Letter Before Claim - Gladstones [Residential Parking]

Coupon-mad

otterpanda wrote: »

This is where I'm getting truly confused then. I understand coupon-mad has said to include the additional CRA paragraphs etc following the hearing on 11th.

Yes, that's the 1, 2, 3, that I stated in court, that start x 3 'the Claimant knew or should have known'. NOT the entire blurb about the Caernarfon case as well. Keep to the Southampton one.

And with that, you attach a sheet with the paras of Beavis referred to, and a few pages from the CRA 2015 (including para 71 about the Duty of the court) and the CMA GUIDANCE where it says consumer notices are not exempt, and of course, paras 6, 10 and 14 highlighted on a printout of Schedule 2 of the CRA, as a attachment.

Is it the skeleton argument where I add my rebuttal to their evidence?

If there is false evidence, then yes. Succinctly!

Do I not need to summarise my witness statement

No, not if you have already submitted that.

As Johnersh said:

You need only your key points and why claimant points must fail. It is not repetition of documentation the court has anyway.

And as I said:

add in a one liner or two about your best defence points and point the Judge to them and anything important that forms a legal argument that was in your defence.

otterpanda

I've had another crack at condensing it down and only responding to the claimants witness statement, are there any points that I should remove or could be considered redundant? Currently this just fits on two A4 sides:

I, xx of xx would like to respond to the Claimant’s witness statement and evidence due to my inability to attend the hearing, for which I apologise:
1. Witness Statement Para 14 – The Claimant states that I have not provided an evidence to support my alleged right to park. I have submitted both my Shorthold Tenancy Agreement and the Property Lease (Exhibit A and Exhibit C). The property lease allowed me quiet enjoyment and rights to pass and repass. As per para 18 in PACE Recovery & Storage v Mr N (Exhibit K), the Claimant has not provided evidence that the lease has been varied to include such a provision to compel residents to display a permit or risk being issued with a £100 Parking Charge Notice.
2. Witness Statement Paragraph 8 - The Claimant has stated in their witness statement that a ‘valid permit’ must be displayed in the windscreen of a vehicle to be considered ‘displayed correctly’. This is not included in any signage or in correspondence between the property management company and the property owner (Page 37 of the claimant’s evidence bundle) so I fail to see how this could be a valid condition of use of resident permits.
3. Witness Statement Paragraph 4 & 5, Evidence Pages 11-14 – The Claimant has submitted photographs and a site plan of their International Parking Community (IPC) approved signs. These signs, however, were not in use on the date of issue of the Parking Charge Notice (PCN) on 20th January 2017. Until 1st January 2017 the Claimant was a member of the Approved Operator Scheme run by the British Parking Association (BPA) which have their own Code of Conduct and approved signage. The signage displayed on the 20th January was their BPA signage and continued to be displayed until April 2017 as documented by photos submitted with this document, this timeline is also in line with the date stamp on the photos submitted by the claimant (pages 15-21) – 27th April 2017.
4. I enclose emails sent to the BPA making them aware of the claimant’s failure to change their signage within the three-month grace period.
5. Claimants Evidence Page 13-14 - The map provided by the claimant of the location of their IPC-compliant signage shows only their yellow signs to be located near the motor vehicle xx which I would further argue demonstrates that they were not displayed on the date of 20th January 2017.
6. Claimant’s Evidence Pages 29-35 ¬- The claimant has submitted photographs of the motor vehicle xxx which feature white signs in the background and images of their BPA approved signs. This reaffirms my point above that the signs in use at the time were not their yellow IPC approved signage and do not refer to additional costs in the event of non-payment for an issued PCN.
7. Witness Statement Para 29 - Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 '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, case law and two statute laws hold that, when it comes to parking charges on private land, the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
8. At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 (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 were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of Protection of Freedoms Act 2012 (POFA 2012), due to Schedule 4 Paragraphs 5 and 6. (Attached and highlighted)
(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. (Attached and highlighted)
(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 POFA 2012 Schedule 4 paragraph 9. (Attached and highlighted)
9. Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14* and due to 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. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs. (*Attached and highlighted)
10. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance is detailed at para 2.43 and 3.2 (attached and highlighted)
11. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20 (attached and highlighted)

Thank you for everybody's help, I do really appreciate it.

Coupon-mad

Sorry, I realised last night I had a typo in point #3 which is not about the POFA!

(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. [STRIKE]POFA para 9.[/STRIKE]

Add here, add para 71 so the Judge knows they CANNOT ignore the test of fairness and the CRA:

and due to the statutory duty (ref para 71 'supplementary provisions' of the CRA 2015) upon the Courts to consider

Le_Kirk

1. Witness Statement Para 14 – The Claimant states that I have not provided an evidence

Just one missing letter!

1. Witness Statement Para 14 – The Claimant states that I have not provided any evidence

otterpanda

Thank you both - I will amend these and get them sent out with the appropriate print outs.

I will keep you updated as finishing this off has taken longer than I anticipated. Hearing is on Friday so I know I'm cutting it very fine.

Coupon-mad

You will have to get someone to take this by hand to the court.

Head it up SKELETON ARGUMENT so it can't be disregarded as 'late'.

Also post a copy AND email it, to the Claimant/solicitor, Weds without fail.

And add a covering note for the court one that someone is taking to court for you tomorrow (no posting or emailing it) that states the HEARING TIME AND DATE AND CLAIM NUMBER and asks for the skeleton argument to be urgently added to the hearing file for the Judge.

Redx

Any update on this one ??

otterpanda

No I've not heard what the outcome was yet. I tried to call up to find out but it said try again later and then when I went to call again I was too late (still getting used to time difference). I wasn't sure whether the outcome would appear on MCOL at all, but nothing on there as yet.

Redx

nothing will appear on MCOL, not once the local court was allocated months ago

otterpanda

Ok good to know, thank you. Am I right in thinking a letter is sent out with the outcome?