Parking Control Management - Claim defence (Successful)

massop

Quick update.

Had mediation call recently, this time the mediator was impartial which was good.

Claimant tried to use scare tactics saying to the mediator that the defendant is using a copy/paste defence from internet forum and should take an offer of reduced cost.

The defendant respectfully declined and requested that this be taken to the judge to decide.

Awaiting next steps

massop

I have a date for trial at court in a few weeks, below is the witness statement I wish to submit, please let me know if it is ok

Witness Statement:

IN THE COUNTY COURT AT [PLACE]

Claim No. [Redacted]

PARKING CONTROL MANAGEMENT UK LIMITED (CLAIMANT)

-and-

[Redacted] (DEFENDANT)

Witness Statement of Defendant

Introduction

1.1 I, XXXXXX XXXXXX, of XXX XXX XXXXXXXXX, am the Defendant in this matter and the registered keeper of motor vehicle registration number XXX XXXXX.

1.2 The facts set out in this Witness Statement are true to the best of my knowledge and belief and are based upon my own personal knowledge and understanding.

Defence

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim when the POC lacks details of breach of contract, with prejudice suffered by the defendant in establishing a suitable defence and witness statement. 

3.     Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16.  On the 15th 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'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4. (See Exhibit – XXX)

4.     A similar case was dismissed and later appealed by a parking company only to be dismissed again on the basis of an inadequate POC CPMS v Akande (KODP5J30) in 2024. (See Exhibit – XXX)

5. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA SINGLE  Code of Practice FEBUARARY 2025Lack of Landowner Authority

According to paragraph 14 of the BPA Code of Practice, a parking operator must have a clear, written agreement with the landowner before issuing any parking charges. This agreement must detail the landowner's identity, a boundary map of the managed area, the terms of permission given to the operator, and the specific parking rules and charges.

Annex G.2 further clarifies that the landowner must confirm they have appointed the operator to manage the land and have been informed of all relevant issues, including:

• The terms and conditions the operator will apply.
• The operator's obligation to adhere to the BPA Code of Practice, including the application of grace periods and exemptions.
• The responsibilities of both the landowner and the operator, such as who is accountable for signs and maintenance.

As the operator has failed to provide strict proof of this required landowner authority, they do not have the legal standing to issue this parking charge.

6. CRA Breaches

6.1. 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.

6.2. 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.

6.3. 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).

6.4. 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. (See Exhibit xx-01)

The Beavis case is against this claim

6.5. 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 - (See Exhibit xx-02) - set a high bar that this Claimant has failed to reach.

6.6. 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 xx-03) for paragraphs from ParkingEye v Beavis).

6.7. In the present case, the Claimant has fallen foul of those tests. There are two main issues that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Evidence of clear signage (hidden signs):

The Claimant relies upon photographs of the Defendant’s vehicle exhibited at Exhibit XX5, stated to have been taken in March 2022. Those images do not show any clear or prominent signage displaying parking charges in bold or legible writing. In contrast, the Claimant has also produced digital images of signage artwork at Exhibit XX3 as purported evidence of the applicable terms. However, those digital images contain no dates or metadata and appear to be generic design files rather than photographs of the actual signs in situ at the material time. There is therefore no reliable evidence that the signage depicted in Exhibit SS3 was in place in March 2022. This creates a potential gap of up to four years between the alleged parking event and the signage evidence relied upon. As a result, the Claimant has failed to prove that any clear, visible, and contractual signage existed at the location at the relevant time.

(ii). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence. The purported added (false) 'costs' are even more hidden and are also unspecified as a sum. Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming 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".

7. Covert Surveillance Using a Body-Worn Camera

The Claimant’s evidence in this matter was obtained by an operative using a personal body-worn camera to photograph my vehicle. I contend that this constitutes intrusive surveillance and the processing of personal data within the meaning of the Data Protection Act 2018 and the UK GDPR. The photographs disclose angles and positioning which clearly demonstrate that the operative positioned themselves across the road and deliberately out of sight of motorists, rather than operating openly and transparently. This shows that the recording was carried out covertly, with the apparent intention of capturing images without the knowledge of drivers.

Such conduct is contrary to the principles set out in the ICO Code of Practice for Surveillance Cameras, which requires that surveillance must be overt, fair, proportionate, and carried out in a manner that is transparent to those affected. The deliberate concealment of the operative and the use of a body-worn camera to target vehicles in this manner cannot reasonably be described as fair or responsible parking management. Instead, it amounts to predatory behaviour designed to generate parking charges rather than to manage parking effectively.

No clear or prominent signage warned that body-worn cameras were in use, nor was there any information explaining that personal data was being captured for enforcement purposes. In the absence of transparency and lawful processing, the Claimant’s evidence has been obtained unfairly and in breach of statutory requirements. I submit that this approach amounts to entrapment rather than legitimate parking control, akin to the type of disreputable practices historically associated with this Claimant when operating as wheel-clampers. The Court should therefore treat this evidence with considerable caution and afford it little or no weight.

Facts and Sequence of Events

8.     The defendant remembers the day in question. They had parked in the marked bay and noticed there was a “20 Minute” free parking duration. The defendant was picking up an associate from the hotel opposite the parking space called “Staycity”.Due to the time it took to collect this individual the defendant acquired a parking permit to park inside the hotel car park. The defendant moved the car to the car park before the 20 minute free period ended.

Exaggerated Claim

9.   The Claimant’s claim is inflated. The ‘core debt’ from a parking charge cannot exceed £100, and this figure is already generous. The Claimant has added a further £70 per PCN as supposed ‘debt recovery’ costs. I say this is wholly unjustified.

10.   The Department for Levelling Up, Housing and Communities (DLUHC) published a statutory Code of Practice on 7th February 2022. Its Ministerial Foreword is clear:

“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.   The Government's July 2023 Draft Impact Assessment (DLUHC) states that the actual cost of debt recovery per case is just £8.42 – not £70. Therefore, this case exemplifies exaggerated costs and "double recovery." These fees fund bulk litigation without genuine merit or fact-checking, as the Claimant’s vague and generic Particulars of Claim demonstrate.

Conclusion

12.   The Claimant's conduct is consistent with widespread consumer harm identified by the Government. Their added costs are not genuine losses but part of a profit-seeking litigation model.

13.   I respectfully ask the Court to:

a)     Strike out or dismiss the claim due to lack of merit, poor particulars, and abuse of process;

b)     Refuse to award the falsely added £70 ‘debt fee’;

c)     Consider a finding of unreasonable conduct under CPR 27.14(2)(f) and CPR 27.14(2)(g) and award appropriate costs; including where the Court finds agency exists, consider the award of costs inter alia. 

d) Refer to my Cost Assessments Sheet which details costs that I have incurred (Exhibit – XXX)

14.   If the Claimant discontinues late, apply CPR 38.6 and CPR 46.5 to award costs accordingly.

Coupon-mad

You've missed three big things in this draft:

• hidden signs & terms (CRA 2015)
• covert camera surveillance (DPA 2018)
• landowner authority proof

massop

Thanks for the feedback

I have ammended my original post with the updated points. Please let me know if I have missed anything important?

Coupon-mad

Add to the 'covert body-worn camera' point that the angles show that this person lurked across the road, deliberately out of sight, which is predatory conduct, breaches the ICO Code of Practice for Surveillance Cameras and is not fair & overt parking management but pure entrapment, akin to PCM's rogue conduct when they were wheelclampers.

Remove this which makes no sense in a WS in support of a court defence:

"Therefore, I request that the charge be cancelled immediately."

Remove everything you put under your Hidden Signs & Terms para 6 because none of it is talking about unclear signs! That para is meant to be your photos proving lack of prominent signs, or some taken from a High Point PCM thread here, or found in Google Images or Google Maps (Street View).

And that's where you are meant to show the Beavis yellow sign as a comparison, as coached in my a-h list of recommended exhibits.

It doesn't look like you are using my list?

1505grandad

Para 8 - "I was not aware of any restrictions that applied at High Point Village. Due to the age of the alleged breach of contract which is now over 3 years old, I am unable to recall the exact reason for the PCN(s)."

A reminder/observation of para stated in the filed Defence:-

"6. The defendant remembers the day in question. They had parked in the marked bay and noticed there was a “20 Minute” free parking duration. The defendant was picking up an associate from the hotel opposite the parking space called “Staycity”.Due to the time it took to collect this individual the defendant acquired a parking permit to park inside the hotel car park. The defendant moved the car to the car park before the 20 minute free period ended."

Coupon-mad

Great spot again. Consistency!

massop

Thanks again for the input,

I have made the changes to the original post, somehow I missed your a-h list in the newbies thread in post 2, I have put something together based on that and I only need to attach the exibits.

I have added the fact that the signage in the evidence provided by the claimant is not legible and although they have provided digital drawings of what the signs look like there is no indication that they are the same as what was provided in the evidence from 4 years ago.

Other than providing the actial exibits does this look ok?

massop

https://forums.moneysavingexpert.com/discussion/comment/81877386#Comment_81877386

Thanks for that, yes great catch, ill ammend

Coupon-mad

I have added the fact that the signage in the evidence provided by the claimant is not legible and although they have provided digital drawings of what the signs look like there is no indication that they are the same as what was provided in the evidence from 4 years ago.

Other than providing the actial exibits does this look ok?

Yes.