Period of validity

Le_Kirk

 I think genuine pre-estimate of loss is dead since Beavis.

nosferatu1001

Sort of. They dont claim damages any longer, which require a GPEOL, they state they offered a contract you agreed to.

Coupon-mad

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. 

As I said it was this week, why use search?  Scroll down the forum lists for a good number of pages, skim-reading the names of the thread starters.  You'd have had it in 5 minutes flat (nothing like as fast as the old search, but sadly the forum is not great now and I can't find a members' list at all).

Or, why not just Google it, obviously including 'moneysavingexpert' and 'parking'? 

The search function here is so BAD now, that's what I am doing to get back to a thread...

Stop using a mobile...no-one can defend a court claim using their ickle wickle phone.  My student kids are joined at the hip to theirs and reckon any paragraph longer than 2 sentences is too long to read, but I have news for them!  Get on a laptop for proper work.

Missaver

Noted, thanks. 
Of course, I am using a laptop to work on defence, WS etc, which was copied and pasted above. With the length of it, something could easily go amiss if just using mobile. 
I guess you have a long list of WS to help with, but if you can give an indication for mine when you could review, I'd be most grateful, 

Thank you, 

Coupon-mad

Post it here for comments, even if it's on a previous page! 

You can save a lot of words by appending the three judgments/orders that I now suggest people submit with defences and witness statements, which means you can reduce the words and maybe do without a SUPPLEMENTARY WS altogether as the Orders and Judgments cover it.

I just posted a thread today about the Britannia v Crosby (6 page) Approved Judgment from Southampton, to append to defences and WS and it mentions the other 2 orders to append (Warwick and Skipton).

Missaver

Thanks Coupon-mad, will look at my WS again to re-edit as per your last comment, then re-post on here.

Missaver

I have replaced with reference to Appendices A, B and C in paragraphs 17 to 20 in the following edited WS, cutting 5 pages off the Word version.  Please could the experienced regulars review and comment, many thanks

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.

3.  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.

4.  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.

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

6.  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.

 

7.  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.  It is also stated that the vehicle was parked in a manner whereby the driver agreed to pay a charge :"Parked within a Restricted Area".  To my knowledge, there has never been any such agreement.

8.   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.

CASE 9GF0A9E JOPSON V HOMEGUARD

9.   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.''

10.        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.

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.

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"

Missaver

Primacy of Contract

11.        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 (exhibit 14), 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.

 

Abuse of Process and Orders to Strike Out similar Claims

 

17.          Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019. Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A) and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix 'B').

 

18.          Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019.The court refused to set aside the Orders and, tellingly, no appeal was made.

 

19.          The Judge found that the claims-both trying to claim £160, with some ten or more similar cases stayed-represented an abuse of process that ‘tainted’ each claim. It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage. That Judgment is appended (Appendix C).

 

20.          District Judge  xxx is  invited to read the Appendices at the earliest opportunity. The Defendant avers that parking firm claims which add duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided. The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

 

21.          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.

 

22.          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.

 

23.          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.

 

24.          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.

 

25.          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 xxx15. This therefore means that the Claimant has not complied with the pre-court protocol.

26.          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.

27.          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

28.          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.

29.          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.”

30.          Schedule of Costs

I attach a schedule of costs shown in Exhibit xxx21

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.

I believe the facts stated in this statement are true.

 

 

Fruitcake

There have been a few very recent updates to the Abuse of Process thread. Does everything in your defence include the latest information?

Have the scammers provided you with a copy of their alleged contract with or flowing from the landowner? If not, then say so. If they have, please post it here as someone may spot something useful that you have missed.

With regards to the signage, perhaps there were no prominent signs rather than that the defendant did not notice them.