ES Parking IAS

Tabz123

Coupon-mad wrote: »

No, only para 98 and 198 of Beavis are needed, to show the fact that the Supreme Court said that an inflated private parking charge already includes all the usual operational & letter costs.

Do you mean to copy and paste the paragraphs as exhibits or extract and paste them into the witness statement ? If to use as an exhibit is there any special referencing as a separate document that would be needed? Is there any drop box examples I can see how to do this ?

KeithP

Look at the Witness Statement examples linked from post #2 of the NEWBIES thread.

I've just looked at two, on by bargepole and one by LoadsofChildren123, and both give examples on how to refer to evidence.

Several other WS examples linked from that NEWBIES post.

Tabz123

KeithP wrote: »

Look at the Witness Statement examples linked from post #2 of the NEWBIES thread.

I've just looked at two, on by bargepole and one by LoadsofChildren123, and both give examples on how to refer to evidence.

Several other WS examples linked from that NEWBIES post.

Thanks for responding on this. I had previously looked at these and they did not make the matter any clearer. The bargepole example read as 'Exhibit A' etc and the LoadsofChildren123 example read as page xxx of Doc A. Therefore making me think either is viable.

However from the references in my WS above I still am unsure what the Exhibit should be labelled as or if 'Exhibit X' should just be written at the top of each evidence page/document.

Also unsure if they should just be printed and sent with WS ?

Perhaps I am just getting myself confused over something very simple ?

Especially over the Bevis reference: Should I type out the judgement title and then paste paras 98 and 198 as needed as an Exhibit?

Redx

I would copy the relevant sections only of Beavis , not the whole thing and give it an exhibit reference

I would reference each item exhibit individually , titling it as such as well

So if your initials are abc , I would label each one as

Abc001 , abc002 etc

Then reference abc001 where appropriate in your WS, then abc002 where appropriate , etc
Rinse and repeat

Your court order tells you to serve your WS plus exhibits on both the court and the claimant , I would also make my last exhibit a Costs schedule and label it abc006 if you had 6 exhibits for example

Make up 3 bundles , which is your WS & exhibits & costs schedule

Drop one in at the court and get a receipt

Post one to the claimant (even if emailing it) with free proof of postage from the counter staff

Take the third with you on the day of the hearing

1505grandad

Para 14 - a screenshot as evidence of the "No Win/No Fee" is embedded in post #178 by Umkomaas in the Abuse of Process thread started by Beamerguy.

KeithP

Tabz123 wrote: »

Thanks for responding on this. I had previously looked at these and they did not make the matter any clearer. The bargepole example read as 'Exhibit A' etc and the LoadsofChildren123 example read as page xxx of Doc A. Therefore making me think either is viable.

Perhaps I am just getting myself confused over something very simple ?

Yes, I think you are.

I deliberately chose those two examples because they were different. The point being that you need to index your evidence with a reasonable, logical, easy to understand, system.

Redx's suggestion is as good as any.

Tabz123

1505grandad wrote: »

Para 14 - a screenshot as evidence of the "No Win/No Fee" is embedded in post #178 by Umkomaas in the Abuse of Process thread started by Beamerguy.

Thank you for this. Now located and added into my witness statement.

Tabz123

KeithP wrote: »

Yes, I think you are.

I deliberately chose those two examples because they were different. The point being that you need to index your evidence with a reasonable, logical, easy to understand, system.

Redx's suggestion is as good as any.

Thanks for the advice. I have now completed the referencing in my WS and have included the below items:

1. Copy of front and back of ticket
2. Copy of claim form
3. Beavis and Private Eye Judgement
4. Debt recovery plus screen shot
5. Copy of claiment's picture of car front screen
6. Copy of PCN.

I don't believe from the circumstances of a fluttering ticket that any additional references are needed? Please advise ?

Below is the final version of my WS as is.

Tabz123

In the County Court at Manchester
Claim No. ZZZZZZZZZ
Between
ES PARKING ENFORCEMENT LIMITED (Claimant)
and
XXXXXXXXX (Defendant)

---

Witness Statement

---

1. I am XXXXXXX, of XXXXXXXXXXXX, I am the Defendant in this matter. I am an unrepresented consumer who is not experienced at attending county court. In this statement I will refer to the documents marked as ‘exhibits, by page numbers. I will say as follows:

2. On XX/05/18, I visited CCP Parking on Gould Street, and parked my vehicle registration no XXXXX in the car park.

3. I purchased a ticket for 24 hours parking covering the period from XXXX to XXXX from the pay and display machine. I carefully displayed the ticket face up on the dashboard of my car, checking that it was visible as I left my vehicle.

4. I refer you to exhibit XX, which shows the parking ticket covering the time of the alleged incident. Also, I refer you to exhibit XX which shows the Parking Charge Notice (PCN) issued by the Claimant. It is key to note that the date of the ticket shows a different date to that of the PCN as the PCN displays an issue date of XX/05/18 and the ticket shows the following day’s date of XX/05/18 as this is the expiry date.

5. On return to my vehicle, which was before the parking ticket expired, I found that I had been issued with a Parking Charge Notice. Unfortunately, the ticket was now face down near the front vent of the vehicle.

6. On examination of the ticket you can see it is made of a flimsy piece of paper with no sticky part to it so that it could not be fixed in place on the dashboard or windscreen. Since this incident occurred, I am aware that there have been many occurrences of Parking Charge Notices resulting from similar circumstances. There have even been allegations of this Claimant's operatives blowing through vents, because the scam is so rife as to add up to thousands of reported instances every year. I expect the ticketer to appear as witness so that I can question them at the hearing regarding how the ticket overturned in this case, given that I was not in breach when I parked.

7. I refer to exhibit XX which is a photo taken by the Claimant. This shows a faint shadow of an item resting on the dashboard in the shape and size of a ticket. However due to a combination of the glare of the sun, the angle of pictures taken this is not clear to see via the picture however would have been clear to see in person, on the day. Furthermore, the photos of the car are not representative of how windy the big open car park was on the day.

8. The Claimant’s evidence of a specimen sign (Contract) states “A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen”. This from the Claimant’s own evidence was clearly adhered to since the ticket was visible from the windscreen. Any breach (which, for avoidance of doubt, is denied) was de minimis.

9. On the day in question I had every intention to pay for parking, and I did so, and I genuinely thought I had complied with the terms of parking in the car park (and was justified in that belief). Circumstances beyond my control must have occurred which caused the ticket to have flipped over when I was away from the car. This occurrence comes under the de minimis principle, particularly as the ticket has a serial/reference number on the back. I refer to exhibit XX which is a photo of the back of my ticket.

10. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control.

11. Fluttering tickets are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of your control, and where the driver has clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled.

12. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:

‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”
In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’


Costs on the claim - disproportionate and disingenuous

13. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.

14. I refer you to exhibit xx which is a screen shot of the debt recovery plus website. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

15. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

16.The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. I refer you to exhibit XX which is an extract of the judgement. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

17.Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case.
18. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

19. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

20.The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

21. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

22. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

23. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. I refer you to exhibit XX which is a copy of the claim form. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

24. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

25. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.


Statement of Truth

I believe that the facts stated in this Witness Statement are true.

Signature
Date

Tabz123

I have one last query from all on this forum reviewing this case.

The below is an image of the supposed vehicle which was in infringement:

https://www.dropbox.com/s/yizfbitw83garu0/Front%20screen%201%20-%20updated%20version.jpg?dl=0

On review the circled image what was considered to be the ticket. However the issues is this:

At the time of trying to reason with the scammers (ESP), the written correspondence to them may have suggested that the ticket was not visible as it was lodged in an air vent.

However the argument per the current WS is that the ticket had fluttered and was near the front vent. In reality it can not be recalled whether;
1. The ticket was in the vent and if the shadow in the image is the ticket or
2. The ticket had fallen on the floor

Of course the original appeal sent to ESP may cause an issue.

Therefore advice is needed on this matter. Should the statement in the WS remain or is the image presented above in the link ( and also detailed in the WS incriminating) ?

Any advice welcome as this is due to be finalised and posted on Thursday.

Many Thanks