UKPC court hearing

1505grandad

"If I had their witness statement, I could respond to it, but I am keen to see if they are continuing."

Yet the Defendant's WS details statements from the claimant's WS?.

sexon

Thank you @Gr1pr, @Coupon-mad and @1505grandad, all valid points and my fault with reckless cut and paste. I will go through this, I have not received their WS and as such cant comment on it. I will trim irrelevant sections out and a case of less may be more.

Let me try after some edits :-)

sexon

The final one before bedtime...
1.        I am the defendant against this claim, not the driver. The facts below are true to the best of my belief and this statement has been prepared based on my own knowledge.

2.        I shall refer to Exhibits 1-7 within the evidence supplied with this statement. My statement is as follows: 

Background
3.        I am a regular and bona fide customer at xxx shopping centre. On xxx xxxx 2023, my family and I went to the venue and purchased two suits and shirts in Marks and Spencer and Next for over £217.00 (Exhibit 1). The claimant alleges that the car was not parked correctly in the confines of a marked bay. The Claimant is seeking £134.14 in charges, but this rises to £219.00 inclusive of court and legal fees.  

Inadequate signage
4.        The site has several parking spaces; a few signs were plotted around them (see Exhibits 2 and 3). The Claimant no longer manages the site, but their vague signs led to confusion regarding the applicable parking restrictions. Moreover, their signage featured tiny 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 dismissing this meritless claim is correct, 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 under 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 these authorities (Exhibits 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 to prove his or her claim' (Exhibit 5). 

8.        I believe the claim should be struck out and should not have been accepted by CNBC because a represented parking firm knowingly breached 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. 

Exaggerated claim and 'market failure' currently examined by the Government
9.        The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine. 

10.   I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of: 
(i)                       the alleged breach, and 
(ii)                     a breakdown of how they arrived at the enhanced amount claimed, including how interest has been calculated, which appears to have been misapplied on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event. 

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

12.   The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7 February 2022, here:  https://www.gov.uk/government/publications/private-parking-code-of-practice "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

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

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

15.   An excessive amount has unjustly inflated the extant claim, deceptively labelled as an additional' fee'. This amount, believed to be routinely retained by the litigating legal team, has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct, as examined and found by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit, constitutes ‘double recovery’ and is a clear instance of unfairness (Exhibit 6). 

16.   The new draft Impact Assessment now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it. 

17.   In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 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 price of a template letter and 'would appear to be penal. 

18.   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, 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 the pre-action stage, even if and when the Government reduces the level of parking charges. 

19.   Whilst the new Code is not retrospective, most 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. 

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

21.   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 relied on templates for their Particulars of Claim. My defence is fully supported by relevant case law and legal principles, regardless of how I prepared it. 

22.   I respectfully request that the court note any unprofessional conduct in assessing costs and determining whether the Claimant behaved unreasonably in the proceedings. 

Specifics of my defence 
23.   It is crucial to highlight that I have no legal obligation to identify the driver in this case. The claimant bears the burden of proof in establishing the driver's identity, 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. 

24.   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 do not address the broader issue of the deficient Particulars of Claim (PoC). As per CPR 16.4, the claimant must provide detailed and compliant PoCs. However, in this case, the claimant’s PoCs are woefully inadequate and fail to meet the standards required by the Civil Procedure Rules. 

25.   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, hindered by the claimant’s non-compliance with CPR 16.4, I was forced to respond to vague allegations without understanding the precise nature of the claim. 

26.   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. 

27.   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 
28.   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. 

29.   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. 

30.   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) 

31.   The claimant has not explained how their 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 £134.14 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. 

32.   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. 

33.   The CRA 2015 applies more broadly to consumer contracts and requires that terms must be fair and transparent and not cause a significant imbalance between the parties. The claimant has failed to provide any clear or fair explanation for the additional charge, 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. 

34.   The additional £134.14 charge is neither a genuine pre-estimate of loss nor commercially justified as the claimant suggests.  Moreover, the imposition of this charge directly violates the Consumer Rights Act 2015, as it constitutes an unfair and punitive term that lacks transparency and justification. 

35.   I respectfully request that the court strike out the additional 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. 

Request for dismissal and costs  
36.   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, reduced to £200 as goodwill

• I request that the court consider these costs in its judgment.

Statement of truth: 
37.   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

Better to say the driver didn't see any signs regarding parking restrictions because the parent & child bays had no signs whatsoever (they almost never do, nor do the disabled bays).

Also better to suggest that UKPC were likely removed (contract not renewed) due to reducing the free stay time to make more money from families and disabled people who take longer to shop, and over-zealous ticketing of genuine shoppers.  This was a huge local problem highlighted on social media and in the local newspaper and the retail park's website or Facebook account (if they have one).

I'm sure I'm right with the above.  Google for articles about the place when UKPC were there.

Finally, you need to respond to the Particulars of Claim.  I can't even tell what the driver is accused of, and this is your chance to address that and say you were a passenger, etc. Overstay?  Had kids with you?

sexon

Thank you again @Coupon-mad, the Particulars of Claim attached, while I await further analysis and make further changes. The Particulars of Claim claim they were attached to the car on the day of the alleged incident, they were not seen by the defendant. Just seen the negative media of said place, you know your stuff :-)

Gr1pr

What you have shown us above doesn't say what you have written above, unless its in the redacted part. ? , but its reasonable to believe that a Notice to Driver, NtD , was issued on the day

You should have only redacted the VRM details, nothing else 

sexon

Thank you, @Gr1pr. Yes, it was allegedly issued on the same day. I redacted that and realised it was unnecessary. I'm not sure I can say more based on the above. However, the online media indicates more issues with his company; I intend to add that as evidence.

ps...I also was on the phone for over an hour, number 158...no court update received and we plow on as before.

Le_Kirk

Given that they have stated a reason for the claim in their POC as "Not parked correctly ......." I don't see that you can use CEL v Chan and CPM v Akande.  Did you actually put those in your defence?  Your WS backs up and supports what you put in the defence.

Car1980

Take out your goodwill gesture. You either incurred the costs or didn't.

sexon

Thank you @Le_Kirk and @Car1980. Thanks for the pointers, I incurred much more, but trying to be reasonable. But sentence removed. 

@Le_Kirk, I did not use Chan and Akande in my defence statement but felt there ay be persuasive here but happy to be guided and i will have a second read. But I feel more confident with this one than before!