first parking / DCB Legal witness statement stage

Coupon-mad

Remove the words "Further and in the alternative" because you aren't making alternative point there!

pokerish

Thank you

A court date has been set for early October and the deadline for all documents is 14th July 

pokerish

Hello,

would someone be able to kindly read my witness statement please? i will fix the exhibit numbering after and remove the exhibits that havent been used from the table of contents. i don't feel the statement is strong and there isn't much of a defence. is it likely this will be successful, given the driver was in the wrong?

Table of Contents

Witness Statement of Defendant.................................................................... 2

Exhibit 01 – Appeal judgements & multiple area court 'strike outs' .............. 9

Exhibit 02 – Car park signage (1) ................................................................. 34

Exhibit 03 – Car park signage (2) ................................................................. 34

Exhibit 04 – Entrance of car park 1 .............................................................. 35

Exhibit 05 – Entrance of car park 2 .............................................................. 35

Exhibit 06 – (A) Entrance sign, (1) Car park 1, (2) Car park 2 .................... 36

Exhibit 07 – Excel v Wilkinson Case Transcript .......................................... 37

Exhibit 08 – The Beavis case sign for comparison...................................... 47

Exhibit 09 – ParkingEye Limited v Beavis.................................................... 48

First Parking Llp (Claimant)

V

xxxx (Defendant)

Witness Statement of Defendant

1. I am xxxx, 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 upon my own knowledge.

2. In my statement I shall refer to (Exhibits 01-09) 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 judgments to support dismissing or striking out the claim (and he first is about this same Claimant).  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 in the following persuasive authorities (I append transcripts of both - plus multiple area court 'strike outs' of parking claims that reflect these authorities - in Exhibit 01)

4. The first recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. 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'. (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 10 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 01)

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. Date and Time of the Incident: It is admitted that on the material dates, I was the registered keeper of the vehicle xxxx. It is unknown who the driver of the vehicle was on the dates of the claimed PCNs.

8. Parking Notice: The claimant pursues a claim for ‘Parked without payment of the parking tariff upon arrival or displaying a valid permit.’ I do recognise the location of the alleged parking violation as being the University of Birmingham.

9. Inadequate Signage: I have observed a lack of clear and visible signage regarding parking regulations. The few signs that are present are placed in obscure locations, making them difficult to notice. Additionally, the signage featured very small text, making the terms and conditions impossible to read from a reasonable distance. The poor placement and legibility of these signs made it extremely difficult for anybody to be aware of or comply with the parking rules.  

(See Exhibit 02 & Exhibit 03).

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

10. 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.

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

·       the alleged breach, and

·       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. 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. 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

"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."

14. 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

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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 2023 to scrutinise every aspect of claims like this one.

21. 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

22. 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.

23. 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.

24. 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).

25. 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 10)

The Beavis case is against this claim  

26. 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 11) - set a high bar that this Claimant has failed to reach.

27. 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 12) for paragraphs from ParkingEye v Beavis).

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

(i). 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".

pokerish

Conclusion

29. 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 lack of adequate signage 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. I ask the court to dismiss the claim and award appropriate costs for the time and effort expended in defending against these unjust claims.

30. I ask the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan 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 v Chan case, full costs were awarded to the motorist and the claim was struck out.

31. There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated 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.

32. With the DLUHC's impending ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to 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 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.

33. 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))."

Costs Assessment

Given the significant time and effort required to defend this unjust claim, I respectfully request that the court consider awarding costs under CPR 27.14(2)(g). I have spent considerable time researching, preparing this statement, and attending the hearing. My estimated costs for this are as follows:

· Research and preparation of witness statement (5 Hours): £50

· Travel expenses (Taxi to and from): £50

· Cost of missing work (5 Hours): £100

Totalling: £200

I request that the court considers these costs in its judgment, given the claimant's unreasonable behaviour in pursuing this claim without merit.

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’s signature:

pokerish

i am aiming to submit this tomorrow... thank you 

1505grandad

Have not read further but you state:-

"8. Parking Notice: The claimant pursues a claim for ‘Parked without payment of the parking tariff upon arrival or displaying a valid permit."

yet also state that the Chan and Akande cases are relevant  -  were they included in your Defence which you state is repeated in your WS?.

Le_Kirk

I agree with @1505grandad, the POC are quite clear so you cannot use Chan and Akande, looks like it will come down to signage.

Lemonhead39

Hi

Isn't this more of a defence than a witness statement?

I am writing my witness statement today and was just going to write the facts about buying a ticket, buying a ticket within 2 mins of arriving at the car park. Am I expected to write something like the above?

Thanks

Coupon-mad

Lemonhead39 said:

Hi

Isn't this more of a defence than a witness statement?

I am writing my witness statement today and was just going to write the facts about buying a ticket, buying a ticket within 2 mins of arriving at the car park. Am I expected to write something like the above?

Not as long, no. We have honed our advice.

We now suggest you put your facts and evidence mainly, include the suggested exhibits listed in the NEWBIES thread then add paras 4-10 of the new short Template Defence, instead of the above lengthy blurb.

Then add the usual Statement of Truth.

Coupon-mad

pokerish said:

i am aiming to submit this tomorrow... thank you 

Good.

Now read this message and please do the Public Consultation:

https://forums.moneysavingexpert.com/discussion/comment/81552148/#Comment_81552148

It's vital the Government hears from Defendants. As long as your hearing is soon (within weeks), you're best to do it straight AFTER the hearing; you'll have more to say.

Same for @Lemonhead39 - we need to ALL respond and drown out the parking industry & chums/relatives posing as consumers.