Euro Parking Services Ltd-Gladstone Solicitors County Court Claim. HELP NEEDED PLEASE!

Redx

You forgot the costs schedule

You need to read the abuse of process thread and the CRA reference , start with the thread by CEC16 to see why and what happened

Add the supplementary WS to your bundle , one for court , one to claimant and the third you take with you on the day , these include the CRA extracts etc

Your court order tells you what to submit , who to , plus a deadline

An SA is optional , it's an aide memoire

KeithP

Can you please show us the Defendant's Witness Statement that you are proposing to file and serve?

Twins123

This is what I've got so far.





In the County Court at XXXXXXX

Claim No. XXXXXXXX

Between

Euro Parking Services Limited (Claimant)

and

XXXXXXXX(Defendant)

---

Witness Statement

---

1. I am XXXXXXXXX of XXXXX(address) the Defendant in this matter. I will say as follows:


2. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver.


3. The Defendant denies being the driver at the time of the supposed event, and therefore puts Euro Parking Services Limited to strict proof that any contract can exist between the Claimant and themselves.

4. At the time in 2017, the insurance covered more than one family member, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

5.The driver had a business meeting at XXXXXXXX The Driver went to the building where he was supposed to get a day pass at reception. No one was there therefore he couldn't acquire one and he proceeded to attend the meeting. When he finished the meeting he found a PCN on the windscreen. He went back and explained he had a meeting at one of the offices and because nobody was at reception he couldn't get a day pass. He was told not to worry about it,just to leave the PCN there and all will be sorted.

6. I myself have visited the site (address) soon after receiving a County Court Claim and have seen the signs and found no information on having to obtain or how to obtain a day pass. On the xx/xx/xxxx there was not a single sign at the entrance relating to parking restrictions. There seems to be a relatively large number of vehicles parking at the site at all times(mini buses and other medium to large types of vehicles). These vehicles completely cover the flimsy very small signage that I could see stack(mounted) to the wall. I received some pictures from the Claimant when I submitted a subject access request via email. There is one single sign pictured that you can barely see and that was nowhere near my vehicle.

Even if the signs are considered capable of being seen, the contract terms were either:


(a) satisfied, because a person attending for a pre-organised business meeting reaches a reasonable person's ordinary definition of ''pre-authorised'' (which on the signs is written as a separate bullet-point, where no permit is needed). Based on the doctrine of contra proferentem (Latin: "against [the] offeror"), where signs or terms are considered to be ambiguous, the interpretation which most favours the consumer shall prevail (Consumer Rights Act 2015).

Or,


(b) in the alternative, the term requiring a permit was 'void for impossibility' on that day, and no doubt also on any other days when there was no-one on reception. If there is no mechanism for displaying a permit, then the contract term the Claimant relies upon was void and unfair and the Consumer Rights Act, again, provides that "A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer"It is undeniable that the Claimant signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.!

7. Both the PCN and Notice to Keeper I was issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. I cannot be seen to have entered into a contract for something I was not ‘authorised’ to do.

8. Inadequate Signage

8.1 A key factor in ‘ParkingEye vs Beavis’ 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 ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here.


8.2 In‘Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case there was no sign adjacent to the vehicle, The driver has not passed any signs to park, and no signs in the vicinity could possibly be read from the vehicle.


8.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

8.4 In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International

Parking Community (IPC).


8.4.1 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that anyone driving would not have passed any signage indicating they were entering private land.


8.4.2 The IPC guidelines state that signage should include a very large ‘P’ to alert the motorist to the fact that said signage relates to parking restrictions. There is no large ‘P’ signage in this case.

THE Claimant!


8.4.3 The IPC guidelines 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 is very small. This, coupled with the fact that the sign are few and is mounted at height that are easily covered by any parking vehicle, which makes it impossible to read from a vehicle.


8.4.4 The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving when another vehicle is already parked in front of the signage (as was the case here), it is literally impossible to read whilst parking.


8.4.5 The Claimant and their representative also have a duty to mitigate loss. In the case of ‘Vehicle Control Services vs Ibbotson’ (which was won by the motorist) the judge severely castigates the Claimant for not making the Defendant aware of the terms of parking at the site when they could have easily done so. The Claimant’s representative could simply have made the driver aware of the terms of parking and, in the unlikely event that he has agreed to them, collected payment from the driver directly. This would have saved all the costs involved with DVLA lookup, solicitor’s letters and court fees and better fulfilled their (presumed) obligation to keep the area free from parked vehicles.

9. Consumer Rights

9.1 If a contract were deemed to exist between the driver and the Claimant it would, under the terms of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), be defined as a ‘distance contract’. As ‘distance contract’ is defined as ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.


9.2 As a ‘distance contract’, the signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.


9.3 As the signage does not carry the information required as specified in 4.2 (above) the driver have the right to cancel the contract as specified by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13) clause 31 ‘Cancellation period extended for breach of information requirement’.


10 Landowner Authority

10.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have they authority to do this, and that the terms and conditions of parking they impose at the site are in line with what they have been authorised to do.


11 Is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.


12 The claimant has failed to properly respond to my request made VIA email.

12.1 requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner’s behalf. My request was not actioned appropriately (I received 12 questionable colour photos of the car park & the original PCN only, without further information).


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




Signed!



Dated

Coupon-mad

No. 2. should say clearly: ''I was not the driver''.

You need to remove this as you were not involved:

I cannot be seen to have entered into a contract for something I was not 'authorised' to do.

And you need to add exhibits, not just those you listed, but also the Consumer Rights Act 2015 Schedule 2 with paras 6, 10, 14 and 18 highlighted and ask the court to consider the unfair signs and terms.

For wording about that, see post #14 of Beamerguy's Abuse of Process thread.

You should also add as an exhibit, PACE v Lengyel (search the forum!).

Finally, read the threads by CEC16 to understand what happened in November.

beamerguy

For wording about that, see post #14 of Beamerguy's Abuse of Process thread

https://forums.moneysavingexpert.com/discussion/6014081

Please use this Twins123

Twins123

Thank you Coupon-mad and beamerguy, I am really out of my element hear so your help means a lot.
Here is the modified statement.


In the County Court at XXXXXX
Claim No. XXXXXXXX
Between
Euro Parking Services Limited (Claimant)
and
XXXXXXX(Defendant)

---

Witness Statement

---

1. I am XXXXXXX, of (address), the Defendant in this matter. I will say as follows:

2. Whilst I was the Registered Keeper of the vehicle concerned, I was not the driver.

3. The Defendant denies being the driver at the time of the supposed event, and therefore puts Euro Parking Services Limited to strict proof that any contract can exist between the Claimant and themselves.
4. At the time in XXXX, the insurance covered more than one family member, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.
5.The driver had a business meeting at XXXXXX. The Driver went to the building where he was supposed to get a day pass at reception. No one was there therefore he couldn't acquire one and he proceeded to attend his meeting. When he finished the meeting he found a PCN on the windscreen. He went back and explained he had a meeting at one of the offices and because nobody was at reception he couldn't get a day pass. He was told not to worry about it,just to leave the PCN there and all will be sorted.
6. I myself have visited the site (XXXXXX) soon after receiving a County Court Claim and have seen the signs and found no information on having to obtain or how to obtain a day pass. On the xx/xx/xxxx there was not a single sign at the entrance relating to parking restrictions. There seems to be a relatively large number of vehicles parking at the site at all times(mini buses and other medium to large types of vehicles). These vehicles completely cover the flimsy very small signage that I could see stack(mounted) to the wall. I received some pictures from the Claimant when I submitted a subject access request via email. There is one single sign pictured that you can see and that is nowhere near my vehicle.
Even if the signs are considered capable of being seen, the contract terms were either:

(a) satisfied, because a person attending for a pre-organised business meeting reaches a reasonable person's ordinary definition of ''pre-authorised'' (which on the signs is written as a separate bullet-point, where no permit is needed). Based on the doctrine of contra proferentem (Latin: "against [the] offeror"), where signs or terms are considered to be ambiguous, the interpretation which most favours the consumer shall prevail (Consumer Rights Act 2015).
Or,

(b) in the alternative, the term requiring a permit was 'void for impossibility' on that day, and no doubt also on any other days when there was no-one on reception. If there is no mechanism for displaying a permit, then the contract term the Claimant relies upon was void and unfair and the Consumer Rights Act, again, provides that "A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer"It is undeniable that the Claimant signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
7. Both the PCN and Notice to Keeper I was issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. The driver cannot be seen to have entered into a contract for something he was not ‘authorised’ to do.
8. Inadequate Signage
8.1 A key factor in ‘ParkingEye vs Beavis’ 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 ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here.

8.2 In‘Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case there was no sign adjacent to the vehicle, The driver has not passed any signs to park, and no signs in the vicinity could possibly be read from the vehicle.

8.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

8.4 In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International
Parking Community (IPC).

8.4.1 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that anyone driving would not have passed any signage indicating they were entering private land.

8.4.2 The IPC guidelines state that signage should include a very large ‘P’ to alert the motorist to the fact that said signage relates to parking restrictions. There is no large ‘P’ signage in this case.
THE Claimant

8.4.3 The IPC guidelines 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 is very small. This, coupled with the fact that the sign are few and is mounted at height that are easily covered by any parking vehicle, which makes it impossible to read from a vehicle.

8.4.4 The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving when another vehicle is already parked in front of the signage (as was the case here), it is literally impossible to read whilst parking.

8.4.5 The Claimant and their representative also have a duty to mitigate loss. In the case of ‘Vehicle Control Services vs Ibbotson’ (which was won by the motorist) the judge severely castigates the Claimant for not making the Defendant aware of the terms of parking at the site when they could have easily done so. The Claimant’s representative could simply have made the driver aware of the terms of parking and, in the unlikely event that he has agreed to them, collected payment from the driver directly. This would have saved all the costs involved with DVLA lookup, solicitor’s letters and court fees and better fulfilled their (presumed) obligation to keep the area free from parked vehicles.
9. Consumer Rights
9.1 If a contract were deemed to exist between the driver and the Claimant it would, under the terms of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), be defined as a ‘distance contract’. As ‘distance contract’ is defined as ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.

9.2 As a ‘distance contract’, the signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

9.3 As the signage does not carry the information required as specified in 4.2 (above) the driver have the right to cancel the contract as specified by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13) clause 31 ‘Cancellation period extended for breach of information requirement’.
9.4.Furthermore, the claimant denies that the sign makes it clear that the driver of the vehicle is entering into a contract. The signs used were not dissimilar to those in the case Pace v Lengyel. Where District Judge Iyer dismissed the claim noting that:

“Nowhere on this sign does it inform the reader that by parking in this car park, he is entering into a contract with the Claimant. Indeed the words “contract” or “agreement” do not appear at all within the sign it merely refers to the driver “accepting liability for a charge”. The phrase “Terms and conditions” are not synonymous with a contract. Further, the opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver.”
9.5. There were inadequate signs (at the time of the offence) incapable of binding the driver into the contract - this distinguishes this case from the Beavis case.

9.6. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

Twins123

10 Landowner Authority
10.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have they authority to do this, and that the terms and conditions of parking they impose at the site are in line with what they have been authorised to do.

11.Is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.

12.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'.

13. 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.

14. 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.

15.1. 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.

The Beavis case is against this Claim
16. 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.

16.1. 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.''

16.2. 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.''

16.3. 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...''

16.4. 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.''

The POFA 2012 and the ATA Code of Practice are against this Claim
17. 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
18. 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.

18.1. 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.''

18.2. 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.

18.3. 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.

18.3.1. 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...''

18.3.2. 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.

18.3.3. 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.

18.3.4. 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.

18.3.5. 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.''

18.4. 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.

18.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''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.''

19. 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.

19.1. The Judge determined that ''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.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

20. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

21. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

22. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.




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



Signed


Dated 28/12/2019

Coupon-mad

You are good at this, and quick to find stuff to add.

Now, you will need exhibits which include the actual transcript for PACE v Lengyel (see the Parking Prankster's case law pages (Google for them).

And the exhibits that I used at Southampton - the three Beavis case quotes on a page of A4, and the POFA 2012 Schedule 4, and the CRA 2015 Schedule 2 (with paras 6, 10, 14 and 18 highlighted and ask the court to consider the unfair signs and terms).

What other exhibits and evidence are you including?

Photos of signs?
Proof of the business meeting?
A copy of the insurance showing more than once driver?

Twins123

I am including some photos that I took on the site,also photos that the claimant provided as part of my subject access request.
Yes, I am planning to send a copy of my insurance and I do have a letter from the manager of the company stating the driver indeed had a meeting at the time.

Sorry I am having some trouble posting, my IPN is banned for some reason.
If I don't reply it's not because I dont want to.

I'll Google the exhibits you've mentioned. Thank you again for your advice. ��

Le_Kirk

IP addresses get banned usually because you have posted or tried to post from Microsoft Word (or similar). The forum recommends using Word to copy paste into Notepad (or similar) and copy and paste from there.