Moorside Legal Court Hearing / Preparing Witness Statement

1505grandad

Just checking  -  how many pcn's are being claimed for as you refer to more than one date/pcn  -  for instance paras 9 and 12

Para 13  -  is that relevant as you are defending the claim for PoC not the NTK.

Perhaps the experts can comment on whether all the paras are needed in the rest of WS

rynno15

1505grandad said:

Just checking  -  how many pcn's are being claimed for as you refer to more than one date/pcn  -  for instance paras 9 and 12

Para 13  -  is that relevant as you are defending the claim for PoC not the NTK.

Perhaps the experts can comment on whether all the paras are needed in the rest of WS

It's only one PCN. Thanks for pointing that out - probably leftover I missed from mashing a few others' WS together.

Yeah not sure it's relevant either, but thought I'd add it and see what others say. Will rethink inclusion of it.

Coupon-mad

rynno15 said:

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

 19.    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.

 

20.    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 quantum 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.

21.            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.

(iii).  Interest appears to be miscalculated on the whole enhanced sum from day one as if the entire sum was 'overdue' on the day of parking;

22.    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.

 

23.    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."

24.    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

 

25.    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.

 

26.    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.

 

27.    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.

 

28.    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.

 

29.    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.

 

30.    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.

 

31.    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).

32.    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.

 

33.    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.

 

34.    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).

 

35.    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 11)

 

The Beavis case is against this claim

36.    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 12) - set a high bar that this Claimant has failed to reach.

 

37.    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 13 for paragraphs from ParkingEye v Beavis).

 

38.    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). Concealed pitfall or trap:

The signage in this case required individuals to not be a customer or staff of Nandos without defining a ‘customer’ and whether that pertains to individuals who enter the premises of Nandos, those who pay for products / services from Nandos, or otherwise. Furthermore, the specific term denoting this is in a font colour that differs from the rest of the signage so as to purposefully conceal or mislead readers. Given the signage makes no attempt to define a ‘customer’, and I dispute being a ‘customer’ or staff of Nandos, this concealed clause by way of font can reasonably be considered a ‘trap’ set out by the parking firm to mislead or confuse.

 

(ii). Hidden Terms:

The purported added (false) 'costs' are 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:

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

 

(b)              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

 

(c)            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

 

38.    The Defendant asks 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 defendant's 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.

 

39.    Evidence provided by the Defendant clearly shows a gross lack in adequate signage both within the parking area and surrounding the exit route of the car park. Additionally, the signage indicated hidden ‘pitfalls’ and ‘traps’ through use of poorly visible fonts and undefined clauses.

40.    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.

 

41.    With the DLUHC's 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 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. 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.

 

41.    In the matter of costs, the Defendant asks:

(i) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

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

 

42.    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))."

Remove ALL OF THIS and replace it with paragraphs 4-10 of the new Template Defence. Yes I know this is a WS! Trust me. 

rynno15

Coupon-mad said:

Remove ALL OF THIS and replace it with paragraphs 4-10 of the new Template Defence. Yes I know this is a WS! Trust me. 

Thanks for the advice. Just got a notice of discontinuance through the letterbox. Really appreciate all the help and support of everyone in this forum 

Edit: Just fyi I called up the courts to check the veracity and they confirmed it was discontinued earlier this week which is just under 3 weeks away from court hearing (4th Aug). I had holiday booked for that day and I drove to the site an hour away to get pictures. Do we think I could still claim that using the last few paragraphs in that defence template?

Gr1pr

If its discontinued 3 weeks before the hearing then you cannot claim anything,  unless you made a counter claim with your defence,  which I doubt , especially because neither side will have paid the court hearing fee

You prevailed, so put it behind you and move on

Coupon-mad

rynno15 said:

Coupon-mad said:

Remove ALL OF THIS and replace it with paragraphs 4-10 of the new Template Defence. Yes I know this is a WS! Trust me. 

Thanks for the advice. Just got a notice of discontinuance through the letterbox. Really appreciate all the help and support of everyone in this forum 

Edit: Just fyi I called up the courts to check the veracity and they confirmed it was discontinued earlier this week which is just under 3 weeks away from court hearing (4th Aug). I had holiday booked for that day and I drove to the site an hour away to get pictures. Do we think I could still claim that using the last few paragraphs in that defence template?

Well done!

ANOTHER MOORSIDE ONE BITES THE DUST!

Yes you can ask for wasted costs if you contact the court urgently but they might require a formal application.

Already explained with 2 linked examples in the second post of the NEWBIES thread.