Parking fine Civil enforcement DCB legal help!

Needhelp3074

Hi, I will do that, Thank you 😊

Needhelp3074

Hi, I Have spent some time looking over different witness statements and have started to draft my own. To be honest I am a bit overwhelmed with the amount of information. I was hoping someone could help with a few questions relating to my case. 
My POPLA appeal was declined as I couldn't provide all evidence on the initial appeal, as the gym wrongly advised they could not give me evidence of being on site, I later gained this from another site. Is it worth getting the gym to write a statement to back this up?
The witness statements I have read are citing many other cases, is this what I should be including to support my own circumstances as long as they are relevant? Some seem to have a lot, is this the best way to do it?
Sorry if this is obvious, I usually keep things short and straight to the point. Worried if I include too much I will need to remember it all!.
Any help will be greatly appreciated, I really don't want to mess things up at this stage but I am am struggling a little bit. I have spent hours reading but feel like I am not getting anywhere fast. Thank you in advance!.

Coupon-mad

Start with the usual headings & intro paragraph seen in every thread showing a WS, plus the usual conclusion and Statement of Truth seen in WS threads (look at WS examples from this past year only).

Then in the middle, type your story and refer to any photos by Exhibit numbers (your initials then 1, 2, 3, and so on).

And read the NEWBIES thread list of suggested exhibits and add those, copying wording (yes, and other cases if appropriate), again from other recent WS.

Needhelp3074

Hi, Could anyone please look over this and give me any feedback it would be greatly appreciated, Thank you in advance 

WS

1, I, xxxxx of xxxxx, am the Defendant against whom this claim is made. The facts below are true to my belief, and my account has been prepared based on my knowledge.

2. In my statement, I shall refer to (Exhibits 1 to 6) 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.

 

1, The Particulars of the claim are incorrect and fail to comply with Civil Procedure Rule 16.4. The PCN was not ‘issued’ on 26/06/23 as claimed. The location cited is incorrect, there is no such address located in Newcastle as stated.

 

2, I was the registered keeper and driver of the vehicle. On the day in question 26/06/2023

I was a genuine user of the site, using the gym facilities as a paying member and rightfully parked.

 

3, I made a request at the gym to provide me with evidence of attending on the said date and time, this was declined on 2 occasions. I was wrongly advised I could only access the last 5 visits. This was later recovered from another site showing proof I was a genuine user of the site. (Initials/Exhibit-1)

 

3, On review the new parking terms were initiated on 14/06/23, I parked on this site on 26/06/23. The British Parking Association Code of Practice 19.10 states where there is change in the terms and conditions that materially effects the motorist then you must make these conditions clear on your signage. Where such changes impose liability where non previously existed then you must consider transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. I propose 12 days is insufficient to allow for transition given I visited have visited the site for several years whereby has been no parking terms in place. In addition, I received no correspondence from the gym regarding changes to the parking terms until 20/07/23 after the incident. (Initials/Exhibit-2).

 

4, In this case the signage appears to actively promote parking for gym members with the larger readable font stating ‘Everyone Active member parking only’ (initials/Exhibit-3). The remainder of the signage is in very small text making the terms and conditions impossible to read from a reasonable distance. No adequate notice of the penalty clause charge which requires prominent signs and lines (initials/Exhibit 4).

 

5, There were lack of signs and poor visibility on entering car park. (Initials/Exhibit-5)

 

6, Even taken as an extreme close-up, the signage on has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, already aware of the signage, no contract to pay an onerous penalty would have been, known or agreed.

 

The Beavis case is against this claim

7, 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 initials/exhibit-6) - set a high bar that this Claimant has failed to reach.

 

Excessive Charges and Distinguishing Beavis 

8, The £301.12 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.

 

9, 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.​

 

10, 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.

 

11, 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.

 

12, 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

 

13, 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.

 

14, 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”.

 

15, 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.

 

16, 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).

 

CRA breaches

 

17, 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. 

 

18, 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 dusk/darkness) and all terms must be unambiguous and contractual obligations clear. 

 

19, 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 that there has to be a finding of bad faith). 

 

20, Now for the first time, the DLUHC’s draft IA exposes that the template “debt chaser” stage costs less than £9. This shows that HHJ Jackson was right all along in Excel vWilkinson. (See Exhibit 07).

 

No Standing / No contract with Claimant

 

21, The Claimant is put to strict proof of standing. The DVLA only provides keeper data on the condition that the private parking company holds written landowner authority. No such evidence has been provided.

 

22, In many similar cases, such as Excel Parking Services v Lamoureux (Skipton, 2018, unreported), the court found against the parking company where no landowner contract was produced.

 

23, 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 Claim. The Claimant’s attempt to impose liability for these inflated

charges are 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.

 

24, 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.

 

25, 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.

 

26, 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)).”

 

Conclusion

27, The claimant has failed to provide clear evidence that a contract was formed. The lack of adequate signage and markings 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.

 

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.

 

Signed: ________________

 

Coupon-mad

It's very good!

I think para 24 should be removed as this isn't true in your case:

"In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation."

I also think you should allege that it appears that the free parking for gym users is in fact offered by the named principal (not this Claimant) on the signs/banner. And it was the gym themselves who communicated their new terms and 'made the contract their own' by emailing patrons a month after the incident, per Exhibit-2. There is nothing to show that this third party agent can sue (the well known doctrine of Fairlie v Fenton applies).  Even their signage and website states in small print that they are merely acting 'on behalf of' the landowner. They are agents and have no standing.

Coupon-mad

Needhelp3074 said:

Just to say I have read the newbies thread I am just a bit unsure if there is certain points I should focus on, or things I should definitely include. Thank you 

Read the one I just replied on one minute before this reply. See my posts by clicking on my username. Go find the one before this as it's a decent WS example.

Needhelp3074

Thank you so much! I will make the changes you have recommended 😊

Le_Kirk

3, On review the new parking terms were initiated on 14/06/23, I parked on this site on 26/06/23. The British Parking Association Code of Practice 19.10 states "where there is change in the terms and conditions that materially effects affects the motorist then you must make these conditions clear on your signage. Where such changes impose liability where non none previously existed then you must consider transition to allow regular visitors to the site to adjust and familiarise themselves with the changes."

3. On review the new parking terms were initiated on 14/06/23, I parked on this site on 26/06/23. The British Parking Association Code of Practice 19.10 states where there is change in the terms and conditions that materially effects affects the motorist then you they must make these conditions clear on your their signage. Where such changes impose liability where non none previously existed then you they must consider transition to allow regular visitors to the site to adjust and familiarise themselves with the changes.

I propose 12 days is insufficient to allow for transition given I visited have visited the site for several years whereby has been no parking terms in place. In addition, I received no correspondence from the gym regarding changes to the parking terms until 20/07/23 after the incident. (Initials/Exhibit-2).

I think you should change the above to make it flow better; either put paragraph 19.10 in quotes and italics or change the sense as suggested.  Also change non to none and effects to affects.

Needhelp3074

Thank you! 

Needhelp3074

Hi,

I have made the updates recommended by Le_Kirk, Thank you for that.

Coupon-mad- I have removed paragraph 24, would it be ok to replace this chapter by using the paragraph you have provided as below, putting this under the 'No standing/No contract with the claimant section'. It seems to flow to me but just want to make sure!


In this case it appears that the free parking for gym users is in fact offered by the named principal (not this Claimant) on the signs/banner. It was the gym themselves who communicated their new terms and 'made the contract their own' by emailing patrons a month after the incident, per Exhibit-2. There is nothing to show that this third party agent can sue (the well known doctrine of Fairlie v Fenton applies).  Even their signage and website states in small print that they are merely acting 'on behalf of' the landowner. They are agents and have no standing.

Thank you!