Pay & Display - 15mins after ticket expiry CCTV by Excel

loganby

I will try.

ChirpyChicken

loganby said:

I will try.

As Yoda said "Do or do not. There is no try"

loganby

The Starm-troopers must be thwarted...Maybe Yoda used AI

loganby

Any comments appreciated.

I am xxxxxxx. It is admitted that the Defendant is the registered keeper of the vehicle in question 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 A-G) 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:

Attached to this statement is a paginated bundle of documents marked Exhibit A-G to which I will refer.

Page 8             A – Photograph of Defendant’s parking ticket purchase

Page 10           B – Customer Perspective photo of Excel’s main sign beside payment machine
Page 12           C - Letter Received From Claimant (05/02/2025)

Page 14           D – ‘Final Demand’ Letter Received From Claimant
Page 16           E - Letter Received From DCBL notifying Legal Action

Page 18           F – EXCEL vs WILKINSON transcript
Page 29           G - BEAVIS vs PARKINGEYE transcript

 

The Claimant asserts that I, the Defendant, entered into a contract with them, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. Excel Parking Services claim that the Defendant overstayed the 2 hour purchased ticket period (see Exhibit B) by an unacceptable period. The Claimant asserts that their sign beside the payment machine (see Exhibit B) represents sufficient notice of this contract breach.
The sign has hundreds of words and small print, is heavily decorated and the warnings to customers of filming are neither clear or prominent.

Facts and Sequence of Events:
On the day in question, 28/01/2025, I, the Defendant, visited Lincoln with my 4-month-old baby boy. The Defendant parked in the Grantham Street car park managed by the Claimant. The Defendant purchased a 2-hour parking ticket from the machine, a copy of which is attached as Appendix A.

The Claimant’s letter dated 05/02/2025, threatened a £100 fine and showed the picture of the car in question (see Exhibit C). I had heard about unscrupulous firms frightening people with parking scams, so decided to ignore it.
A similar ‘final demand’ threatening letter arrived dated 06/03/2025 demanding £100 (see Exhibit D). Again, I was determined not to be intimidated by the strategy, which victims of similar firms had informed me about.
The Claimant’s Bailiffs, DCBL, escalated matters with a letter dated 08/04/2025. This time threatening me with Legal Action and an inflated figure of £170 (see Exhibit E).

 

Defence

 I confirm that the essence of my defence to this claim is that:

WITNESS STATEMENT OF xx

1. I am xx, the Defendant in this matter, of [insert your address]. I am the registered keeper and driver of the vehicle in question. This statement is made from my own knowledge and honest belief.
2. On 28 January 2025, the Defendant visited Lincoln with his 4-month-old baby boy. The Defendant parked in the Grantham Street car park managed by the Claimant. The Defendant purchased a 2-hour parking ticket from the machine, a copy of which is attached as Appendix A.
3. The Defendant is unfamiliar with the car park and its signage. The main sign near the payment machine was multi-coloured, cluttered with hundreds of words and small print, making it difficult to read or understand fully. A photograph of this sign is attached as Exhibit B, viewed from the perspective of an Excel Parking customer.
4. Near the end of the ticketed period, my baby required urgent feeding, comforting, and changing. This is a necessary process for a nursing parent and cannot be delayed. Under the Equality Act 2010, adjustments should be made for such circumstances, as this does not constitute 'parking'.
5. By the time I had attended to my baby, I left the car park, unaware that the grace period had been exceeded by a few minutes, apparently 9 minutes. I did not notice any clear indication on the sign or at the payment point that the area was being filmed.
6. Subsequently, I received correspondence from the Claimant demanding payment of a parking charge. Copies of these letters are attached as Exhibit C-E. I dispute the charge as outlined in my Defence, including the lack of clear terms, no financial loss to the Claimant, and the predatory nature of their operations at this site.
7. I believe the Claimant's signage fails to form a valid contract, and their claim is exaggerated and unfair.
   

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

8.
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.

9.
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.

10
The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7thFebruary 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."

11.
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

12.
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 less than £9 per recovery case.

13.
With that sum in mind, it is clear that 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 the Defendant takes that position.

14.
The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually 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.

15.
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.

16.
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.

17.
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.

18.
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).

Consumer Rights Act Breaches

19.
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.

 

20.
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.

 

21.
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).

 

22.
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 F)

 

The Beavis case is against this claim 

23.
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 - set a high bar that this Claimant has failed to reach.

24.
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 G for paragraphs from ParkingEye v Beavis).

25. 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.  None of this was agreed by me, let alone known or even seen as I stood at the machine, which their evidence shows doesn't warn me about a possible £100 charge. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

·      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

·      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".

 

26.
Therefore, I maintain that the terms have been complied with, and the Claimant will concede that no financial loss has arisen.  The charge imposed, in all the circumstances is a penalty (not saved by the ParkingEye v Beavis case, which is fully distinguished).  In addition to the fact that the sum claimed under purported 'contract' is disproportionately exaggerated, additionally the interest is inflated in two ways:

 

 27.
 Gladstones indisputably issue tens of thousands of inflated parking claims every year and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims.  Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Gladstones and nothing to do with the Claimant's alleged £100 PCN.  I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit.

 

Conclusion

28.
The claim is entirely without merit given the obfuscating appearance of the sign, which does not constitute a valid contract. Plus the Defendant’s need to attend to his baby, thus pushing him over the 10 minute ‘grace period’. The Defendant believes 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.

 

29.
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. 

 

Costs
30.
In the matter of costs, the Defendant asks:

a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14 

and

b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5

 

31. 
 Attention is drawn specifically 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 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.

Signature of Defendant:

loganby

please remind me where this needs to be sent.

Coupon-mad

loganby said:

please remind me where this needs to be sent.

Errr surely you have emailed it by now?

It goes to the local court and cc in the solicitors representing Excel (is it DCB Legal?).

loganby

YAY!! VICTORY!

Excel no-show! They fed the the court some BS about requesting a Remote hearing (prob to make it look less like wasting court time)

My late WS to Lincoln Court would not have been considered the Magistrate said.

Thanks for all your assistance

Gr1pr

Well done

No Magistrate was involved,  so you must mean a Judge 

loganby

Judge then

Coupon-mad

loganby said:

YAY!! VICTORY!

Excel no-show! They fed the the court some BS about requesting a Remote hearing (prob to make it look less like wasting court time)

My late WS to Lincoln Court would not have been considered the Magistrate said.

Thanks for all your assistance

Hooray! Congrats.

ANOTHER ONE BITES THE DUST!