Forbidding sign PCN court case witness statement

**R0b** · 5th February 2024, 20:49:PM

Hi

Your witness statement will be dictated by the contents of your defence. You can't use a witness statement as a backdoor to introduce new arguments not contained in your defence.

If you want any critique, then you need to upload your proposed witness statement with personal information redacted. It would also be helpful to understand the basis of your defence.

Typically, these parking companies base their claims around breach of contract and whether there was a contract depends on what the signs say. Any sign that says authorised persons or no unauthorised or permitted persons would imply that anyone who does park will be a trespasser. They are typically easy wins but again, it all depends on what you pleaded in your defence.

**stella_ella** · 5th February 2024, 23:24:PM

Thank you Rob, that's very helpful. I'll post here my defence and witness statement for some critique if anyone would be so kind.

**stella_ella** · 6th February 2024, 23:30:PM

Hi, apologies in advance it's going to be long: here's the defence:

DEFENCE
1. The parking charges referred to in this claim did not arise from any agreement of the terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.
2. The facts as known to the Defendant:
It is admitted that on the material date the Defendant was the registered keeper and the driver of the vehicle in question.

The Defendant parked at the location because of the lack of clear indications, such as sufficient signage, road markings, or entrance signs, making it impossible to recognize the private nature of the road and the prohibition of parking. The only sign discovered later was distant from the road, unreadable while driving, and failed to specify the boundary or location, causing ambiguity.
The road had a history of unrestricted parking, no consultation or provision of information was given to residents about new parking restrictions, and no grace period was provided to adjust to the changes.
The Defendant had a valid visitor permit displayed as a permitted visitor at the time the private parking charge notice was issued.
The Defendant denies a legally binding contract was established.
The Claimant's notice is a forbidding offer, not a valid offer, thus no contract can exist even if sufficient signage and circumstances were found to be present. Defendant, at most, had a licence to park, and any alleged breach pertains to trespass, which only the landowner can pursue, not the Claimant.

Breaches of CPR in regards to ‘POC’ and Non-Compliance with Pre-court Protocol

The Particulars of Claim ('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 is being pursued.

The POC are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; and (c) how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum.

The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form. The fact that generic wording appears to have been applied has obstructed any semblance of clarity. The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and requires proper particularisation in a detailed document within 14 days, per 16PD.3

The guidance for completing Money Claims Online confirms this and clearly states: "If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, tick the box that appears after the statement 'you may also send detailed particulars direct to the defendant.'"

No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either.

In view of it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is respectfully invited to strike this claim out.

The Claimant's non-compliance with the pre-court protocol is evident. A Letter Before Claim, a crucial step in the pre-action process, was not issued to the Defendant as required. This failure to provide the necessary notice infringes upon the Pre-action Conduct Practice Direction.

I draw the court's attention to Paragraph 4 of the Practice Direction, which addresses non-compliance and the associated sanctions. It is noteworthy that the Claimant, represented by their own Solicitors, initiated these proceedings, indicating their access to legal advice prior to commencing the claim. Therefore, the absence of a reasonable excuse for the Claimant's failure to adhere to the Pre-action Conduct process is apparent.

Considering the aforementioned points, the Defendant respectfully requests that the court acknowledges the Claimant's non-compliance with the pre-court protocol. This failure should be taken into account when assessing the credibility and validity of the Claimant's case.

The facts in this defence come from the Defendant's own knowledge and honest belief. To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for using, in part, pre-written wording suggested by a reliable online help resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence.

With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case. In breach of the pre-action protocol for 'Debt' Claims, no copy of the contract (sign) accompanied any Letter of Claim. The POC is sparse on facts and specific breach allegations, which makes it difficult to respond in depth at this time; however this claim is unfair, generic and inflated.

This Claimant continues to pursue a disproportionate fixed sum (routinely added per PCN) despite knowing that this is now likely to be confirmed as banned by the Government this year. It is denied that the purported 'damages' or 'debt fee' sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. 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 (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal’.

This finding is underpinned by the Government, who stated in 2022 that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/public...rking-code-of- practice

Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) statutory Code of Practice
says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

The Code's Ministerial Foreword is unequivocal about abusive existing cases such as this claim: "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."

The DLUHC consulted for over two years, considering evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt/ robo-claim firms operate on a 'no win, no fee' basis, seeking to inflate these claims with 'costs/damages' in addition to the strictly capped legal fees the small claims track allows.

This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters including reminders. The parking charge was held to cover that work.

The driver did not agree to pay a parking charge, let alone these unknown costs, which were not quantified in prominent text on signage.

Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts which it is hoped overrides mistakes made in a few appeal cases that the parking industry desperately rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).

Far from being persuasive, regrettably these one-sided appeals saw Circuit Judges led in one direction by Counsel for parking firms, and the litigant-in- person consumers lacked the wherewithal to appeal. In case this Claimant tries to rely upon these, the Defendant avers that errors were made in every case. Evidence was either overlooked (including signage discrepancies in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted parking contract in Beavis. Those learned Judges were not in possession of the same level of information as the DLUHC, whose incoming statutory Code of Practice now clarifies such matters as a definition of 'parking' as well as consideration and grace periods and minor matters such as 'keying errors' or 'fluttering tickets/ permits' where a PCN should not have been issued at all, or should have been cancelled in the pre-action dispute phase.

Unreasonable Delay and Disproportionate Interest Charges

The Defendant contends that the claimant's delay of over 5 years in bringing this claim to court is unreasonable. The additional interest charged at 10.25% per annum from the date of parking is disproportionate to the actual loss and appears to be an attempt to penalize the Defendant with further charges.

Regarding interest, it is crucial to recognize that it is discretionary and not an absolute entitlement. The Defendant intends to argue for the disapplication of interest based on this discretionary nature. Moreover, it is worth noting that interest has become more significant than ever due to the current higher base rate.

Furthermore, the interest is incorrectly claimed on both the primary Parking Charge Notice (PCN) and the enhancement, despite the latter being applied or incurred at a later date. This discrepancy is incorrect and may be sufficient grounds to disallow the claim. Arguably, the Claimant's improper enhancement of their claim with interest on impermissible sums or on an incorrect basis is reason enough for its dismissal.

If the Claimant has unreasonably delayed commencing proceedings, the interest should be disallowed or reduced. The case of Claymore Services Ltd v Nautilus Properties Ltd [2007] BLR 452 serves as an example where courts have considered such factors.

The Defendant requests that the court carefully consider the disproportionate and unfair nature of the total sum, the lack of detailed cost breakdown, the unreasonable delay in bringing this claim to court and well as incorrectly applied interest.

POFA and CRA breaches

Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/ relevant obligation'). If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred.
Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

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, and all terms unambiguous and obligations clear. The Defendant avers that 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.

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must each be determined on their own facts. That 'unique' case met a commercial justification test, and took into account the prominent yellow/black uncluttered signs with £85 in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach.

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’.

In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains the Defendant’s position that no contract to pay an onerous 'penalty' was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

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

(iii) 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'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC,
observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."

Lack of standing or landowner authority, and lack of ADR

DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority from the landowner to issue charges in this place in their own name. The Claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name.

The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new incoming statutory Code shows that genuine disputes such as this would see the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair appeal was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).

Conclusion

The claim is entirely without merit. 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.

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 to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of intimidating pre-action threats.

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.

Attention is drawn specifically to the (often-seen from this industry) 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))."

**stella_ella** · 6th February 2024, 23:35:PM

and draft of the witness statement, just need to tidy up the exhibits:

1. I am xxxxx 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 1-X) 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 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 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 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 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.

Facts and Sequence of events

9. On Friday, March 16th, 2018, at approximately 4:22 PM, I parked my car (registration number xxxxx) on xxx Road to visit my brother, a resident of the nearby flats adjoining the road. I was there for about half an hour as evidenced by my Google Maps record (Exhibit xxx). I was a permitted visitor, to evidence that I had a valid visitor permit provided by my brother and displayed in my windscreen, as evidenced by the photograph supplied in the Claimant's (Exhibit XX).

10. Crucially, I selected this specific parking location because I had no reason to believe it contravened any regulations. No evident signage indicated the area's private nature, nor were there any clear entrance signs. Had adequate and conspicuous signage been present, I would not have parked there and thus wouldn't have entered into any implied contract leading to this significant charge.

Inadequate Signage and Ambiguous Restrictions

11. The lack of clear signage at the entrance and along the xxx Road managed by the Claimant failed to effectively communicate parking restrictions to drivers.

12. The only sign on the nearby building was inconspicuous, with small fonts and insufficient visibility from a distance. Even upon closer inspection, the sign did not specify the restricted area or make it evident that the restrictions applied to roadside parking. The provided photos of the signs confirm this ambiguity (Exhibit xxx).

13. As per the map supplied by the Claimant (Exhibit xxx), the Claimant only controlled a part of the xxx Road. The remaining part of the road was not under Claimant’s control and without any parking restrictions at the time. Please see the full length of xxxx Road (Exhibit xxx). Please also see the Google Maps snapshot from October 2018 to confirm the parking on xxx road was unrestricted (Exhibit xxx). Without proper entrance signs or sufficient signage, it was impossible for motorists to discern the private nature of that part of the xxxx road or any parking restrictions.

IPC Code of Practice Violations:

14. The Claimant is contractually bound to adhere to International Parking Community (IPC) rules (Exhibit of Claimants contract with Bellway Homes xxx). IPC rules explicitly outline requirements for entrance signs, clear signage, and appropriate text size (Exhibit xxx IPA’s code of conduct Signage section snapshot).

15. The IPC Code of Conduct stipulates: "Entrance Signs should make it clear that the Motorist is entering onto private land and refer them to the signs within the Car Park displaying full terms and conditions." Furthermore, signs must be placed at the entrance or within the Car Park to be obvious to motorists.

16. The IPC Code of Practice (CoP) also states that ‘The size of the text on the sign must be appropriate for the location of the sign and should be clearly readable by a Motorist having regard to the likely position of the Motorist in relation to the sign’ (Exhibit xxx). On the date of the parking charge, the available signage was unclear and featured terms and conditions in a font size that rendered them illegible from the roadside. These signs were solely located on a building a few meters from the road.

17. The inadequate signage, the absence of entrance signage or clear directions to terms and conditions on the Land managed by the Claimant directly violates IPC guidelines, revealing a breach by the Claimant and significantly undermining their case.

Observations Regarding Signage During Subsequent Site Visit on May 23, 2023

18. On May 23, 2023, I revisited the location of the alleged parking contravention on March 16, 2018, to gather evidence for this case. I observed significant changes to the signage in the area which I wanted to draw court’s attention to:

Exhibit XXX: New signage is now displayed directly next to the road at the location where I received the PCN. This signage explicitly identifies the area as private land and outlines parking restrictions. This signage was not present at the time of the alleged contravention.
Exhibit X: The previous signage, which I believe was poorly placed and lacked sufficient visibility, has been removed from the side of the building.
Exhibit XXX: New signage located closer to the road was since added, mounted on the fencing, it also now clarifies that parking restrictions apply to both sides of the road. The original signage, also located at a significant distance from the road (on the building) did not provide such clear information regarding the designated area.
Exhibit XXXX: A new sign was added since and positioned near the entrance to the part of the road claimed to be managed by the Claimant, indicating the commencement of parking restrictions. This signage was not present at the time of the alleged contravention.

19. This information is provided for the court's consideration regarding the signage at the time of the parking event compared to the signage observed on my return visit. I believe such significant changes to the signage raise questions about the adequacy of the signage in March 2018.

No Contract, No Breach:

20. In the absence of clearly visible and adequate signage, the Defendant contends that no valid contract can be established. The Defendant denies entering into a legally binding contract.

21. The Claimant's notices purport to make a forbidding offer, which, in essence, is not an offer at all. Consequently, no contract can be said to exist. The Claimant lacked the authority to offer a contract, as there was no meeting of minds or exchange of consideration. None of the essential elements necessary for the formation of a contract were present, rendering the alleged contract impossible. At most, the Defendant was granted a license to park. If the Claimant asserts a breach of this license, it would be a matter of trespass, not a breach of contract, which can be pursued only by the landowner.

22. In PCM- UKv Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company. This case relates to this claim, as the signs are forbidding (Exhibit xxx), and thus no contract was in place.

Section 69 of the Consumer Rights Act 2015

23. I draw attention to Section 69 of the Consumer Rights Act 2015, which addresses contract terms that may have different meanings.

The Consumer Rights Act 2015 reads (Exhibit xxx):

“Section 69: Contract terms that may have different meanings

Contract terms can be ambiguous and capable of being interpreted in different ways, especially if they are not in writing or in an accessible format. In these cases, this section ensures that the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that is used.”

24. In the context of the insufficient signage in this case, the signage is a crucial aspect of the contract between myself and the parking company. Ambiguities in the signage, particularly when they are not in writing or in an accessible format, should be interpreted in a manner most beneficial to the consumer, as outlined in Section 69.

25. The signage provided by the parking company lacks clarity and is open to different interpretations. The absence of clear entrance signs, ambiguous directions, and small font size render the terms ambiguous and challenging for a motorist to comprehend. As per Section 69, in cases of ambiguity, the interpretation that is most beneficial to the consumer should prevail.

26. Despite being pointed to the signs only after receiving the Parking Charge Notice (PCN), the ambiguous nature of the signage fails to communicate parking restrictions effectively. The lack of prominent entrance signs, in violation of the Consumer Rights Act 2015, hinders a clear understanding of the terms and places an unfair burden on the consumer.

27. In light of Section 69, I request that the court interprets any ambiguities in the signage in a manner that is most advantageous to me as the consumer. This aligns with the principles of fairness and consumer protection enshrined in the Consumer Rights Act.

Unreasonable Delay and Disproportionate Interest Charges

28. As stated in my Defence, as well as denying that the Claimant is entitled to parking charges, I deny that the Claimant has incurred any ‘damages’ or ‘debt recovery fees’. Then there is the extortionate attempt to harvest several years’ interest, which must surely be dismissed by the court. Interest is discretionary, not an absolute entitlement and it has been falsely calculated from day one on the whole amount.

29. I take the point that enhancing their claim to interest on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

30. Furthermore, the Claimant has unreasonably delayed initiating proceedings for five years, seemingly aiming to benefit from an overly inflated 'reward' by default, had I not contested the claim. In the improbable event of the claim's success, I assert that interest should either be disallowed or substantially reduced, as per the precedent set in Claymore Services Ltd v Nautilus Properties Ltd [2007] BLR 452 (Exhibit Number xxx.

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

31. 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.

32. 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.

33. 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.

34. 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/public...de-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."

35. 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.go..._Practice_.pdf

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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

43. 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.

44. 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.

45. 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).

46. 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 xx)

The Beavis case is against this claim

47. 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 xx) - set a high bar that this Claimant has failed to reach.

48. 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 xx) for paragraphs from ParkingEye v Beavis).

49. 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:

50. 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. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

(ii) 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

(iii) 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

51. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

52. Striking Out the Claim: The Defendant urges the court to consider the persuasive appeal judgment in Civil Enforcement Limited v Chan and subsequent cases that indicate the inadequacy of the Particulars of Claim (POC). The Claim should be struck out under CPR 3.4 due to non-compliance with CPR 16.4 and Practice Direction Part 16, as supported by the Chan judgment and similar cases.

53. Inadequate Signage and Ambiguities: The evidence presented highlights the lack of clear signage, including small fonts and inconspicuous signs, which failed to communicate parking restrictions effectively. The Defendant argues that, without proper signage, no valid contract could be established, and the Claimant's case is undermined.

54. IPC Code of Practice Violations: The Claimant's breach of the International Parking Community (IPC) rules, is emphasized. The absence of sufficient signage, clear entrance signs, adequate size of the text and directions to terms and conditions on Controlled Land directly violates IPC guidelines, compromising the Claimant's case.

55. Consumer Rights Act 2015 - Section 69: The Defendant invokes Section 69 of the Consumer Rights Act 2015 to emphasize that any ambiguity in signage should be interpreted in the manner most beneficial to the consumer. The lack of clarity in the signage places an unfair burden on the consumer and should be interpreted accordingly.

56. Exaggerated Claim and 'market failure': The Defendant contests the inflated claim amount, asserting that the alleged 'core debt' cannot exceed £100 and challenging the legitimacy of the added damages and fees. Reference is made to the draft Impact Assessment by the Department for Levelling Up, Housing and Communities, indicating excessive 'Debt Fees' charged by parking firms.

57. CRA Breaches: The Defendant argues that the Claimant has breached the Consumer Rights Act 2015 by claiming costs on an indemnity basis, which is deemed unfair. The Defendant asserts that the signage and notices were not prominently displayed and lacked clarity, violating the CRA's requirements.

58. The Beavis Case and Penal Nature of the Charge: The Defendant contends that the Supreme Court's Beavis case sets a high bar for justifying parking charges. The present case falls short of this standard due to hidden terms, including the £100 penalty clause buried in small print, making the charge purely penal and unenforceable.

In summary, the Defendant calls for the dismissal of the meritless claim, highlighting multiple legal grounds, including inadequate signage, breaches of codes of practice, and violations of consumer protection laws. The evidence presented demonstrates the lack of a valid contract, rendering the claim untenable.

Defendant’s fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 40.

59. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs (Exhibit xxx). I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

60. 41.The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.'

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.

**stella_ella** · 6th February 2024, 23:40:PM

Any advice would be much appreciated. I get it's a lot to read, even if you can only look at one or two paragraphs, any advice would be super helpful as it's my first one and hopefully last one too!

**stella_ella** · 8th February 2024, 09:36:AM

Hi all, just double checked the date and deadline is today. Any other advice would be much appreciated.

**R0b** · 8th February 2024, 10:44:AM

Hi Stella,

Personally, I don't like it.

Your defence and witness statement are both full of legal arguments, opinion and therefore do not comply with the Civil Procedure Rules, which says that you should only state the relevant facts and evidence. Legal arguments and opinions are left to the trial itself where you would make your arguments before the judge.

If your deadline for filing with the court is today then you definitely don't have time to re-jig this so it's entirely up to you as to what you want to do. It's unlikely that you will be penalised as this is a small claims matter, but it may certainly annoy a judge reading the papers or, the other side may raise an objection on the basis that your statements don't comply with the rules at all - though that would be quite hypocritical of them as I believe that all these parking companies and the law firms representing them do exactly the same thing.

All I can say is good luck with your case.

**stella_ella** · 8th February 2024, 12:09:PM

rob Thank you for taking a look.

A lot is based on other online forums... I don't like it that much either but didn't realize it was potentially non compliant.

I got couple of hours to re-jig WS a little bit, I'll do my best it make it more personal etc.

If there is anything in particular you would personally take out, please let me know.

**R0b** · 8th February 2024, 12:22:PM

Yeah I guessed it was and I'm fairly certain I know where it came from too. That kind of template is a catch-all throw the kitchen sink at it type of template which is fine in principle as long as it is tailored to each person's on specific facts of the dispute, which doesn't tend to happen.

I made a similar post on another thread below and provided an example defence I have been slowly working on for a while which you might find helpful if you ever find yourself in the same situation again. Granted, my template is a catch all, but I see it as a modular version that addresses common issues in these types of cases where someone can easily delete or amend certain parts. Crucially, it omits any legal arguments and case law and all the other bumf that goes with it in other online templates.

https://legalbeagles.info/forums/for...im-form-issued

**stella_ella** · 8th February 2024, 12:50:PM

Thank you rob I'm looking at your defence, thanks a lot! Hopefully I can turn this around a bit.....

**stella_ella** · 13th March 2024, 21:49:PM

Firstly, thanks again rob for your honest feedback, it was really helpful and I was able to re-write my witness statement that day which hopefully have helped my case.

I just wanted to update you on my case - I WON!!!

Gladstones didn't send anyone and judge was really nice. She asked me if I wanted to add anything to my witness statement, and let me briefly explain my side of story. I essentially said that I didn't see the signs and they were not readable from the car and even if i read it i wouldn't know they related to parking on the road, and we looked at some evidence and Google maps pictures. Judge I believe essentially agreed the signage was insufficient.

I didn't want to push it too far but I still asked about my costs. Judge said they normally don't award it on small claims cases but asked what expenses I had, i mentioned having to take a half-day holiday and travel/parking. I got £49 on top of it which is a nice bonus.

Thank you so much for your support and taking time to respond to me and look at my WS, it's much appreciated!!!

**R0b** · 13th March 2024, 23:33:PM

Congrats on the win, well done. It seems that most parking companies give up if the individual intends to submit a robust defence or prepared to take it all the way. In my view, this is their scheme by using the courts as an ulterior motive to extract monies from non-legally trained or knowledgeable folk and if they don't bite, then they don't show up or discontinue.

Regarding your costs, the judge was wrong to say that costs are not normally awarded in small claims cases because that is strictly not true, they are just very limited. CPR 27.14 governs the rule on costs (see below extract). I've highlighted the key ones most defendants would seek to claim where applicable but I would specifically call out 27.14(e) because if you had to take an annual holiday to attend the court hearing, you could argue that you should be compensated for your loss of having to take an annual day's holiday to attend the hearing (or staying away in a hotel).

Your argument would essentially state something along the lines of your have been deprived of one day's annual leave which, but for the hearing you would have had X days annual leave but now have Y days and CPR 271.4 allows for recover of this loss of leave. The maximum cost recoverable for this is £90 and you would just work out your day rate based on salary.

Anyhow, you got something out of it so not all bad, just bear that in mind if you end up in court again either as claimant or defendant.

(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except –

(a) the fixed costs attributable to issuing the claim, calculated in accordance with Table 2 in Practice Direction 45;

(b) in proceedings which included a claim for an injunction or an order for specific performance a sum not exceeding the amount specified in Practice Direction 27A for legal advice and assistance relating to that claim;

(c) any court fees paid by that other party;

(d) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;

(e) a sum not exceeding the amount specified in Practice Direction 27A for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing;

(f) a sum not exceeding the amount specified in Practice Direction 27A for an expert’s fees;

(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably;

**stella_ella** · 15th March 2024, 23:31:PM

Thank you rob totally agree in terms of the motives/ tactics used. And thank you so much for all the detailed info about the cost, that's very helpful.

Without the help from people like you and all the info shared on this and similar forums, I doubt I could go it all the way. My husband told me not to bother and there is sadly still so many people believing if you loose you will get CCJ which works in their favour. It felt wrong to let them win without a fight at least.

It's sad really spending so much time on this, I hope it inspires others not to give up.

Forbidding sign PCN court case witness statement

Forbidding sign PCN court case witness statement

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