PCM / Moorside Legal are taking me to Small Claims Court

FluffySocks25

@ChirpyChicken and @Gr1pr , I have printed a copy and will drop off in person. Should I say the court here as it may reveal who I am.

ChirpyChicken

yes i wish people would stop worrying about stuff like that!!

FluffySocks25

@chirpchirp I only asked based on what was written on previous threads. The Court is Romford.

FluffySocks25

Hi Everyone, I just wanted to give an update. I have received my letter from the court and I have a court date set for 5 months time. They have asked the claimant to pay a court fee a month before the court date (Do not have the letter to had to give the exact date.) I have to send my W/S to the court and to the claimant before 27th May. The letter was date 29th April but I only received it last week, so I do not have much time. The letter is not entirely clear on how I send this information as I do not believe the court have their own mail box. I also have video evidence that I will need to share and provide to the court. The letter says that the WS needs to be written in my own words, does this mean I cannot use the template provided in the forum?

Coupon-mad

There is no template WS.

Read a few threads at WS stage. I replied to someone writing a good example of a WS just two replies (a few minutes) ago so that'll be close to your thread on page one right now.

FluffySocks25

@Coupon-mad, thank you, I have found them. I will do mine and send over for feedback. 

FluffySocks25

Hi All, Please find below my WS, I may have to split into two due to its length - 

1.     I am NAME, 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 on my own knowledge.

2.     In my Statement I shall refer to Exhibits 01-08 within the evidence supplied with this Statement, referring to page and 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 very recent and persuasive Appeal judgements to support dismissing or striking out the Claim. I believe that dismissing this meritless Claim is the correct course, with the Overriding Objective in mind. Bulk litigators 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 using powers pursuant to CPR 3.4., based on the following persuasive authorities (I append transcripts of both – plus multiple area court ‘strike outs’ of parking claims that reflect those authorities – in Exhibits 01 and 02).

4.     The first recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the Particulars of Claim fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th of 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 01.)

5.     The second recent persuasive appeal judgment in Car Park Management Service Ltd. v Akande (Ref. K0DP5J30) would also indicate the POC fails to comply with Part 16. On the 10th of May 2024, in the cited case, 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 02.)

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.     My children attend a school in this area, I arrived at the location on 4th January 2023 and parked in the bay I have always parked in for the last two years prior to receiving the Parking Charge Notice Ref: XXXXX. I was not aware of this PCN until I received a debt collection letter some months later, (having not received the previous letters) stating that I had received a Parking Charge Notice and I owe the Claimant. There has been a lot of back and forth between PCM and two legal firms as I tried to resolve this issue to no avail. Therefore, I present my facts and sequence of events.

Discrepancy in Location of Signage:

8.     The photograph of my vehicle was taken on the 4th January 2023 at 3:34 PM, while the photograph of the parking sign terms and conditions was taken at 3:41 PM, a full seven minutes later. (See Exhibit 03 – Pictures from PCM upload to their portal). After I received a Letter of Claim I looked into my evidence and what PCM had sent. I realised, the sign shown in the photograph is not located where my vehicle was parked. I went back to the area on the 28th October 2024 to take a video and measure the walking time distance from where my vehicle was parked. The vicinity of that exact sign approx. 1.30 minutes away. My vehicle was parked in a bay, and the sign in the photograph is from a different area AND within an estate, as evidenced by the surrounding environment. (See Exhibit 04 – Video showing distance from sign to where the car was parked). My vehicle was parked near a pole on the main road, while the sign shown is on a brick wall, with part of a light on top. Upon preparing my response, I realised that not only is the sign from a different area completely, but the wording / restrictions on the sign is also completely different to where I was parked and to some of the other signs in the around Eastwick and on LLDC land. . (See Exhibit 05 – Close up of sign used on the PCN) Moorside in the legal letter they sent to me quoted ‘Please  find attached photographic evidence at the end of this correspondence showing the signage displayed at the location of the contravention. It states ‘No Parking in this area / either wholly or partially at any time’ (See Exhibit 06 – Letter from Moorside Legal), this was what they were saying my breach was. My car was not parked in this ‘location / sign’ therefore invalidating their claim and the supposed breach.

9.     The sign of no parking ‘wholly or partially’ is not applicable to the bay where my vehicle was parked therefore this should make the claim invalid. My car is also not pictured with the sign. I am being chased for an invoice that I do not owe and should not have been placed on my name or vehicle. I believe that the parking attendant captured photographs of unrelated signage to falsely substantiate the alleged violation, which borders on deceptive conduct.

10.  LLDC area has various signs with differing instructions regarding parking and loading. (See Exhibit 7 – Other PCM signs and Other Parking Operator Sign) The sign referenced in the parking charge notice is from a different area completely, where parking restrictions near double yellow lines, within the estate, opposite the school and by the Tesco are more stringent. However, where my vehicle was parked, there is no sign near my car which prohibits parking “wholly or partially.” PCM evidence of this parking violations / terms and conditions that they have attached to the parking charge does not apply to parking bay where my car was parked making their claim for breach of these terms and conditions invalid.

11.  Potential Legal Standing – Misrepresentation (Misrepresentation Act 1967): PCM’s actions may amount to misrepresentation as they presented signage in their evidence that does not apply to the specific bay where I parked. PCM’s evidence is misleading and/or suggests I violated rules that were not posted in that parking bay. I believe PCM have intentionally misrepresenting facts to justify the charge. Legal Basis: Misrepresentation, even if accidental, can invalidate a contract or agreement. The evidence was misleading, and I believe it should be view has misrepresentation, invalidating PCM’s case.

12.   Potential Legal Standing: Data Protection and Evidentiary Standards: As PCM is using photographic evidence as the basis for enforcement, it has a responsibility to ensure this evidence meets accuracy and data protection standards. If they took photos from a different area or time, it could be argued that PCM has failed to uphold these standards. An argument could be made that they have breached my rights under the UK GDPR, which mandates accuracy and fairness in data collection. Legal Basis: The UK GDPR includes principles that data must be “accurate and, where necessary, kept up to date.” If their photo evidence is inaccurate or misleading, they may be violating these principles which I believe they have.

Doctrine of estoppel / Permission Granted by PCM Attendant

13.  The reason why the parking sign wording and area/parking bay is important, for two years, I parked in this particular bay for school runs without issue, following verbal permission from a PCM attendant. Without notice, it seemed the parking rules changed, and I was issued this invoice. Despite my request for an audit, so I could demonstrate that no tickets have been issued in this bay where I was parked between the school run times for the last two years to further verify my claim, PCM has not conducted one. I do not believe Moorside Legal even requested this from PCM, the Claimant.

14.  By capturing a photo of the incorrect sign with different wording and intent, in a different part of East Wick would imply that I parked in another place, which prohibits parking of any kind, which I did not. It also suggests to me suggests either that the attendant is fabricating breaches deliberately by photographing signs from other areas to support their allegation, or there is a training issue. Either way, I believe this should still nullify their claim. (See Exhibit 8 – Petition from other parents under the same agreement with PCM Parking Attendant). I obtained signatures from parents as soon as I got my legal letter in October 2024, I did not know the process would take this much time. It took a lot out of me to collect signatures from parents.

15.  Potential Legal Standing – Doctrine of Promissory Estoppel: A PCM attendant explicitly gave permission to park and have done so for some time. PCM cannot now penalise me for acting in reliance on that permission. This doctrine prevents a party from going back on a promise if the other party relied on it to their detriment. Legal Basis: In English contract law, promissory estoppel can prevent someone from enforcing rights that contradict a promise or assurance they provided, especially if that assurance led to financial loss or harm.

Timing and Evidence Manipulation:

16.  The seven-minute delay between the photographs, combined with the fact that the signage is from another vicinity of East Wick, raises serious concerns about the validity of the enforcement action. PCM has previously acted poorly by taking photographs from a distance and zooming in rather than approaching the car with people sitting inside, despite change the rules again (after January 2023) stating that parking was allowed as long as someone was present. This pattern of behaviour suggests a deliberate attempt to misrepresent the facts in order to issue penalties / invoices unfairly.

17.  I arrived after 3.30pm as the gate was already opened, I probably walked away from the car at 3.33pm. I believe that the attendant saw me leave the car took a photo hastily and left quickly, which raises questions again about the integrity of their actions. This behaviour further suggests an awareness that the enforcement might not have been legitimate, as it was done in such haste.

18.  Different Parking Operators: PCM represents the landowners LLDC (London Legacy Development Corporation). However, there is another parking operator in the area, Gemini, who also allows parking for up to 20 minutes before issuing a ticket. There is nowhere to park to drop your children to school hence why this has been allowed from a set period of time. The inconsistency between how these two operators manage parking in the same area further demonstrates the confusion and lack of transparency that drivers face, particularly in relation to the signage.

19.  Personal Circumstances and Health: I have been dealing with this matter for a long time while facing significant personal health challenges. I am not sure if this information will be available publicly like the other cases, but I will be happy to provide the judge the letters I sent to Moorside and Shakespeare Martineau about my health and additional medical information.

20.  Previous Legal Representation: This matter was previously handled by a different legal firm. After I presented my case and evidence and medical evidence, they dropped the issue and referred it back to PCM. PCM then assigned another law firm, Moorside Legal who continue to pursue this matter despite the clear issues raised in my defence.

21.  Potential Legal Standing – Unreasonable Financial Pressure (Harassment): Given the duration of this case and my health challenges, PCM and their representatives have placed unreasonable financial pressure on me. Prolonged, aggressive pursuit of charges with dismissive responses to my documented health concerns should constitute harassment. Legal Basis: The Protection from Harassment Act 1997 prohibits actions that amount to harassment, especially if they cause distress or harm. Repeated letters and failure to acknowledge health information, combined with passive-aggressive language in correspondence, could be considered harassment if they appear excessive or intimidating which they have been.

22.  Potential Legal Standing – Reasonable Adjustments for Health Conditions (Equality Act 2010): The Equality Act 2010 requires service providers, including private firms, to make reasonable adjustments for individuals with disabilities or mental health conditions. PCM and their representatives failed to meet this obligation by not accommodating my health needs despite being fully informed of my medical situation. This includes extensions on deadlines or consideration of alternative means for communication and appeals. Legal Basis: My documented health conditions and neurodivergence affect my daily activities and qualify as a disability under the Act. Under Section 20, PCM and associated firms have a duty to adjust their processes, such as extending deadlines or providing additional support, to avoid placing me at a disadvantage due to my health conditions.

23.  Failure to Act in Good Faith (Unfair Contract Terms): Courts expect companies to act in good faith, especially when dealing with vulnerable individuals. By dismissing my health information and refusing extensions or adjustments, PCM have failed to act in good faith, placing undue pressure on me despite knowledge of my circumstances. Legal Basis: The Consumer Rights Act 2015 requires that terms be fair and that firms act transparently and reasonably. PCM’s approach has exacerbated my health challenges, their behaviour has been oppressive and unfair, violating these legal principles.

24.  Excessive Charges and Distinguishing Beavis 

The £XXXX sum is excessive, disproportionate and punitive. In ParkingEye v Beavis [2015] UKSC 67, the charge (£85) was upheld because it was prominent, and the court found a "legitimate interest". That is not the case here. There was no compelling interest served by this charge.

25.  Lack of Legitimate Interest - The parking operator must demonstrate a legitimate interest in enforcing the charge beyond mere compensation. Given being a genuine member of the gym with approval to park without charge the operator's legitimate interest could be questioned.​

FluffySocks25

26.     In ParkingEye Ltd v Somerfield Stores Ltd [2011] EWHC 4023 (QB), a charge inflated to £135 for admin costs was found to be penal. The £301.12 in this claim exceeds any reasonable pre-estimate of loss and duplicates costs contrary to CPR rules.

27.     The Department for Levelling Up, Housing and Communities (DLUHC) Impact Assessment (2023) states that the actual pre-action costs per case are estimated at just £8.42. The additional £70–£100 "debt recovery" fee is not a genuine cost and should be struck out.

28.     The Competition & Markets Authority’s guidance (CMA37, para 5.14.3) also condemns inflated default charges and hidden terms as unfair contract terms. Despite legal challenges delay 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 published on the 30th of 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

29.     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 their debt firms who stood to gain from it.

30.     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 Beavis. Also, ParkingEye Ltd. v Somerfield Stores Ltd. ChD [2011] EWHC4023(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”.

31.     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 b 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.

32.  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 2024 to scrutinise every aspect of claims like this one. 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 (the CRA).

 

Hearsay Evidence

33.  The facts in this WS come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste and sparse witness statement of the case. The PoC is devoid of any detail and even lacks specific breach allegations, making it very difficult to respond. 

34.  The Claimants 'witness' is a legal assistant employed by the claimant’s solicitors and has no direct knowledge of the actual events that form the basis of the claim. Any evidence provided by this individual is second-hand, supposedly relying entirely on information supplied by the claimant, and thus cannot carry the same weight as testimony from someone who witnessed or was directly involved in the incident.

35.  While the Civil Evidence Act 1995 allows hearsay evidence in civil proceedings, it is required to be given less weight, especially when it comes from someone with no firsthand knowledge. Furthermore, under CPR 32.2, the court has the discretion to exclude hearsay evidence when it is of limited probative value. In this case, the witness provides only second-hand information from the claimant and cannot be considered reliable or probative.

36.  The claimant's Witness Statement (WS) fails to comply with CPR Practice Direction 32, paragraph 18.2, as it does not clearly distinguish between what the witness knows firsthand and what has been provided to them by others. It is evident that the individual providing the statement, being a legal assistant with no direct involvement in the events, relies on information provided by their client and lacks personal knowledge of the facts. As a result, this statement amounts to hearsay, which weakens its credibility. Further, the claimant's witness has failed to indicate the source of any information and belief, as required under PD 32.18.2.

37.  The paralegal 'witness' does not work for the Claimants company and therefore has no role in the operations, policies, or specific events regarding the parking charge or this case. This distance from the Claimants company further undermines their ability to give a credible account of the facts.

38.  The claimant's WS is written in the third person, which is inappropriate for a witness statement. A WS should represent the personal account of the witness and should be written in the first person, as per CPR Practice Direction 32, paragraph 18.1, which requires a witness to state their evidence clearly, in their own words.

 

Conclusion

39.  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 use of the incorrect signage to inflate a ‘contravention’  and the unlawful nature of the additional charges further invalidate the claimant’s claim. The claimant’s attempt to impose liability for these inflated charges is unsupported by both statutory law and leading case precedents. 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.

40.  I ask the Judge to read the persuasive Judgement from His Honour Judge Murch (August 2023) in the Civil Enforcement Ltd. v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC. It is worth noting that in that case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the 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 Ltd. v Chan case, full costs were awarded to the motorist, and the claim was struck out.

41.  There is now ample evidence to support the view – long held by many District Judges that these are knowingly inflated 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. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims 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 strongly 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.

42.  Attention is drawn specifically to the (often seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant’s costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1) “Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a Notice of Discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg)).”

 

Statement of Truth

43.  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

 

Coupon-mad

That's very good.

I would add mention of a breach of the CPUTRs into your paragraph 11 because what you are describing is misleading conduct or a 'misleading omission' (an offence covered by the CPUTRs.

FluffySocks25

@Coupon-mad thank you. 

Regarding CPUTRs is there wording I can use please? I have had a look on the forum, I know CPUTRs is now covered by the DMCC Act which is fairly new. Would I also have to reference a caselaw too?