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Need My Witness Statement Checking Over
iffy_jiffy
Posts: 108 Forumite
Hi All,
Going to court soon and would like help with my witness statement please. 2 tickets were issued and these are going to defended. The times of both tickets received in the post are 1 hour out! 1 ticket was received 14 days after so against POFA 2012.
I've removed any sensitive information such as dates etc so dont get identified. Thanks all!
**********************
The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.
i. The Unfair Terms in Consumer Contract Regulations 1999 applies
ii. The signage does not offer a contract with the motorist
iii. The signage does not correspond to being visible and clear
iv. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
v. The Claimant has no standing to bring a case
vi. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
vii. Time of the alleged offence
The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided.
i The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimant!!!8217;s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties!!!8217; bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
2. The European Court of Justice case of Aziz v Caixa d!!!8217;Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);
Article 3(1) of Directive 93/13 must be interpreted as meaning that:
!!!8211; the concept of !!!8216;significant imbalance!!!8217; to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out!!!894;
!!!8211; in order to assess whether the imbalance arises !!!8216;contrary to the requirement of good faith!!!8217;, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.
3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of parking for a !!!8220;max stay 2 hours, no return within 90 minutes!!!8221;, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
4. It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force. ES Parking Enforcement!!!8217;s charges in the original hearing were asserted to be an average of around £18 per ticket issued.
5. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38)
The judge [!!!8230;] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.
6. It is submitted that the European Court of Justice definition of imbalance must take precedence.
7. However, in any case the instant case is not saved from being unfair by Beavis. In this particular location council charges for overstay are £50 discounted to £25, not £100 discounted to £60. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.
8. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.
9. Contract provided by the Claimant in their Witness Statement shows a !!!8220;contract!!!8221; with !!!8220;Fraser Capitol Man Ltd!!!8221;. Please see Exhibit K. This clearly shows the non-business rates is paid by Lidl and not !!!8220;Fraser Capitol Man Ltd!!!8221;. No contract with Lidl exists as this has not been provided by ES Parking Enforcement Limited. This shows contempt of Court. Furthermore, this is a failure of ES Parking Enforcement Limited to promote proof of the Lidl Contract/agreement.
ii The signage does not offer a contract with the motorist
10. The claim is for breach of contract. However, it is denied any contract existed.
11. The Claimant states, in their Particulars of Claim, that the signage is !!!8216;clearly displayed!!!8217; but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Claimant has not provided a signage map in many of their car parks signs are positioned in such a way as to create !!!8216;entrapment zones!!!8217; where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.
12. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.
iii The signage is unclear, unreadable, not visible and too high
13. The Claimant has provided different signage!!!8217;s when provided for evidence. See Exhibit!!!8217;s A and B.
14. There was no signage at a low height with terms and conditions at time of the alleged offence. See Exhibit C.
15. The signage was not clear and visible to individuals of average height. The signage starts at 7ft high from ground with text/characters that are of small print and unreadable.
16. The signage was not clear due to the weather being dull and it raining. The signage therefore being even more difficult to read to ones made in the last point.
iii The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
17. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
18. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.
19. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.
20. The regulations define an on-premises contract as:
!!!8220;on-premises contract!!!8221; means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
21. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
!!!8220;distance contract!!!8221; means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
22. This is clearly an organised service-provision scheme (for parking).
The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.
23. This is therefore a distance contract.
24. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.
25. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.
iv The Claimant has no standing to bring a case
26. The claim form states that the land is !!!8216;managed by ES Parking Enforcement Limited!!!8217;. They are therefore acting as agents of the landowner.
27. The Claimant!!!8217;s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; !!!8216;ES Parking Enforcement Limited is authorised by the landowner to manage/operate this private car park for an on its behalf!!!8217; and !!!8216;Parking is at the absolute discretion of the Landowner!!!8217;.
28. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, !!!8216;Parking is at the absolute discretion of the Landowner!!!8217;. There is no consideration from the motorist as there is no charge for parking.
29. Although each case turns on its own facts, in all cases where ES Parking Enforcement!!!8217;s contract with the landowner has been fully disclosed, the charge for breach of contract is collected by ES Parking Enforcement Limited on behalf of the landowner. This is usually disclosed in the Claimant!!!8217;s Witness Statement under !!!8220;The Contract!!!8221; heading on Page 2, and on Pages 5 and Pages 6. This further confirms ES Parking Enforcement Limited act as agent for the landowner.
30. If ES Parking Enforcement Limited deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact (usually on Pages 5 and Pages 6 of the Witness Statement) with the landowner.
31. Fairlie v Fenton establishes the situation regarding agency.
a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.
32. This case is clearly (c). The signage states ES Parking Enforcement Limited are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to !!!8216;we are not liable for any loss or damage howsoever caused to any person or property whilst on this site.!!!8217;
33. ES Parking Enforcement Limited therefore have no standing to bring this case. Only the landowner has the right to do this.
v The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
34. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.
35. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner!!!8217;s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.
36. In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. I have no reason to believe otherwise that ES Parking Enforcement Limited!!!8217;s cost of enforcement will be more than this amount. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.
37. The charge for breach of contract is collected on behalf of the landowner, according to the Claimant!!!8217;s Witness Statement under !!!8220;The Contract!!!8221; heading on Page 2, and on Pages 5 and Pages 6 of the landowner contract. However, all costs for issuing tickets are borne by ES Parking Enforcement Limited. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.
38. The Claimant may rely on the ruling of ParkingEye v Beavis, held in the court of appeal in February 2015. This case has since been heard in the Supreme Court. Consideration should therefore be given to staying this case until the judgment is handed down.
39. Each case must turn on its own fact and the facts of that case are different to this.
40. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.
41. The social justification was because the car park might be abused by drivers who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. ES Parking Enforcement Limited have not established any social justification in this particular case.
42. In this case equivalent council fines are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.
43. Additionally the sum is roughly equivalent to a week!!!8217;s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.
v Time of the alleged offence
44. During the time of the alleged offence, the defendant or the car was not present at the time stated by the Claimant. Please see Exhibit!!!8217;s D (Defendant), E (Defendant!!!8217;s Partner), F (Defendant!!!8217; son), G (Defendant!!!8217;s daughter in law), H (Defendant!!!8217;s daughter), I (other child!!!8217;s father in the picture !!!8211; with black coat on). The claim should be struck off on this point due to the evidence presented.
Solicitor Costs
45. The claimant!!!8217;s charges (for claim xxxxxx) outline a number of due balances:
a. date xxxxxx (ES Parking) - £60 rising to £100 if not paid within 14 days
b. date xxxxxx (ES Parking) !!!8211; £125 with no reason for the increase
c. date xxxxxx (ZZPS) !!!8211; £185 with debt collection charges
d. date xxxxxx (Gladstone) !!!8211; £160 with £60 being recovery charges
Balance discrepancies (c. and d.) make the Claimant!!!8217;s standing confusing and ambiguous.
46. £60, described as !!!8216;recovery charge!!!8217;. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service, generating up to £000!!!8217;s of income. Given a standard working week, the claimant!!!8217;s connecting and unscrupulous chain companies i.e. ZZPS and Gladstones Solicitors, can spend no more than a few minutes per claim, hardly justifying the £60. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen!!!8217;s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no !!!8216;expert services!!!8217; are involved. The £60 is not valid because it is not incurred by the claimant, generating over £000!!!8217;s a year in profit.
47. Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially nearly double charging.
48. To put this into context, if the work was done by an outside solicitor who charged ES Parking Enforcement Limited £10 (which is believed to be the going rate for this type of work) then ES Parking Enforcement Limited would only be able to claim £10, and not £50.
49. The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigant!!!8217;s expert staff to the value of £60.
50. The £50 !!!8220;recovery!!!8221; cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; !!!8220;JUDGEMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS!!!8221;. These were presumably the £25 filing fee and £25 hearing fee.
51. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.
Additionally
52. ES Parking Enforcement Limited are known to attempt to discredit defences by claiming they come from online forums. There is nothing wrong with using online forums, as most legal professionals use the internet for research too.
53. In any case, ES Parking Enforcement Limited cases all explore the same few areas of law and it is therefore not surprising that as ES Parking Enforcement Limited file an estimated 000!!!8217;s claims a year that many defences will be similar in nature.
54. ES Parking Enforcement Limited are known to preface any !!!8216;reply to defence!!!8217; with a generic 19 page template which is largely irrelevant to any specific case and in any event is full of misleading information. I also contend this is an abuse of the small claims process, which aims to keep costs down. The size of the document is also not in proportion to the size of the claim. Any generic document should have either been served along with the letter before claim, or listed as a document they will rely on in court.
55. In the case of VCS v Ibbotson:
a. In relation to the unfair reflection of the pre-agreed damages claimed by ES Parking Enforcement Limited, this is £60, it is a penalty and in relation to contact law this is unenforceable. Judge McIlwaine disagreed that this was a !!!8220;pre-agreed amount of loss!!!8221;. The Defendant claims this is a penalty and a no loss or damage occurred (Page 5).
b. ES Parking Enforcement Limited have no basis and right to issue an action to sue individuals for a breach of Contract or trespass upon the premises belonging to a customer in the name ES Parking Enforcement Limited. There is nothing in the contract that gives authorisation to issue proceedings on behalf of the customer. Judge Mcilwaine struck out the case as British Parking Association Code of Practice states on page 6, clause 6:
"Under the Code you must have written authorisation of a land owner or his appointed agent before you can carry out parking control and enforcement of the land in question. The authorisation must say that the land owner requires you to keep to the Code of Practice."
As in this case too, ES Parking Enforcement Limited have no written authorisation from the customer to issue proceedings.
c. The employee of ES Parking Enforcement Limited was present of the alleged office and could have approached the Defendant to advise that he is present to enforce parking as you are in breach. I quote Judge McIlwaine:
!!!8220;whilst it may not be his (ParkingEye!!!8217;s attendant) responsibility to stop him walking away, as he is a lawful authorised member of the company at the time he is there and there is a duty to mitigate the loss, can you explain to me why he did not say to Mr Ibbotson, "You can walk off, not a problem, 80 quid"?
ES Parking Enforcement Limited could have mitigated their losses by approaching the Defendant. They did not.
56. Claim xxxxxxx was claimed via letter dated xxxxxx by the Claimant which is over the 14 days of the alleged offence set out by POFA (Protection of Freedom Act 2012) points 4 and 5 (legislation.gov.uk). This therefore makes the claim irrelevant and void.
57. No reply to the Defendant!!!8217;s letters and specific request on points. See Exhibit!!!8217;s M.
**********************
What do you think? Any help will be very much appreciated!
Going to court soon and would like help with my witness statement please. 2 tickets were issued and these are going to defended. The times of both tickets received in the post are 1 hour out! 1 ticket was received 14 days after so against POFA 2012.
I've removed any sensitive information such as dates etc so dont get identified. Thanks all!
**********************
The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.
i. The Unfair Terms in Consumer Contract Regulations 1999 applies
ii. The signage does not offer a contract with the motorist
iii. The signage does not correspond to being visible and clear
iv. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
v. The Claimant has no standing to bring a case
vi. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
vii. Time of the alleged offence
The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided.
i The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimant!!!8217;s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties!!!8217; bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
2. The European Court of Justice case of Aziz v Caixa d!!!8217;Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);
Article 3(1) of Directive 93/13 must be interpreted as meaning that:
!!!8211; the concept of !!!8216;significant imbalance!!!8217; to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out!!!894;
!!!8211; in order to assess whether the imbalance arises !!!8216;contrary to the requirement of good faith!!!8217;, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.
3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of parking for a !!!8220;max stay 2 hours, no return within 90 minutes!!!8221;, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
4. It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force. ES Parking Enforcement!!!8217;s charges in the original hearing were asserted to be an average of around £18 per ticket issued.
5. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38)
The judge [!!!8230;] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.
6. It is submitted that the European Court of Justice definition of imbalance must take precedence.
7. However, in any case the instant case is not saved from being unfair by Beavis. In this particular location council charges for overstay are £50 discounted to £25, not £100 discounted to £60. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.
8. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.
9. Contract provided by the Claimant in their Witness Statement shows a !!!8220;contract!!!8221; with !!!8220;Fraser Capitol Man Ltd!!!8221;. Please see Exhibit K. This clearly shows the non-business rates is paid by Lidl and not !!!8220;Fraser Capitol Man Ltd!!!8221;. No contract with Lidl exists as this has not been provided by ES Parking Enforcement Limited. This shows contempt of Court. Furthermore, this is a failure of ES Parking Enforcement Limited to promote proof of the Lidl Contract/agreement.
ii The signage does not offer a contract with the motorist
10. The claim is for breach of contract. However, it is denied any contract existed.
11. The Claimant states, in their Particulars of Claim, that the signage is !!!8216;clearly displayed!!!8217; but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Claimant has not provided a signage map in many of their car parks signs are positioned in such a way as to create !!!8216;entrapment zones!!!8217; where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.
12. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.
iii The signage is unclear, unreadable, not visible and too high
13. The Claimant has provided different signage!!!8217;s when provided for evidence. See Exhibit!!!8217;s A and B.
14. There was no signage at a low height with terms and conditions at time of the alleged offence. See Exhibit C.
15. The signage was not clear and visible to individuals of average height. The signage starts at 7ft high from ground with text/characters that are of small print and unreadable.
16. The signage was not clear due to the weather being dull and it raining. The signage therefore being even more difficult to read to ones made in the last point.
iii The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
17. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
18. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.
19. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.
20. The regulations define an on-premises contract as:
!!!8220;on-premises contract!!!8221; means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
21. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
!!!8220;distance contract!!!8221; means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
22. This is clearly an organised service-provision scheme (for parking).
The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.
23. This is therefore a distance contract.
24. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.
25. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.
iv The Claimant has no standing to bring a case
26. The claim form states that the land is !!!8216;managed by ES Parking Enforcement Limited!!!8217;. They are therefore acting as agents of the landowner.
27. The Claimant!!!8217;s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; !!!8216;ES Parking Enforcement Limited is authorised by the landowner to manage/operate this private car park for an on its behalf!!!8217; and !!!8216;Parking is at the absolute discretion of the Landowner!!!8217;.
28. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, !!!8216;Parking is at the absolute discretion of the Landowner!!!8217;. There is no consideration from the motorist as there is no charge for parking.
29. Although each case turns on its own facts, in all cases where ES Parking Enforcement!!!8217;s contract with the landowner has been fully disclosed, the charge for breach of contract is collected by ES Parking Enforcement Limited on behalf of the landowner. This is usually disclosed in the Claimant!!!8217;s Witness Statement under !!!8220;The Contract!!!8221; heading on Page 2, and on Pages 5 and Pages 6. This further confirms ES Parking Enforcement Limited act as agent for the landowner.
30. If ES Parking Enforcement Limited deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact (usually on Pages 5 and Pages 6 of the Witness Statement) with the landowner.
31. Fairlie v Fenton establishes the situation regarding agency.
a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.
32. This case is clearly (c). The signage states ES Parking Enforcement Limited are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to !!!8216;we are not liable for any loss or damage howsoever caused to any person or property whilst on this site.!!!8217;
33. ES Parking Enforcement Limited therefore have no standing to bring this case. Only the landowner has the right to do this.
v The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
34. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.
35. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner!!!8217;s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.
36. In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. I have no reason to believe otherwise that ES Parking Enforcement Limited!!!8217;s cost of enforcement will be more than this amount. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.
37. The charge for breach of contract is collected on behalf of the landowner, according to the Claimant!!!8217;s Witness Statement under !!!8220;The Contract!!!8221; heading on Page 2, and on Pages 5 and Pages 6 of the landowner contract. However, all costs for issuing tickets are borne by ES Parking Enforcement Limited. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.
38. The Claimant may rely on the ruling of ParkingEye v Beavis, held in the court of appeal in February 2015. This case has since been heard in the Supreme Court. Consideration should therefore be given to staying this case until the judgment is handed down.
39. Each case must turn on its own fact and the facts of that case are different to this.
40. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.
41. The social justification was because the car park might be abused by drivers who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. ES Parking Enforcement Limited have not established any social justification in this particular case.
42. In this case equivalent council fines are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.
43. Additionally the sum is roughly equivalent to a week!!!8217;s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.
v Time of the alleged offence
44. During the time of the alleged offence, the defendant or the car was not present at the time stated by the Claimant. Please see Exhibit!!!8217;s D (Defendant), E (Defendant!!!8217;s Partner), F (Defendant!!!8217; son), G (Defendant!!!8217;s daughter in law), H (Defendant!!!8217;s daughter), I (other child!!!8217;s father in the picture !!!8211; with black coat on). The claim should be struck off on this point due to the evidence presented.
Solicitor Costs
45. The claimant!!!8217;s charges (for claim xxxxxx) outline a number of due balances:
a. date xxxxxx (ES Parking) - £60 rising to £100 if not paid within 14 days
b. date xxxxxx (ES Parking) !!!8211; £125 with no reason for the increase
c. date xxxxxx (ZZPS) !!!8211; £185 with debt collection charges
d. date xxxxxx (Gladstone) !!!8211; £160 with £60 being recovery charges
Balance discrepancies (c. and d.) make the Claimant!!!8217;s standing confusing and ambiguous.
46. £60, described as !!!8216;recovery charge!!!8217;. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service, generating up to £000!!!8217;s of income. Given a standard working week, the claimant!!!8217;s connecting and unscrupulous chain companies i.e. ZZPS and Gladstones Solicitors, can spend no more than a few minutes per claim, hardly justifying the £60. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen!!!8217;s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no !!!8216;expert services!!!8217; are involved. The £60 is not valid because it is not incurred by the claimant, generating over £000!!!8217;s a year in profit.
47. Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially nearly double charging.
48. To put this into context, if the work was done by an outside solicitor who charged ES Parking Enforcement Limited £10 (which is believed to be the going rate for this type of work) then ES Parking Enforcement Limited would only be able to claim £10, and not £50.
49. The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigant!!!8217;s expert staff to the value of £60.
50. The £50 !!!8220;recovery!!!8221; cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; !!!8220;JUDGEMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS!!!8221;. These were presumably the £25 filing fee and £25 hearing fee.
51. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.
Additionally
52. ES Parking Enforcement Limited are known to attempt to discredit defences by claiming they come from online forums. There is nothing wrong with using online forums, as most legal professionals use the internet for research too.
53. In any case, ES Parking Enforcement Limited cases all explore the same few areas of law and it is therefore not surprising that as ES Parking Enforcement Limited file an estimated 000!!!8217;s claims a year that many defences will be similar in nature.
54. ES Parking Enforcement Limited are known to preface any !!!8216;reply to defence!!!8217; with a generic 19 page template which is largely irrelevant to any specific case and in any event is full of misleading information. I also contend this is an abuse of the small claims process, which aims to keep costs down. The size of the document is also not in proportion to the size of the claim. Any generic document should have either been served along with the letter before claim, or listed as a document they will rely on in court.
55. In the case of VCS v Ibbotson:
a. In relation to the unfair reflection of the pre-agreed damages claimed by ES Parking Enforcement Limited, this is £60, it is a penalty and in relation to contact law this is unenforceable. Judge McIlwaine disagreed that this was a !!!8220;pre-agreed amount of loss!!!8221;. The Defendant claims this is a penalty and a no loss or damage occurred (Page 5).
b. ES Parking Enforcement Limited have no basis and right to issue an action to sue individuals for a breach of Contract or trespass upon the premises belonging to a customer in the name ES Parking Enforcement Limited. There is nothing in the contract that gives authorisation to issue proceedings on behalf of the customer. Judge Mcilwaine struck out the case as British Parking Association Code of Practice states on page 6, clause 6:
"Under the Code you must have written authorisation of a land owner or his appointed agent before you can carry out parking control and enforcement of the land in question. The authorisation must say that the land owner requires you to keep to the Code of Practice."
As in this case too, ES Parking Enforcement Limited have no written authorisation from the customer to issue proceedings.
c. The employee of ES Parking Enforcement Limited was present of the alleged office and could have approached the Defendant to advise that he is present to enforce parking as you are in breach. I quote Judge McIlwaine:
!!!8220;whilst it may not be his (ParkingEye!!!8217;s attendant) responsibility to stop him walking away, as he is a lawful authorised member of the company at the time he is there and there is a duty to mitigate the loss, can you explain to me why he did not say to Mr Ibbotson, "You can walk off, not a problem, 80 quid"?
ES Parking Enforcement Limited could have mitigated their losses by approaching the Defendant. They did not.
56. Claim xxxxxxx was claimed via letter dated xxxxxx by the Claimant which is over the 14 days of the alleged offence set out by POFA (Protection of Freedom Act 2012) points 4 and 5 (legislation.gov.uk). This therefore makes the claim irrelevant and void.
57. No reply to the Defendant!!!8217;s letters and specific request on points. See Exhibit!!!8217;s M.
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What do you think? Any help will be very much appreciated!
0
Comments
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You need to tidy up the !!!8820 formatting errors as it makes it very difficult to read.
I think you need to expand on your incorrect time/vehicle point 44 considerably. It doesn't make any sense at all to me. I can't see what it is you are trying to show as there are no images and no explanation as to what they are supposed to portray.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Ok - apologies didn't see the formatting errors that takes place once pasting in. See below - i've tried to correct this so should be a lot better.
In terms of point 44, in a nutshell the caar/defendent were not present at the stated on the PCNs so i've provided written (signed) letters from a number of individuals to state the car/defendent/children were at home confirming this. U've updated point 44 to reflect your points - thanks. Apologies again as was not clear!
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The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimants case.
i. The Unfair Terms in Consumer Contract Regulations 1999 applies
ii. The signage does not offer a contract with the motorist
iii. The signage does not correspond to being visible and clear
iv. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
v. The Claimant has no standing to bring a case
vi. The charge is not a genuine preestimate of loss and is therefore an unenforceable penalty
vii. Time of the alleged offence
The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided.
i The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimants charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties bargaining power, and to reestablish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
2. The European Court of Justice case of Aziz v Caixa dEstalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);
Article 3(1) of Directive 93/13 must be interpreted as meaning that:
i) the concept of significant imbalance to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out!!!894;
ii) in order to assess whether the imbalance arises contrary to the requirement of good faith, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.
3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of parking for a max stay 2 hours, no return within 90 minutes, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
4. It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine preestimate of loss, being the normal legal situation provided for by the national law in force. ES Parking Enforcements charges in the original hearing were asserted to be an average of around £18 per ticket issued.
5. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38)
The judge ... held that the term did not cause a significant imbalance in the parties rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.
6. It is submitted that the European Court of Justice definition of imbalance must take precedence.
7. However, in any case the instant case is not saved from being unfair by Beavis. In this particular location council charges for overstay are £50 discounted to £25, not £100 discounted to £60. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.
8. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.
9. Contract provided by the Claimant in their Witness Statement shows a contract with Fraser Capitol Man Ltd. Please see Exhibit K. This clearly shows the nonbusiness rates is paid by Lidl and not Fraser Capitol Man Ltd. No contract with Lidl exists as this has not been provided by ES Parking Enforcement Limited. This shows contempt of Court. Furthermore, this is a failure of ES Parking Enforcement Limited to promote proof of the Lidl Contract/agreement.
ii The signage does not offer a contract with the motorist
10. The claim is for breach of contract. However, it is denied any contract existed.
11. The Claimant states, in their Particulars of Claim, that the signage is clearly displayed but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Claimant has not provided a signage map in many of their car parks signs are positioned in such a way as to create entrapment zones where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.
12. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.
iii The signage is unclear, unreadable, not visible and too high
13. The Claimant has provided different signages when provided for evidence. See Exhibits A and B.
14. There was no signage at a low height with terms and conditions at time of the alleged offence. See Exhibit C.
15. The signage was not clear and visible to individuals of average height. The signage starts at 7ft high from ground with text/characters that are of small print and unreadable.
16. The signage was not clear due to the weather being dull and it raining. The signage therefore being even more difficult to read to ones made in the last point.
iii The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
17. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
18. The regulations define three types of contracts; distance contracts, on premises contract and offpremises contracts.
19. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they rebook at the salon, that will be an onpremises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an offpremises contract. All these contracts are performed onpremises, but concluded in different ways.
20. The regulations define an onpremises contract as:
onpremises contract means a contract between a trader and a consumer which is neither a distance contract nor an offpremises contract;
21. Thus a contract cannot be onpremises if it is a distance contract. The regulations define a distance contract as:
distance contract means a contract concluded between a trader and a consumer under an organised distance sales or serviceprovision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
22. This is clearly an organised serviceprovision scheme (for parking).
The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.
23. This is therefore a distance contract.
24. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.
25. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.
iv The Claimant has no standing to bring a case
26. The claim form states that the land is managed by ES Parking Enforcement Limited. They are therefore acting as agents of the landowner.
27. The Claimants has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ES Parking Enforcement Limited is authorised by the landowner to manage/operate this private car park for an on its behalf and Parking is at the absolute discretion of the Landowner.
28. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, Parking is at the absolute discretion of the Landowner. There is no consideration from the motorist as there is no charge for parking.
29. Although each case turns on its own facts, in all cases where ES Parking Enforcements contract with the landowner has been fully disclosed, the charge for breach of contract is collected by ES Parking Enforcement Limited on behalf of the landowner. This is usually disclosed in the Claimants Witness Statement under The Contract heading on Page 2, and on Pages 5 and Pages 6. This further confirms ES Parking Enforcement Limited act as agent for the landowner.
30. If ES Parking Enforcement Limited deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact (usually on Pages 5 and Pages 6 of the Witness Statement) with the landowner.
31. Fairlie v Fenton establishes the situation regarding agency.
a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.
32. This case is clearly (c). The signage states ES Parking Enforcement Limited are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to we are not liable for any loss or damage howsoever caused to any person or property whilst on this site.
33. ES Parking Enforcement Limited therefore have no standing to bring this case. Only the landowner has the right to do this.
v The charge is not a genuine preestimate of loss and is therefore an unenforceable penalty
34. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.
35. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowners behalf. The Claimant has suffered no actual, or genuine preestimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.
36. In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. I have no reason to believe otherwise that ES Parking Enforcement Limiteds cost of enforcement will be more than this amount. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.
37. The charge for breach of contract is collected on behalf of the landowner, according to the Claimants Witness Statement under The Contract heading on Page 2, and on Pages 5 and Pages 6 of the landowner contract. However, all costs for issuing tickets are borne by ES Parking Enforcement Limited. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.
38. The Claimant may rely on the ruling of ParkingEye v Beavis, held in the court of appeal in February 2015. This case has since been heard in the Supreme Court. Consideration should therefore be given to staying this case until the judgment is handed down.
39. Each case must turn on its own fact and the facts of that case are different to this.
40. The Court of Appeal ruled that is a charge was not a genuine preestimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.
41. The social justification was because the car park might be abused by drivers who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. ES Parking Enforcement Limited have not established any social justification in this particular case.
42. In this case equivalent council fines are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.
43. Additionally the sum is roughly equivalent to a weeks state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.
v Time of the alleged offence
44. During the time of the alleged offence, the defendant, car and children were not present at the time stated by the Claimant. Please see Exhibits D (Defendant), E (Defendants Partner), F (Defendant son), G (Defendants daughter in law), H (Defendants daughter), I (other childs father in the picture !!!8211; with black coat on). These all are evidence that the defendant, car and children were not present at the time stated by the Claimant and were present at their home address(es). The claim should be struck off on this point due to the evidence presented.
Solicitor Costs
45. The claimants charges outline a number of due balances:
a. xxxxxx (ES Parking) £60 rising to £100 if not paid within 14 days
b. xxxxxx (ES Parking) !!!8211; £125 with no reason for the increase
c. xxxxxx (ZZPS) !!!8211; £185 with debt collection charges
d. xxxxxx (Gladstone) !!!8211; £160 with £60 being recovery charges
Balance discrepancies (c. and d.) make the Claimants standing confusing and ambiguous.
46. £60, described as recovery charge. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service, generating up to £000s of income. Given a standard working week, the claimants connecting and unscrupulous chain companies i.e. ZZPS and Gladstones Solicitors, can spend no more than a few minutes per claim, hardly justifying the £60. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossens Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no expert services are involved. The £60 is not valid because it is not incurred by the claimant, generating over £000s a year in profit.
47. Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially nearly double charging.
48. To put this into context, if the work was done by an outside solicitor who charged ES Parking Enforcement Limited £10 (which is believed to be the going rate for this type of work) then ES Parking Enforcement Limited would only be able to claim £10, and not £50.
49. The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigants expert staff to the value of £60.
50. The £50 recovery cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; JUDGEMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS. These were presumably the £25 filing fee and £25 hearing fee.
51. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.
Additionally
52. ES Parking Enforcement Limited are known to attempt to discredit defences by claiming they come from online forums. There is nothing wrong with using online forums, as most legal professionals use the internet for research too.
53. In any case, ES Parking Enforcement Limited cases all explore the same few areas of law and it is therefore not surprising that as ES Parking Enforcement Limited file an estimated 000s claims a year that many defences will be similar in nature.
54. ES Parking Enforcement Limited are known to preface any reply to defence with a generic 19 page template which is largely irrelevant to any specific case and in any event is full of misleading information. I also contend this is an abuse of the small claims process, which aims to keep costs down. The size of the document is also not in proportion to the size of the claim. Any generic document should have either been served along with the letter before claim, or listed as a document they will rely on in court.
55. In the case of VCS v Ibbotson:
a. In relation to the unfair reflection of the preagreed damages claimed by ES Parking Enforcement Limited, this is £60, it is a penalty and in relation to contact law this is unenforceable. Judge McIlwaine disagreed that this was a preagreed amount of loss. The Defendant claims this is a penalty and a no loss or damage occurred (Page 5).
b. ES Parking Enforcement Limited have no basis and right to issue an action to sue individuals for a breach of Contract or trespass upon the premises belonging to a customer in the name ES Parking Enforcement Limited. There is nothing in the contract that gives authorisation to issue proceedings on behalf of the customer. Judge Mcilwaine struck out the case as British Parking Association Code of Practice states on page 6, clause 6:
Under the Code you must have written authorisation of a land owner or his appointed agent before you can carry out parking control and enforcement of the land in question. The authorisation must say that the land owner requires you to keep to the Code of Practice.
As in this case too, ES Parking Enforcement Limited have no written authorisation from the customer to issue proceedings.
c. The employee of ES Parking Enforcement Limited was present of the alleged office and could have approached the Defendant to advise that he is present to enforce parking as you are in breach. I quote Judge McIlwaine:
whilst it may not be his (ParkingEyes attendant) responsibility to stop him walking away, as he is a lawful authorised member of the company at the time he is there and there is a duty to mitigate the loss, can you explain to me why he did not say to Mr Ibbotson, You can walk off, not a problem, 80 quid?
ES Parking Enforcement Limited could have mitigated their losses by approaching the Defendant. They did not.
56. Claim MNxxxxx was claimed via letter dated xxxxxx by the Claimant which is over the 14 days of the alleged offence set out by POFA (Protection of Freedom Act 2012) points 4 and 5 (legislation.gov.uk). This therefore makes the claim irrelevant and void.
57. No reply to the Defendants letters and specific request on points. See Exhibits M.
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From Coupon-Mad a few days ago: -GPEOL has no place at all in a parking PCN defence or Witness Statement.0
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Sorry mate - what is GPEOL?
Thanks.0 -
It is as per your reference vi below, genuine preestimate of lossiffy_jiffy wrote: »Sorry mate - what is GPEOL?
Thanks.vi. The charge is not a genuine preestimate of loss and is therefore an unenforceable penalty0 -
Just found what it means yep. Bad news for me then. Should i take it out or leave in? I'm guessing it'll be removing the entire section vi!
Thanks.0 -
If you do a search on GPEOL you will find a reason why it should be taken out. There was a post in the last couple of days explaining why it is outdated. Click on Forum Search, advanced search, input GPEOL as your search term (or type it out in full) and change radio button to POSTS from THREADS select the "parking tickets fine and parking board" to search on and click "Search Now"0
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I've only skimmed this, but there's a lot wrong with it. You seem to have just blindly copied a lot of stuff that is either old, outdated or of no relevance. I'm not sure where to start on it, but it needs some very careful attention from you before letting the Judge and the other side see it.
GPEOL is long dead in the water, killed by the Beavis case at the Supreme Court in Nov 2015, the very case you state above is yet to be heard, hence your plea for a stay of your case until such time as it is heard at the Supreme Court. I don't think any Judge would be impressed with that.v The charge is not a genuine preestimate of loss and is therefore an unenforceable penalty
34. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.
35. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowners behalf. The Claimant has suffered no actual, or genuine preestimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.
36. In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. I have no reason to believe otherwise that ES Parking Enforcement Limiteds cost of enforcement will be more than this amount. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.
37. The charge for breach of contract is collected on behalf of the landowner, according to the Claimants Witness Statement under The Contract heading on Page 2, and on Pages 5 and Pages 6 of the landowner contract. However, all costs for issuing tickets are borne by ES Parking Enforcement Limited. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.
38. The Claimant may rely on the ruling of ParkingEye v Beavis, held in the court of appeal in February 2015. This case has since been heard in the Supreme Court. Consideration should therefore be given to staying this case until the judgment is handed down.
39. Each case must turn on its own fact and the facts of that case are different to this.
40. The Court of Appeal ruled that is a charge was not a genuine preestimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.
41. The social justification was because the car park might be abused by drivers who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. ES Parking Enforcement Limited have not established any social justification in this particular case.
42. In this case equivalent council fines are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.
43. Additionally the sum is roughly equivalent to a weeks state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.
This doesn't make much sense.c. The employee of ES Parking Enforcement Limited was present of the alleged office and could have approached the Defendant to advise that he is present to enforce parking as you are in breach. I quote Judge McIlwaine:
whilst it may not be his (ParkingEyes attendant) responsibility to stop him walking away, as he is a lawful authorised member of the company at the time he is there and there is a duty to mitigate the loss, can you explain to me why he did not say to Mr Ibbotson, You can walk off, not a problem, 80 quid?
And why is ParkingEye involved in a VCS case?
As long as the driver hasn't been identified, this has to be one of your strongest cards. But you'll need to be able to articulate it better, and have a full understanding of it to lead the Judge through it. In my view, unless you have a reason for having it as the final paragraph, this should be one of your openers. The Judge may not even get to the end of this if he sees that this is nothing but copy and paste templated Internet stuff, the approach which a number of Judges have criticised previously.56. Claim MNxxxxx was claimed via letter dated xxxxxx by the Claimant which is over the 14 days of the alleged offence set out by POFA (Protection of Freedom Act 2012) points 4 and 5 (legislation.gov.uk). This therefore makes the claim irrelevant and void.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Now I'm just totally confused.Going to court soon and would like help with my witness statement please. 2 tickets were issued and these are going to defended. The times of both tickets received in the post are 1 hour out! 1 ticket was received 14 days after so against POFA 2012.
If you've got a court date, what did your defence say? Or is this a 'Defence' rather than a 'Witness Statement'? Have you got a court date?
Can you explain what you mean by the following:
Why is that 'against PoFA 2012'?1 ticket was received 14 days after so against POFA 2012.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
OK, you say this is a witness statement, but it readzs more like a defence?
A WS is a series of facts, with other documents to back up your asserted facts. So a PCN was served on X date ....is a fact
A defence is a series of legal arugments why you are not liable. The UTCCR say you arent is a legal argument.
Statrt again, and I am guessing, REPORT your thread so it gets merged with an existing one. DO NOT start a new thread fot an existing topic, its painful for everyone. If you cant find your thread, try the obvious of clicking your name and finding your threads....
Tell the story of the day or days. And dont blindly copy and paste.0
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