CPM / Gladstone - now got a court date

KingsArms

Bit of guidance please on how I should progress. I'm now at the stage where I've got a court date next month. The solicitor has provided me a copy of their witness statement and I now need to create my defence. The key points of my case is that we bought a flat for our son to eventually move into and we had that flat for 6 years until he took it over and moved in. CPM have never provided a resident permit in all that time but provided only visitor permits annually which we used. The vehicle in question was my car with him as a named driver and he was parked in his space. Just to add that you can only access the car park by using a parking device which lowers the barrier. There is no mention in the management pack about resident permits or indeed visitor permits. Any guidance on which template would be appreciated as I'm a little confused.

Grizebeck

No you have already logged your defence
Please post it up word for word (not a paraphrase) .(I am amazed by the number of people who not keep records of their defence document)

Gr1pr

Your witness statement must be due if theirs has arrived, your court order will give you the details and deadlines 

KingsArms

Thanks for the responses. Yes posted my defence and will post. Now asked to submit my witness statement so you are quite correct.  I've searched and seems to be numerous templated suggestions but just wondered if there is an up to date version.

KingsArms

Sorry typo - meant submitted my defence but now got to the stage of a court date in December.  I'm going to submit my witness statement 

Coupon-mad

Let's see the defence first.

Search the forum for Newman unreported and read the Nov 11th results from threads like this. Use the same arguments & case law.

KoalaMSEF

As it is at the WS stage, things said below in the FYI session is purely for your information at this stage. 

Please post your witness statement so people can help you. You can find the template and advice on NEWBIE threads and pay attention to "If your case is about your OWN SPACE"  

This is just FYI (in response to the second part of your post about your confusion) - assuming it is leasehold, you could check your lease - most won't have a clause about permit. This is because most PPC (private parking companies) are 'installed' by the management agent under the illusion that they do not need to manage parking anymore. PPCs make money by sending PCNs to residents with the reasons, such as not display a permit etc. 

Usually (and next time, which I hope you can now opt out of the scheme without knowing ins and outs of your situation), you should complain to MA and especially freeholder for the breach of contract and demand them to cancel the PCNs, if your lease has not be altered in anyway. But since you have a court date already, the focus is best on preparing a Witness Statement. 

KingsArms

Hi all,

Just finished my first draft witness statement and I will post. However it's too long so any ideas on how to do that or is it as simple as posting in two parts ??

I appreciate any thoughts from people with more expertise than me on what I've come up with

In terms of what they are looking for in terms of costs it's 2 x £ 100 for 2 PCNs plus additional cost of 2 x £ 70 as I did not pay, additional costs in respect of issue fee, trail fee and fixed costs plus interest at 8 %.  Interesting that we never got a parking fine until CPM were terminated and then they started issuing PCN's !!

I don't know if I've put too much in but it's a combination of the facts of who was parked (ie: my son in his own space) and what's in the lease. Having checked the lease it says :

Not to park or permit to be parked any vehicle on any parking space within the estate other then that parking space forming part of the property.

I need to add some photos but even the claimant's evidence shows the sign behind a tree !! Also need to scan the lease and attach

KingsArms

Checked what others have done so posted in two parts

IN THE COUNTY COURT OF XXXXXXX

Claim No.:  XXXXXXX

Between

UK CAR PARK MANAGEMENTLIMITED

(Claimant) 

- V -  

XXXXXXXXXXXXXXX

 (Defendant)

_________________

DEFENCE STATEMENT

 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

2.Within this statement I make reference to various documents. These are now produced by me to the court as exhibits and are specifically referred to within the statement by reference to their exhibit numbers. Any reference to an exhibit number within this witness statement is a reference to the corresponding exhibit unless otherwise expressed to the contrary.

The facts known to the Defendant:

3. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper but was not the driver.

4. The property, to which the resident parking space relates, was purchased by the Defendant and his wife in November 2015 as an investment. From the period December 2015 – November 2020 inclusive the property was let to a tenant. In  April 2021 the Defendants son purchased the property and has occupied the flat to date. The Defendant’s son has always parked in the allocated bay for the property and as per the vehicle insurance certificate, which was submitted to the claimant previously, the defendant’s son was a named driver on the insurance policy for the vehicle.

5. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the lawful user of the vehicle which is detailed in the Lease Agreement. The Agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle. A copy of the leasehold agreement is appended to this witness statement as evidence that that prior permission to park had been given (Clause 21 of the lease agreement with the Landowner)

6. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases if necessary.

7. Not withstanding point 6 the signs referred to by the Claimant are not within line of sight when entering or leaving the resident parking space and I have provided evidence of this in Exhibit  XXX

8. Again not withstanding point 6 the Claimant has raised this claim in the knowledge that they have not provided the Defendant with a residential parking permit and therefore wasted valuable court time. They have had a number of opportunities to do this as they provided visitor bay permits on an annual basis.  So having been the owner of the property for a number of years the Defendant has full knowledge of what has been issued by the Claimant in relation to the parking and what was issued to other residents is not relevant and merely hearsay.

9. The claimant has purely persued this for financial gain rather than completing adequate due diligence. As they have confirmed I appealed on the basis of my son being a named driver for the vehicle and simple checks with the management company would have validated this fact and that he was the resident using his own space.

10. In additional to the above points access to the resident parking space is only possible by lowering the bollard preventing non-resident access by use of a car park access device which are issued by the Management Company to residents.

11. Accordingly, it is denied that:

11.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant.

11.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

11.3 the Claimant has any legal right to override the terms of the lease agreement where that agreement has not been varied between the Parties.

11.4.  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable' as vaguely stated in the original template POC dated 2018; or that.

11.5. the Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

11.6. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

12. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

13. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

14. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

15. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "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." 

 

16. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

17. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

18. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

19. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival 

KingsArms

parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

20. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  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 ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

21. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

22. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

23. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

24. 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 from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

25. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

 

 

CRA breaches

26. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

27. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

28.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).  

ParkingEye v Beavis is distinguished

29.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

30. The Supreme Court held that 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 alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

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

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities 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''. 

31.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t." 

 

 

Lack of standing or landowner authority, and lack of ADR

32. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

33. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

 

Conclusion

34. 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 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

35. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

36.  Attention is drawn to the (often-seen) distinct 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

I believe that the facts stated in this defence 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:

Date:

Coupon-mad

That's a defence, not a WS.

I'm not clear if you are saying that's what you submitted as your defence?