Parking Eye PCN

Coupon-mad

Show us your draft so far.  Easier for us.

A_plan

Coupon-mad said:

Show us your draft so far.  Easier for us.

As requested.....  many thanks.

IN THE COUNTY COURT AT xxxxx

Claim No.:  xxxxxxxxxx

Between

ParkingEye Ltd

(Claimant) 

- and -  

xxxxxxxxxx                        

 (Defendant)

_________________

WITNESS STATEMENT

 

1.      I am xxxxxxxxxx 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.      My defence is repeated and I will say as follows:           

 

Preliminary matter: The claim should be struck out

 

Facts and Sequence of events

 

3.      On the xxxxxxxxxx and xxxxxxxxxx, the driver parked on the xxxxxxxxxx to use the

on site outdoor multi-sport pitch.

 

4.      Upon entry to the car park, in the dark, the driver genuinely did not see the very high up sign on a pole in the distance (nowhere near the bay used). It should be noted that it is a narrow two-way entrance to the car park and naturally the driver was concentrating on the road.

 

5.      The driver genuinely did not notice any other signs on his short walk from the car to the outdoor multi-sport pitch.

 

6.      I am the registered keeper of the vehicle xxxxxx that is shown in the images and do not deny the vehicle being at this location.

 

7.      The Defendant believes that the signage at the site fails to create any form of contractual meeting of minds and therefore no possibility of a breach under contract law.

 

The sign (shown in bright daylight in the Claimant's evidence bundle) does not create a contract to 'pay and display'.  

 
Whilst a tariff is displayed on the sign at the top, there is no actual contractual obligation to pay for the stay (in the T&Cs box in the middle), which only lists four completely different contractual obligations.

None of those involve payment and none of those four terms were breached.

 

8.      Even if the Court is not at first minded to construe the sign that way (that only four contractual obligations are listed), the law says that ambiguous terms MUST be interpreted in the way that most favours the consumer.  The Consumer Rights Act 2015 'ambiguous terms' rule applies as does s71, which imposes a statutory duty upon courts, whether or not either party raises the matter in pleadings or at a hearing.

 

9.      In the alternative, even if the Court determines that the sign that merely lists a tariff somehow does create an unstated obligation to pay, it was dark and the driver did not see the very high up sign on a pole in the distance (nowhere near the bay used).  No pay & display machines or reminders 'HAVE YOU PAID & DISPLAYED' are in the car park either, so in the dark there were no visual cues.

 

10.  Even if the Court is not minded to accept any of the above and thinks the signs in evidence were enough, the sum stated is £70. But the claim is for £185 which makes no sense whatsoever for two PCNs which add up to £140.

There is no secondary contract displayed (prominently or otherwise, at all) that allows the Claimant to add a random £45 which does not appear on the sign and isn't even a multiple of two. No damages were incurred and no fees were paid by the Claimant to a debt collector. In any event, the alleged debt was not collected and if the Claimant did use a third party debt collector, they all operate a 'no collection no fee' policy in this notoriously rogue industry so no fake bolt-on charges can have been incurred.

 

The added £45 was plucked out of thin air and is a brazen attempt at double recovery of the £50 'legal fees' already listed on the claim form.

 

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 7thFebruary 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.  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

 

16.  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.

 

17.  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.

 

18.  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.

 

19.  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.

 

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).

 

CRA Breaches

21.  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.

 

22.  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.

 

23.  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).

 

24.  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.

 

The Beavis case is against this claim

 

25.  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 - set a high bar that this Claimant has failed to reach. (see Exhibit 01)

 

26.  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’ for paragraphs from ParkingEye v Beavis)

            (See Exhibit 02)

 

Conclusion

 

27.  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.

 

28.  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.

 

29.  The DLUHC’s potential ban (still at review stage) 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.

 

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.

 

Signature:  

xxxxxxx

 

Date: 13/11/2024

Coupon-mad

Yep looks good except say if you were driving or not in para 6. If you were, say so. Much easier and more honest in court.

A_plan

Coupon-mad said:

Yep looks good except say if you were driving or not in para 6. If you were, say so. Much easier and more honest in court.

Thank you - I have added to paragraph 6 to state I was not the driver.

Sorry, but I do have a couple of question concerning the Beavis paragraphs. Is 25 needed? My, probably incorrect, thought is that as my statement mentions that I didn't breach the T&C's, is it worth mentioning and enclosing a picture of the sign? I'm not highlighting how awful the small print sign was in my case.

For paragraph 26, I'm not sure how 'concealed pitfalls or traps’ applies in my case....

Lastly, can I confirm that it is the enforcement@parkingeye.co.uk' is the correct email address to use. I have found the email address for the Court and was just going to cc in Parking Eye when I send my witness statement. 

Le_Kirk

In your para #7 you write "the defendant" and it should be "I". All paragraphs require a number (makes it easier for the judge and you to refer to a specific parageaph number rather than saying "the second line after the number 9").

A_plan

Le_Kirk said:

In your para #7 you write "the defendant" and it should be "I". All paragraphs require a number (makes it easier for the judge and you to refer to a specific parageaph number rather than saying "the second line after the number 9").

Many thanks, Le_Kirk. I have amended paragraph 7 but can I just double check I'm not missing anything in the second part of your reply. I have numbered the paragraphs but when you say 'and you to refer to a specific paragraph number rather than saying "the second line after the number 9"), is this just general advice you're giving regarding how I would speak in court?

Le_Kirk

You number EVERY paragraph even those "orphans" like these: -

7.      The Defendant believes that the signage at the site fails to create any form of contractual meeting of minds and therefore no possibility of a breach under contract law.

8. The sign (shown in bright daylight in the Claimant's evidence bundle) does not create a contract to 'pay and display'.  

9. Whilst a tariff is displayed on the sign at the top, there is no actual contractual obligation to pay for the stay (in the T&Cs box in the middle), which only lists four completely different contractual obligations.
None of those involve payment and none of those four terms were breached.

So it reads as above and then renumber subsequent paragraphs..

Gr1pr

A_plan said:

Coupon-mad said:

Yep looks good except say if you were driving or not in para 6. If you were, say so. Much easier and more honest in court.

Lastly, can I confirm that it is the enforcement@parkingeye.co.uk' is the correct email address to use. I have found the email address for the Court and was just going to cc in Parking Eye when I send my witness statement. 

Its correct if Parking Eye didn't use third party lawyers 

Your claim form has the details on the top left 

Parking Eye will be on the top left 

The next box down tells you who issued the claim, if it says Parking Eye again then use their litigation email address 

If its a third party lawyer , use their email address instead

I cannot tell because you only shared the lower half of the claim form 

A_plan

Le_Kirk said:

You number EVERY paragraph even those "orphans" like these: -

7.      The Defendant believes that the signage at the site fails to create any form of contractual meeting of minds and therefore no possibility of a breach under contract law.

8. The sign (shown in bright daylight in the Claimant's evidence bundle) does not create a contract to 'pay and display'.  

9. Whilst a tariff is displayed on the sign at the top, there is no actual contractual obligation to pay for the stay (in the T&Cs box in the middle), which only lists four completely different contractual obligations.
None of those involve payment and none of those four terms were breached.

So it reads as above and then renumber subsequent paragraphs..

Ah, got  you!  Amendments made. Thanks.

A_plan

In response to Coupon-mad's reply to my defence, I sent the below yesterday. Unfortunately, Coupon-mad hasn't had time to reply and I'm wondering if anyone else is able to advise please.

I need to email my witness statement today.  Many thanks

Sorry, but I do have a couple of question concerning the Beavis paragraphs. Is 25 needed? My, probably incorrect, thought is that as my statement mentions that I didn't breach the T&C's, is it worth mentioning and enclosing a picture of the sign? I'm not highlighting how awful the small print sign was in my case.

For paragraph 26, I'm not sure how 'concealed pitfalls or traps’ applies in my case.