PCM Gladstones WS stage

kgirl123

Hi all,

Back again - I've lost count in the number of claims I've had, must be at least 7 by now! All were discontinued bar one in 2018..

With the guidance of the experts on this forum, I'm at WS stage, court date is set for 24 October and WS needs to be submitted next week. The claim is for parking without a permit in a bay, at the back of office buildings. Paras 2-5 from my defence pasted below.

Surprisingly there's been no contact from Gladstones with the defendant (it's not a claim against me personally). In the past I've always had a phone call at some stage, and I expected a copy of their WS by now. Should D chase them for this? I have asked him to call the court tomorrow to check if the fee has been paid as this was due by 26 Sept.

For the WS prep, would this be a good thread to follow, as a guide? With the two recent appeal judgements? Or are there any other posters I should be searching for? Any guidance will be appreciated as always. Thank you!

https://forums.moneysavingexpert.com/discussion/comment/80977404/#Comment_80977404

The facts as known to the Defendant:

2. The Defendant is the registered keeper of the vehicle and was likely the driver on the day in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

2.1 The location is a car park at the back of partly unused office buildings, near the high street, where majority of the signage has been removed since Covid forced the buildings to shut down their operations. In any case, the car park would not be in use on a weekend, and the claim suggests the car was parked there on a Saturday, for an unspecified amount of time which could well have been as short as 10mins.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim does not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

3.1 Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

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

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

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

5. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Coupon-mad

So that was your defence.  Good.

For recent example WS look at the final WS versions by:

@Defendant911

@Harry77

@Milliered

kgirl123

thanks for your guidance - we have now drafted a WS following the examples found on this forum. If you wouldn't mind having a look, here's a link for the full version incl exhibits, and pasted below is the content

https://1drv.ms/w/s!AueK4cKY30o5gS5IZ1FiRkH9zAsT?e=8ucG1I

1.      I am XXX, 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 01-09) 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 (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims using powers pursuant to CPR 3.4., based in the following persuasive authorities (I append transcripts of both - plus multiple area court 'strike outs' of parking claims that reflect these authorities - in Exhibit 01).

 

4.      The first recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. (See Exhibit 01)

 

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 10 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 01).

 

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.

 

 

Background

 

7.      Date and Time of the Incident: It is admitted that on the material dates, I was the registered keeper of the vehicle XXX. It is unknown who the driver of the vehicle was on the dates of the claimed PCNs. Two other family members were named drivers on my policy at the time of the alleged contravention.

 

8.      Entrance sign: There is no PCM signage on entry to the site in question, instead there is signage on either side of the entry tunnel stating ‘Dead Slow’ and ‘No Long Wheel Base Vans’ (See Exhibit 02). There are no other entry/exit points to this site.

 

9.      Inadequate signage: The site is made up of several parking allotments and parking spaces. There are a few PCM signs plotted around the site (see Exhibit 03), with many other spaces/bays in the same allotment with no signage (see Exhibit 04). This lack of clarity created uncertainty as to whether the signs applied only to the bays where the signs were placed. The vagueness of the sign could reasonably lead to confusion regarding the applicable parking restrictions. Moreover, the signage featured very small text, making the terms and conditions impossible to read from a reasonable distance.

 

10.   Landowner contract: Regarding Claimant’s Exhibit GS1, the landowner agreement provided as evidence is with Quantum Securities Ltd, a company that is not registered in Windsor (see Exhibit 05). Moreover, the agreement is redacted, meaning there is no proof that the signatories had the authority to form a contract with another company, and additionally the agreement is dated June 2014, meaning there is no proof that the contract has been renewed, particularly after many businesses in Windsor ceased operations following Covid-19 and didn’t renew office leases.

 

11.   Plaque above parking bay: The parking bay in question displays a plaque above it with a different company name, En Route International – International House (see Exhibit 06). I would like to note that as the time that has passed since the incident is well over a year, a new additional plaque is visible in the evidence on top of the original plaque; the new plaque shows ‘1826’.

 

12.   Keeper liability: The Claimant’s bundle states that this claim is pursued on the basis of keeper liability, however the NTK was not sent in accordance with PoFA schedule 4 legislation. In the evidence supplied by Claimant (Exhibit GS6), the NTK shows a date of issue of 5 July 2023 and the alleged contravention was on 3 June 2023. This is 32 days after the contravention occurred and therefore pas the 14 day window for the notice to comply with PoFA legislation and therefore cannot invoke keeper liability.

 

Hearsay evidence

 

13.   The Claimant’s 'witness' is a legal assistant 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.

 

14.   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.

 

15.   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. Further, the claimant's witness has failed to indicate the source of any information and belief, as required under PD 32.18.2.

 

16.   The paralegal 'witness' does not work for the Claimants company and therefore has no role in the operations, policies, or specific events regarding the parking charge or this case. This distance from the Claimants company further undermines their ability to give a credible account of the facts.

 

17.   The claimant's WS is written in the third person, which is inappropriate for a witness statement. A WS should represent the personal account of the witness and should be written in the first person, as per CPR Practice Direction 32, paragraph 18.1, which requires a witness to state their evidence clearly, in their own words.

 

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

18.   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.

 

19.   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.

20.   This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

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

22.    Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

 

23.   Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

 

24.   With that sum in mind, 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.

 

25.   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.

 

26.   In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

 

27.   This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

 

28.   Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry, and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

 

29.   In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

CRA Breaches

30.   Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

 

31.   Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

 

32.   The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

 

33.   Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit 7)

kgirl123

The Beavis case is against this claim

34.   The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, particularly the brief, conspicuous yellow & black warning signs - (See Exhibit 8) - set a high bar that this Claimant has failed to reach.

 

35.   Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See Exhibit 9) for paragraphs from ParkingEye v Beavis).

 

36.   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. And the driver has no idea about any risk nor even how much they might layer on top. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

 

(ii)            Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

 

(iii)           Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space".

 

Conclusion

 

37.   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.

 

38.   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.

 

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

 

40.   With the DLUHC's 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.

 

41.   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

42.  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.

 

43.  If the claim is struck out, I therefore seek:

 

                         i.         Standard witness costs of attendance at court, pursuant to CPR 27.14; and

                       ii.         The fixed sum for loss of earnings/loss of leave apply to any hearing and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.”

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.

LDast

You appear to have already received a copy of the claimants WS as you refer to the paralegal that has signed it. Can you upload their WS so that we can review it for extra points to use in your WS?

kgirl123

yes sorry I should have uploaded that - here it is
https://drive.google.com/file/d/1nLqmfS4WD1I9dQgHoVJQSTClkQH4l8jL/view?usp=sharing

whilst redacting personal info I noticed they made a typo on the site postcode, it's not SK4, it should be SL4

it's also worth noting that their 'agreement' explicitly mentions a car park that no longer has any signage up, I have shown this in Exhibit 04

please ignore the table of contents have wrong pagination, it seems to have messed up while exporting into OneDrive

LDast

Here is something to add to your WS (use your own paragraph numbers) and you'll need to reference and include the CEL v Chan and CPMS v Akande transcripts in your exhibits:

Offensive and Baseless Allegation Regarding My Ability to Understand CPR and Legal Issues

31. In paragraph 24 of the claimant's Witness Statement, the claimant’s legal representative — who, as already noted, has no direct involvement in the events surrounding the alleged claim — makes a wholly inappropriate and offensive assertion about my ability to understand the complexities of all the references made therein and in established case law. The witness claims, without any basis, that I have relied on a "generic defence" found on the internet and implies that I do not understand the references I have made to the law and CPR requirements.

32. This is a baseless and entirely unfounded personal attack. The claimant's witness has no knowledge whatsoever of my level of education, professional background, or capacity to understand legal matters. It is deeply unprofessional and, quite frankly, embarrassing that a firm of supposed legal professionals would resort to such unfounded insults in an official court document. As a litigant in person, I am not expected to have the same legal expertise as the claimant’s solicitors. However, I have made every effort to research and present a reasonable defence. The claimant’s solicitors, being professionals, should be held to a higher standard of compliance with legal procedures, especially with respect to the Civil Procedure Rules.

33. I respectfully remind the court that I am a litigant in person. I have every right to research legal matters and use any available resources to present my defence, just as the claimant’s solicitors have evidently relied on templates for both their Particulars of Claim and Witness Statement. My defence is fully supported by relevant case law and legal principles, regardless of the method by which I prepared it.

34. Moreover, this unwarranted and disparaging comment about my ability as a litigant in person amounts to unreasonable behavior on the part of the claimant's solicitors. Such conduct is clearly designed to intimidate and belittle me, rather than address the actual legal issues in the case. I believe this behavior violates the spirit of fair litigation and may amount to a breach of the Overriding Objective under CPR 1.1, which requires the parties to act justly and fairly.

35. I respectfully request that the court take note of this unprofessional conduct when making any assessment of costs. The claimant’s solicitors' reliance on personal attacks, rather than focusing on the substance of the legal matters, reflects poorly on their conduct and should be considered when determining whether the claimant has behaved unreasonably in the proceedings.

Claimant’s Assertion Regarding My Defence

36. In paragraph 28 of the claimant's Witness Statement, the claimant suggests that I, as the registered keeper, am also “more likely than not” the driver. This assumption, however, is speculative and not based on any solid evidence. It is crucial to highlight that no legal obligation exists for me to identify the driver. The claimant bears the burden of proof in establishing the identity of the driver, and making assumptions or assertions based on the mere fact that I am the registered keeper does not satisfy this requirement. I firmly deny being the driver on the day in question, and the claimant’s claim fails to provide sufficient evidence to substantiate their assertion.

37. Furthermore, the claimant asserts that I have been aware of this claim, referencing the Parking Charge Notice (PCN) and subsequent reminders. I wish to clarify that although I may have received these documents, they are not sufficient to address the broader issue of the deficient Particulars of Claim (PoC). As per CPR 16.4, the claimant is obligated to provide detailed and compliant PoCs. However, the claimant’s PoCs in this case are woefully inadequate and fail to meet the standards required by the Civil Procedure Rules.

38. The lack of detailed PoCs left me unable to properly understand the basis of the claim, as they did not contain any meaningful detail regarding the alleged contravention. The claimant’s PoCs should have provided clear information on the specific terms purportedly breached, the evidence of the breach, and any relevant supporting documentation, but they failed to do so. As a result, my defence was not flawed, but rather hindered by the claimant’s non-compliance with CPR 16.4, as I was forced to respond to vague allegations without understanding the precise nature of the claim.

39. The claimant’s reliance on the Money Claims Online Portal (MCOL) under Practice Direction 7E does not excuse their failure to comply with CPR 16.4. While it is true that the online portal allows for brief particulars, this does not absolve the claimant of their responsibility to provide a coherent and compliant claim with sufficient detail. The MCOL system’s limitations do not excuse the claimant’s failure to supply detailed PoCs either at the time of filing or subsequently.

40. It is important to note that the claimant cannot rely on deficient PoCs and then argue that I have suffered no prejudice as a result. The lack of detail in their claim has placed me at a significant disadvantage, as I was not fully aware of the specific allegations against me until much later in the proceedings. This procedural failing on the part of the claimant has hindered my ability to adequately prepare a defence.

Failure to Comply with CPR 16.4

41. I also wish to address the claimant’s assertion that the information provided in their PoCs was sufficient for me to understand the nature of the claim. This is a weak attempt to justify their non-compliance with CPR 16.4. As noted in CPMS v Akande [2024] and CEL v Chan [2023], vague and inadequate PoCs that fail to provide essential details about the claim have been grounds for striking out claims. In both cases, the courts found that the claimants’ failure to comply with CPR 16.4 led to the dismissal of their claims.

42. The claimant’s PoCs in this case suffer from the same deficiencies. They do not specify the exact terms allegedly breached, the nature of the contravention, or provide any supporting evidence. Without these details, I could not reasonably be expected to provide a more detailed response beyond pointing out the inadequacies of their claim.

43. Given the claimant’s failure to provide compliant PoCs, I respectfully submit that the court should not give weight to their arguments regarding my knowledge of the claim, and I refer the court to the persuasive authority in CPMS v Akande [2024] and CEL v Chan [2023], where claims were struck out due to similarly deficient particulars.

44. I respectfully request that the court consider the claimant’s failure to comply with CPR 16.4 and take this into account when assessing the fairness and transparency of these proceedings.

Penalty Charge, Additional Costs, and Unfair Terms under the Consumer Rights Act 2015 (CRA)

45. In paragraph 30 of the claimant’s Witness Statement, they rely on ParkingEye Ltd v Beavis [2015], asserting that the charges are not penal and do not need to reflect the parking operator’s loss, as they can serve as a deterrent. While this may apply to the specific circumstances in Beavis, it is important to note that the facts of this case are markedly different. In Beavis, the charge was deemed commercially justified in a free car park with a legitimate interest in managing the spaces. However, the claimant has failed to provide any justification for the additional £70 they now seek to recover.

46. The claimant has not explained how this figure was calculated or why it is proportionate. There is no breakdown of costs or rationale for why this additional charge is necessary. As a result, this £70 charge can only be viewed as a punitive penalty, designed to unfairly penalise me as the defendant, which contradicts established legal principles that prohibit excessive and unfair penalties in consumer contracts.

47. Furthermore, the additional costs demanded are not supported by any clear contractual term presented at the time of parking. The claimant's assertion that the new Code of Practice allows for the addition of up to £70 is a misinterpretation. The Code may allow for such sums when a Parking Charge becomes overdue, but it also makes clear that any additional costs must follow statutory escalation processes. In this instance, the claimant has neither justified the charge as part of such a process nor provided any lawful basis for its imposition.

48. The claimant also seeks to rely on paragraph 32 of their Witness Statement, dismissing the relevance of the Consumer Rights Act 2015 (CRA) by asserting that the contract is not a 'distance contract' and referencing Beavis to argue that the charge is not unfair. However, I respectfully submit that this argument misses the mark entirely. My reliance on the CRA is based on the principles of fairness and transparency under Part 2 of the CRA, not the provisions related to distance contracts.

49. The CRA 2015 applies more broadly to consumer contracts and requires that terms must be fair, transparent, and not cause a significant imbalance between the parties. The claimant has failed to provide any clear or fair explanation for the additional £70, making it an unfair penalty. Section 62 of the CRA explicitly prohibits terms that impose a significant imbalance to the detriment of the consumer, and this is precisely what the claimant is attempting to do by adding these unjustified charges.

50. In summary, the additional £70 charge is neither a genuine pre-estimate of loss nor commercially justified in the way the claimant suggests. The claimant’s reliance on Beavis is misplaced in this context, as the circumstances of this case differ significantly, and no legitimate commercial interest has been established to support this additional sum. Moreover, the imposition of this charge is in direct violation of the Consumer Rights Act 2015, as it constitutes an unfair and punitive term that lacks transparency and justification.

51. I respectfully request that the court strike out the additional £70 charge as an unlawful penalty and find that the claimant has failed to meet the requirements of fairness and transparency as required by the Consumer Rights Act 2015.

Cont. in next post

LDast

Conclusion: Claimant’s Failure to Satisfy the Burden of Proof

52. The claimant, in their Witness Statement, asserts that they have satisfied the burden of proof and are entitled to judgment. However, I respectfully submit that the claimant has failed to meet the fundamental burden of proof, as required under the Civil Procedure Rules (CPRs), for the following reasons:

1. Failure to Comply with CPR 16.4:
   As outlined in paragraphs 3-6 of my Witness Statement, the claimant’s Particulars of Claim (PoC) are deficient and fail to comply with CPR 16.4 and Practice Direction 16. The PoC do not specify the specific terms of the contract allegedly breached, nor do they provide any meaningful detail of the alleged contravention. This lack of clarity has prevented me from fully understanding the case against me.
   Recent persuasive cases, such as Civil Enforcement Limited v Chan [2023] and CPMS v Akande [2024], have demonstrated that vague and generic PoCs lead to claims being struck out. These cases support my submission that the PoC in this matter do not meet the standard required by CPR 16.4, and I believe this claim should be struck out for similar reasons.

2. Inadequate Signage and Unclear Contract Terms:
   As outlined in paragraphs 8-9 of my WS, the signage at the location is inadequate and unclear. The small text on the signs and the positioning of the signs around the site would not allow any reasonable person to understand the terms of parking, including the £100 penalty. These factors cast doubt on whether a contract was ever properly formed between the claimant and the driver of the vehicle.

3. Landowner Contract and Authority Issues:
   As stated in paragraph 10 of my WS, the claimant has failed to provide evidence of a valid landowner contract. The contract they provided is redacted and appears to involve a company that is not even operating at the site in question. There is no proof that the signatories had the authority to form such a contract, and the claimant has provided no evidence that the contract was renewed. Without a valid contract, the claimant lacks authority to issue Parking Charge Notices (PCNs).

4. Keeper Liability Not Established:
   As explained in paragraph 12 of my WS, the Notice to Keeper (NtK) was not sent within the 14-day period required under Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). The NtK was issued 32 days after the alleged contravention, well beyond the statutory period, and thus the claimant cannot rely on keeper liability to pursue this claim.

5. Inadequate and Speculative Witness Testimony:
   The claimant’s Witness Statement is signed by a legal assistant with no direct knowledge of the events. As outlined in paragraphs 13-17 of my WS, this testimony is hearsay and does not comply with CPR Practice Direction 32, paragraph 18.2, which requires witnesses to indicate what they know from personal knowledge and what is based on information from others. This undermines the credibility of their evidence, and the hearsay nature of the testimony should be given less weight by the court.

6. Unjustified and Arbitrary Additional Costs:
   The claimant is seeking an additional £70 in costs, which is arbitrary, penal in nature, and not supported by any clear contractual term. As discussed in paragraph 20 of my WS, this additional charge is not a genuine pre-estimate of loss and constitutes an unfair penalty in violation of the Consumer Rights Act 2015 (CRA). The statutory CRA, particularly Section 62, prohibits terms that are unfair or unclear in consumer contracts. The claimant’s imposition of an unexplained £70 charge should be struck out as an unenforceable penalty.

7. Misapplication of Beavis Case:
   The claimant has attempted to rely on ParkingEye Ltd v Beavis [2015], as mentioned in their WS. However, as noted in paragraphs 34-36 of my WS, the circumstances in Beavis differ significantly from this case. In Beavis, the £85 charge was justified due to a specific set of commercial circumstances involving a free car park with clear signage, and the need to manage space turnover. The additional £70 sought in this case has no commercial justification, and no evidence has been provided to suggest that it is proportionate or necessary to achieve a legitimate aim.

Request for Dismissal and Costs

53. In light of the claimant’s failure to meet the burden of proof, their failure to comply with the Civil Procedure Rules, and the unjustified and arbitrary additional costs sought, I respectfully request that the court dismiss the claimant’s claim in its entirety.

Additionally, I request that the court considers the claimant’s unreasonable conduct throughout these proceedings when making any assessment of costs.

In the matter of costs, I ask:

• (a) for standard witness costs for attendance at court, pursuant to CPR 27.14, and
• (b) for a finding of unreasonable conduct by this claimant, seeking costs pursuant to CPR 46.5.

54. 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))."

kgirl123

Thank you for your guidance, your input is invaluable!

I have amended the WS. Was I right to assume that the sections covering CRA Breach and Beavis can be removed in place of the above? That's what I have done. If that is right, I think I also need to remove Exhibit 07 as it's no longer mentioned

I have also fixed the exhibits, they included Chan and Akande but were oddly hidden

If you do get a chance, I would appreciate a final check over the changes, I can make any tweaks tomorrow before the 4pm deadline

https://1drv.ms/w/s!AueK4cKY30o5gTIPeytm_yRI_SPv?e=drA8WB 

1505grandad

Check that the correct name of the claimant is on the heading as stated on the claim form.

Coupon-mad

Really good WS. You've covered everything.

Para 7 talks about 'PCNs' (plural). Is that right?  Just checking.

And was there no windscreen PCN? Just checking that too, so we can be sure the NTK wasn't issued under para 8 of Schedule 4.