clam form - defence- help needed - ACE security services - Gladstone's

KeithP

kanjar13 wrote: »

also say my hearing is on 27/08 so I have until 4pm on 12.08 to deliver my WS?

Depends entirely on what the Notice giving you your hearing date says.

Usually it is 14 days before the hearing but not always.

Assume nothing. Re-read the information the court has already sent you.

Check with the court that the desk is open to 4pm.

kanjar13

KeithP wrote: »

Depends entirely on what the Notice giving you your hearing date says.

Usually it is 14 days before the hearing but not always.

Assume nothing. Re-read the information the court has already sent you.

Check with the court that the desk is open to 4pm.

yes in the post just before the one you replied to I mentioned it says in the letter "no later than fourteen days before the hearing" so I am assuming (hopefully correctly) this means calendar days so I have until closing time on 12/08 (I will ring tomorrow to check if their desk is open till 4pm)

kanjar13

IN THE COUNTY COURT AT xxxxxxxx
CLAIM No. xxxxx

Between:

PACE RECOVERY AND STORAGE LIMITED (TRADING AS ACE SECURITY SERVICES (Claimant)

- and -

MR x x Of xx xxxx xxxxx (Defendant)

__________________________________________________________________________________
WITNESS STATEMENT – Mr xxx xxx
__________________________________________________________________________________

1. Preliminary

1.1 I, xxx xxxxx, of xxxxx xxxxxxx am the Registered Keeper in this case. I am unrepresented, with no experience of court procedures. If I do not set out documents in the correct way, I trust the court will excuse my inexperience.

1.2 Attached to this statement is a bundle of documents marked EX1, EX2 etc., to which I will refer.

1.3 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.

1.4 The claim refers to an incident involving vehicle xxxx on xxxxxx at the location of Xx xx, London.

1.5 I am not liable to the Claimant for the sum claimed, or any amount at all, and this is my Witness Statement in support of my Defence already submitted.

2. Sequence of Events

2.1 I was not the driver on the day the alleged contravention took place but I have been in contact with the driver and the sequence of events reflects what happened on the day. I have also visited the place where my vehicle was parked around the same time the PCN occurred, took pictures of signage and surrounding area in order to give an adequate Witness Statement.

2.2 On 21st of May 2018 my vehicle was parked in a marked visitor bay allocated to guest visiting Xx xx. The vehicle was de facto “authorised” as a visitor and permitted to park at Xx xx. (See Exhibit EX1 - picture of a permit from the claimant’s bundle). The driver believed it would cover the vehicle for the visit and would perhaps need a new permit from 8am for a new day. No driver expects to be ticketed at 1am when displaying a valid permit showing they had the right to be there. The issuing of ticketing in the early hours at 12:54am when a visitor was displaying a permit from that day, is nothing short or predatory by knowingly seeking out and ticketing a genuine visitor, contrary to the The International Parking Community (IPC) Code of Practice (14 Predatory Tactics – please see EX15), which states ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges.’ Such instances will be viewed as a serious instance of non-compliance’. The signage as you enter Xx xx isn’t clearly visible, especially to someone entering at night and in a moving vehicle, it can be deemed predatory and opportunistic given out tickets to genuine vistors. I would question that the Claimant is deliberately obscuring this fact to generate spurious Parking Charge Notices solely for financial gain.

2.3 Over 1 month after this occurred, I received correspondence “Notice to Keeper” from the Claimant (letter dated 25 June 2018 Exhibit EX2 NTK) demanding “Payment for Charge Notice” is overdue for “Invalid Permit”. This was the first communication I had received on the matter and the letter was very vague.

2.4 I sent a reply letter (See EX3 Add first letter) on the 3rd July 2018 to the Claimant stating that I was the registered keeper and suggested that they cancel this notice as no evidence was included.

2.5 The Claimant responded with another letter (See EX4) stating the driver called on the day of the Charge Notice and I had lost the right to appeal. I as the registered keeper was not aware the driver had called the Claimant. Having had no other correspondence from the Claimant I had assumed the matter closed.

2.6 On the 6th September I received a “LETTER BEFORE CLAIM” from the Claimant’s solicitors (See EX5) seeking recovery of debt for £160. The letter stated additional costs claimed by the claimant for the time spent and resources facilitating the recovery of the charge. I responded to this Letter of claim (See EX6) stating that I did not agree I owed this debt. I also asked that they provide evidence of who is the owner of the car park, a copy of the contract between the claimant and owner and planning and advertising consent for the signage and all evidence held.

2.7 The Claimant’s solicitor did not respond to my 1st letter but sent a 2nd “LETTER BEFORE CLAIM” on the xxxx, (See EX7) again asking to pay this charge. I responded again via a letter and the Claimant’s Solicitors website that I was still waiting for a response from my first letter asking for the same information stated in the first letter (2nd letter See EX8). They finally responded via email on the xxxxx (See EX9) stating that they had attached a bundle, which the claimant would rely on in court and does not include details of the owner or contract between their client (the Claimant) and landowner and planning applications is irrelevant to this charge. The Claimant’s solicitor also stated there would be no further correspondence and documentation will not be provided at this stage. There was NO bundle attached, I replied stating no bundle was attached, the claimants Solicitor did not respond until the xxxxxx with the Bundle.

3. Inadequate Signage

3.1 Upon later investigation I drove to Xx xx, I could not see any clear or lit signage from my vehicle clearly indicating the parking restrictions (See EX10 - picture entering Xx xx at 12am). The signs weren’t clearly visible when entering the development. When I stopped and parked my vehicle, there were no signs adjacent to the space, that could possibly be read from my vehicle. I believe that in the case of “Vine vs London Borough of Waltham Forest” (See EX11) the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they have not seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no signage directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been read from within the vehicle when parking, as in the case here (See EX12 - Picture from inside car looking at the sign).

3.2 When reviewing the signage at Xx xx it is difficult to read especially at night. A key factor in the case of “ParkingEye vs Beavis” (See EX13) was that the relevant signs were “large, prominent and legible so that any reasonable user of the car park would be aware of their existence and nature” and that “the charge is prominently displayed in large letters and at frequent intervals within it”. That is not the case here. (See EX14 picture of the sign from street level evidence)

3.3 The IPC CoP (See EX15) state that text on signage ‘should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read and impossible to read from inside a vehicle.




4 Abuse of Process

4.1 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.

4.2 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.

4.3 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.

4.4 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.

4.5 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.

4.6 The Protection of Freedoms Act 2012, Schedule 4 (POFA) (See EX16) 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.

4.7 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...''


4.8 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.

4.9 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.

4.10 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.


5 Declaration

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.


Statement of Truth

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


Signature

Date

kanjar13

is anyone able to assist with checking it over please?

[STRIKE]also...called the court this morning to confirm the 14 days prior to hearing and they did indeed say it's 14 working days, which means we have until today to submit our witness statement! *facepalm* [/STRIKE]
obviously they have incompetent people working there, called again and been told it's 14 calendar days

[STRIKE]they paid their court fees a day late (the deadline was on Friday and they paid on Monday), does it help me in anyway? Should I include this in my WSor write a covering letter with WS or leave it?[/STRIKE] they actually paid on time, it was logged later, there goes that then

kanjar13

Any help editing this will be much appreciated 🙏🏻
Thanks!

Le_Kirk

It's looking good but I would change this to make sure you are QUOTING from the previous cases not issuing an order or instruction to the court.

.......Order was identical in striking out both claims without a hearing:

I quote from the case ''IT IS ORDERED THAT The claim is struck out as an abuse of process.

kanjar13

Le_Kirk wrote: »

It's looking good but I would change this to make sure you are QUOTING from the previous cases not issuing an order or instruction to the court.

done that, thanks

just one more question...looking at parking eye v Beavis but it's 123 pages, can I just show it to the judge on my laptop should he want to have a look instead of printing it all out?

Le_Kirk

I believe I have read on this forum that judges would have access to Beavis on their own systems.

Umkomaas

No need to print off the entire case. You could print selected pages/paras that relate to any point you are making. But having it on your laptop for quick reference is a good idea.

kanjar13

Michael Charman if ace security is here himself, my hearing is in 4 minutes. Any lat word of advice? Is this bad that he is here representing his company?