Claim form pack arrived for parking fines on private land

Redx

The PPC should provide you with the documents etc , anything that is your data

I hope you have done a SAR to the PPC as well ?

simone82

No, I just sent it to Gladrags?!!


Will send to PCM today

Redx wrote: »

The PPC should provide you with the documents etc , anything that is your data

I hope you have done a SAR to the PPC as well ?

Redx

Should have gone to the data controller , which is the PPC themselves , not gladrags

Read post #60 on page 3 , I gave you the correct advice there , classic case of not reading the replies

Gladrags will provide evidence when they obtain it nearer the hearing date , which you know from that July 2019 document you found recently

simone82

Morning all, super stressed and entirely overwhelmed by all of this.  I have 8 days to submit my WS......
I have been trying to get through to the Court for the last 2 weeks to see if Gladrags have paid the court fee...waiting on hold for up to 2 hours per day.  I finally drove to the Court yesterday to be told by their Security guard that they do not have a counter and that I would need to call them! Really??! I explained thats what I had been doing so he advised that I needed to put it in writing or email......So I still don't know if they have paid the court fee and still don't know if my 2 claims have been merged into 1 to be heard at the same time.  Still haven't heard back from the PCC with regards to my new SARS request either.....

I have read all of the Abuse of Process threads over and over again but it is still no clearer for me and I find myself even more confused now.  I'm very aware of walking into Court and not having a clue what the Judge is talking about or what I am to say???? I'm just not clever enough to understand all this jargon

Few points I have noticed though from the existing pics/evidence from my previous SARS request that I have received from PCC:
In all pics they have sent I cannot see the footwell of my car, or reworded you cannot see the permit that may have dropped on the floor??!!!  Could I use this in my WS, permit may have blown off etc?
The current signs are in complete different locations than before, they were only moved to the lamp posts in 2018 and clearly in their pics attached the signs are not in the same place as what they demonstrate on their carpark map.
The new permits were issued and sent to all residents in 2018, I suspect at the same time they changed and updated the new signs in the carpark.  No new contract with the landowner was provided though?
The signs also do not state that £60.00 costs must be paid, therefore does this make them non recoverable?  Do I need to state this?

simone82

Can anyone please advise on my thread? Many thanks  

simone82

Anyone?

D_P_Dance

Please read the last post on page one.

You seem to be struggling at every turn, perhaps it might be easier if you paid. 

Le_Kirk

It seems you are at the witness statement (WS) stage - yes?  If so, only you can write the WS as it is personal to you.  there are some WS examples linked in the NEWBIE sticky (second post) to give you an idea of the style and format.  Just write what happened on the day and subsequently in your own words as a narrative in the First Person.  Post that on here for help and critique.  Regulars find it easier to critique and adjust something that has already been written rather than try to write something about which only you know the facts.

simone82

Good morning, thank you for the advice @Le_Kirk, please find below final (although I'm sure it wont be) WS.
My WS has to be submitted by the 19th, so am going to submit and then spend the next 2 weeks studying the quoted cases and exhibits etc.  As mentioned before I do find a lot of this really confusing and would like to enter the court room with some ounce of confidence.  All criticism welcome, many thanks:

I am XXXX, of XXXXX and I am the Defendant in this matter and will say as follows.

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

1. Due to the sparseness of evidence pertaining to this alleged contravention and of the particulars, a Subject Access Request (SAR) was made to the claimants address on the 16th January 2019 for all information pertaining to this matter (Exhibit ?).

2. The Claimant failed to comply within the statutory time limit for responding to the SAR and completely ignored it until I queried with the Claimant in June 2019.  The Claimant sent a few documents but not the full information requested including copies of the original penalty notices or photographic proof.  A further letter was sent to the Claimants requesting this on the 13th August 2019 (Exhibit ?).  Once again the Claimant only provided me with some parts of the requested documentation.

3. A last request was sent for the missing paperwork on the 24th January 2020, and was finally received on the 15th February 2020.

4. Failure of the Claimant to comply with the SAR can only be seen as an attempt by the Claimant to disadvantage me by denying full disclosure of the information they held.

5. In the particulars of the claim, the Claimant has stated that I have incurred seven parking charges, however in the Claimant’s Witness Statement there are only four parking charges claimed. 

6. The Claimant states that they have been acting with the authority of the Freeholder of the Land, namely Catalyst Housing pursuant to an agreement dated on the 01/09/2012.  My landlord did not enter any new contract with myself stating that I needed to display a permit or that any contract excisted between themselves and the Claimant.

7. The Claimant states that the signage at the site was clearly visible.  I would like to bring to the Courts attention that at the time that these parking charges were issued the signs were in different places as can be seen in their own evidential pictures attached (Exhibit ??).  At the time of issuing, the signage in the carpark was poorly lit and hidden way.  Please also see attached a picture of one of the remaining old signs which is placed in a hard to see location, as were all the other signs (Exhibit ??). 

8. As a resident of the location where the Parking Charge Notices in question were issued, I have a right to park in this location at all times.  As proof of this, I am providing a copy of my Assured Tenancy Agreement as evidence (Exhibit ?).

9. There are no terms within the Tenancy Agreement requiring residents to display parking permits to use the residential car park, nor that a penalty of £100 must be paid in the event of a failure to do so or to pay penalties to third parties, such as the Claimant, for non-display of same.

10. It is denied that there was a contract made between the Claimant and myself through signage or that there was any agreement between myself and the Claimant.  I aver that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the tenancy agreement.

11. My vehicle was clearly 'authorised' as per the lease and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. In this case the Claimant continues to cause a substantial and unreasonable interference with the residential car park.

12. The car park area is accessed via a locked gate which residents have the key for.  The Claimant’s operatives do not have the key to enter the car park, and have to park their vehicle outside the gated area and use the pedestrian gate to enter the car park area.  The Claimant’s involvement in this car park area is supposedly to prevent parking by uninvited persons, for the benefit of the actual residents, their families and their invited guests.  Instead the claimant’s carry out a predatory operation on those very people whose interests they are purportedly there to uphold.

13. I am in possession of a key which is required to provide access to the residential car park where the PCNs were issued.  Possession of this key fob is prima facie evidence that I have permission to park in this location, as a vehicle cannot legitimately access the car park without it.

14. The scheme operated by PCM Limited in the residential car park in question was put into place in order to prevent anti-social behaviour and non-residential parking in the location by unauthorised persons against the interests of the residents as confirmed by my landlord Catalyst Housing (Exhibit ??).  

15. My Assured Shorthold Tenancy Agreement is the legal basis upon which I occupy the property.  On the subject of parking, it states "...Not to park or cause to be parked any vehicle on the Premises or on any land belonging to the Association except in defined parking areas and only in the matter permitted or required by the Association in accordance with any regulations or by-laws, but not such as to cause nuisance or obstruction.." (Exhibit . 

16. The agreement does not specify any other conditions of parking, therefore I rely upon this contract as having primacy of contract over any purported contractual terms asserted by the Claimant's signage (Exhibit C).

17. I refer to previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit C), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

18. This Claimant is trying to run our residential car park like a commercial site, on the same punitive terms as a trespasser would be charged.  This would clearly be a derogation from grant and I wish to make clear that I did not agree to contractual terms, just because a permit was imposed upon me with no opt out offered.  Permits were displayed as a courtesy only, to show other residents who was parked.

19. Paper permits are an outdated an inefficient way of managing a residential car park. They do not take into account the needs of residents, who may have to swap cars at short notice, or who may bestow permission on another to use their space. 

20. Responsible parking companies will either use a modern, electronic system that does not require paper permits, or will cancel charges accidentally issued to residents or their guests. Therefore, I contend that the purported parking restrictions are not in place to deter trespassers but to extort money from myself, other residents and our legitimate visitors.

21. The Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to PoFA and the Beavis Vs ParkingEye 2015 case. (Exhibit ? Pictures of Signage).  From the pictorial evidence you can see that the font type is incredibly small and would not be legible from the driver’s seat, and is purely aimed at only unauthorised drivers, not myself. 

22. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’.  A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

23. I would like to point out that within the car park there are numerous signs clearly stating that the car park is for “residents only”, and no mention of requiring a permit. (Exhibit ?)

24. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit E) as a binding precedent on the lower court.  However, that only assists the Claimant if the facts of the case are the same, or broadly the same.  In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances.  Therefore, this case can be distinguished from Beavis on the facts and circumstances.

25. The Claimant, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and I am unaware of any such vote having been passed by the residents.

26. In a comparable residential estate unfair private parking ticket case no. C7GF81FK in 2017, District Judge Britton at Aldershot & Farnham UKCPM v Niven dismissed the parking firm's contention that they were authorised to impose a parking scheme requiring permits at the estate, stating: ''It is simply not a case where, as the Supreme Court dealt with in Beavis v ParkingEye, there is a situation where the company which grants the right to administer a parking scheme has the sole right to say who can and cannot park on there and a situation where the freeholder or the landowner has not granted other rights over the land already. This is one where the freeholder has already granted a right to park and that cannot be affected or discharged without either a variation of the tenancy agreement, which has not happened, or a novation agreement involving all the people who were involved in this particular agreement.  Therefore on that basis, there is a pre-existing right to park” (Exhibit ?).

27. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported Debt Collection Costs of £60, for which no calculation or explanation is given, which have not actually been incurred by the Claimant since no debt has been collected. This appears to be an attempt at double recovery.

28. 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'.

29. 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. 

simone82

30. 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.

31. 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.

32. The Beavis case is against this Claim

32.1 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.

32.2 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.''

32.3 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.''

32.4 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...''

32.5 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.''

33 The POFA 2012 and the ATA Code of Practice are against this Claim

34 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.

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

36 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.

37 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.''

38 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.

39 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.

39.1 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...''

39.2 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.

39.3 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.

39.4 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.

39.5 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.''

39.6 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.

39.7 ''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.''

40 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.