Albert street car park birmingham

beamerguy

So what about the fake £60 they added

ABUSE OF PROCESS
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

PLEASE READ POST #14 ON THIS THREAD BY COUPON-MAD

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“in the XXXXXXXX Court at
Claim No. XXXXXXXX
Between
XXXXXXXX (Claimant)
and
XXXXXXXX(Defendant)

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Witness Statement

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My defence is repeated.

1. I am,XXXXXX ofXXXXXXXXXX, the Defendant in this matter. I assert that I am not liable to the claimant for the sum claimed, or any amount at all, on the grounds the claimant suffered no loss as a ticket was purchased and displayed on the date and time in question. The partial registration number was entered purely in error and in no way by the defendant to avoid making payment. As no loss was incurred there can be no reason to pursue this matter other than to make excessive money out of people who have complied and purchased a ticket.

2. On XXXXXXXX, I parked my vehicle, registration number XXXXXX, in the car park of Albert Street Birmingham during a family day out to shop in the city. I made payment in full of the amount due. Payment for parking was made using the pay and display ticket (PDT) machine and a ticket obtained. Exhibit 1 parking ticket obtained showing amount paid.

3. Car parks I’m familiar with, require the entering of the numerical of a VRN to prevent the passing on of any residual parking time to other motorists, this allows the operator to maximise revenue. The two numbers 08 correlated to my vehicle and could be identified through the windscreen during a patrol and visual check by a warden checking for any non-payments, obstructive parking or overstays. The fact I received a payment ticket led me to believe I’d so far adhered to the instructions and so I displayed my ticket within the vehicle, parked without obstruction and used the car park for the tariff paid without overstay. I returned to my vehicle confident I’d followed all the instructions and unaware of any said contravention.


4. A PCN was later received via the post from the claimant for an alleged breach of their terms and conditions for a non-payment; I felt confused as to why and challenged this with evidence. The PCN allowed me to dispute the charge directly with VCS through the use of https://www.myparkingcharge.co.uk. I did this immediately after receiving the PCN and my appeal was rejected by VCS who said that no ticket was purchased on the day in question for the VRM: xx08 xxx. VCS insisted payment had not been received for my vehicle and that the penalty payment had now increased from the initial discounted early payment of £60 to £100.
Realising a full VRN may have been required I still felt that this innocent misdemeanour would be accepted given the fact I had proof of payment. The claimant continued to reject my appeal refusing to accept any explanation or proof.
VCS offered further instructions to appeal independently or pay up and that failure to do either would lead to means of litigation to recover the penalty which would incur further costs. Any alleged breach of contract was de Minimis. Parking was paid for the entire duration of the stay by the defendant. The Claimant has been made aware of this and evidence has been provided but the Claimant has chosen to ignore it to pursue an unnecessary and inflated claim.

5. During the appeals process to IAS I again provided an explanation and a copy of PDT. My appeal was rejected by IAS and now I felt trapped in a system designed to fail, to pursue further made it clear the claimants main objective was to take cash. I made a phone call to

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to reason and to resolve the issue in the hope that a reasonable solution could be met, the only offer put forward was that the six pounds I paid to park could be deducted from the £100 penalty charge and to be aware that it would only cost the claimant a £25 fee to apply for a CCJ, this clear unreasonable behaviour and threat left me with no other option other than to pay or to challenge this in court.
Exhibit of SAR proof of phone call.


6. The payment channel did not indicate any failure to make payment, nor prompt to also enter letters as well as the vehicle numbers, a ticket was provided so the defendant concludes that the contract de facto granted a parking session based on the numbers only. By entering an incomplete VRN into the ticket vending machine I made a mistake, however the Claimant, via his ANPRS’s software, knew that a mistake had been made and rather than inform me and give me an opportunity to correct it he chose to exploit that mistake by using it to claim breach of contract and thereby attempt to obtain money from me by threatening court action. By engaging in this act of active concealment of a fact the Claimant clearly acted without good faith and hence rendered the contract unenforceable. If a contract was entered into by action of remaining on site then as I inputted a partial VRN I had offered a variation on the contractual terms and that by issuing a ticket the claimant by action had accepted the renewed terms. If I had not put the full amount of money into the machine a ticket would not have been issued which is in effect the claimant rejecting revised terms offered by the defendant.


7. Payment was clearly made and the Claimant had sufficient details to allow them to check that, and then they should have rectified their data to match the payment. Whilst it may not have been unreasonable to issue the ticket, this should have gone away pre-issue, once payment was clarified. Indeed, that is the purpose of the protocol to resolve simple points like that without the need to involve the Court. The Claimant pressing on with this is both disproportionate and arguably unreasonable. The PCN stated that the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it has been shown in the SAR that the correct parking charge (tariff) had already been paid. Exhibit



8. I performed a vehicle search via the gov.uk website to check if indeed as stated in the appeal rejection that it was possible for a vehicles registration to be 08, I entered 08 and the website failed to recognise it and displayed the following instructions “you must enter your registration number in a valid format” thus preventing further use of the site until a valid entry was made. If this simple message had been displayed during payment thus preventing an incorrect/invalid entry as cross referenced via the ANPR then this matter would not be wasting court time. Exhibit gov.uk website


9.The ANPR wouldn’t have recorded a vehicle with the registration 08 so the pay and display ticket should not have been issued. Failure to make a full payment (inputting of coins into the pay and display machine) would have prevented an issue of a payment ticket so why allow an incomplete VRN entry to issue a payment ticket other than entrapment. The claimant is alleging that the driver formed a contract with them by reading the terms and conditions on the sign and accepting them by remaining on site (as opposed to rejecting them and leaving). This is called acceptance by performance. However, the defendant could only form a contract with Excel Parking LTD, not the claimant, by virtue of the signs being in the name of Excel. This is further confirmed by the email correspondence by Excel Parking. The claimant is clearly a stranger to any contract and has no legal capacity to issue a claim.


10. VCS are members of the International Parking Community (IPC). It states in the IPC code of Practice (Appendix 12) the following• (14.1) you must not use predatory or misleading tactics to lure drivers into incurring a parking charge. Such instances will be dealt with as a serious instance of non-compliance and will be dealt with under the sanctions system described in schedule 2 to the code.



11. I have been honest and transparent in admitting to my Human error and to being the driver even though I was not obliged to give out this information; I certainly have not attempted to avoid payment or to conceal the fact I was the driver in an attempt to gain any advantage. This honesty and transparency hasn’t been reciprocated or displayed by both Excel parking and Vehicle control services for the following reasons.


12. The entrance and exit signs both have the Excel parking logos and the payment ticket from the pay and display machine has the same logo so alleged contract is with Excel not VCS. Email received refusing my initial appeal was from excel parking. If the occupant is Excel and the signs and tickets are Excel then VCS must as requested provide proof that the deed has been assigned and VCS have legal standing.


13. I have requested a SAR from both Excel parking and VCS to provide proof of their contract with the landowner that authorises the issuing of penalty notices to customers who have paid to use their car park/land. I’ve sought clarification as to whom I entered said contract with as even at this late stage it is ambiguous, unclear and in breach of being a contract because of the lack of transparency. This information has not been received and is in breach of data protection act.


14. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner or Excel parking to issue parking charge notices and to pursue payment by means of litigation as a third party. This information has been requested via SAR but has not been supplied.

15. Should the claimant provide evidence to substantiate their claim then the signage at the entrance to the car park and in and around the car park must have been unclear, insufficient and/or confusing to the vehicle driver. Excel parking and Vehicle control services are two different legal entities see exhibits vat details.

16. Sign at the entrance to the Albert Street car park said that Excel Parking Services Ltd managed and controlled that car park, this is a 24 hour Pay Car Park, not pay and display, and it contained a lot of information about the consequences of drivers non-compliance. Clearly, Excel Parking Service Ltd claim to be a landholder of Albert Street car park, not the Claimant, Vehicle Control Services Ltd. The car park is no longer operational and hasn’t been since approximately July 2018 putting the Defendant at a disadvantage to recover further evidence.

17. According to Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011), the key information that needs to be conveyed to the drivers is that it is a pay and display car park, not the consequences of failing to comply.

18. Any contract, in a private car park, can only be formed by signage, and it is therefore clear that if there was any contract, it would have been between Excel and the motorist.

19. Terms and Conditions display by the ticket machine was with a large logo of Excel Parking Services Ltd.

20. Terms and Conditions display contained information that by remaining at this car park the driver was entering in to a contract with Vehicle Control Services Ltd;

21. Terms and Conditions display contained information that the only valid Pay and Display tickets were with Excel logo;

22. Terms and Conditions display contained information in small font that in case of breaching those terms and conditions, Vehicle Control Services would collect the registered keeper's details data from DVLA;

23. Terms and Conditions display contained information that Excel Parking Services Ltd and/or its agents and servants did not accept any liability for loss of or any damage to the vehicles or personal possessions and vehicles are left and driver's/keeper's risk.

24. Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011) said that defendant (the driver in that case) had to be able to see the offer so that he can choose whether or not to accept it, and thereby enter in to a contractual relationship. Therefore, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. It is, therefore, denied that the Claimant's signage at the entry and in and around that site was capable of creating a legally binding contract.

25. Alternatively, even if there was a contract, the provision requiring payment £185 is an unenforceable penalty clause consisting of company costs. 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 as it is a cost to the business, therefore, cannot be reclaimed twice.

26. Further and alternatively, the provision requiring payment of £185.00 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.



27. Excel Parking Services Ltd were reportedly held to have tampered with a VRN list from a PDT machine which they produced as ‘evidence’. This alteration horrified a Skipton Court Judge who ordered punitive costs on the indemnity basis, and later in 2018 the facts were restated in the order by HHJ Gosnell declining Excels appeal (ref: Excel v Ambler, case no. E1DP2061).

28. The fact that a payment had been made would have been captured and the claimant had enough information to conclude from their secondary data stream ANPR
that an oversight (human error) had been made, yet instead of rectifying their data to match the payment, they contacted DVLA to obtain my personal details. Parking firms are also prohibited from issuing ANPR PCNs without manual checking by human intervention (BPA Code of Practice and AOS rules).

29. Given that I had appealed and the ANPR camera system, which proved which single car with the identifier 08‘’ was actually in this car park, the Claimant knew about the error and had ample opportunity to rectify the inaccurate data held by one of their two conflicting data systems.

30. At all times, from the ANPR image, the Claimant knew the correct VRN and it is averred that the PCN cannot have been properly or fairly checked before it was issued, since there was nothing to deter and no legitimate interest in merely penalizing a consumer.

31. Between

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and

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2018 I received several letters from the claimant and debt collectors acting on behalf of the claimant, asking for payment to be made, or court proceedings would be issued At no time did the Claimant try to resolve the matter. Exhibit 5 copy correspondence received.

32. On 4th October 2018 I received a Copy of a claim form which had been issued by the claimant.

33. The claim appears to be based upon damages for breach of contract. However, it is denied that any contract existed beyond the agreement to pay the tariff and identify the car ‘number’. Accordingly it is denied that I breached any contractual terms, whether express, implied or by conduct.

34. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring ‘open dealing’ and the doctrine of good faith. There was a complete lack of any fair warning on the screen: “are you sure, have you entered your full VRN? A penalty of £100 applies if inaccurate or incomplete number plates are entered here”.

35. I maintain that there was no relevant contract or obligation or burden that could fairly and squarely fall at my feet that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 ‘Prohibitions’ of the Consumer Protection from Unfair Trading Regulations 2008.


No standing or landowner authority

36. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner to issue parking charge notices under defined and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification

37. It is my case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for the ordinary and reasonable conduct explained in this witness statement.

38. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

Unconscionable sum claimed - double recovery - abuse of process

39. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which I submit have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than this sum. I aver that this inflation of the considered amount is a gross abuse of process.

40.The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

41. In the claimant's witness statement it's alleged I inputted random numbers into the PDT machine, this is denied as the numerical were those of my vehicle registration plate.

42. The so called contract received in the claimant's witness statement is a poorly written and almost unreadable document between Excel parking and the claimant, it isn't the contract from the landowner giving authority to the claimant to issue a PCN. This has a date of signing Jan 15th 2010 for 60 months so it expired Jan 15th 2015 before alleged contravention.

43. The claimant relies on the Beavis case which has no comparison to this case, the Beavis case was a free car park.

44. The claimant's witness statement refers to the manual checking of the Anpr images and that after reviewing these that the information was then passed to the relevant department to request details from the Dvla. This is an admission that no other manual checks were performed. No cross reference of the PDT machine information nor a manual check of displayed ticket.

45. Claimant's witness statement is from an Paralegal who has only been employed since January 2019 who claims to have knowledge of the case.

46. I deny any liability whatsoever to the Claimant in any matter and ask the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognizable claim in law.

47. I invite the Court to dismiss this Claim in its entirety, and to award my costs of attendance at the hearing, permissible under Civil Procedure Rule 27.14.

48. Costs on the claim - disproportionate and disingenuous
- CPR 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.

49. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

50. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. 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 the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

51. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

52. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

-53. The Protection of Freedoms Act 2012, Schedule 4 (POFA) 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.

54. 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:
''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 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...''

55. 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 and indeed mendacious in terms of the added costs alleged.

56. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

-57. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.
I believe the facts stated in this Witness Statement are true.

KeithP

Para 48. first letter missing.

You have stopped numbering paragraphs after 48, Why is that?

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Thanks I'll amend, do I need to add anything else?

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58. The Defendant relishes the chance to question this Claimant at trial and invites Mr Renshaw-Smith in particular, to explain his position in allowing this scam site to continue to trap honest drivers who have paid one firm but are penalised by the other. Further, the Claimant will be expected to explain its justification in pursuing court claims.

59. Mr Renshaw-Smith is no stranger to having his misleading signs and meritless claims exposed by the courts. Some six years ago, he was reported as describing the court ruling damning his misleading signage in Excel v Cutts (Stockport County Court case no: 1SE02795) as ".....an embarrassment to the judicial system" reportedly describing the Judge as "not fit to serve the civil courts". And in 2012 in VCS v Ibbotson, case No 1SE09849, District Judge McIlwaine warned VCS' representative against bringing meritless claims to court, stating: ''I am dismissing your action [...] it seems to me this whole action is ill-founded. You have no right to bring this action. Moreover, on my interpretation of your Code of Practice, you are in clear breach. You have signed statements of truth which say you adhere to the Code of Practice. You do not. To sign a statement of truth when it is not correct has significant implications. I will tell you now after these proceedings I will issue an alert so you are clear. I have had this case in my court and all judges with this case and this dispute are advised to look at the terms and conditions of contract. If you continue to pursue those cases on this flawed premise, the consequences will be significant. If there is another case in the (Grimsby/Hull area) County Courts live by 4pm on Friday, you will be coming to see me and I suggest you bring a toothbrush. Am I clear?''
I believe the facts stated in this Witness Statement are true.

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Help needed please review my witness statement and post critique

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Hi Coupon mad, I've added some more details based on the witness statement received from vcs. Could you please let me know if my witness statement needs anything more, if you can look through previous I've included their statement. Is the contract between excel and vcs still valid as it states to run for 5 years from 2010?

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Help needed urgently as I have to submit my witness statement to the court please review and give feedback.

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Witness statement handed to court and posted to Vcs.

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Keith,
I have given my witness statement to the court, I was hoping for some feedback from others before I did this but time was against me. I appreciate your feedback and help, do you think my witness statement was adequate enough to stand up?