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

bagold

I am xx, of xxx, England, and I am the Defendant in this matter, and will say as follows.

Attached to this statement is a Witness Statement by xxx (Exhibit 1) 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 57xxxxxxxxx). In fact, the Defendant did not have access to the vehicle with registration PxxxxxR 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, which was after sunset.  See witness statement by xxxx Exhibit 1.

 

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

4.     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.

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

6.   (i) the alleged breach, and

7.   (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.

8.   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.

9.   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

10.   "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."

11  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

12.  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.

13.  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.

14.   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.

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 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 maximumfexhib 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).

The Beavis case is against this 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  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'.

 

Conclusion

24      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.

Defendant

 

bagold

I am planning on sending this tomorrow along with the Witness Statement by my daughter (as above in this thread). Deadline is 18 June but I have to travel for work on 12 June. 

I hope I have written it correctly this time. Please feel free to comment.

Coupon-mad

I didn't tell you to add any of the lengthy section in the middle about Exaggerated Claim and 'market failure' 

I said to copy from another one about ParkingEye adding £25. Completely different.

bagold

I am required to deliver to the other party and to the court office copies of all documents .... by 18 June. I have the email of the other party (Parkingeye). Can I send to court office by email? Or only by postal mail? I don't see any email address provided by County Court at Clerkenwell & Shorditch. I have an address of this court where hearing is to take place. 

Through Google search I found following. Would it be one of these? The one for Enforcement?

Email

Breathing space enquiries

clerkenwellandshoreditch.breathingspace@justice.gov.uk

Enforcement

enforcement.clerkenwell@justice.gov.uk

Enquiries

enquiries.clerkenwellandshoreditch.countycourt@justice.gov.uk

Family court

family.clerkenwellandshoreditch.countycourt@justice.gov.uk

Counter appointments

appointments.clerkenwellandshoreditch.countycourt@justice.gov.uk

 

Gr1pr

Of course  !

Contact them for their email contact details,  plus make sure that the WS bundle is under their maximum limit,  typically 50 pages, or could be less, they all have them , especially since covid19 

Post, or dropping the paper bundle off,  has always been on offer 

If you google it, you get this

https://www.find-court-tribunal.service.gov.uk/courts/clerkenwell-and-shoreditch-county-court-and-family-court

bagold

Tried calling them, held for 40 minutes after selecting various options but no one answered. Unless you advise otherwise I'll email to enforcement.clerkenwell@justice.gov.uk

Coupon-mad

No. Enforcement is bailiffs so that is wrong.

Did you find one about ParkingEye adding £25? I think you should add the same as I just advised here:

https://forums.moneysavingexpert.com/discussion/comment/81495023#Comment_81495023

Now they are working on a defence whereas yours is a WS, but all facts are the same as yours and they found the wording that I urged you to find, about how adding £25 to exaggerate the claim is impermissible.

Copy their wording and the stuff I suggested they replace the template DLUHC blurb with.

And add something about the NHS Car Parking Principles.

bagold

I'm aboutt to board a plane in the next hour so had to send it out last night. I sent to the wrong email but I also put a copy in the post to the Court.

Will have to live with the WS I have now. Its already been emailed to Parkingeye.

Coupon-mad

You can still point out at the hearing that the added £25 is impermissible and was not on the signs.

bagold

Update:

After I offered £100 to settle, Parkingeye sent a letter with counter offer £180. They give me 14 days to accept. Letter was sent 10 days ago (while I was away). At mediation they offered £160.

Following submission of my Witness Statement they have sent me a wad of paper. 'Witness Statement of Owen Ford' and starts off with "I, Owen Ford, of Parking Eye Ltd...." (He is the Claims Handler).

There is a cover letter which says "Please find enclosed the Claimant's witness statement and supporting documents. The claimant will not be in attendance at the Hearing, in order to minimise costs that would then have t o be sought from the other side. Attendance for the claimant will be through its agent from LPC Law. We request that the matter be decided in the presence of our advocate from LPC Law, and confirm our agreement that the matter can be decided in the absence of the claimant."

I am guessing there's nothing more I can do except to watch the car crash in slow motion up to the date of the Hearing (in July).