Premier Park Ltd Claim Form & Defence - Advice

Coupon-mad

I wasn't being sarcastic - I often write one liners to point people in the right direction - and I'm genuinely sorry if that's how it read.

It was intended to focus your next draft on what needs to be included, and the order and structure of it. I'm also a bit concerned that your only defence point in the above draft so far is "I wasn't driving" yet if the NTK turns out to be POFA compliant that has no legs.

If it isn't a POFA worded NTK, then happy days! But you'd need Excel v Smith and VCS v Edward as authorities to show why a keeper can't be assumed to be the driver.  Those cases are in a thread today that I just saw and the transcripts are here when you search the forum for them.

My previous reply which referred to the NEWBIES thread wasn't just "check the NEWBIES thread". It was specifically telling you where the usual suggested exhibits are listed and how to find completed Gladstones cases, which should help.

SuperE20199

Apologies, clearly I woke up on the wrong side of the bed this morning and read it in the wrong tone!!

How will I know if it is POFA compliant or not?

Coupon-mad

If you haven't got the NTK you can't. Hence why it is a bad idea to rely only on POFA.

If you have got the NTK, just compare it to my NTK pictures thread.

SuperE20199

Perfect, thank you. I'll complete my witness statement and pop it in here for you to check out.

SuperE20199

IN THE COUNTY COURT

Claim No.:  XXX

Between

Premier Park Limited

(Claimant) 

- and -  

XXX                               

 (Defendant)

_________________

WITNESS STATEMENT

Table of Contents:

Witness Statement 

Exhibit XX. Civil Enforcement v Ming Tak Chan Judgment

Exhibit XX. Parking Eye Limited V Beavis- Paragraphs 98, 193 and 198 Exhibit 15 The Beavis Sign for Comparison

Exhibit XX  Signage - pictures and video

Exhibit XX. Parallel Parking v Anon

Exhibit XX. Another Badly Pleaded Parking Claim 2

Exhibit XX. Schedule 4 of POFA

WITNESS STATEMENT OF XXX

                                  

1. I am XXX, of 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.

I make this Witness Statement (hereinafter referred to as WS) in readiness for the hearing listed on XXX at XXX and in support of my Defence against the Claimant’s claim.

2. In my statement I shall refer to (Exhibits XX to XX) 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. The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes 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 based in the following persuasive authority.

4. A 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 and the Practice direction to Part 16. 

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'. The Defendant asserts that this Claim is based upon an agreementby conduct.  

The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the POC. 

5. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit 04)

6. Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit XX)

7. Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit XX)

8. The Defendant believes 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. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

Facts and Sequence of events.

9. I admit that I am the registered keeper of the vehicle XXX. It is unknown who the driver of the vehicle was on the date of the claimed PCN. 

10. The PCN relates to an incident that occurred in XXX at XXX, a location that I regularly visit for shopping with my family. The car park is used frequently by various members of my household, which further complicates my ability to recall the driver on the specific date in question.

11. I do not recall receiving any pre-claim correspondence from the Claimant regarding the PCN in question. It is my belief that I was not properly notified of the charge prior to the issue of the claim. I understand that under the Protection of Freedoms Act 2012 ("POFA"), the Claimant is required to serve a compliant Notice to Keeper ("NTK") within a specific time frame. As I have no recollection of receiving such a notice, I do not believe that the Claimant complied with the statutory requirements set out in the POFA.

12. I am further of the belief that the Claimant has failed to serve a compliant NTK as required under Schedule 4 of the POFA 2012 (Exhibit XX). The NTK should contain the prescribed information, including the relevant dates, and should be served within the time limits set out in the Act. I do not believe that the NTK, if it was issued at all, met these requirements. Without a compliant NTK, the Claimant cannot rely on the statutory "keeper liability" provisions under POFA to pursue me for the charge.

Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but dd not. Mr Smith's appeal was allowed and Excel's claim was dismissed (See Exhibit XX).

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed (See Exhibit XX).

13. In summary, I do not accept liability for the PCN as set out in the Claimant’s particulars of claim. I have not been provided with sufficient evidence to support the Claimant’s allegations, and I believe that the Claimant has failed to comply with the relevant legal requirements, including those set out in the POFA 2012. I respectfully request that the court considers these issues in determining the outcome of this claim.

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

14. 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.

15. 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 quantum 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.

16. 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.

(iii).  Interest appears to be miscalculated on the whole enhanced sum from day one as if the entire sum was 'overdue' on the day of parking;

17.    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.

18.    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."

19.    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 

20.    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.

21.    With that sum in mind, it is clear that 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 the Defendant takes that position.

22. The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually 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.

23. 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’). (Exhibit XX) Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) (Exhibit XX 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.

24. 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.

25. 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.

26. 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 XX)

SuperE20199

CONTINUED...

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, in particular, the brief, conspicuous yellow & black warning signs - (See Exhibit XX) - 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 XX) for paragraphs from ParkingEye v Beavis).

Hearsay evidence

27. The Claimants '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.

28. 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.

29. 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.

30. 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.

31. 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.

Unenforceable Additional Costs

32. It is stated that the signage provides for a "Parking Charge in the sum of £100, plus additional costs if the same remains unpaid." However, I submit that these "additional costs" are not defined anywhere in the signage or contract terms allegedly relied upon by the claimant, rendering them vague and unenforceable under the Consumer Rights Act 2015 (CRA), which requires that contract terms be both fair and transparent.

33. In the Particulars of Claim, the claimant has added £70 per Parking Charge Notice (PCN), claiming this as "contractual costs pursuant to the Contract and PCN terms and conditions." However, these additional costs are not referred to or specified on the signage at the site. The claimant cannot impose additional costs that are not clearly stated in the contract (assuming a contract even existed, which is disputed). This lack of transparency violates Schedule 2, Paragraph 10 of the CRA, which prohibits unfair terms 'that have the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.'

Penalty Charge, Not Genuine Pre-Estimate of Loss

34. Furthermore, these additional costs appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015], 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.

35. The claimant has provided no breakdown or explanation of how this amount was calculated or why it is appropriate. It can only be viewed as a punitive charge designed to penalise the defendant, which is contrary to established legal principles that prohibit excessive and unfair contractual penalties.

36. 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.

Conclusion

37.    The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

38.    The Defendant asks 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 defendant's 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 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. The Defendant believes 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. Lack of Evidence of Service: The claimant has not demonstrated that the Parking Charge Notices (PCNs), reminder notices, or any pre-action correspondence were properly served, as per the requirements of CPR 6.26. Simply producing copies of these documents is insufficient without proof of postage or delivery, and their failure to provide such proof severely undermines their claim.

42. Failure to Comply with CPR 16.4: As detailed earlier, the claimant’s Particulars of Claim (PoC) are woefully deficient and do not comply with the requirements of CPR 16.4. The PoC fails to provide sufficient detail about the alleged contravention, preventing me from fully understanding the case against me. Recent persuasive cases, such as CPMS v Akande [2024] and CEL v Chan [2023], demonstrate that such failures warrant the striking out of the claim.

43. Inadequate and Speculative Witness Testimony: The claimant’s Witness Statement was provided by a legal assistant who has no personal knowledge of the events surrounding the claim. Much of the testimony provided is hearsay and fails to comply with CPR Practice Direction 32, paragraph 18.2, which requires the witness to clearly indicate which statements are based on their own knowledge and which are based on information provided by others. This undermines the credibility of their evidence.

44. Despite these significant procedural and evidentiary failings, the claimant has unreasonably asserted that my defence is "without merit." I strongly reject this assertion. My defence has highlighted the claimant's failures to provide sufficient evidence and comply with legal procedures, as well as their lack of contractual authority to operate at the location. Furthermore, as a litigant in person, I have made every effort to research and present a defence that addresses the key issues in this case, despite the claimant’s refusal to provide me with clear and adequate information from the outset.

45. I respectfully request that the court dismisses the claimant’s claim in its entirety due to the claimant’s failure to meet the burden of proof and their failure to comply with the requirements of the Civil Procedure Rules. The court should also consider the claimant’s unreasonable conduct throughout these proceedings when making any assessment of costs.

• With the DLUHC's 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. The Defendant believes 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

• In the matter of costs, I ask:

(a) 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

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.

Signed: 

Name: XXX

01.10.2024

Le_Kirk

As it is a witness statement,  it should be written in the first person, so everywhere you have written "the defendant" you should write "I".

SuperE20199

Le_Kirk said:

As it is a witness statement,  it should be written in the first person, so everywhere you have written "the defendant" you should write "I".

How is the rest of it?

I just need to find a few of the exhibit examples so I can add them in too

SuperE20199

If anyone can drop any feedback/pointers on my WS, that would be hugely appreciated!

Coupon-mad

No time this weekend, sorry.

Reply again when close to the WS deadline.