Bw legal portswood car park, southampton

CEC16

So today’s hearing at Southampton took place. The judge DJ struck out both my case and another that was also previously struck out as an abuse of process.

I’ll update more soon. But today was good news. And I must say a huge thank you to two members of MSE.

Umkomaas

Just so we're all clear, was this the case to the appeal court from which the result will now be persuasive in terms any further 'additional costs' from the PPC network?

If so, that's a significant judgment. Look forward to the greater detail.

BrownTrout

Umkomaas wrote: »

Just so we're all clear, was this the case to the appeal court from which the result will now be persuasive in terms any further 'additional costs' from the PPC network?

If so, that's a significant judgment. Look forward to the greater detail.

No it wont be persuasive, because it was just an application against an order of the court, so its on the same level as any other small claims and not up at circuit level

Coupon-mad

However, DJ Grand said some very useful things in summing up, and a transcript will be obtained - will take a while - that can be used in evidence in 2020 for every case where £60 is added (i.e. everything except ParkingEye cases then).

Not 'persuasive' and not a precedent, but a detailed transcript that will be useful.

F0DP806M/F0DP201T BRITANNIA PARKING -v- Mr C and another
- APP TO SET ASIDE STRIKE OUT ORDER

It was a fun trip for the Brighton ladies from MSE, and the right result was secured.

The entire claims remain struck out, not just the £60, and in addition to confirming the Court's displeasure about an inflated charge being an attempt to go behind the POFA and the Beavis case, DJ Grand also agreed with my added submission that the charge failed the Consumer Rights Act 2015 Schedule 2 (aka 'the grey list' of terms that are likely to be unfair) re paras 6, 10 and 14.

He said that even if he was wrong about the POFA and the Beavis case, he was with us on all three CRA points. So that will be useful for cases of similar signs, ones where the added debt 'costs' of £60 was not specified and was vague & void for uncertainty.

ParkingMad was watching, and I was lay rep for the Defendant, although he was actually one of two unrelated Defendants.

Court Reports to follow from me and from the OP, as there is a lot to recount!

And it was versus a Barrister, working at 10.40pm on a Sunday night...as that is when he emailed his skeleton argument...

beamerguy

BrownTrout wrote: »

No it wont be persuasive, because it was just an application against an order of the court, so its on the same level as any other small claims and not up at circuit level

What is persuasive to all courts is that Southampton on the same case has now done this twice.

BWLegal and the other dodgy legals can only expect the same from other courts ..... Abuse of process is still alive and well

Coupon-mad

Abuse of process is still alive and well

Not if we use this transcript wisely in 2020 once the OP gets it.

beamerguy

Coupon-mad wrote: »

Not if we use this transcript wisely in 2020 once the OP gets it, and as long as they don't appeal (they were refused permission but could still go crying to a Senior Circuit Judge).

What I meant by this ... "Abuse of process is still alive and well"
is that if these legals keep on with their rubbish, we will push Abuse of process with more meaning.

I would imagine the Senior Circuit Judge knew of this

Coupon-mad

COURT REPORT:

F0DP806M/F0DP201T BRITANNIA PARKING -v- Mr C and another
- APPLICATION TO SET ASIDE STRIKE OUT ORDER

CEC16 picked myself and ParkingMad from Southampton station and when we arrived, we explained to the Usher about me wanting to lay rep.

Britannia's barrister was already there. He eyed me suspiciously and asked for a word in a side room, and I had already decided I would try to narrow the issues. He asked me if we had got their skeleton and he offered what came across as a hollow apology for serving it so late on a Sunday (he emailed it at 10.40pm on Sunday night, which spoke volumes).

I asked him to confirm he'd got our skeleton and costs schedule. He had. I told him that their WS that had been filed with their N244 objection to the strike out, had not been served and we'd still not seen how they were pleading the case.

He then tried to persuade me that he would 'agree to an adjournment'.

I said no, we don't want an adjournment and want this dealt with today. He looked surprised and said 'I feel you should check with Mr CEC16', and I answered breezily: 'No need! We've already discussed this and he doesn't want the case adjourned'.

He said ''Really? but I only just offered it now?!'' to which I replied ''I knew you would try for an adjournment, I do lots of these cases''.

His face fell then he recovered himself. My parting shot was to ask if he would be objecting to my Rights of Audience and he said, ''No; if I was I would tell you, and I won't be''. Fair enough.

Once inside the courtroom, DJ Grand didn't bat an eyelid about me lay repping and he let the barrister kick the case off. Firstly, as a preliminary salvo, the barrister actually tried to object to the spectators (ParkingMad and CEC16's wife) and wanted to know who they were!

That did not go down well with DJ Grand who told him 'this is a County Court, it is open to the public and we do not collect their names and addresses. The public are free to watch cases as is perfectly normal at such hearings'. Barrister: 'so it's not in Chambers?' ''No'', glowered DJ Grand, then he glowered even more when it became apparent that the Claimant had failed to serve their June WS and evidence for the application to either of the Defendants, and then failed to serve the October supplementary WS, where they'd sent a zoomed in picture of the small print on the sign, showing that not only was that minuscule wording illegible but if you did squint at it, there was no sum specified for debt collection, as it simply said:

''Where parking charges remain unpaid beyond 28 days, recovery charges in respect of further action may apply.''

DJ Grand was concerned that none of us had seen all the documents, and he himself had neither of the Skeletons either (despite them being emailed to court in good time) so he sent us all out for 20 mins to read the documents, and gave me his court copy of the June 2019 Witness statement. It even accused CEC16 of 'not denying who was driving' in order to try to suggest that the POFA was not in play - yet what was the first phrase in his defence? ''I was not the driver'' (the barrister fessed up to that immediately when I later raised it - and IMHO he was far too quick to admit it - so he knew it and must have hoped CEC16 and I hadn't noticed!).

Oh dear, so it was 1 - 0 at half time (to CEC16, with the other Defendant just a watcher in the crowd).

Luckily the other Defendant (who had a worse than useless outspoken FOTL 'defence') had declared he wasn't interested in anything except his ''wet ink invoice'' and gave the Judge his copy of BW Legal's June 2019 WS, so at last we all had a copy of everything.

First, it was the barrister's turn to put the Claimant's case for the N244 application to remove the strike out order, and DJ Grand told us that:

- we would each be expected to keep our verbal submissions to 5 minutes, given this was meant to be a half hour hearing (but luckily his 11am one had been vacated)

- as both sides had filed and exchanged ''full'' (= wordy) skeletons already, we were all strongly advised to keep our submissions to addressing the other side's arguments.


The barrister proceeded to waffle about rubbish like Chaplair v Kumari, how it 'cannot seriously be fair' that a parking company cannot recover costs of the operation. He (rather pointlessly) explained the 'stages of work that a PCN goes through' and all this took ten minutes, without him even picking up CEC16's skeleton argument to address anything in it.

DJ Grand had to interrupt him and said ''you have already taken 10 minutes and unless you are using that wisely to do what I suggested and deal with addressing the Defendant's objection to your application - which specifically cites certain paragraph numbers from the Beavis case and the POFA, I see - then it seems to me you are wasting the time you have''.

CEC16 and I sat quietly watching.

The barrister was brave enough to assert that he felt there was 'institutional bias' in the courts against parking firms who are 'unpopular' and then tore into how 'brief and vague' DJ Taylor's June strike out Order had been, and that it was unfair as it had given the poor Claimant no information as to what was meant as regards 'going behind' the POFA and the Beavis case...

DJ Grand almost lost his rag at that point (DJ Grand uses exactly the same strike out wording himself!). The Judge said the strike out Order was perfectly clear, and 'contained more words than the Claimant's vague/brief POC' and that surely the barrister wasn't suggesting that a parking firm member of the BPA had not had ample opportunity to study the POFA and the Beavis case in detail, and that somehow this was all a surprise to them?!

Anyway my turn:

I missed a beat a little in trying to directly ask the other side what exactly the £60 was for, and how the whole £160 was constructed? DJ Grand corrected me to address the court/him, and not the barrister, so I had to change it to observing that the Claimant's skeleton had one single line buried in the middle, that suggested that the £60 was being argued as this:

''40. It is thus submitted that there is nothing in principle abusive about the £60 which the Claimant seeks to recover in respect of the additional administrative costs which were incurred before each matter was handed over to the Claimant's solicitors.''

So I observed that, if the £60 was being argued to represent the 'admin costs of the operation', then to coin a phrase, surely the Claimant was throwing the core parking charge of £100 under a bus? Because that argument would expose the actual £100 as a penalty - neither constructed in the same way as the Beavis charge (ref paras 98, 193 and 198 which clearly say the sum had to be set that high to cover the costs of the operation).

Either that, or this was an attempt at double recovery. I left that thought hanging.

Then I rattled through my planned 3 verbal submissions I'd written down, the first two trying to echo/add to the strike out reasoning:

1. The Claimant knew or should have known, that £160 charge against a registered keeper who was not driving, was in breach of POFA, due to paras 4(5) and 4(6).

2. The Claimant knew or should have known, that £160 charge was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.

3. The Claimant knew or should have known, that £160 charge where the signs did not specify a sum for this vague add-on, is void for uncertainty...AND in breach of the Consumer Rights Act 2015, Schedule 2 (the grey list of terms that may be unfair) paras 6, 10 and 14.

I quickly added that the Court has a duty to consider the test of fairness for consumer notices and terms (Part 2 para 71) whether or not a party has raised it before. Cue a sharp intake of breath from the barrister and DJ Grand said with interest 'yes, but you are raising it anyway' and reached for his thick book of statute law while the barrister said that he did not have a copy of the CRA 2015 'grey list'.

I did, and a spare to hand to him. I just read out paras 6, 10 and 14 from the grey list and I think I mentioned as well, that for the first time in such legislation, the CRA covers consumer notices (the UTCCRs did not) but that the official CRA 2015 guidance tells us that consumer notices are not exempt from the test of fairness.

In fact, Judges should be using that statute of their own volition and applying paras 6, 10 and 14 - and all the others on the grey list Schedule 2, if applicable - whether a Defendant mentions it or not.

The CMA Official Government Guidance 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.

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)''

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

I didn't throw in that actual guidance but I didn't need it. OP's here should start using it.

The FMOTL Defendant was offered his 5 minutes but just said ''I am here for my invoice and blah blah'' (something about the Bill of Rights delusion about common law) and the barrister was allowed to reply to at least slap that down, then DJ Grand summed up.

We knew we'd won but it was a while until he confirmed that the issues with the £60 'tainted the entire claim' and that the court was right to strike the claim out. He went into a lot of detail:

- he had a swipe at the BPA and said the Supreme Court paid surprisingly high regard for a CoP that was written by the PPCs, for the PPCs, and so he was not persuaded by the Claimant's submissions that the BPA CoP allows that up to £70 can be added for debt collection;

- he observed how wrong it was that so many undefended cases go to default judgments, allowing parking firm claimants the full claim amount and that was excessive;

- he found the Defendant's case correct on the POFA paragraphs cited and the Beavis case paragraphs cited, and that even if he was wrong about that;

- he was persuaded that all 3 of the CRA 2015 paragraphs cited had been clearly breached;

- so the whole claim was tainted and remained struck out.

The barrister asked for leave to appeal, which was refused and DJ Grand warned him he should be telling the Claimant not to try as there are no grounds, but they could of course apply if they wished, as is their right, to the Senior Circuit Judge.

CEC16 and the second Defendant were each granted the top ceiling of £95 ordinary costs, plus CEC16 claimed his parking and travel.

So it was 2 - 0 to the Defendants at full time, and no penalties allowed.

ParkingMad and I went for lunch to celebrate with a lemonade and an apple juice!

I am hoping with this transcript, lots more Defendants will in future be able to say:

ANOTHER ONE BITES THE DUST!

The_Deep

In the light of this decision will the Abuse of Process thread need to be updated?

Mahershalalhashbaz

Thank you Coupon-Mad for this comprehensive account of yesterday's hearing.

I was both relieved and a little miffed that I wasn't invited back after DJ Grand struck out BW Legal/Britannia's claim against me for overstaying in that car park just a few weeks after CEC16's case was struck out.

A satisfactory conclusion, though just a pity that the judge didn't award costs and travel to you also.