Period of validity

Le_Kirk

Missaver said:

Even though I intend to submit the WS later on, is it ok to post it here soon (the next few days) for critique and advice?  

Yes, of course.

Missaver

As posted recently, my defence is on page 11 of this thread.
Here is my draft witness statement so far, I have not prepared a Supplementary WS yet, but I know from reading on the forum to use points 17-41 inclusive in the Supplementary WS, correct?  Please feel free to advise and critique, thanks and appreciate your time in advance.  Do I prepare a Supplementary WS to post here for review as well?  I tried searching for Supplementary WS on the forum but wasn't able to find one.
Thank you all.  

Coupon-mad

A_Seagull posted his this week as an example, plus his costs schedule.

Missaver

IN THE COUNTY COURT AT xxx

CLAIM No. xxx

BETWEEN :

Parking Control Management (UK) Limited (Claimant)

and

xxx (Defendant)

 

WITNESS STATEMENT

 

1. The facts in this statement come from my personal knowledge. Where they are not within my knowledge they are true to the best of my information and belief.

2. I am xxxx of (address ) (postcode). I am the defendant in this matter and I will say the following.

2. I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Witness Statement in support of my Statement of Defence as already filed.

3. The facts of the case are as set out in my Statement of Defence, and I rely on that document as a true account. A copy follows this Witness Statement.

4. I am an unrepresented consumer who has never attended the County Court before.

5. I assert that I am the registered keeper of the vehicle in question, registration xxx. I also assert that I was the registered keeper of that vehicle on the date xxx.

6.  The essence of my defence to this claim is that the car was :

 

A. Temporarily stopped, not parked

B. Unloading for moving in

 

The reason for visiting the site was to unload large and heavy items for the purpose of moving in.  Upon entering the site, the driver did not notice any prominent signs regarding parking restrictions.  The block to be moved in is on the corner of the road and the entrance to the block faces a spot on the pavement outside with a lowered kerb with double yellow lines on the road.  There are no road signs to be seen to disallow any parking, shown in photographic evidence. (Exhibit xxx1)

The drop down kerb seemed like a sensible spot to park the car as there would therefore, be no obstruction to other vehicles on the road.   To gain access to the spot where the alleged contravention took place, some rising bollards needed to be lowered by the Concierge, of which there is a sign with the number to call (Exhibit xxx2) The driver called the number on the sign and spoke to the Concierge who gave authority to park for unloading, they then lowered the bollards for the driver to enter.

The parking charge does not state any times or restrictions and how long the car was parked.

7.  As stated in paragraph 6 above, the car was stopped for the purpose of unloading some furniture for moving in.  Therefore no parking has taken place and no Parking charge can be issued.

8. I wish to bring to your attention the case findings from 9GF0A9E JOPSON V HOMEGUARD 29/06/16 of facts about parked/not parked' as found by His Honour Charles Harris QC. A full transcript can be found in Exhibit xxx 3)
The case supports that a car stopped for a short period of time cannot be classed as “parked” which is what I understand the Claimant is appealing against me, as outlined in the PoC “Parking charges”.

“Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it… Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars… I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried in her desk, it was not “parked”.”

A) The Road Traffic Regulation Act 1984 and The Highway Code talk about "parking","waiting", "loading or unloading" and "setting down or picking up passengers", each as a separate activity. "Loading and unloading" or "setting down or picking up passengers" are clearly different from parking or waiting.

 (B) Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the above mentioned Appeal case decided by His Honour Judge Harris QC at Oxford County Court.

(C) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

(D) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

(E) In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

(F) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. (Exhibit xxx 4 )

''After considering the facts at the time of the grant, Mr Justice Upjohn ruled that an ancillary right to stop, load and unload may be implied into the express grant of a right of way where such a right is necessary for the reasonable enjoyment of the right of way.'' The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

It could be argued that in this instance, being new to the site and for the purpose of moving in, it was necessary to stop the vehicle to unload and be able to enjoy the home comforts by taking them up into the apartment.

The car was stopped off the road on a pavement with a drop down kerb.  There are double yellow lines on the road and if the car had been stopped on the road, it would have caused an obstruction to any vehicle exiting through the rising bollards. This would deem it dangerous to have stopped on the road.  There is no signage visible at the spot where the car was stopped as stated in the Particulars of Claim and none in the photographic evidence supplied by PCM.

9. The Traffic Act and Highway Code is not enforceable on private roads/land.
Upon receiving the charge I researched further into the laws of double yellow lines and I found that neither the Highway Code (found in Exhibit xxx5) or Traffic Act is only enforceable on public roads. Private roads cannot legally enforce the Highway Code or the Traffic Act in the same context as on public roads. This means that double yellow lines have no meaning on private roads, they mean nothing more than yellow graffiti on the floor and should be treated as so in that they are not legally enforceable.

10. Lord Denning’s Red Hand Rule
If the site did not wish for any cars to stop for any time period then there should be clear signage to indicate this.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in the case heard in Supreme Court, ParkingEye v Beavis [2015] 3 WLR 1373', as seen in Exhibit xxx6.
A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables within Exhibit xxx7 would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. I wish to bring to your attention Vine v Waltham Forest London Borough Council (2000) which highlights that it is important that the signage must be readable to allow a driver to understand the conditions of the car park. A short summary is available in Exhibit xxx8.

“Although it might reasonably be inferred that a motorist saw and understood the signs as a result of their numbers, size and location it was insufficient that an appellant had simply had the opportunity to see warning signs but that they must also have read and understood them and only then, by doing so, could they consent to the act of clamping if they parked in contravention to the notices."

11. Primacy of Contract

As a new resident on site, the driver has the permission of the leaseholder to stop, and who is entitled to rely upon his primacy of contact within the lease (Exhibit xxx9)

12. Poor Practice used by PPCs

Justice Minister Sir Oliver Heald in December 2016 has announced a consultation and information campaign to help protect consumers and stated that there will be an assessment of the role of parking companies and examine how drivers are informed of fines. It is also stated that the Department for Communities and Local Government will be taking further steps in due course to tackle poor practice by private parking companies. The article can be seen in exhibit xxx10. I believe this suggests that it is well known and documented that it is noted that some PPCs have poor practice, I believe PCM uses poor practice as they are not following the necessary conditions as further discussed throughout this Statement.

13. The landowner is the only proper claimant, not PCM who is an agent.
It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant.  Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

Alternatively, even if a contract could be established, the provision requiring payment of £160.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008.

The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(A) As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle stopping at the location in question.

(B) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;

(C) The penalty bears no relation to the circumstances as the driver was simply stopped for temporary loading/unloading and no loss or damage to the Claimant arose from this.

(D) The clause is specifically expressed to be a parking charge on the Claimant's correspondence.

14. No Notice to keeper received
I can confirm that I did not receive any notice to keeper (NTK) before receiving the Parking Charge – Keeper Liability letter dated 13 September 2018 (exhibit xxx 11) which was the first means of communication received by PCM. The language used in the letter suggested that this was not their first form of communication “since we gave you a Notice to Keeper letter”.

15. Unexplained Inflated costs and Abuse of Process

I received a reminder letter for payment from the debt collectors Trace, the first of three, dated 29 October 2018 (exhibit xxx 12) with the charges inflated to £160. The inflated costs are questionable.  Further to this, the Claim Form now states the Amount Claimed is £175.30.

This is an abuse of process by the Claimant in trying to claim a total amount of £250.30 when the signs were for £100... contrary to the CRA 2015, the Beavis case and the POFA 2012 (Exhibit xxx13).

 

 

The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

 

16. 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 not with reference to the judgment in Parking Eye 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.

 

Missaver

17. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

 Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

18. The Defendant has the 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.

19. 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 Beavis case is against this Claim
20. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

21. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

22. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

23. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

24. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim
25. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

The Consumer Rights Act 2015 ('the CRA') is against this claim 26. 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.

27. In the Caernarfon Court in Case number F2QZ4W28 (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.''

28. 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.

29. 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.

30. 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...''

31. 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.

32. 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.

33. 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.

Missaver

34. 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.''

35. 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.

36. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded 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. [...] 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.''

37. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

38. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

39. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

40. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

41. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

42. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

43. The Defendant has the 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.

 

44. 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.

45. IPC/ IAS / Gladstones all linked
I discovered that the claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. My research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges. Following this revelation I had taken the decision to not appeal to the IAS, I felt that I had already sent my appeal and was looking forward to receiving a response to discuss the matter further.

46. Lack of detail within the Particulars of Claim
I received County Court papers in November 2019 where within their particulars of claim it cited the driver ‘parked’ in breach of the terms of parking stipulated on the signage.  However, as mentioned above, the car was temporarily stopped for unloading, not parked.

I am unsure what reasons PCM are using for taking the case to court as they have provided very limited particulars of claim (PoC).

There is no detail offered of what “parking charges” entails within the PoC. The PoC does not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.1 and 1.4 which can be found in Exhibit xxx14. This therefore means that the Claimant has not complied with the pre-court protocol.

47. Lack of detail within the Particulars of Claim “RoboClaim”
The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support in accordance with CPR 1.1 2(a) “ensuring that the parties are on an equal footing”.

As an unrepresented consumer I am immediately at a disadvantage compared to trained solicitor in the matter and this is aggravated by Gladstones Solictors whom have not followed CPR 16.4 1(a) as I have not received a detailed PoC to be able to properly formulate a concentrated argument.

a) On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law’ – exhibit xxx15
b) On the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.
c) ES Parking Enforcement Ltd v Ms Q. C0GF4C5K. It is stated that the first point of contention is that ES Parking Enforcement had not completed the particulars of the claim properly despite been told before as seen in Exhibit xxx 16.

48. Various different outcomes could come under the umbrella term “Parking charges”
As the detail is so limited I have had to consider a number of options that the claimant may be using as necessary under ‘parking charges’.
1) Not been parked in the confines of a bay
2) Been stopped on double yellow lines
3) Been stopped in an area where no stopping is allowed
 
49. Photographic Evidence
Within the photographs of the vehicle taken by PCM, as seen in Exhibit xxx 17. The photographs were taken in front of and behind the vehicle. I believe that the images taken of the vehicle suggest that this was not a static camera but a person with a camera. This amounts to predatory tactic which does not comply with the IPC Code of Practice Part B 14.1 “You must not use predatory or misleading tactics to lure drivers into incurring parking charges.” As seen in Exhibit xxx 18.

50. The claimant is responsible for mitigating the losses to the landowner
I refer to case Vehicle Services Ltd vs Ibbotson (2012) The full transcript is offered in Exhibit xxx 19 in which it is agreed that the claimant was responsible for mitigating the losses to the landowner.
“…before the notice is issued. As predatory tactics have been used to take photos of the car and there was no windscreen ticket at the time, there was no attempt to mitigate losses to the Landowner at the time.

This is in breach of IPC CoP section 13.1, viewable in Exhibit xxx 20:
“You agree to ensure that all your operators, servants or agents maintain a professional standard of behaviour when carrying out their duties and comply with the rule of law at all times.”

51. Schedule of Costs

I attach a schedule of costs shown in Exhibit xxx21

I invite the Court to dismiss this claim in its entirety, to condemn the vexatious litigant conduct of the Claimant and their Solicitors and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14. I refer the Court to Exhibit xxx22 for the full schedule of my costs.

 

Statement of Truth :

I believe the facts stated in this statement are true.

 

Name

Signature


Date 

Missaver

Sorry, had to paste into 3 posts as it was too long in 1 post.  The bold bits are re Abuse of Process, the intended parts for the Supplementary WS later on, just wanted to keep it together here for now.  Many thanks.

Missaver

Coupon-mad said:

A_Seagull posted his this week as an example, plus his costs schedule.

I tried to search the name but somehow, it's not finding it. It comes up with an error page. Is it because I'm using mobile phone? I've tried desktop view as well. 

Le_Kirk

Missaver said:

Coupon-mad said:

A_Seagull posted his this week as an example, plus his costs schedule.

I tried to search the name but somehow, it's not finding it. It comes up with an error page. Is it because I'm using mobile phone? I've tried desktop view as well. 

It appears to be a forum glitch, I just tried searching for several names, same response.  Report it to the forum.

Missaver

Thanks Le_Kirk, I emailed the forum straight after your advice this evening and there are no issues now with searching.
I await advice and comment on my draft WS above, I know it's rather long and it will take time to hone, much appreciation in advance.