UKPA PCN - Defence - Witness statement

FGLLA

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 MM01 - MM04) 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:

 

 

Facts and Sequence of Events

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 not the driver at the time of the allegation.

 

4.       I first became aware of the allegation upon receiving a “PCN” through the post. I was not the driver at the time of the allegation, as should be visible in the pictures recorded via the ANPR cameras. After speaking to the driver at the time of the allegation, I learned that the driver had parked in a car park and a parking permit was purchased (MM-02)

 

5.       Referring to the woefully incoherent POC:

Paragraph 1 is denied. The Defendant is not indebted to the Claimant. This is a new parking roboclaim bulk litigator who have jumped on the parking gravy train with not even a veil of facts to bulk out their claims. This one does not even get off the ground. The boilerplate POC here is far worse than seen in Chan or Akande (both appeal cases linked above) and this appears to rely upon a scattergun Modus Operandi, disingenuously set up to positively seek default judgments by taking advantage of the MCOL system where no human checks any POC.

6.       No precise date, location, or car registration for the alleged event is given, which makes it impossible for the Defendant to respond.

 

7.       The POC mentions the parking charge notice is a “fine” which is a severe flaw in contravention of the BPA Codes of practice Annex E.1. The claimants are members of the BPA and this is clearly a misrepresentation of authority by the legal representative on behalf of their client.

 

8.       This bulk 'parking roboclaim' firm has not even bothered to check/state whether the Claimant is relying upon 'keeper liability' under the POFA 2012 Schedule 4, or not (an Act which sets requirements for notices and which caps the amount recoverable from a keeper, which would not allow a sum of £170). Some parking firms can invoke keeper liability - but not always - and that right is dependent upon full compliance with Schedule 4. Who knows the basis of liability claimed by saying that the Defendant is pursued as 'the driver or keeper'? The POC does not elucidate.

 

9.       Liability for any sum at all is denied. The Claimant is put to strict proof of all of the issues raised in this defence, in the unlikely event that the allocating Judge does not strike out this claim.

 

10.   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.   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.

 

 

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

 

12.   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.

 

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

(i)                 the alleged breach, and

(ii)               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.

 

14.   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.

 

15.   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."

 

16.   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.

 

17.   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

 

18.   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.

 

19.   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.

 

20.   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.

 

21.   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.

 

22.   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.

 

23.   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 to scrutinise every aspect of claims like this one.

 

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. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

 

CRA Breaches

 

25.   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.

 

26.   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.

 

27.   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). The Beavis case is against this claim

 

28.   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 07) - set a high bar that this Claimant has failed to reach.

 

29.   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 MM-04) for paragraphs from ParkingEye v Beavis).

 

30.   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:

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

(iii)             Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2 both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(iv)              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".

 

Conclusion

 

31.   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.

 

32.   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.

 

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:

 

 

 

Date: 25th June 2025

Coupon-mad

I'm not around on the forum for a week but that's far too much like the template defence. Your WS must be in the first person.

Did Moorside ever send you more detailed Particulars to improve that POC?

FGLLA

Coupon-mad said:

I'm not around on the forum for a week but that's far too much like the template defence. Your WS must be in the first person.

Did Moorside ever send you more detailed Particulars to improve that POC?

Ok I'll switch perspective to first person where possible.

No, I didn't ever receive any updated detailed PoCs

Le_Kirk

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.
 
Facts and Sequence of Events
3.       The facts in this defence 

Looks like you copied your defence into the WS; you need to write the WS in your own words (in the first person) in a way that supports and backs up what you wrote in your defence and also supply evidence.  You can read WSs prepared by the following as examples of format and style; clearly the facts will be different to yours.

@Harry77, @imulsion, @Defendant911 and @Milliered

FGLLA

Thank you all. I submitted the WS and evidence pack, and also received a notice of discontinuance this morning!

Coupon-mad

FGLLA said:

Thank you all. I submitted the WS and evidence pack, and also received a notice of discontinuance this morning!

Yay! You won! Congrats.

ANOTHER MOORSIDE ONE BITES THE DUST!