ok!

Also is it worth keeping in the full sections regarding CRA and and Beavis? While they aren't an extract from the defence discuss similar points.


*Must admit, quite an eye opener reading into the points against the OPS v Wilshaw HHJ Simpkiss case.

WITNESS STATEMENT OF DEFENDANT

 

1. I am XXXX, 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 00-10 within the evidence supplied with this Statement, referring to page and reference numbers where appropriate. 

 

Preliminary matter: The Claim should be struck out

 

3. I draw the court’s attention to two previous and persuasive appeal judgments which support the dismissal or striking out of this claim. I respectfully submit that dismissing this meritless claim aligns with the Overriding Objective. It is my belief that 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 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 01 to 03).

 

4. The first persuasive appeal judgement in Jopson v Homeguard [2016], para 18, HHJ Harris states that the “respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease”. While this appeal refers to short stay parking on residential property, the judgement supports my view to residents having authority on this matter. (Exhibit 00)

 

5. The second persuasive appeal judgement in Pace Recovery v Mr N [2016] indicates that a tenancy agreement must rule over any variation made by a third party operator. I cite District Judge Coonan final judgement, para 18, that “the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed”. (Exhibit 00)

 

6. I believe the claim should be struck out due to the represented parking firm’s failure to overrule the tenants right to park and their pursuit of extortionate additional fees termed as ‘debt recovery. 

 

Facts and Sequence of events

 

7. Date and time of the Incidents: It is admitted that on the dates listed in the POC, I was the registered keeper of the vehicle XXXX. 

 

8. Parking Notice: The Claimant pursues a claim for non-payment of five parking charges notices (PCN) on the premises at the location stated within the claim. At this time, I was a resident of the apartment building XXXX and had moved in with my partner (XXXX) this same month (XXXX), who was already the current lead tenant. Before this I would also park at the premises as a visitor frequently without a permit as informed by my partner that she was entitled to a parking space. I was given permission that parking would be available as by the letting agent (Exhibit 00) and as a resident, it is reasonable to expect that I would be allowed a parking space on the premises at the location. There is also no mention within the pre-existing lease agreement that lists any conditions regarding parking on site managed through a third party or the display of a permit. (Exhibit 00)

 

9. Having a Permit: Within XXXX I was given a permit by my partner, and this was placed within the car. The first attempt of a notice left on the vehicle by the claimant’s site enforcer, listed as a ‘Privacy Notice’, did not clarify of any offense. It only stated that images were taken of the vehicle and they “have reasonable cause that a contravention has occurred” (Exhibit 00). In my view, because I had parked before without a permit, it was not clear to me I was in breach of any alleged offence, I had continued to park on the premises of the residency unaware there would be a concern regarding the display of a permit. 

 

10. In the PCN dated XXXX it is visible that a permit was present inside the car despite being upside down on the dash. Due to my job at the time which relied on other methods of transport, I did not frequently drive the vehicle everyday so was unaware the permit had fallen off the dash or was not clearly visible. Between the dates of the XXXX, XXXX and XXXX this is clear in photos provided by the Claimant in their Notice to Keeper (NTK), sent through the post, as the car was in a stationary position for the three consecutive days. (Exhibit 00)

 

11. XXXX, where the apartment building is located but separate to the land reserved for ‘private parking’, is a very narrow one-way street leaving no room to park during evenings and early mornings. The street is often found to be overcrowded ergo any space on the premises of the apartment building, XXXX, is in my opinion designated for its residents (Exhibit 00). From my observation, the car park at the location is likely to fit over fifteen vehicles. During my residency while living there, the car park covering both the front and back of the property was never seen to be more than half full (Exhibit 00). I did not restrict access to any other residents of the property who needed to park themselves.

 

12. Previous Appeals: The claimant had also issued two other parking PCN’s to me which are not listed in this claim. This totals to seven PCN’s with all identical aspects. I had attempted to appeal all charges to the claimant at the time of receiving each NTK but was only allowed to appeal two of the seven through their online system due to not seeing some of the letters within their time frame for appeal. A permit was provided to the claimant in this appeal. In their response to both charges, the claimant stated “each Charge must be appealed separately” but then gave no option or explanation on how to appeal the other charges (Exhibit 00). 

 

13. In one of these PCN’s, the same vehicle named in the POC was parked at the back of the property which can only be accessed through a security gate with a keypad that only residents are aware of. (Exhibit 00)

Primacy of existing residential parking rights

 

14. Under the lease for the tenancy agreement, there are no terms within for the requirement of vehicles to display parking permits, or to pay penalties to third parties, such as the Claimant.

 

15. Within the agreement, under ‘Definitions’, the “Premises” includes reference to a parking space. (Exhibit 00)

 

16. The letting agency have also confirmed in a letter to myself that a tenant of the property is entitled to one allocated parking space. (Exhibit 00)

 

17. Both this letter and the tenancy agreement have already been sent to the claimant’s legal team, but they never responded back to me to outline their belief that the agreement does not over ride their terms. (Exhibit 00)

 

18. With reference to the landholder contract, I had previously requested to the claimant’s legal team to provide me with this written confirmation between the claimant and the landowner which states they have authority that overrules the tenants right to park (Exhibit 00). This was ignored and never provided. While the claimant’s witness statement provides this as evidence, this is the first time I have seen it personally.

 

19. Listed in point 6.8 of this agreement, it explains that a managing (letting) agent is given authority to “exercise and enforce all rights, duties, powers, discretions and functions under the contract”. If this is so, then why have the letting agency provided evidence of permitting a resident (myself) to park on site.

 

20. This position is supported by the recent Court of Appeal decision in Duchess of Bedford House RTM Company Limited & Ors V Campden Hill Gate Ltd (2023) ECWA Civ 1470 which reaffirms residential parking rights using not only a fair interpretation of the lease but also Section 62 of the Law of Property Act 1925(Exhibit 00).

 

Lack of standing or landowner authority, and lack of ADR

 

21. In the claimant’s witness statement, the claimant has relied upon the case of One Parking Solution v Wilshaw [2021], it is averred that this appeal judgment was misguided and plainly wrong. The DVLA rules and requirements that relate to private parking operators are a fundamental set of rules specific to parking on private land and regrettably, HHJ Simpkiss was not appraised about the 'KADOE' requirement for written landowner authority – see section C1: 
https://www.whatdotheyknow.com/request/current_dvla_kadoe_agreement_for/response/2567601/attach/4/FOIR11172%20UK%20Car%20Park%20Management%20Ltd%20Redacted.pdf?cookie_passthrough=1

 

22. Where a parking firm has no title in the land and says it is working as an agent on behalf of the landowner, written landowner authority is a strict requirement of the DVLA KADOE agreement. By not providing a statement that they have contractual rights in their first written correspondence, it is improper and plainly wrong for the claimant to argue otherwise.

 

23. This is not news to this Claimant, because it is a mandatory section in the IPC Code of Practice (reflecting the KADOE rules without which a Parking Firm cannot obtain DVLA data at all) - see section 14: https://www.britishparking.co.uk/write/Documents/AOS/Sector%20Code%20Templates/sectorsingleCodeofPracticeVersion1.1130225.pdf

Signage on site

 

24. The signage on site does not clarify that the ‘private land’ is for residents. Nor does it clarify that parking on site overrides the contract to residents who live at the property through any byelaws it has with the landowner. (Exhibit 00). 

 

25. It states that the land is for “Valid Permit Holders Only” yet there is no mention on how to obtain a permit or gain access to the back area of the property through the locked gate. In my view, one would assume to obtain a permit is to be a resident at the property therefore the purpose of the “private land” must be for use of its residents. 

 

26. Despite the claimant providing an agreement with the landowner. They are again in breach of the IPC Code of Practice as it is also mandatory that any specific terms and conditions such as byelaws where operating on controlled land must be indicated on its signage, see section 3. This is further asserted in section 14, by stating “Particular care is needed to establish appropriate contractual terms, including the application of parking terms and conditions, in respect of controlled land where leaseholders may have rights that cannot be qualified or overruled”. This requirement is not present on any signage on site or even notified in the NTK.  

 

27. I assert that the operator’s signs cannot 

(i) override the existing rights enjoyed by residents and their visitors

(ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. 

Biscuits101

Continued...

Unenforceable Additional Costs

 

28. In addition to the multiple disputed claim amount of £100 per PCN, the Claimant has added a sum of £70 that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’. The added £70 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is Exhibit 00). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued."

 

29. In a recent judgement, where a claimant was seeking costs of £100 along with a £60 recovery fee for breached parking terms and conditions. District Judge Iyer’s decision concluded that the latter of the claim for a further £60 recovery fee was to be ruled out according to a binding decision of the High Court in ParkingEye v Somerfield [2011] that such charge is a “penalty”. (Exhibit 00)

 

30. While in their NTK it states they accept a £60 fee within 14 days of the parking charge, the appeal reply (Exhibit 00) also stated that they were willing to accept a “reduced settlement charge of £20” if done so by the 20/02/2024. This is far past their initial 28-day period thus I struggle to comprehend how the inflated £70 fee for debt recovery is added to the original £100 charge. This is a clear act of double recovery

 

31. These additional costs appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015] (Exhibit 00), parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £70 is neither justified nor explained.

 

32. The claimant’s demand for additional costs of £70 per PCN is entirely baseless. It is not supported by any clear contractual term, it violates the CRA's requirements for fairness and transparency, and it constitutes an unlawful penalty charge. The court should strike out this portion of the claim as unenforceable.

 

CRA breaches

 

33. 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.

 

34. 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 dusk/darkness) and all terms must be unambiguous and

contractual obligations clear.

 

35. 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 that there has to be a finding of bad faith).

 

 

The Beavis case is against this claim

 

36. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015], where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

 

37. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage and varying acceptability of parking areas are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

 

38. Even taken as an extreme close-up, the signage on has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, already aware of the signage, no contract to pay an onerous penalty would have been, known or agreed.

 

39. 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 (Exhibit 00)set a high bar that this Claimant has failed to reach.

 

40. 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'. (Exhibit 00) for paragraphs from ParkingEye v Beavis).

 

Claimant’s Assertion Regarding My Defence

 

41. The claimant refers to the support of Chaplair Limited v Kumari [2015] regarding their additional collection fee of £70. However, this case differs to mine as both parties already had an agreement within the lease for the rental property before any dispute arose. Paragraph 6 of this judgement even declares this stating “the lease contains provisions for Mrs Kumari to pay the landlords’ costs of various expenses which it incurs”. This is not relatable to my case as there were no agreed terms to begin with in the lease. 

 

39. In paragraph 23 of the claimant's Witness Statement, the claimant asserts that I have been able to produce a "substantive defence" and implies that I have not suffered any prejudice as a result of the claimant's failure to provide detailed and compliant Particulars of Claim (PoC). I respectfully submit that this assertion is inaccurate and fails to appreciate the nature of my defence.

 

42. It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC in their draft IA exposes that the template “debt chaser” stage costs less than £9. This shows that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (Exhibit 00, para 30-39) where she went into great detail about this abuse.

 

43. The Semark-Jullien case is now unreliable going forward, and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experence of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much-needed clarity for consumers and Judges across England and Wales.

 

44. My defence primarily relies on the fact that the leaseholder agreement has a right to park over the terms set by the claimant while also being confirmed by the letting agent. In the claimant’s witness statement, paragraph 24 ii, they claim I have “failed to provide a copy of their Lease Agreement”. Yet referring to paragraph 19, I have already provided evidence of this.

 

45. In paragraph 22 of the statement, the claimant’s ‘witness’ believes that I should have engaged with the appeal process further if I was adamant the charges were incorrect. This is not true as the letting agency were notified by telephone through my partner, the lead tenant, after my original appeals to the claimant and was told the matter would be addressed.

 

46. In paragraph 24 xviii of the claimant's witness statement, the claimant declares that I did not respond to the ‘Letter of Claim’ from DCB Legal. This is false as I had emailed the claimant’s legal team and even to which they replied to themselves. (Exhibit 00)

 

47. In response to paragraph 24 viii, the claimant is disorganised in their knowledge on what I refer to here. I draw attention to the point highlighted in paragraph 11 of my witness statement in response to this. While they state I was under no obligation to park, I have shown evidence of the street separate to the premises and how diminutive space is compelling me to directly park on the land of residency. This demonstrates the lack of understanding from the claimant’s ‘witness’ who cannot give a true reflection of the events due to second-hand information.

Hearsay evidence

 

48.  The Claimant’s 'witness' is a para legal employed by the claimant’s solicitors and has no direct knowledge of the actual events that form the basis of the claim. Any evidence provided by this individual is second-hand, supposedly relying entirely on information supplied by the claimant, and thus cannot carry the same weight as testimony from someone who witnessed or was directly involved in the incident.

 

49.  While the Civil Evidence Act 1995 allows hearsay evidence in civil proceedings, it is required to be given less weight, especially when it comes from someone with no firsthand knowledge. Furthermore, under CPR 32.2, the court has the discretion to exclude hearsay evidence when it is of limited probative value. In this case, the witness provides only second-hand information from the claimant and cannot be considered reliable or probative.

 

50.  The Claimant's Witness Statement (WS) fails to comply with CPR Practice Direction 32, paragraph 18.2, as it does not clearly distinguish between what the witness knows firsthand and what has been provided to them by others. It is evident that the individual providing the statement, being a legal assistant with no direct involvement in the events, relies on information provided by their client and lacks personal knowledge of the facts. As a result, this statement amounts to hearsay, which weakens its credibility. 

 

Conclusion

 

51. The Claimant has failed to provide evidence that any agreement with the landowner over rules my authority to park, nor has it shown that the parking charge notices were validly issued. The claimant has not given satisfactory proof that they were right to enforce charges without initially stating what byelaws they had over the land. 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

 

52. 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. 

 

53. 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 have spent considerable time researching, preparing this statement, and attending the hearing. My estimated costs for this are as follows:

 

• Research and preparation of witness statement (8 Hours): £XX

• Travel expenses (Parking and Fuel): £ XX

• Time away from work (8 Hours at £12.50): £100

 

Totalling: £ XX

 

I request that the court considers these costs in its judgment, given the claimant's unreasonable behaviour in pursuing this futile and meritless claim. 

 

Statement of Truth

 

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Coupon-mad

Could only skim-read tonight but this doesn't say what you want it to mean:

"parking firm’s failure to overrule the tenants right to park"

Biscuits101

@Coupon-mad

Appreciate all your help so far! I feel my WS is in a good place now. If you get a chance could you take a look to see if there is anything out the ordinary?

The transcripts and tenancy agreement took up far too many pages so put a few things into footnotes and managed to get it down to bang on 50 pages! I will look to email this in over the weekend as the deadline is fast approaching!

Link is below as I can't upload in pdf format. 

https://we.tl/t-cXafCE5H6a 


Thank you again! 

Le_Kirk

Coupon-mad said:

Could only skim-read tonight but this doesn't say what you want it to mean:
"parking firm’s failure to overrule the tenants right to park"

@Biscuits101, did you spot what @Coupon-mad wrote and deal with it?

Biscuits101

@Le_Kirk

Hey apologies for the late reply, I did make the adjustment and filed within in a timely manner. 

I received a separate supplementary WS from the Claimant a few days ago in response to points made in my own WS. They've ignored a lot of these and seem to only rely on their stance that I was in breach of terms by not displaying a permit. They also admitted to their own due diligence by saying I didn't reply to their LOC, which I of course I did and have provided evidence of. 

The hearing is taking place very soon. 

Please correct me if I'm wrong but I'm under the assumption that the Claimant is to provide hard copies of all documents to all parties and the Judge. I will be bringing a copy of my own WS and a crib sheet, is there anything else advisable to bring?

Le_Kirk

It is normal to receive a Supplementary; do not get suckered into playing WS ping-pong, judges do not like it.

They also admitted to their own due diligence by saying I didn't reply to their LOC............

Is that right, did you mean lack of due diligence?  It is common practice these days to provide WS and evidence electronically unless ordered to do it differently by you Notice of Allocation.  For your benefit it is advised to take your WS/evidence and a copy of your defence.  If you are printing hard copies for yourself, print an extra WS as sometimes the claimant plays the "Oh judge, we didn't receive the defendant's WS" card.