Letter Before Claim - SCS Law & UKPC - CASE WON!

The_Deep

Have you read this?

[FONT=verdana, geneva, lucida, lucida grande, arial, helvetica, sans-serif]https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading[/FONT]

DAngel

I have now ;-)

Coupon-mad

A copy of the Beavis case?

NO.

any other case law i should reference?

Search the forum for Jopson witness statement and copy one that talks about your primacy of contract under your lease, which I couldn't see mentioned in your draft at all.

Post vs Email - i emailed my DQ to SCS and i got a note back to say that official court docs should be sent to them via post but they would accept on this ocassion (which was fotunate as i was abroad at the time). I've seen others email their WS and Evidence - what's the official advice here?

If they have warned that they won't accept anything else by email then post their version on cheap paper - in a non-paper-clipped heap.

And keep free proof of posting (from the PO counter - not signed-for).

That WS looks a bit old, and misses much of things we would put now. If you read any other thread about WS from this month (search the forum and change to SHOW RESULTS AS POSTS and you will get plenty of recent ones, in date order).

DAngel

I'm having a small meltdown - SCS's WS and bundle arrived this morning and it's as thick as the yellow pages and all of my defence points have been squashed. That on top of spending the entire day reading, researching and trying to write my WS but with not a huge amount of success, plus thinking about all the case law I'm referring to and where I will find it to print it off is all worrying me somewhat given the time constraints I am up against.

I've also now read a fair few cases similar to mine that have been lost and that's squashing my confidence somewhat.

i'm going to soldier on - all i can do at this point, but any words of encouragement would be hugely appreciated and i'll aim to have my 1st draft WS posted here by this evening for review!

Thank you

Le_Kirk

Ah, you have received the template tosh! Of course they rubbish your defence points, that's their job. You now need to go through their claims and point out in your WS why they are wrong. They were never going to write to you and say "thanks, that's a brilliant defence" so take heart from the fact that everybody in your position gets a copy of the "yellow pages" and search the forum for similar cases and read what others have said.

DAngel

Too right, thanks for bringing me back down to earth and turning my tears of despair into a giggle.

So, i've managed to find a pretty relevant template which i've made a few changes to, to make it my own.

A couple of points that I would like to get across, but not sure how/where to include/ if relevant are as follows:

Photo Evidence
- the vast majority of photos are taken in the pitch black and it is nigh on impossible to see where the car is parked, let alone any surrounding signage?!
- photo evidence of signage is poor - not taken in situ with the car (mostly), covered by shrubbery (in a couple of photos), and blurry.
- They talk in their WS about how i received 15 PCNs so MUST have known about the signage... any views on countering this?


Witness Statement DRAFT below:

In the matter of

parking company (Claimant)
v
******** (Defendant)

Claim no:

Witness statement of Ms xxx, Defendant

I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. Attached to this statement is a paginated bundle of documents to which I will refer.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. I am a tenant at xxxx and have been since February 2010.
2. Since living at the property, myself and all other tenants and visitors have always been entitled to park safely, respectfully and unobtrusively on the land both within and outside of marked bays, allocated bays, visitors bays and along the access roads including within laybys that are not marked by lines. No parking enforcement was needed and there was no reason to consider that any contravention had taken place.

3. There are no terms within my lease or tenancy agreement requiring tenants to display parking permits or park in a marked bay, or to pay penalties to third parties, such as the Claimant has averred and there is a large body of case law which establishes this. The Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £90 penalties on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right of way in the lease and parking terms cannot be re-offered as a contract by a third party. This interferes with the terms of the lease, of which this parking firm is not a party to.
LEASE APPENDED AS EVIDENCE: E.1

In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
CASE APPENDED AS EVIDENCE: E.2

In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.
CASE APPENDED AS EVIDENCE: E.3

In Jopson v Homeguard [2016] B9GF0A9E, on appeal, it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.
CASE APPENDED AS EVIDENCE: E.4

3. At no point did the Managing Agents remove the easements and rights of way already granted, and at no point did the Managing Agents seek authority to alter the lease to impose a parking regime and remove the unfettered parking rights and easements that had already passed to me as a tenant.
3.1 It is my belief that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly, it is denied that:

3.1.1. there was any agreement between the Defendant and the Claimant.

3.1.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

3.2 It is further denied that the signage is clearly displayed. The signs in this car park are not prominent, clear, lit well, or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
PHOTO OF SIGN VS BEAVIS SIGN APPENDED AS EVIDENCE: E.5

3.2.1 In addition, the largest wording present on the signage states “NO UNAUTHORISED PARKING” This signage is forbidding, and does not constitute an offer of a contract. The defendant will rely on the judgements of DDJ Ellington in UKPC v Masterson B4GF26K6[2016].
CASE APPENDED AS EVIDENCE: E.6

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

4.2 Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

4.3 The Parking Eye Ltd v Beavis case is the authority for the recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

4.4 Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims.
4.5 According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

4.6 The Protection of Freedoms Act 2012, Schedule 4 (POFA) at 4(5) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). The Claimant, or their legal representatives, has added an additional sum of £60 or £40 to each original £100 parking charge. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

4.7 Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
SCHEDULE 4 OF POFA APPENDED AS EVIDENCE: E.7

5. 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.
COSTS SCHEDULE APPENDED ON PAGE X
I believe that the facts stated in this Witness Statement are true.


Signature of Defendant:


Name:
Date:

Le_Kirk

They talk in their WS about how i received 15 PCNs so MUST have known about the signage... any views on countering this?

Two points: -
1. Is this case about one PCN or about 15?
2. I would say that IF you received 15 PCNs you clearly have NEVER seen the signs!

Any photos (are they your photos or supplied by the claimant) you submit should be to your advantage and should help your case not the claimant's.

DAngel

1. Is this case about one PCN or about 15?
2. I would say that IF you received 15 PCNs you clearly have NEVER seen the signs!

It's about 15 PCNs - total that they are claiming is £2250 (or there abouts without checking the paperwork)

Any photos (are they your photos or supplied by the claimant) you submit should be to your advantage and should help your case not the claimants.

Photos are the Claimants. I have my own photos of signage - but these were taken in 2018 & 2019 - so 4-5 years later! It was so long ago, i barely remember the circumstances, what signs were present (apart from what i can see in their evidence) etc.

Umkomaas

Some of the transcripts you might be seeking can be found on one or other of these two websites hosted by The Parking Prankster.

http://www.parking-prankster.com/case-law.html

http://www.parking-prankster.com/more-case-law.html

DAngel

Thanks - i've had a good root around PPs site and found relevant cases but I have no idea where to start going through each one and appending them - shall i just print out the entirety of each I refer to?

Costs - what can I claim? I think i saw posted somewhere its £95 + travel + expenses? is that right?

This doesn't feel very planet conscious printing so much stuff!!