Letter of Claim

cmonbris

1505grandad wrote: »

There is no Abuse of Process paras which should include the latest Court cases.

Para 9 - " cark park operators" - very appropriate using the Urban Dictionary definition!!

Great spotting of typo, thank you- I'm panicking a little now... I have missed information regarding Abuse of Process? Please can someone guide me?

cmonbris

I think I am going to get told off for this one... but I'm going to ask anyway... am I right in thinking I should have received a copy of the Claimant's 'papers' - just as I had to copy the defence to the claimant?

cmonbris

With thanks to didgeridoo, I am now able to upload the witness statement in its entirety.
I would be grateful if anyone was able to look over my witness statement please and offer their words of wisdom. Due to be filed at court and copies to Claimant 4th Oct.

In the County Court at XXX

Claim No. XXX

Between

XXX (Claimant)

and

XXX (Defendant)


DEFENDANT'S SCHEDULE OF COSTS

Ordinary Costs

Loss of earnings/leave, incurred through attendance at Court xx/xx/2019 £ XXX.42

Return mileage from home address to Court (X miles x £0.45) £x.xx

Sub-total £xx.xx

======

Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents (3 hours at Litigant in Person rate of £19 per hour) £xx.xx (IS 3 HOURS MAXIMUM / MOST REASONABLE TO REQUEST)

Stationery, printing, photocopying and postage: £15.00

Sub-total £xx.xx

======

£ xxx.xx TOTAL COSTS CLAIMED

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Witness Statement

---

1. I am XXX, of XXX the Defendant in this matter. I am unrepresented with no legal background or training and have had no previous experience of county court procedures. Attached to this statement is a paginated bundle of evidentiary documents marked XX1 to which I will refer.

2. On the material date xx/xx/18 I parked my vehicle in the XXX. At the entrance to the car park there are no warning signs as evidenced by image X of XX1 page X, therefore I was unable to accept the terms and conditions of the car park upon entry. The warning signs within the premises, which contain the terms and conditions are displayed in a font which is too small to be easily read from a passing vehicle, evidenced by image X of XX1 page X.

3. The signage of the car parking charges use a large font, a variety of upper and lowercase lettering and contrasts white lettering on a dark background, assisting greatly with legibility: there is no reference to terms and conditions on this signage.

3.1 In contrast, the terms and conditions signage:

3.2 are less than half the size of the car parking charges signage and utilise a font that is ‘entirely capitals’, which is contrary to research that indicates the use of ‘capitals and lowercase lettering’ predicates the ease for reading and legibility (evidenced by XX1 page X); and

3.3 make use of contrasting colours for font and background, which interferes with legibility and speed of reading. Black ink on white background is generally favourable for legibility when compared to red ink on white, which is the contrast used by the majority of the terms and conditions signage, evidenced by image X of XX1 page X.

3.4 The terms and conditions, therefore, are not compliant with British Parking Association Code of Practice 18.3 “easy to read” (evidenced by XX1 page X).

4. The terms and conditions signage is not specific to the car park on which it is sited, and contains terms and conditions which are not relevant to the car park e.g. it has references to: marked bays; hatched areas; and double yellow lines. The term and condition which is applicable to this case forms part of the irrelevant terms and conditions and, therefore, is not compliant with British Parking Association Code of Practice 18.3 “easy to read” (evidenced by XX1 page X)

5. The terms and conditions that are applicable to this case are displayed in all capitals (refer point 3.2) and are not able to be read unless standing directly in front of a sign. It is, therefore, unreasonable to suggest a motorist should be able to read and agree to the terms and conditions set out on the signage from a moving vehicle. When purchasing a ticket, the terms and condition signage is on one side of the paying booth only, evidenced by image X of XX1 page X, and, therefore, is obstructed by those who are buying/queuing to buy tickets. I did not come into close proximity to the warning signs to read them in their entirety and, therefore, I cannot be bound by their terms.

6. I walked with my passenger to the pay and display machine and purchased a valid ticket at xx.xxam at the cost of £x.xx with an expiry time of 11.59PM. The valid ticket was placed on the dashboard in the front windscreen of my vehicle, which I can confirm with absolute certainty that when placed, the ticket was facing upright with all purchase details visible and it was in this position as the doors were shut. It is, therefore, denied that any breach of the terms of parking occurred as I believe I made all reasonable endeavours to comply, and any shortfall should be disregarded by the Court under the principle of de minimis non curat lex.

7.1 The flimsy and light-weight qualities of the valid parking ticket are highlighted to the court (evidenced by xx page x); therefore it is not a ridiculous notion to presume a small gust of air could flip the ticket over. It is also highlighted the ticket displays a serial number on the front, which matches the serial number of the ticket displayed in the image taken by the Claimant, proving the ticket is legitimate. ‘Fluttering tickets’ are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of a motorist’s control, and where they have clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled.

7.2 I include two quotes from The Joint Report of the Parking Adjudicators for England and Wales 2006 when a motorist has a valid pay and display ticket.

7.3 “Many councils operate a policy of cancelling PCNs if the appellant is able to produce a valid p&d ticket covering the relevant period. This practice is to be commended. In HV05042K Havant Council set out its policy, which the adjudicator described as not only pragmatic but also fair and reasonable.” (xx page xx)

7.4 “If the relevant details of the ticket can be made out there will usually be no contravention”. (xx page xx) NB The flimsy and light-weight qualities of the valid parking ticket are such that the date and time may be read from the reverse side of the ticket.

7.5 I also include one quote from National Parking Adjudication Service Annual Report 2006:

7.6 In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver’s responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.” (xx page xx)

7.7 Although this case does not involve a council Penalty Charge Notice the case of ParkingEye v. Beavis [2015] UKSC 67 drew similarities between private CNs and council PCNs. (I AM UNSURE IF I SHOULD INCLUDE THIS)

8. Upon returning to my vehicle, before the valid ticket was scheduled to expire, I arrived to find a Parking Charge Notice (XX1 page X) affixed to my windscreen. It was then that I noticed the valid ticket which I had correctly placed on my dashboard earlier was no longer facing upright but was face down though, as noted in Point 7.4, the date and time could be read from the reverse side of the ticket.

9. The Parking Charge Notice, indicated a process for appeal and due to the nature of the situation in which I had purchased a valid ticket, it was reasonable for me to assume the car park operators were giving me an opportunity to provide evidence that the ticket they photographed on my dashboard was valid at the date and time of the alleged contravention. I subsequently submitted an online appeal on xx/xx/18 stating the reasons why I believed a contravention had not occurred and suggesting perhaps a gust had blown the ticket over. I provided evidentiary images of the valid pay and display ticket I had purchased along with the parking charge notice attached to my windscreen (XX1 page X).


10. The Protection of Freedoms Act 2012, Schedule 4 (POFA) (Exhibit XX10) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). 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. (AS DRIVER SHOULD I REMOVE ALL OR PART OF THIS?)

11.1. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing and here I quote from the cases cited above:

11.2. “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 judgement in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998”

11.3. Also that is not an isolated judgement striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

11.4. ''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 v 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.''

12. Response from Xxxxx refusing to cancel Parking Charge Notice, from xx/xx/18

13. A Letter Before Claim and reply form was received from xxx, dated xx/xx/18.

14. I received a Claim Form from the County Court Business Centre dated x/xx/19. The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how my conduct was considered a breach of contract. The Particulars are not ‘clear and concise’ as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states ‘Parking Charge Notice (PCN) for a parking contravention’ which does not give any indication on what basis the claim is brought.

Summary

15. The signage situated throughout the car park is not specific to the car park. I t contains irrelevant text with prolix language, using upper case lettering, of varying sizes and contrasting colour, thereby making the signage inadequate for the purpose of creating a legally binding contract.

16. The ruling of the Beavis case is fully distinguished from this case and cannot be applied, as held in ParkingEye v Cargius [2015], as the alleged parking contravention occurred in a pay and display car park and not a free car park. The initial £100 charge does not serve a legitimate purpose in this case as a parking ticket was purchased and valid for the entirety of the parking period; therefore the penalty rule remains engaged. In this case the £100 is extravagant and unconscionable as it is a clear punishment of a paying consumer and therefore unrecoverable.

17. On the date of the alleged contravention I had every intention of paying for parking, which I did so, and I genuinely attempted to take all reasonable steps to comply with the terms of parking and could not have foreseen the subsequent events which I deem were out of my control.

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

Signature

Date

The Court is invited to dismiss the claim and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Signature of Defendant:

Name:

Date:

cmonbris

1505grandad wrote: »

There is no Abuse of Process paras which should include the latest Court cases.

Para 9 - " cark park operators" - very appropriate using the Urban Dictionary definition!!

Found it, thank you.


Abuse of Process - the car park signage says "Enforcement action may incur additional costs that will be added to the value of the parking charge and for which you will be liable on an indemnity basis."


Is my argument that the enforcement action has not been taken and therefore is Abuse of Process - meaning the debt collector has not actually collected a debt (not that one existed!)

cmonbris

I have edited the WS to include Abuse of Process. Any final comments would be greatly appreciated as I need to have this done and dusted by midnight tomorrow to enable it to go in the post Thursday 3rd October.


I feel completely and utterly bamboozled by the process that has been required to get me to here, and I whole heartedly thank everyone who has helped me.

cmonbris

Any comments on WS before I print would be greatly appreciated.


I'm not exactly certain how I reference to the paginated bundle … is it:


blah blah blah (evidenced by Surname, First Name, Claim Number, Page 1 of 14)

KeithP

cmonbris wrote: »

I'm not exactly certain how I reference to the paginated bundle …

I've just looked at the first three, didn't read any more, example witness statements linked from post #2 of the NEWBIES thread and they all show how to do that.

cmonbris

Thank you Keith - I will look again, I have read the newbies post so many times I think I am confusing myself. Thank you for the guidance

cmonbris

KeithP wrote: »

I've just looked at the first three, didn't read any more, example witness statements linked from post #2 of the NEWBIES thread and they all show how to do that.

+1CM-Excellent Post - Should be stickied - I gave a similar list of acronym meanings in the early hours today on another thread #5 https://forums.moneysavingexpert.com/discussion/4814557

Perhaps you could add BPA (CoP) and LBCCC/LBC/LBA to your list above?


This is post #2? Lots of acronyms but struggling to find referencing? Am I in the right place?

Redx

Post #5 has the acronyms