UKPC court hearing

Coupon-mad

sexon said:

Also, are there shorter WS, or the 60 page plus are the norm.

Read the less templatey one that won recently for @harry77  

but the keeper's WS should in fact be longer than yours because your partner is defending against liability. You aren't. 

sexon

Thank you @Gr1pr , i will need to trim mine down substantially.

Gr1pr

You should bear in mind what CM said, its not your case, you are not the defendant 

The defendant's WS bundle is the important one and may run to 50 pages 

I have not read the case but UKPC are likely to be claiming against the keeper using POFA, so not being the driver may not make any difference. ( POFA compliance can transfer liability from the driver to the keeper. )

The defendant is basing their WS bundle on a lot more case law etc

Your WS just backs up some facts, as the driver and a witness, so clearly it would be nowhere near 50 pages, hard to believe that its in double figures 

Car1980

If it did go a hearing (highly unlikely) you can of course both attend.

LDast

The bundle is only limited to 50 sides of A4 if you are emailing it. There is no limit if you print it and send a physical copy. It's only the court that has the electronic limit. No such limit for the claimant.

sexon

Good morning, and thank you @Gr1pr, @Coupon-mad, @LDast, @Car1980 (and anyone I might have missed) 
for your continued support and responses. You are correct that the registered keeper is the defendant. I will continue on that basis.

I am working on the draft witness statement and will share it when ready. I just want to make sure it's not a waste of your time; it needs to be as good as possible. I will also call the court tomorrow to check if they have submitted anything. If I had their witness statement, I could respond to it, but I am keen to see if they are continuing.

Happy Sunday, you good folks.

sexon

Here is my first stab at the witness statement, welcome views and suggestions. Been stressing about it being good but my brain is saturated :-). I have the table of contents and the usual UKPC v the defendant

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.        I shall refer to (Exhibits 1-7) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows: 

 

Background

3.        We are regular and bonafide customers at xxx shopping centre. On xxx xxxx 2023, we arrived at the venue and purchased two suits and shirts in Marks and Spencer for over £217.00 (Exhibit 1). The claimant alleges that the car was not parked correctly in the confines of a marked bay. Interestingly, the unknown Claimant is asking for £219.14, which is more than what we paid for goods and services we received from one of the most respected high street retailers. The Claimant did not provide us with any goods or services to warrant such debt.

 

Inadequate signage

 

4.        The site is made up of several parking parking spaces. There are a few signs plotted around the site (see Exhibit 2 and 3). The vagueness of the sign could reasonably lead to confusion regarding the applicable parking restrictions. Moreover, the signage featured very small text, making the alleged terms and conditions impossible to read from a reasonable driving distance.  

Preliminary matter: The claim should be struck out 

5.        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 4 and 5). 

 

6.        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 15 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' (Exhibit 4). 

 

7.        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 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' (Exhibit 5). 

 

8.        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. 

  Hearsay evidence 

9.        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. 

 

10.   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. 

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

11.   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. 

 

12.   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. 

13.   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. 

 

14.   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." 

 

15.   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 

 

16.   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. 

 

17.   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 (Exhibit 6). 

 

18.   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. 

 

19.   In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case') (Exhibit 7). 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. 

 

20.   This Claimant has not incurred any additional costs because the parking is free, and the Claimant is seeking 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. 

 

21.   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. 

 

22.   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). 

 

23.   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 their Particulars of Claim. My defence is fully supported by relevant case law and legal principles, regardless of the method by which I prepared it. 

 

24.   I respectfully request that the court take note of any unprofessional conduct when making any assessment of costs when determining whether the claimant has behaved unreasonably in the proceedings. 

 

Claimant’s Assertion Regarding My Defence 

25.   It is crucial to highlight that no legal obligation exists for me to identify the driver in this case. 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. 

 

26.   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. 

 

27.   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. 

 

28.   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. 

 

29.   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 

30.   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 both CEL v Chan [2023] (Exhibit 4) and in CPMS v Akande [2024] (Exhibit 5), 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. 

 

31.   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. 

 

32.   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 both CEL v Chan [2023] (Exhibit 4) and in CPMS v Akande [2024] (Exhibit 5), where claims were struck out due to similarly deficient particulars. 

 

33.   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. 

Continued....

 

sexon

Continued...

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

34.   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. 

 

35.   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. 

 

36.   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. 

 

37.   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. 

 

38.   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. 

 

39.   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. 

 

40.   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. 

Conclusion 

41.   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: 

 

(a)     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. 

 

(b)     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. 

 

(c)     Inadequate Signage and Unclear Contract Terms: 
As outlined earlier in my witness statement, 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 £219.14penalty. These factors cast doubt on whether a contract was ever properly forme d between the claimant and the driver of the vehicle. 

 

(d)     Landowner Contract and Authority Issues: 
As outlined earlier in my witness statement, the claimant has failed to provide evidence of a valid landowner contract. 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). 

 

(e)     Keeper Liability Not Established: 
As explained in an earlier paragraph of my witness statement, 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 claimant cannot rely on keeper liability to pursue this claim. 

 

(f)       Unjustified and Arbitrary Additional Costs: 
The claimant is seeking an additional ££219.14 in costs, which is arbitrary, penal in nature, and not supported by any clear contractual term. 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 charge should be struck out as an unenforceable penalty. 

 

(g)     Misapplication of Beavis Case: 
The claimant has attempted to rely on ParkingEye Ltd v Beavis [2015]. However, as outlined earlier in my witness statement, 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  

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. My estimated costs for this are as follows:

• Research and preparation of witness statement (5 hours): £50
• Loss of income £250 (lowest scale)
• Total: £300, will accept £200 as goodwill gesture
  
  Given the claimant's unreasonable behaviour in pursuing this claim without merit, I request that the court consider these costs in its judgment.

 

Statement of truth: 

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

 

Defendant’s signature: 

XXXXX 

Date: xx October 2024 

Coupon-mad

30 and 41 repeat what you already covered re Chan & Akande. Remove the repetition.  In fact maybe remove all of that because surely the POC pleaded the breach...didn't it?

Gr1pr

In 3) , there is no we, its a witness statement by the defendant, so by I, or Myself , anyone else is another person , needs adapting IMHO , so maybe, Me and my family members. ?

It also mentions the unknown Claimant. ?  Surely the claimant is named on the top left of the claim form. ?  UKPC

It also states that the Claimant didn't provide goods or a service, but that is not true, they provided the parking spaces for the drivers, the rules on the signs, and parking enforcement on behalf of the retail park or business or landowner 

Any parking charge , or alleged debt, will be £100 or less, not £219 , the total on the claim form includes legal and court fees, not part of the alleged debt 

Personally, I would alter 1) to state quite clearly that I am the defendant but definitely was not the driver. ( I know it's buried lower down, but I would be stating that important fact as the defendant from the get go, no question, no ambiguity, front and centre 

I didn't check any further