Embedded Files
On behalf of the Claimant Witness: Anthony Roberts Statement no. 1 Exhibit 1 - 5 29/12/2022
IN THE COUNTY COURT AT NEATH & PORT TALBOT
CLAIM NO: J4K1234
BETWEEN: -
NEW GENERATION PARKING MANAGEMENT LTD
CLAIMANT
-V-
[DEFENDANT NAME]
DEFENDANT
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THE FIRST WITNESS STATEMENT OF ANTHONY ROBERTS
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I. Anthony Roberts, of 17 Ensign House, Canary Wharf, London, E14 9XQ. state as follows: -
1. I am employed by New Generation Parking Management Ltd (Co reg 05879515). I am duly authorised to make this Statement on the Claimant's behalf.
2. I make this Statement in support of the Claimant's Claim and in response to the Defence.
3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.
Parties
4. The Claimant provides private car park management services ("the Services") to private landowners. to manage the way motorists are permitted to park on their private land. The Claimant does so by issuing parking charge notices to any vehicle parked in a way the landowner does not permit.
5. The Claimant is appointed to provide the Services at the land known as Malpas Road Shopping Centre, which is located at Malpas Road, South Wales, NP20 6WB. The Claimant is appointed subject to an agreement for the supply of parking management services. commencing 20 June 2017 ("the Agreement"). A redacted copy of the Agreement is exhibited at **EXHIBIT I".
6. The Defendant is the recipient of a parking charge notice ("PCN") issued by the Claimant. The details are set out herein.
Accreditation
7. At all material times, the Claimant was accredited by the Accredited Trade Association ("ATA") known as the International Parking Community ("IPC"). The IPC has a Code of Practice ("Code") that its members arc expected to adhere to, or otherwise face potential sanctions. The Claimant operates in accordance with the Code.
8. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency ("DVLA") the Claimant must be a member of an ATA. It is therefore essential for the Claimant to comply with the Code.
Background
9. The Claimant issued a PCN (*Charge") to the Vehicle ("Vehicle") with details listed below:
PCN No. 298391
Location ("Land") Malpas Road Shopping Centre
VRN WM14YUL
Issue Date 22/12/2017
Reason for Issue On Roadway/Yellow Lines
Contract
10. At the time of issue, the Claimant was prominently displaying signs on the Land setting out the Terms of parking. A copy of the content of the signs is exhibited to this Statement at "EXHIBIT 2". The signs formed the basis of the Contract with the driver ("Contract").
11. The following was a term of the Contract: -
"No parking on roadways. pavements, ramps, yellow lines. hatched, grassed or coloured areas".
12. In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being the Consideration. It is evident from the photographic evidence exhibited to this Statement at "EXHIBIT 3" that the driver failed to adhere to the terms of the Contract by parking as they did, thus breaching the Contract.
13. The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days.
14. A plan of the Land ("Plan") showing the positioning of the signs is exhibited to this Statement at "EXHIBIT 4".
15. A copy of the Notice to Keeper is exhibited to this Witness Statement at "EXHIBIT 5".
Defendants Liability
16. Pursuant to the Contract, the Driver was liable to pay the Charge within 28 days of issue.
17. In order to issue, the Claimant requests the details of the Registered Keeper from the DVLA. Upon receipt of those details, Notice is sent to the Keeper via the post in accordance with Section 9 of Schedule 4 of the Protection of Freedoms Act 2012 ("POFA"). The Notice to Keeper is followed up with other reminder notices. Copies are with "EXHIBIT 5".
18. The Defendant does not dispute being the Driver or Keeper of the Vehicle. The Claimant reasonably believes that the Defendant was the Driver, because they would otherwise have nominated a driver, and therefore the Defendant is pursued on that basis. The Claimant has complied with POFA and can pursue the Defendant as Keeper in the alternative.
Defence
19. The Defendant was afforded a 28-day period in which they could appeal and I am instructed they did not. The potential next step was clearly communicated to the Defendant in notices. It is respectfully submitted that if the Defendant genuinely believed the Charge had been issued incorrectly, they would have engaged with the appeals process further.
20. If there was any doubt regarding their liability, the Defendant has had ample time to challenge the Charge or request evidence in support. Despite correspondence being sent to the Defendant by a debt collection agency and a Letter of Claim being issued in accordance with the Pre-Action Protocol for Debt Claims, no challenges have previously been raised.
21. Notwithstanding the above. I respond to the issues raised in the Defence as follows: -
i. I am advised by the Claimant's solicitor and believe such to be true. the Defendant disputes the details of the PCN. For clarity. the Defendant was sent the Notices at the address provided by the DVLA, for the Registered Keeper. It is the Defendant's responsibility to ensure their details arc kept up to date.
ii. I am advised the Defendant disputes the PCN was issued on private land owned or managed by the Claimant. As outlined under paragraph 5 of this statement the Claimant was appointed to provide the Services and was therefore authorised to issue PCNs.
iii. I am advised the Defendant alleges they did not agree to pay within 28 days. The signs clearly outlined the Terms of parking, and the Defendant was on notice of the Terms upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These Terms state that if breached, the Defendant agrees to pay within 28 days of issue.
iv. I am advised the Defendant states the Claimant is not entitled to damages. For clarity, the Claimant is pursuing. in its opinion, a legally owed debt. The contract made the Defendant aware of such as it states. "If your vehicle remains on site and fails to comply with any of the terms and conditions stated above at any time you agree to pay a 000 Parking Charge (reduced to I60 If paid within 14 days) ". The Defendant was furthermore made aware of further costs that could be incumd if payment was not made. This is further addressed under the subheading 'Amount Claimed'.
v. I am advised the Defendant states the Particulars of Claim are not sufficient. I submit that the Claim was issued via the County Court Business Centre and in this regard, I refer to Practice Direction 7E ("the PD") which specifically provides the guidelines for doing so. I respectfully
submit that the Particulars of Claim ("the Particulars") are in keeping with the PD. The following sections are of relevance: -
5.2( 1) provides a limited character count for the Particulars of Claim: and
5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form.
22. In view of the above, it is the Claimant's position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable. Amount Claimed The PCN Amount
23. The amount of the parking charge falls within the "between 50 to £100" bracket quoted at paragraph III of Parking Eye -v- Beavis 120151 It is also in keeping with the guidelines given by the ATA: -
"Pan E. Schedule S of the 1PC COP states. "Parking charges must not exceed £100 unless agreed in advance with the 1PC".
24. The amount charged is set at a rate that covers the operational costs of the parking management scheme and acts as a deterrent. as was found to be appropriate in Parking Eye -v- Beavis [2015].
Contractual Costs
25. As payment was not made within the prescribed time, or indeed at all, the additional sum is claimed as a contractual cost pursuant to the Contract which states: -
"Outstanding charges will be passed over to our Debt Enforcement Agent and additional charges may be incurred. Court proceedings may also be initiated".
26. As set out above, the PCN amount is intended to include the 'operational costs'. It is submitted that debt recovery action is not an operational cost and as such claiming the costs of doing so would not fall foul of the 2015 decision.
27. The sum added is a nominal contribution to the actual costs incurred by the Claimant as a result of the Defendant's non-payment and capped at the amount permitted under the ATA Code. The Claimant's employees spent time and resource attempting to recover the debt, as well as instructing external debt recovery providers. all at a cost to the Claimant. This is not the Claimant's usual business and, but for the Defendant's refusal to pay, would not have been necessary.
28. When consider the recoverability of this element of the claim, I respectfully draw the Court's attention to paragraph 45 of Clwplair Limited v Kumari (2015) EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: -
"There is nothing ... which enable's,' the rules to exclude or override that contractual entitlement and I therefore agree with Arden U that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14."
CPR Costs
29. The Claimant claims the claim issue fee, fixed costs pursuant to CPR 45. and the hearing fee in any event.
30. In the alternative to the contractual costs set out above, the Claimant reserves the right to claim additional costs pursuant to CPR 27.14(2Xg). This claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary. It is the Claimant's position that this is unreasonable behaviour, and it is respectfully requested that the Court considers whether they conclude the same.
Conclusion
31. It is my respectful submission that the Defence is entirely without merit and as such it is requested that the Defence is struck out and Judgment awarded in favour of the Claimant, payable forthwith.
32. I may not be able to attend the forthcoming hearing. Should this be so. an advocate will attend on my behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1). If I am unable to attend, please decide the claim in my absence, taking into account the advocate's submissions, this Statement, and any other evidence filed. This paragraph demonstrates my compliance with CPR 27.9( I )(a)-(b).
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.
Signed
Antony Roberts on behalf of the Claimant
Dated 29/12/2022
DCB Legal Limited Direct House Greenwood Drive Manor Park Runcorn WA7 I UG
Ref: 100594.95$9D
Solicitors for the Claimant
Defence Witness Statement by Defendant Witness: [DEFENDANT NAME] Statement no. 1 11/01/2023
IN THE COUNTY COURT AT NEATH & PORT TALBOT
CLAIM NO: J4K1234
BETWEEN: -
NEW GENERATION PARKING MANAGEMENT LTD
CLAIMANT
-V-
[DEFENDANT NAME]
DEFENDANT
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THE FIRST WITNESS STATEMENT OF [DEFENDANT NAME]
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I.[DEFENDANT NAME], of, [DEFENDANT ADDRESS AND POSTCODE] , WILL SAY AS FOLLOWS: -
1. I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief.
2. I make this statement in readiness for the fixed hearing scheduled for 22/02/2023 and in response to the filing of a Witness Statement of Antony Roberts (the 'Alleged Witness') on behalf of the Claimant dated: 29/12/2022.
3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified.
It is disputed that the Alleged Witness bases any of his statement on actual fact witnessed and the Defendant avers that his entire statement is based on hearsay evidence from the computer system of the Claimant. The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:
https://www.theguardian.com/uk-news/2021/apr/23/court-clears-39-post-office-staff-convicted-due-to-corrupt-data
It is my understanding that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act. The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.
Parties
4. It is disputed that the Claimant provides private car park management services ("the Services") to private landowners, to manage the way motorists are permitted to park on their private land. It is disputed that the Claimant does so by issuing parking charge notices to any vehicle parked in a way the landowner does not permit.
The Defendant avers that the Claimant contracts with private landowners in order to profit from any motorist who they believe is in breach of of terms and conditions unilaterally imposed on vehicle drivers that the Claimant is lead to believe breached such terms and conditions by automated computer systems.
5. It is not disputed that the Claimant is appointed to provide the Services at the land known as Malpas Road Shopping Centre, which is located at Malpas Road, South Wales, NP20 6WB ("Location"). It is not disputed that the Claimant is appointed subject to an agreement for the supply of parking management services. commencing 20 June 2017 ("the Land Agreement"). It is not disputed that the document exhibited by the Claimant at "EXHIBIT I" is a redacted copy of the Land Agreement.
6. It is disputed that the Defendant is the recipient of a parking charge notice issued by the Claimant. The Defendant avers that the Claimant adopts the acronym 'PCN' in an effort to confuse the issue with a Penalty Charge Notice issued by a local authority. The Defendant avers that the Claimant issued a Private Parking Notice ('PPN') which is issued for breach of contract that the Claimant is unilaterally attempting to impose.
It is disputed that the details are set out within the Claimant's Alleged Witness Statement.
Accreditation
7. It is not disputed that at all material times, the Claimant was accredited by the Accredited Trade Association ("ATA") known as the International Parking Community ("IPC"). It is not disputed that the IPC has a Code of Practice ("Code") that its members arc expected to adhere to, or otherwise face potential sanctions. It is not disputed that the Claimant operates in accordance with the Code .
The Defendant avers that the IPC is funded by the Private Parking Industry and as such adopts procedures that favour the Parking Industry.
8. It is not disputed that in order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency ("DVLA") the Claimant must be a member of an ATA. It is disputed that it is therefore essential for the Claimant to comply with the Code.
The Defendant avers that during the period that the Claimant obtained the Registered Keeper details in relation to this claim, the DVLA issued such data in breach of the Data Protection Act 2018:
https://www.thenorthernecho.co.uk/news/20235787.parking-ticket-fines-reversed-due-dvla-law-breach-expert-says/
The Defendant avers that the DVLA complied with a request for the Registered Keeper details of the Vehicle in breach of the Data Protection Act 2018:
https://www.theguardian.com/money/2022/jun/25/parking-fines-dvla-law-drivers-details-claims
The Information Commissioner’s Office (ICO) has decided the DVLA “was not using the correct lawful basis to disclose vehicle keeper information”.
The Defendant avers that the unlawful method of obtaining the Registered Keeper details render the Claimant's claim - fruit of a poisonous tree ('arborem fructus venenosa').
Background
9. It is disputed that the Claimant issued a PPN (*Charge") to the Vehicle ("Vehicle") with details listed below:
PPN No. 298391
Location ("Land") Malpas Road Shopping Centre
VRN WM14YUL
Issue Date 22/12/2017
Reason for Issue On Roadway/Yellow Lines
The Defendant avers that no contract was entered into and any PPN issued was invalid.
Contract
10. It is disputed that at the time of issue, the Claimant was prominently displaying signs on the Land setting out the Terms of parking.
It is not disputed that a copy of the content of the signs is exhibited by the Claimant in their Alleged Witness Statement at "EXHIBIT 2". It is disputed that the signs formed the basis of the Contract with the driver ("Alleged Contract").
The Defendant denies that signage on and around the site was clear and visible, at the time of the alleged breach of contract it did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The Claimant was and is also a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay the PPC. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by a driver entering the car park. It is denied that a sign was the offer and the driver of the vehicle entering the carpark was acceptance of any terms and conditions.
The Defendant avers that the pictures provided do not provide a view for the signs on the date of the PPN nor do they provide a view from the position viewed by a Driver at the time and date of the alleged contravention.
11. It is not disputed that the following was a term of the Alleged Contract: -
"No parking on roadways. pavements, ramps, yellow lines. hatched, grassed or coloured areas".
The Defendant avers that the term relied on by the Claimant are a hidden term that was not disclosed to the Driver at the time of any Alleged Contract.
12. It is disputed that in parking the Vehicle on the Land, the driver accepted the Alleged Contract. It is disputed that the license to park was the Consideration. It is disputed that it is evident from the photographic evidence, exhibited by the Claimant in their Alleged Witness Statement at "EXHIBIT 3", that the driver failed to adhere to the terms of the Alleged Contract by parking as they did, thus breaching the Alleged Contract.
The Defendant avers that no terms and conditions were agreed to and no contract was entered into by the driver on the date of the alleged contravention and the Claimant is solely reliant on the presumption that anyone driving onto the Location was able to view detailed terms and conditions whilst driving a motor vehicle and give due consideration to each and every term in the Alleged Contract. The Defendant avers that the Claimant's presumption is untenable.
13. It is not disputed that the Alleged Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days. The Defendant avers that the terms and conditions relied on by the Claimant are both Hidden and Unfair terms under UK contract law.
14. It is not disputed that the document exhibited by the Claimant at "EXHIBIT 4" of their Alleged Witness Statement is a plan of the Land ("Plan") showing the positioning of the signs.
The Defendant avers that the signs and terms and conditions relied on could not be read on the clearest of days by any driver entering the Location and would require the driver to exit the vehicle and study the sign for a significant time in order to ascertain the terms and conditions that the Claimant was attempting to impose unilaterally on any motorist visiting the location.
15. It is not disputed that the document exhibited by the Claimant at "EXHIBIT 5" of their Alleged Witness Statement is a copy of the Notice to Keeper.
The Defendant avers that Registered Keeper Details were obtained from DVLA in breach of the Data Protection Act 2018.
https://kellerlenkner-databreach.co.uk/faqs-about-making-a-dvla-data-breach-claim/
The Defendant avers that the Claimant's claim is based on arborem fructus venenosa and the Claimant has no authority to issue their claim.
Defendants Liability
16. It is disputed that, pursuant to the Alleged Contract, the Driver was liable to pay the Charge within 28 days of issue.
The Defendant avers that the Driver was liable for any of the terms and conditions unilaterally imposed by the Claimant.
17. It is not disputed that in order to issue, the Claimant requests the details of the Registered Keeper from the DVLA. It is disputed that upon receipt of those details, Notice is sent to the Keeper via the post in accordance with Section 9 of Schedule 4 of the Protection of Freedoms Act 2012 ("POFA").
It is disputed that the Claimant has complied with the requirements of Schedule 4 of POFA as not liability existed in the first place in order to be transferred from the Driver to the Registered Keeper of the vehicle.
It is not disputed that the documents exhibited by the Claimant at "EXHIBIT 5" of their Alleged Witness Statement is the Notice to Keeper followed up with other reminder notices. It is disputed that these documents were sent to the Defendant. The Claimant is required to provide proof of postage which is free with standard postage when requested at the Post Office.
18. It is disputed that the Defendant does not dispute being the Driver or Keeper of the Vehicle. It is disputed that the Claimant reasonably believes that the Defendant was the Driver, because they would otherwise have nominated a driver, and therefore the Defendant is pursued on that basis. It is disputed that the Claimant has complied with POFA and can pursue the Defendant as Keeper in the alternative.
The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ('POFA'):
Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
⦁ (a) There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
⦁ (b) That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is denied that the Claimant has complied with the relevant statutory requirements.
Defence
19. It is disputed that he Defendant was afforded a 28-day period in which they could appeal. The Defendant avers that the Claimant is reliant solely on hearsay, for which they have made no application to admit when the Alleged Witness states 'I am instructed they did not'.
It is disputed that the potential next step was clearly communicated to the Defendant in notices. It is disputed that if the Defendant genuinely believed the Charge had been issued incorrectly, they would have engaged with the appeals process further.
The Defendant avers that no notices were received and had the notices been received, the Defendant would have disputed the PPN as he is well aware that Private Parking Companies adopt standard Corporate complaints procedures that are in place to give the illusion of a fair complaints system.
The Defendant avers that There is a provision in the Bill of Rights Act 1688/89 Chapter 2, which states:
"That all grants and promises of fines and forfeitures of a particular person before conviction are illegal and void."
This states that a conviction is necessary before a fine or forfeit can be imposed. As you will be aware, the Bill of Rights is a "constitutional statue" and may not be repealed impliedly. This was stated in the case Thoburn v City of Sunderland, the decision commonly referred to as the "Metric Martyrs" Judgment. This was handed down in the Divisional Court (18 February 2002) by Lord Justice Laws and Mr Justice Crane (I will paraphrase, but have included a copy of the judgment's relevant sections 62 and 63).
62. "We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional statutes." The special status of constitutional statutes follows the special status of constitutional rights. Examples are the . . . Bill of Rights 1689 . . ."
63. "Ordinary statutes may be impliedly repealed. Constitutional statutes may not . . ."
This was upheld by Lords Bingham, Scott and Steyn in an appeal which went to the House of Lords on Monday 15 July 2002.
The Defendant avers that as a Private Corporation the Claimant has no right to issue any type of 'fine or forfeiture' against the Defendant and any attempt is Null and Void under the Bill of Rights 1688/89.
20. It is disputed that if there was any doubt regarding their liability, the Defendant has had ample time to challenge the Charge or request evidence in support. The Defendant avers that the Claimant failed to notify the Defendant of their unlawful claim.
It is disputed that correspondence was sent to the Defendant by a debt collection agency. It is disputed that a Letter of Claim was issued in accordance with the Pre-Action Protocol for Debt Claims and as such no challenges have previously been raised.
The Defendant avers that the Claimant is in breach of Pre-Action Protocol by not issuing a Letter of Claim prior to proceedings. The Claimant is required to provide proof of postage for any of the letters they claim to have sent in this matter.
The Defendant avers that the Claimant is solely reliant on hearsay evidence for which they have filed no application to admit in breach of both CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.
21. It is disputed that the Alleged Witness has any personal knowledge of the facts in this case; and: -
i. It is a matter of hearsay that the Alleged Witness is advised by the Claimant's solicitor and believe such to be true, that the Defendant disputes the details of the PPN. It is disputed that the Defendant was sent the Notices at the address provided by the DVLA, for the Registered Keeper. It is the Defendant's responsibility to ensure their details arc kept up to date. The Defendant avers that any details obtained by the Claimant were obtained in breach of the Data Protection Act 2018 and as such are arborem fructus venenosa.
ii. It is a matter of hearsay that the Alleged Witness is advised by that Defendant disputes the PCN was issued on private land owned or managed by the Claimant. It is disputed that as outlined under paragraph 5 of the Alleged Witness Statement the Claimant was appointed to provide the Services and was therefore authorised to issue PPNs.
iii. It is a matter of hearsay that the Alleged Witness is advised that the Defendant alleges they did not agree to pay within 28 days. The signs clearly outlined the Terms of parking, and the Defendant was on notice of the Terms upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These Terms state that if breached, the Defendant agrees to pay within 28 days of issue.
iv. It is a matter of hearsay that the Alleged Witness is advised that Defendant states the Claimant is not entitled to damages. It is disputed that the Claimant is pursuing. in its opinion, a legally owed debt. It is disputed that the Alleged Contract made the Defendant aware of such as it states. "If your vehicle remains on site and fails to comply with any of the terms and conditions stated above at any time you agree to pay a 000 Parking Charge (reduced to I60 If paid within 14 days) ". It is disputed that the Defendant was made aware of further costs that could be incurred if payment was not made. It is disputed that this is further addressed under the subheading 'Amount Claimed'.
v. It is a matter of hearsay that the Alleged Witness is advised the Defendant states the Particulars of Claim are not sufficient. I submit that the Claim was issued via the County Court Business Centre and in this regard, I refer to Practice Direction 7E ("the PD") which specifically provides the guidelines for doing so. I respectfully
submit that the Particulars of Claim ("the Particulars") are in keeping with the PD. The following sections are of relevance: -
5.2( 1) provides a limited character count for the Particulars of Claim: and
5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form.
The Defendant avers that the Claimants particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a) and (c). In particular, the Particulars of Claim does not identify:
⦁ a. any list of documents that the Claimant intends to rely;
⦁ b. any explanation of how the amount of financial loss has been calculated;
⦁ c. if the Claimant intends to rely on computer generated ANPR evidence; and;
⦁ d. the date of any default notice in relation to any Alleged Contract;
⦁ e. if the Claimant is the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract;
⦁ f. any town or postcode for the location of the alleged contravention;
⦁ g. whether the claim is brought in trespass. If the driver on the date of the event was considered a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this claimant. As the Supreme Court in the Beavis V Parking Eye (2015) UK SC 67 case confirmed such a matter would be limited to the landowner themselves for a nominal sum.
22. It is disputed that the Defendant breached the Alleged Contract as set out in the Claimant's Alleged Witness Statement. It is disputed that he Defendant is liable.
The Defendant avers that the Claimant's relies solely on hearsay evidence in relation to a claim that the Alleged Contract was in any way agreed to by the Driver or the Defendant, it was not and as such no breach of contract occurred and the Claimant's claim is without merit.
Amount Claimed
The PCN Amount
23. The amount of the parking charge falls within the "between £50 to £100" bracket quoted at paragraph III of Parking Eye -v- Beavis 120151 It is also in keeping with the guidelines given by the ATA: -
"Pan E. Schedule S of the 1PC COP states. "Parking charges must not exceed £100 unless agreed in advance with the 1PC".
The Defendant avers that the Claimant is attempting betterment by claiming for losses they simply have not suffered. The Claimant is required to give a full breakdown of the alleged losses for breach of contract.
24. It is disputed that the amount charged is set at a rate that covers the operational costs of the parking management scheme and acts as a deterrent, as was found to be appropriate in Parking Eye -v- Beavis [2015].
The Defendant avers that the Government is aware of the excessive charges levied by Private Parking Companies and intends to introduce legislation to limit those costs to £50:
https://www.bbc.co.uk/news/business-60282554
The Defendant avers that the Claimant's company seeks to profit massively by overcharging for losses they have not suffered:
https://www.independent.co.uk/news/uk/home-news/private-car-parking-company-profits-b2235039.html
Contractual Costs
25. It is not disputed that payment was not made within the prescribed time, or indeed at all. It is disputed that the Claimant is entitled to claim an additional sum as a contractual cost pursuant to the Contract which states: -
"Outstanding charges will be passed over to our Debt Enforcement Agent and additional charges may be incurred. Court proceedings may also be initiated".
The Defendant disputes any indebtedness to the Claimant and disputes any additional fees.
26. It is disputed, as set out above, that the PPN amount is intended to include the 'operational costs'. It is disputed that debt recovery action is not an operational cost and as such claiming the costs of doing so would not fall foul of the 2015 decision.
The Defendant avers that the Claimant is attempting betterment for itself and partner companies for losses that have not been suffered due to any actions by the Defendant.
27. It is disputed that the sum added is a nominal contribution to the actual costs incurred by the Claimant as a result of the Defendant's non-payment and capped at the amount permitted under the ATA Code. Is it disputed that the Claimant's employees spent time and resource attempting to recover the debt, as well as instructing external debt recovery providers. It is disputed that this was at a cost to the Claimant. It is disputed that this is not the Claimant's usual business. It is disputed that, but for the Defendant's refusal to pay, would not have been necessary.
The Defendant avers that it is standard practice for Debt Collection Companies to add fees on to the collection of debts and charge only the debtor when the debt collection agency successfully obtains payment from the debtor. The Defendant avers that the Claimant is attempting betterment by Claiming losses they have not suffered.
28. It is disputed that when consider the recoverability of this element of the claim, the Claimant is right to draw the Court's attention to paragraph 45 of Clwplair Limited v Kumari (2015) EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: -
"There is nothing ... which enable's,' the rules to exclude or override that contractual entitlement and I therefore agree with Arden U that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14."
The Defendant avers that no contract existed between the Driver and the Claimant or between the Defendant and the Claimant and as such, no charges or additional charges that the Claimant claims is valid.
CPR Costs
29. It is disputed that the Claimant is entitled to claim the claim issue fee, fixed costs pursuant to CPR 45. and the hearing fee in any event.
The Defendant avers that the Claimant has acted unreasonably in bringing a claim for losses they have not suffered based on unlawfully obtained data from DVLA being fruit of a poisonous tree ('arborem fructus venenosa').
30. It is disputed that in the alternative to the contractual costs set out above, the Claimant is entitled to reserve the right to claim additional costs pursuant to CPR 27.14(2Xg). It is disputed that this claim was issued as a last resort. It is disputed that there is a robust appeals procedure in place. It is disputed that it should not have been necessary. It is disputed that that it is unreasonable behaviour and it is disputed that the Court should consider whether they conclude the same.
The Defendant avers that the Claimant's claim is without basis and their actions amount to unreasonable behaviour and respectfully ask the Court to conclude the same.
Conclusion
31. It is disputed that the Defence is entirely without merit. The Defendant avers that the Claimant's claim is totally without merit and as such it is requested that the Claim is struck out and Judgment awarded in favour of the Defendant.
32. It is noted that the Alleged Witness claims that they may not be able to attend the forthcoming hearing and should this be so, an advocate will attend on his behalf.
As the Alleged Witness is solely reliant on the hearsay content of his Alleged Witness Statement and unlawfully obtained data from DVLA, the Defendant respectfully invites the Court to strike out the Claimant's Alleged Witness Statement.
The Defendant respectfully requests that the court dismiss the claim and to allow such defendants costs as are permissible under civil procedure rule 27.14.
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.
Signed: [DEFENDANT SIGNATURE]
[DEFENDANT NAME] - DEFENDANT
Dated: 11th January 2023
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