Premier Park Ltd Claim Form & Defence - Advice

SuperE20199

FINAL UPDATE - 50 Pages:

https://www.dropbox.com/scl/fi/86ghy2bwa1bgo4o8oichl/REDACTED-NEW-Witness-Statement-copy.pdf?rlkey=fex8579wudm5skwd2zge92fsf&st=7ybl1aru&dl=0 

Can I PLEASE get some feedback on this? I've studied my defence, and made it link up as much as I think is reasonable.

Edit: Ignore the paragraph numbering - this is correct on the final version.

SuperE20199

And for those who don't like clicking external links:

Table of Contents:

Witness Statement 

Exhibit xx - 01. Civil Enforcement v Ming Tak Chan Judgment & Car Park Management Service Ltd v Akande

Exhibit xx - 02. XX Retail Park Car Park Signage

Exhibit xx - 03. XX Observer - ‘Drivers hit out after parking chaos…”

Exhibit xx - 04. Excel v Smith Transcript

Exhibit xx - 05. VCS v Edward Transcript

Exhibit xx - 06. Excel v Wilkinson Case Transcript

Exhibit xx - 07. The Beavis Sign for Comparison & Parking Eye Limited V Beavis- Paragraphs 98, 193 and 198

WITNESS STATEMENT   

1. I, XX, of XX, 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 XX at XX County Court and in support of my Defence against the Claimant’s claim.

2. In my statement I shall refer to (Exhibits 01 - 07) within the evidence supplied with this statement, referring to 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 persuasive Appeal judgements 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).  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 based in the following persuasive authority.

4. The first 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 the Practice direction to 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 xx - 01)

5. The second recent persuasive appeal judgment in Car Park Management Service Ltd. v Akande (Ref. K0DP5J30) also indicates that the PoC fails to comply with Part 16. On the 10th of May 2024, 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 xx - 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.

Facts and Sequence of events.

7. Date and Time: 

The PCN relates to an incident that occurred in xx 2023 at xx Retail Park and that I was the registered keeper of xx. This is 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. 

08. Inadequate & Confusing Signage: 

The signage upon entering xx Retail Park (See Exhibit xx - 02) states ‘Free Parking for Customers Only - 3 Hours Maximum Stay’. There is no clear signal that this retail park is governed by two separate parking firms (Group Nexus and Premier Park) other than a much smaller and unclear sign that still states this is ‘xx Retail Park’

Please also note that all signs at xx Retail Park now show a maximum stay of 3 hours that cover the whole of the Retail Park. (See Exhibit xx - 02)

09. Recent Press coverage: 

The car park in question has come under scrutiny from other xx residents regarding the confusing signage, as well as inadequate ANPR as reported in the xx Observer  (See Exhibit xx - 03)

10. Pre-Claim Correspondence:

I do not recall receiving any pre-claim correspondence from the Claimant regarding the PCN in question. 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. 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, or 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 did not. Mr Smith's appeal was allowed and Excel's claim was dismissed (See Exhibit xx - 04).

(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 - 05).

11. 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

12. 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.

13. 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.

14.    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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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.

20. 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.

21. 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).

22. 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 - 06)

The Beavis case is against this claim

23. 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 - 07) -set a high bar that this Claimant has failed to reach.

24. 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 - 07) for paragraphs from ParkingEye v Beavis).

25. 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".

SuperE20199

Conclusion

26.    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 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.

27.    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 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.

28.    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.

29. 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.

30. Failure to Comply with CPR 16.4: 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.

31. 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.

32. 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.

33. 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.

Costs

Given the significant time and effort required to defend against 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:

(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: xx Dated: 18th February 2025

SuperE20199

I'm kinda begging for opinions/advice on this now as I need to send it off with the deadline being THIS Friday.

Help!?

SuperE20199

Not sure what else I can say to ask for feedback on this. Fingers crossed someone can give me some pointers on it at some point 🤷‍♂️

Le_Kirk

In paragraph #10 you seem to have a spare "or". The NTK if issued at all or met. Given how sparse the POC were, it is good to see that you haven't wasted time or energy trying to defend what is not pleaded. Looks good from my point of view; see if you get any more comments, if there is time, else go for it.

SuperE20199

Le_Kirk said:

In paragraph #10 you seem to have a spare "or". The NTK if issued at all or met. Given how sparse the POC were, it is good to see that you haven't wasted time or energy trying to defend what is not pleaded. Looks good from my point of view; see if you get any more comments, if there is time, else go for it.

Thank you, thank you! I’ll hold off until tomorrow to see if we get any more overnight.

would you suggest leaving emailing it until the day of the deadline? Or just get it over?

newbie_2517

Thank you for uploading your witness statement, it is very useful as a base template. Wish you all the best with your case please keep us updated on the progress.

KeithP

SuperE20199 said:

would you suggest leaving emailing it until the day of the deadline? Or just get it over?

Doesn't the Claimant have the same filing deadline as you?
The later you leave filing your Witness Statement, then the more chance you have in picking holes in their offering.
Conversely, filing your statement too early gives them the opportunity to tear it to shreds when completing theirs.

Coupon-mad

I'd remove paras 17 and 28 and this sentence from para 25:

"until the DLUHC bans it in 2024."

Apart from that, it's all good. But every paragraph or part paragraph needs its own number. And add page numbers too.

Maybe you can add an exhibit to show that other drivers were insured on this vehicle and be more persuasive in suggesting - on the balance of probabilities - that it WASN'T you because (you work? You rarely visit this place / hate shopping, unlike others in the family? or whatever is true ...)

Good work. No panic! You even got it down to 50 pages. Email it to the local court hearings email and Gladstones late tomorrow night, which is the night before your deadline I think..