UKCPM - All appeals must be done by postal?

KeithP

If Gladstones are not "including a 'request for special directions' asking the Court to hear the case on the papers only, without an oral hearing", then of course you do not need to object to that non-existent request.

Return your completed DQ to the CCBC by email to the same address and in the same manner that you sent your Defence. Refresh your memory on that by re-reading post #74 above.

Send a copy to the Claimant - address on your Claim Form.

iWindmill

Good afternoon,
I have received a letter from District Judge Thomas of Walsall County Court. Despite sending DJ Grand and DJ Joseph's letter quashing the case before hearing,  DJ Thomas has considered the statements of case and directions questionnaire filed and allocated the claim to the small claims track; so I have a date and time allocated for my hearing. Does this surprise anyone at this stage? (I have scanned the letter in-case someone here requires reading - please direct message me.)

So now I have to provide the other party copies of all documents on which I intend to rely at the hearing no later than 14 days before the hearing. Should this include images of the new signage that I took myself on the phone? The images of the signage taken by the PPC's officer are blurry, and you can't make out the terms and condition.

Just to confirm, and I did read this: https://forums.moneysavingexpert.com/discussion/5546325/court-claim-procedure-updated-october-2016
The documents I require are:-
- WST
- All letters I've received from both PPC and Gladstones
- All documents sent by PPC (Obtained via SAR)
- PCN
- Images of the new signage I took myself?

nosferatu1001

No, it is not a "surprise". The court does not have to follow any previous rulings, they are not binding.
You include ALL documents YOU want to include. O bviously if the new signs help you, then include pictures. 

iWindmill

Coupon-mad said:

Yes, sign/date it and send it off by email as per KeithP's instructions.

You might want to attach a couple of things with it, DJ Grand's order from Southampton (see CEC16's thread) and DJ Joseph's order from Warwick. There are two recent ones from Warwick, so search the forum and pm the posters concerned to ask if they can let you have a scan of DJ Joseph's judgment/order.

Normally we say no attachments with a defence but we are now suggesting you take a leaf out of bargepole's experienced book of how to fight court claims, and attach those orders to steer your Judge into seeing that he/she can strike out almost all parking claims without a hearing.

Hi Coupon-mad.
I have a court date and I am currently working on my Witness Statement - I hope you don't mind, is it okay for me to send my WST and maybe other stuff over to you to look at and make sure everything is in order? It would be an effort to redact all personal information from my files hence why I'd like to not post what I've done so far on here, but to send to you privately.

Le_Kirk

iWindmill said:

Coupon-mad said:

Yes, sign/date it and send it off by email as per KeithP's instructions.
You might want to attach a couple of things with it, DJ Grand's order from Southampton (see CEC16's thread) and DJ Joseph's order from Warwick. There are two recent ones from Warwick, so search the forum and pm the posters concerned to ask if they can let you have a scan of DJ Joseph's judgment/order.
Normally we say no attachments with a defence but we are now suggesting you take a leaf out of bargepole's experienced book of how to fight court claims, and attach those orders to steer your Judge into seeing that he/she can strike out almost all parking claims without a hearing.

Hi Coupon-mad.
I have a court date and I am currently working on my Witness Statement - I hope you don't mind, is it okay for me to send my WST and maybe other stuff over to you to look at and make sure everything is in order? It would be an effort to redact all personal information from my files hence why I'd like to not post what I've done so far on here, but to send to you privately.

Always better to post on the forum then other contributors can have a look if C-m is not around.

nosferatu1001

Post it on the forum. Redaction isn't difficult - find and replace does all the possible work for you. 

iWindmill

Here it is, I wasn't sure if I should include most of the stuff from my defence letter into my WST but this is what I got.

Thanks for the help.

IN THE COUNTY COURT

CLAIM No:

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

XXXXXXXXXXXXXXXXXX (Defendant)

________________________________________
Witness Statement
________________________________________

I am NAME, of ADDRESS, the Defendant in this matter. I will say as follows:

1.1. On 6th June 2018 at around 00:20, I visited my then-partner who was a resident at LOCATION, and parked my vehicle registration no, XXXXXXXXXX in the car park.

1.2. I left my vehicle alone to walk to my then-partner’s flat and, with my then-partner’s permission, to obtain a permit to display on my dashboard. My then-partner was in an extremely stressed and agitated due to personal reason not relevant to this claim, she could not remember where she last left the permit. I had to calm her down and help look for the permit.

1.3. It was not long before the permit was found, I immediately departed the flat heading towards my vehicle where I noticed a PCN was stuck under my windscreen wipers.

2. It was dark and there were no lights shining on the claimant’s signage. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that it is not possible for a driver to stop and read the terms and conditions before entering the car park. There are no lights present making the Claimant's signage visible during night time. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. Lack of signage and font too small to read can be proven on page XXXXXX of EXHIBT. (Images taken by parking operator, obtained this through SAR)

2.1. It is believed that the Claimant's operative was lurking in the shadows at night, waiting for a car to be left alone for a short period of time the photos show it there for, is not evidence that it was actually parked and left overnight with no permit displayed. My vehicle was never 'unauthorised' and that the Claimant's employee had seen the permit on that car dozens of times and appears to have waited for an opportunity, as UKCPM are known to do, and take photos in the dark while my back was turned.

3. I was bombarded by countless of letters from a debt recovery company called Debt Recovery Plus Ltd (DRP) and Gladstones Solicitors demanding that I pay the parking charge of £160. These have been exhibited as EXHIBIT (all letters received)

3.1 The initial parking charge was £60 to be paid within 14 days, and after 14 days the parking charge was increased to £100. It is not known why an extra £60 was demanded by  DRP and Gladstones Solictors.

3.2. I have reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

3.3. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Consumer Rights Act 2015 ('the CRA') is against this claim
4. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

4.1. 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 in 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.''

4.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

4.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

4.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, 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 the Beavis case. 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...''

4.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

4.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

4.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

4.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

4.4. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

4.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

4.6 To support this, I provide exhibit EXHIBIT. These documents showing that similar claims have been struck out as an abuse of process by DJ Grand and DJ Joseph. (letters obtained off this website)

7. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

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

Signature

Date

iWindmill

Just bumping this up in case it was missed. 
I'll be honest, I believe my deadline is 26th of this month. The reason I left it this late is because I've been having health issues and family issues, and on top of that COVID-19.
I'm free this weekend to work on it, and will print the documents off ASAP so I can keep a copy for myself, one copy for PCN and one copy for CCBC.
Thanks all

Le_Kirk

You don't submit Witness Statements to CCBC, they should go to the court where the case is to be heard.  Also we advise hand delivering the WS along with evidence and summary costs assessment in a ring binder tabbed, indexed and colour coded.  You are free to e-mail (if permitted by the claimant) to the claimant.

D_P_Dance

Read Fruicake's post here

https://forums.moneysavingexpert.com/discussion/6117584/come-on-you-lot-grow-a-pair#latest

and write to the curt, copy to your MP.