Defence review requested following Claim Form - Am keeper but not driver

bagold

This is the Witness Statement that my daughter (driver at the time) can provide. Again please feel free to comment. The truth is she did not notice any signs to pay. She had a very sick child and was probably not in the best mental state to notice. It was after dark. I mentioned in her Witness Statement that being based in Scotland she was not expecting to pay (I can delete that statement if not appropriate). 

I am X, of XXX, and I am the Defendant in this matter, and will say as follows.

 

1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

 

2. I confirm that I was the Driver of the vehicle in question on the 23 July 2024.

Inadequate Signage and Markings:

3. The sign in the car park were not prominently displayed that would have prompted me to pay for parking. The alleged infringement occurred between 21:40 till 22:53 after sunset.  I am based in Scotland, where hospital car parks do not charge for parking.

4. The parking layout at Barnet Hospital consists of a complex network of interconnected spaces with inconsistent signage. While some areas are designated for staff parking, these zones are not clearly separated from public parking areas, and the signage is not always prominently displayed. Any alleged contravention would likely be due to the confusing and inadequate signage rather than a deliberate breach of parking terms.

 

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.

bagold

I have still not received any reply to my offer of £100 as suggested by @Coupon-mad. I need to submit my Witness Statement by 18 June, but I am travelling abroad on 12 June so need to do this within next three days. I travel frequently which is why I didn't notice the correspondence from Parking Notice in the early stages. As suggested in this thread Lesson learnt!.

Coupon-mad

bagold said:

This is the Witness Statement I have written. Please feel free to comment/correct.

I am X, of XXX, and I am the Defendant in this matter, and will say as follows.

Attached to this statement is a paginated bundle of documents marked ……. to which I will refer.

 

1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

 

Facts and Sequence of events:

 

2. I confirm that I am the Registered Keeper of the vehicle in question on the 23 July 2024 and thereafter date.

 

3. .  The Defendant was not the driver of the car on 23 July 2024 which is the date of issue of Parking Charge (reference 577810/977034). In fact, the defendant did not have access to the vehicle with registration PlnnllR when this vehicle was lent to a third party between 10 July 2024 and 21 August 2024 for the entirety of this time period. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.

The Defendant’s Daughter was in fact driving the car that day. She used the car park at Barnet Hospital that day to take her ill daughter to Accident & Emergency. She says the signs were not prominent when the alleged infringement occurred between 21:40 till 22:53 after sunset.  See witness statement ……..

 

d. In light of this, the Claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).

 

b. It is averred that the claimant has failed to do this on numerous points

 

c. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.

 

 

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.

Your daughter's WS looks fine but you cannot say the above bit in bold (which we already told you when you showed us the reply to defence!).

You have forgotten to make the point that Parking Eye signs never mention any added £25 and they didn't use debt collectors so they can't add money on top of the £100 PCN. They are using their in-house solicitor and have already added the maximum allowed £50 capped legal fees, so they cannot have both. It's double recovery which offends against the indemnity principle. They also know from paragraph 419 of the binding judgment in ParkingEye v Somerfield (High Court, then ratified by the Court of Appeal) that to add a sum on top of a parking charge is an unrecoverable penalty.

You haven't used any of the usual recommended exhibits so it looks like you have forgotten to read the section of the NEWBIES thread all about WS and evidence?

Car1980

"She had a very sick child and was probably not in the best mental state to notice. It was after dark. I mentioned in her Witness Statement that."

Pretty sure I asked if there was any medical issues.

Here is your possible defence angle. Presumably the child was in the hospital? Was it very serious? Was the driver in an extreme hurry? Was the driver beside themselves with worry? Should the claimant expect, as they are managing a hospital car park and not a holiday camp, that a proportion of drivers will be upset/distracted/not in the best mental condition and bear in mind that there is no legitimate interest in trying to penalise possibly distraught people? I've sat in a car in a hospital car park in tears before. Would the claimant think it appropriate to try and charge me £100 for it?

etc. etc.

Any paperwork available regarding the sick child you could include?

Have a think how we can explain the reason for non payment and make it persuasive. Defences are quite dry but you can be a bit more "human" with the witness statement.

Also have a Google of capacity to enter into a contract.

bagold

I have a revised version. I looked at a recent Witness Statement as suggested. I have read Newbies numerous times and have tried my best to comply with the advice. It goes without saying I am extremely grateful for all the advice given. Am I correct that sections 'Preliminary matter: The claim should be struck out' and 'Inadequate Signage and Markings:' would not apply to me? Is the section 'Exaggerated Claim and 'market failure' currently examined by the Government:' the appropriate one and the one you were hinting at?

bagold

Facts and Sequence of events:

 

2. I confirm that I am the Registered Keeper of the vehicle in question on the 23 July 2024 and thereafter date.

 

3. .  The Defendant was not the driver of the car on 23 July 2024 which is the date of issue of Parking Charge (reference 577810/977034). In fact, the defendant did not have access to the vehicle with registration PlnnllR when this vehicle was lent to a third party between 10 July 2024 and 21 August 2024 for the entirety of this time period. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.

The Defendant’s Daughter was in fact driving the car that day. She used the car park at Barnet Hospital that day to take her ill daughter to Accident & Emergency. She says the signs were not prominent when the alleged infringement occurred between 21:40 till 22:53 after sunset.  See witness statement ……..

 

Preliminary matter: The claim should be struck out

As a preliminary matter, I wish to bring to the Court's attention that the Claimant's Witness Statement, signed by Beata Uszta of Gladstones Solicitors, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As Beata Uszta does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this non-compliance, I respectfully request that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

4. In Car Park Management Services Ltd v Akande 2024 [K0DP5J30] heard on 10th May 2024, HHJ Evans, sitting at Manchester County Court, held that

"It cannot be right that the fundamental basic rule that Particulars of Claim must set out the case which a defendant has to meet can somehow be swept away by the character limit imposed by the MCOL system. It does not take many characters to say 'did not buy a ticket' or 'did not display permit' but if the Claimant really cannot fit that into the 1080 character limit then the remedy is to serve detailed Particulars of Claim."

The same is true in this case. (See exhibit 1 CPMS v Akande judgment)

5. In Civil Enforcement Ltd v Chan 2023 [E7GM9W44] heard on 15th August 2023, HHJ Murch, sitting at Luton County Court, 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 same is true in this case. (See exhibit 2 CEL v Chan judgment)

 

Inadequate Signage and Markings:

5.     The claimant alleges that the vehicle was parked in a designated parking in a free to park carpark at the Barnet Hospital without displaying a valid parking ticket.  

 

6.     Exhibit 3 provided by the claimant is a photograph of the inadequately sized and illegible parking sign taped to the pillar which can also be seen in Exhibit 4 to size and scale. This image shows the International Symbol of Access which by its usage infers this symbol would be in use to identify the designated bays. The sign is illegible from the bay and the text relating to the terms and condition that would form a contract are all fine print . In an urgent care situation the defendant was not able to see it and the details within it as it was not legible from the car to the pillar that was not beside it but rather in front on the opposite side of the bay.   The details pertaining to the contract the claimant has stated was not legible and understood by the defendant.

7.     Its also clear from Exhibit 5 that the parent and child parking is right beside accessible bay parking with signage pertaining to parent and child also on pillars in view of other bays. Signage and parking sign on pillar pertains to the parent and child parking stated that I can be a driver with children which I was at the contravention time.  This multiple signs in the same area cause some confusion on the part of the driver that was looking to pull the car safely over while attending to the child

 

 

7. The Parking Invoice which Gladstones submitted that was sent to the registered keepers address refers to parking in SITE 1. There seems to be a difference in the site documented verses where the car was actually parked. On the Site Map submitted by Gladstones into evidence the location the car was parked is called Site 6 not Site 1 The sign pictures they show that is supposedly all over the carpark is in Site 1 not Site 6 . The understanding of the displayed “contracts”  in SITE 6 will be different from the “contracts”  displayed in SITE 1

 

 

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

8.     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.

9.     I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

10.   (i) the alleged breach, and

11.   (ii)  a breakdown of how they arrived at the enhanced amount 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.

12.   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.

13.   12.  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

14.   "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."

15.   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

16.   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.

17.   15.  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.

18.   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.

19.   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.

20.   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.

 

22     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 to scrutinise every aspect of claims like this one.

23    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:

24    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.

25    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.

26    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).

The Beavis case is against this claim

27    24.  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 6) - set a high bar that this Claimant has failed to reach.

28    25.  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 5) for paragraphs from ParkingEye v Beavis).

 

 

Conclusion

29      There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 Government IA analysis shows (from data from this industry) that the usual letter-chain costs eight times less than the sum claimed for it. The claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.

 

 

 

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.

Gr1pr

One small but important observation 

A Witness statement is written in the first person,  so not THE DEFENDANT,  but MY , I etc, its a personal statement,  with Exhibits, a bundle 

So My daughter,  not , The defendants daughter,  etc

The Defence is written in the 3rd person,  but the Defendant is Witness number 1, so is a personal signed statement , by the Defendant 

1505grandad

Also the Chan and Akande cases are not relevant  -  the PoC state what the breach is.

bagold

Should the section 'Inadequate Signage and Markings:' also be deleted? My daughter did not spot the signs. Probably due to being distraught with the emergency condition of her daughter. But I can't say I would have failed to spot it. 

If I understood clearly @Coupon-mad only asked me to add a section on 'Exaggerated Claim ....'

And should 'The Beavis case is against this claim' be kept or deleted?

kryten3000

Was the Parkingeye in-house Witness Statement really signed by someone from Gladstones Solicitors?!

That whole preliminary matter needs to be removed, it's completely wrong because Gladstones have nothing to do with this and you're going to sign this as a "statement of truth".