Preparing Defence

Darcy_1966

Hi 
My daughter now has a date for the court hearing on the 1st September 1 pm she has checked with the court today and the court fee was paid on the 31st July she has until the 18th August 1 pm to submit the witness statement does anyone have any advice if I need to add anything else to the defence I have already sent please thank you in advance 

Gr1pr

Just prepare a Witness Statement plus Exhibits bundle and get it submitted to both parties by the 18th, same as all the other cases on here 

Le_Kirk

Darcy_1966 said:

 witness statement does anyone have any advice if I need to add anything else to the defence I have already sent please thank you in advance 

Your witness statement is "in support of your defence as already filed" and therefore should be ............... in support of and back up whatever you put in your/your daughter's defence.  It is a narrative of what happened on the day and subsequently, written in the first person in your daughter's own words.  It happened to your daughter so no one on here can write it for her.  Reduce the impact of anything negative and emphasise the impact of anything positive. It is also your chance to attach any evidence that was written about in her defence.  Read other witness statements to see what those posters wrote - particularly successful ones.

Coupon-mad

Darcy_1966 said:

Hi 
My daughter now has a date for the court hearing on the 1st September 1 pm she has checked with the court today and the court fee was paid on the 31st July she has until the 18th August 1 pm to submit the witness statement does anyone have any advice if I need to add anything else to the defence I have already sent please thank you in advance 

WS & evidence stage is covered in the NEWBIES thread Post 2.

Darcy_1966

Many thanks for your advice this is my first draft please could you advice 

 

 

1. I am xxxxx, and I am the defendant in this matter. The facts below a true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2. In my statement I should refer to exhibits one to three within the evidence supplied with this statement referring to page and reference numbers when appropriate my defence is repeated and I will say as follows:-

 

Facts and Sequence of Events 

 

Date and time of the Incident

3. It is admitted that on the material date of the xxxx2021 at 18.48 hrs, that I was the driver of the vehicle xxxx at xxxxxxx .I purchased a ticket for one hour then attended my physiotherapy appointment which I was attending due to back pain following the birth of my second child. On my return to the said vehicle, I experienced a migraine headache with visual disturbances. Due to my incapacity, I was unable to proceed to the pay machine to purchase another ticket to extend my parking, instead I waited for the headache to pass and then drove away once my vision had improved leaving the car park at 20.14 hrs.

4. Two weeks later I received a PCN notice for an alleged overstay of 26 minutes stating that my permit did not cover the date and time of parking I appealed this through the correct channels stating that I had experienced a migraine with visual disturbances, following a physiotherapy appointment for back pain and had been unable to leave the carpark until this had subsided, the claimant responded by offering to pay a reduced fee of £20, this reply went to an old email address that had been given by mistake. I responded on the 2nd July 2021 and offered to pay the £20 offered as a good will gesture but was informedthat the case had been handed over to a debt collection agency.

 

Unreasonable Conduct 

 

5. A suitable extended “grace” period under these circumstances would be required under the Equality Act 2010, “You are under a legal duty to make reasonable adjustments under Section 20 of the Equality Act 2010.”as I was incapacitated unable to use the pay machine and unable to leave the car park. This was breached by the claimant. Exhibit 1 – (BPA article )

 

Exaggerated Claim 

6. 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.

7. 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 appliedimproperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

8. 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.

9. 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."

10.. 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

11. 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.

12. 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.

13. 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.

14.. 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.

15.. 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.

16. 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.

17 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).

 

Consumer Rights Act 2015 Breaches 

18. 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.

19. 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 hour

20. 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 notnecessarily mean there has to be a finding of bad faith).

21. 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 2)

Beavis Claim 

22. The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, particularly the brief, conspicuous yellow & black warning signs - (See Exhibit 11) - set a high bar that this Claimant has failed to reach.

23. 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 12) for paragraphs from ParkingEye v Beavis).

24. In the present case, the Claimant has fallen foul of those tests. There is one main issue that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence. The purported added (false) 'costs' are even more hidden and are also unspecified as a sum. Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

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

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

 

Conclusion

25.The Claimant's conduct is consistent with widespread consumer harm identified by the Government. Their added costs are not genuine losses but part of a profit-seeking litigation model targeting residents.

26.  I respectfully ask the Court to:

 

a)     Strike out or dismiss the claim due to lack of merit, poor particulars, and abuse of process.

b)    Consider a finding of unreasonable conduct under CPR 27.14(2)(f) and CPR 27.14(2)(g) and award appropriate costs; including where the Court finds agency exists, consider the award of costs inter alia.

28.   If the Claimant discontinues late, apply CPR 38.6 and CPR 46.5 to award costs accordingly.

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.

 

Defendant’s signature:

 

 

Costs Assessment

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

· Travel expenses (Taxi to and from): £50

· Childcare (5 Hours): £125

Totalling: £225 I request that the court considers these costs in its judgment, given the claimant's unreasonable behaviour in pursuing this claim without merit.

 

 

 

 

Coupon-mad

Coupon-mad said:

Remove all this:

"...The defendant purchased a 60 minute ticket. The PCN alleges the vehicle was on site for 1 hour and 26 minutes, which according to the claimant was an Overstayed Paid For Parking Session. On the defendant’s return to the vehicle, following physiotherapy treatment, the defendant experienced a migraine type headache with visual disturbances. The defendant made the decision that it would not be safe to drive as their vision was not 100%. Due to the visual disturbances the defendant was unable to purchase another ticket to cover the 26 mins. As soon as the defendant’s vision had returned they drove out of the car park. The attempt to impose a charge for a driver who was ensuring they were safe to drive, appears reckless and acting without due care and safety to the wider public."

replace that section with:


...The Defendant paid for their parking. The Claimant is put to strict proof that the vehicle significantly overstayed after expiry of the purchased ticket. More likely is that the Claimant failed to allow a suitable consideration period on arrival, given this was a site requiring use of a pay and display machine.  All this takes time on arrival at a site and is not part of the 'parking period'. A reasonable period of minutes on arrival and also added upon leaving do not count and would fall within grace periods, especially in a car park where after finding a space, one must first read tariff boards, find coins (or download an app) and take time to pay.

3.1. The British Parking Association ('BPA'), the Court of Appeal and the relevant Government Department (now renamed the MHCLG) all agree with this point:

3.1.1.  In an official, published BPA news article by Kelvin Reynolds, BPA Director of Corporate Affairs, he states that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person 5 minutes, but another person 10 minutes depending on various factors, not limited to disability.”
https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

3.1.2.  In the Court of Appeal case of National Car Parks Limited vs The Commissioner for HMRC (2019) A3/2017/2435 Lord Justice Newey states that ‘the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed.’

3.1.3.  This (consumer fairness) position is also reflected by the planned statutory regime which will flow from statute law already enacted, and which the new Government is now set to finalise in the coming months. Under the Parking (Code of Practice) Act 2019, the Secretary of State 'must' lay a statutory Code of Practice before Parliament and provide for a regulated regime of scrutiny to overcome the wholesale 'market failure' of the consumer-harming private parking industry. The draft statutory Code of Practice includes clauses that were not objected to by the parking industry's 2022 Judicial Review blocking tactics. In the definitions, the DLUHC (now MHCLG) state at 2.24: - parking period:  the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired ... This is not the period between a vehicle being recorded as entering and departing controlled land."  

3.2.  In addition to an observation period (on arrival) there must be a grace period, to allow sufficient time to leave without penalty. On the Defendant’s return to the vehicle, following physiotherapy treatment, they experienced a migraine headache with visual disturbances. The Defendant was unable to drive away immediately but was within the vehicle and caused no obstruction nor loss of parking space availability because the car park was not full by any means. It would not have been safe to drive as their vision was not 100%.  A suitable extended grace period under these circumstances would be required under the Equality Act 2010 (the EA) and the Claimants knew all about the Defendant's migraine attack from her appeal but they have instead pursued this to court, which is in clear breach of their EA duty.

Just a reminder that this was the crux of defence and the WS needs to match it.

Also, remove the long second half of that WS and instead replace it with paragraphs 4-10 in the new Template Defence (even though this is a WS) as that will make it far more concise.

Just to warn her, I think there might be a hearing (TCP had a DC Legal case on here last month that went to a hearing, so maybe they are less likely to discontinue than others). Also, I think she'll struggle because she did overstay paid for time.

But it's worth attending as the judge should disallow the added £70 and she might win, if their evidence isn't great.

Darcy_1966

Thank you @Coupon-mad  please could you clarify where I need to remove the long second half from apologies I know I haven’t followed the defence to be honest I have gone down a rabbit hole 😩 my daughter has MH issues so I think I might just pay DCB legal’s fee, it may be too much for her to attend a hearing 

Coupon-mad

No, I doubt you'll just pay. You can't live life like that: good people don't set examples by paying scams to make them go away.

It's not a 'fee' and they might well still discontinue. Plenty of time!

Do nothing different than completing the WS & exhibits.If it carries on to a hearing, she can either:

(a) settle the case on the day if she wants, or

(b) she can (we hope) cope well if you go with her to speak as her lay rep? It's only like a job interview type of formal meeting. You could do that. 

Le_Kirk

Darcy_1966 said:

2. In my statement I should will refer to exhibits one to three within the evidence supplied with this statement referring to page and reference numbers when appropriate my defence is repeated and I will say as follows:-

One suggestion for you above.