UKCPS/Moorside Legal - Small Claims Court

Gr1pr

Read Page 2 on the court order

Study the what happens next section in post 2 in the newbies sticky thread in announcements near the top of the forum

These things never go away until that hearing fee deadline date is close or reached, so expecting it beforehand is unrealistic

Car1980

So we've now had an email with a date for the hearing (28th July). I'd expected this to go away by now, but it seems they're desperate for their money and want to take it to a hearing.

No, all parking cases get to this stage. No case is discontinued a month before the hearing fee is owed. Please change the title of your thread.

Coupon-mad

Like I said to you six months ago on page 1:

"It's just a Moorside Legal claim, same as on other threads."

So, from reading other UKCPS Moorside threads in those months, you will hopefully have seen what happens when.

If they are going to discontinue, they'll do it before their Hearing Fee deadline on page 2 of that Order.

If not, you know from that Order when your WS bundle deadline is. And you know from post 2 of the NEWBIES thread all about WS & exhibits stage.

Prepare that bundle in case it limps on.

You have a deadline and must comply.

andy26599

https://forums.moneysavingexpert.com/discussion/comment/82003920#Comment_82003920

I'm just prepping my Witness Statement now, I have until the 12th June. I have yet to receive anything from the other party. If I do not receive anything by the 12th June, and I have submitted mine, what happens then?

Le_Kirk

Does the claimant have the same deadline as you for witness statements? If they fail to produce it before the deadline, you raise this as a preliminary matter with the judge.

Gr1pr

Also, check with the court if the hearing fee has been paid, or not, after the hearing deadline expires, because no fee equals no hearing

andy26599

https://forums.moneysavingexpert.com/discussion/comment/82027463#Comment_82027463

Yes they have the same deadline as myself. I plan on issuing mine on the 12th June so as not to prompt them to issue theirs.

One thing I do not know, is how to send the information over to the court and to Moorside. I do not have any contact details for either othan than postal address. Can email these across or do they need to be hard copies in the post?

andy26599

I want to put some relevant case study in whereby a landlord/landowner has provided permission to park and then someone has received a ticket. Is this Jopson v Homeguard (2016) and Pace v Mr N (2016)?

Does VCS vs Ibbotson (2012) also work in this instance as this seems to confirm that a parking company only acts as an agent and must operate within landowner authority.

How do any of these work for me if the permission was verbal at the time?

andy26599

Please see draft Witness Statement for comments if you would be so kind. Ignore page numbers and formatting for now.

Table of Contents  Page

Witness Statement of Defendant  5

Exhibit MR-01 - Civil Enforcement v Ming Tak Chan Judgment 11 

Exhibit MR-02 - Parallel Parking v Anon. 15 

Exhibit MR-03 - Another Badly Pleaded Parking Claim 1. 16 

Exhibit MR-04 - Another Badly Pleaded Parking Claim 1. 17 

Exhibit MR-05 – Lack of Signage upon Entry at time of Alleged Contravention 19

Exhibit MR-06 – Lack of Signage in Car Park at time of Alleged Contravention 20

Exhibit MR-07 – Signage near to Disabled Bays 21

Exhibit MR-08 – New Signage Installed upon entrance Since Alleged Contravention 22

Exhibit MR-09 – Close up of New Sign 23

Exhibit MR-10 - ParkingEye Limited v Beavis.  53  

Exhibit MR-11 – The Beavis Case Sign for Comparison 54

CLAIM NO: xxxxxxxx

UKCPS Ltd (Claimant)

V

xxxxxxxxxxx (Defendant)

Witness Statement of Defendant

1.       I am xxxxxx, (xxxxxxxxxxxxx) and I am the defendant against whom this claim is made. This Witness Statement is made in support of my defence to the Claimant’s claim against me. 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 MR1 – MR11) 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.  The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) 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 based in the following persuasive authority.

4.  A 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 and Practice Direction Part 16.  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'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4. (See Exhibit MR-01)

5.  Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit MR-02)

6.        Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit MR-03)

7.        Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit MR-04)

8.        The Defendant believes 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. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

Facts and Sequence of events

9.      It is admitted that on the material date of 8th January 2024, I was the registered keeper of the vehicle xxxxxxxx.

10.   I was a member of Total Fitness xxxxx at this time and had been for a number of months prior attending approximately 3 times per week in that time. The car park is free to use for members. On the date of the alleged contravention it was much busier than usual, a consequence of the large numbers of new members who join in January of each year. Upon arrival, the car park was full, with the exception of a couple of spaces at the front of the gym designated as disabled bays.

11.   Prior to the alleged contravention, I requested and was granted express verbal permission by the landowner (or an authorised representative) to park in that location. I was not informed of any parking enforcement in force at the time of the request. I relied on that permission in good faith when parking my vehicle. I provided my name and car registration details to the staff in the event that I would be required to move my car. As the defendant I cannot be held responsible for the reception staff failing to properly ensure that my details would be taken, passed on to other staff, nor for them to fail to inform me of parking restrictions or enforcement that contradicted their permission to park where I had been permitted to do so.

12. At the time in question (the evening of January 8th 2024) it was dark and there was a distinct lack of signage in the car park, either upon approach to the gym (See Exhibit MR-05) or in the car park itself at the time (See Exhibit MR-06) and signage near to the disabled parking bays in question (See Exhibit MR-07).

13. Subsequently, at some point between the date of the alleged contravention and todays date, a number of signs have since been installed. (See Exhibit MR-08 and Exhibit MR-09), however these were not in place at the time of the alleged contravention. Subsequently, no Contract could have been entered into at the time of the alleged contravention.

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

14.    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.

15.    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.

16.            The Claimant will concede that no financial loss has arisen, on the basis that the car park at Total Fitness Gym in Wrexham is free to use for members and guests 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, which were not in place at the time of the alleged contravention.

(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;

17.    This Claimant routinely pursues a disproportionate additional fixed sum 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.

18.    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."

19.    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

20.    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.

21.    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.

22.    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.

23.    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.

24.    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.

25.    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.

26.    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).

The Beavis case is against this claim

27. 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 MR-11) - set a high bar that this Claimant has failed to reach, notwithstanding that the signs there currently, were not in place at the time of the alleged contravention.

28. 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 MR-10) for paragraphs from ParkingEye v Beavis).

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

Gr1pr

https://forums.moneysavingexpert.com/discussion/comment/82027514#Comment_82027514

Email

Keep your WS to less than 50 pages

Use Courtfinder to get details of the local court, from their website

Moorside Legal Email addresses are regularly posted on here, as are other ones like DCB LEGAL etc

When is the hearing fee payment deadline ?