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CEL requesting payment after POPLA unsuccessful appeal
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- where the alleged contravention occurred -No need for that phrase as your first sentence tells the Judge that. Also get rid of 'contravention' (twice) and put 'breach' instead.
Add here:As a result, the Defendant is fully upholding the contract with the Gym in this matter and has deemed any contract with the Claimant as void. It is denied that any contract was entered at all with this Claimant by conduct or otherwise, and any breach of same is also denied because there was no relevant obligation upon gym users. In fact it has been the Defendant's position from the start that the VRM was entered and that their system has failed. A gym user would have no reason not to enter their VRM, and instead to pay £100 to park at a site that is free for their vehicle, as a genuine patron. The Claimant is put to strict proof of any breach.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Great stuff, thanks a lot for this addition. I'll keep the thread updated on progress.
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Hi everyone, quick update on this thread:1. Defence submitted last september2. Claim allocated to local court3. Video hearing date is set for June.CEL have now sent a letter asking me to pay £85 (£60 original fine plus £25 maybe for court fee) rather than £276.51(court claim amount), but I have decliined this offer and counter offered requesting cancellation of the pcn and claim - I guess they will decline. From all readings, I think the next thing I need to do is to prepare a WS to send to court and CEL, is this correct? If I dont get their WS and evidence by 14days before hearing, can I ask them for it? In particular as part of their evidence, I would like to see their contract with the gym. Any other advice will be appreciated. Thanks All0
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If I dont get their WS and evidence by 14days before hearing, can I ask them for it?No way - don't remind them if they fail to comply with the Order!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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I don't think CEL have any appetite to put this in front of a real Judge (haven't read of a physical/telephone CEL hearing for many months). They basically put you through the wringer to follow every step, and if you don't, in they jump for a judgment in default against you.While there are no guarantees, with CEL's 'offer' already having been made, you might well be on the right track to getting them to discontinue, but you have to keep jumping every hurdle. Keep at it.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street1 -
Hi All,I have drafted a Witness Statement and about to send to the court and CEL, I would like to get feedback before submitting. Thanks. I called the court today, CEL paid the court fee of £25 on the deadline day, although no witness statements from them yet.
WITNESS STATEMENT
1. I was a bona fide member of XXX in Dagenham on the date of alleged breach, (Please refer to Exhibit X and Exhibit X of defendants evidence) and authorised to use the Club’s facilities including the Car Park.
2. I received a Parking Charge Notice from CEL – the claimant on the 30/04/2019.
3. I appealed the parking invoice with the claimant – CEL on 13/05/2019 (please refer to Exhibit X of defendants evidence). The appeal to CEL was clear that I attended the gym on the day of alleged breach and I had entered the VRN in the keypad system at the gym. CEL rejected this appeal even though I provided a copy of my membership agreement including a copy of gym usage as provided by the gym. The gym usage printout provided by the gym was proof of my attendance at the gym on the day. A gym user would have no reason not to enter their VRM, and instead pay £100 to park, which is equal to 4months membership cost at the time, at a site that is free and used solely by the gym members for their vehicle, as a genuine patron.
4. On numerous occasions, the defendant wrote numerous letters to the claimant inviting them to cancel the parking charge, as I will not be held liable because I believe it’s an unfair charge and that I was a genuine member of the gym who has the right to park in the car park as a result of the contract I had with the gym (the landowner).
5. I attempted to use an online resolution website to resolve this issue, however, the claimant failed to respond to this invite. (please refer to Exhibit X of defendants evidence).
6. In fact, the gym contract terms and conditions which I have continually upheld and informed CEL of provides the defendant the right to use the facilities including the car park. During the contract period between the Defendant and the Gym, the contract nor it’s terms & conditions were in no way amended to indicate that the Claimant can charge the Defendant for not obtaining a permit to park in the Car Park.
7. It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.
8. The conduct of the Claimant has been wholly unreasonable and vexatious. As such, I have drafted a schedule of costs pursuant to CPR 27.14(2)g for my wasted time/costs in dealing with this matter. If the claimant was reasonable, they would have accepted I was a member of the gym and therefore the land owner XXX Gym authorises me to park in the car park thus bringing this matter to a close.
9. There was no overstay, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. the land owner XXX Gym authorises me to park in the car park thus bringing this matter to a close.
In addition to the ‘parking charge’ of £100, the Claimant has artificially inflated the value of the claim by adding costs of £60 which has not actually been incurred by the Claimant.10. The claimant has been unable to prove a reasonable justification for the parking charge of £100. The car park in this case is solely for use by gym members and part of the gym building. There is no loss of income that would have been incurred by the landowner for a member overstaying in the gym, the gym also does not specify a limited time of use of its facilities, including the car park during it’s opening hours. This is not 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.
The Claimant knew or should have known, that £182 charge was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
The Claimant knew or should have known, that £182 charge where the signs did not specify a sum for this 'debt collection' vague add-on, is void for uncertainty, in breach of the POFA para 9 (due to not 'specifying' the parking charges payable) and in breach of the Consumer Rights Act 2015, Schedule 2 (the grey list of terms that may be unfair) paragraphs 6, 10 and 14.11. 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 untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.
12. 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.
13. The Court is invited to dismiss the claim and to award the defendant’s costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.
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Hiya,
It is a good start! Have a look at the example by @jrhys because that includes other exhibits, such as Excel v Wilkinson that explains well, why a PPC can't add false costs that they have never paid nor incurred..
I'd also change this and I don't think promissory estoppel applies, I think you should argue that their system failed, and caused a frustration of contract, unbeknown to you (also change 'the Defendant' to ''I'' throughout as this is your personal statement of events:6. In fact, the gym contract terms and conditions which I have continually upheld and informed CEL about and have always complied with, of provides the defendant me with the right to use the facilities including the car park and I entered my VRM that day in the same way that I always had. The system produces no receipt in a durable format,, or at all, so when you enter the VRM you would have no way to prove it later nor would you know if the system had failed. This is clearly unfair. During the contract period between the Defendant and the Gym, the contract nor it’s terms & conditions were in no way amended to indicate that the Claimant can charge the Defendant for not obtaining a permit to park in the Car Park.
7. It is my position that the Claimant's keypad system, which is known to be faulty according to the gym staff, clearly failed or had a fluctuating signal on this occasion. This was unknown to me and totally out of my control. This failure of the Claimant's own iPad system caused this issue, not any conduct by me and there was a frustration of contract which cannot reasonably lead to an unfair penalty against a gym user who entered their VRM in good faith. This case is fully distinguished from the Supreme Court case of ParkingEye v Beavis [2015] UKSC 67 in that there is no commercial justification or legitimate interest in pursuing a known gym user and the parking charge should have been cancelled. under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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No, the defence is already part of the case file.
You haven't shown us the new draft with the Excel v Wilkinson case as an exhibit and other wording adapted from the example shown by @jrhysPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Coupon-mad said:No, the defence is already part of the case file.
You haven't shown us the new draft with the Excel v Wilkinson case as an exhibit and other wording adapted from the example shown by @jrhysNew Draft below:1. I am xxxxx, and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.
2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows.
Sequence of events and attempts to resolve this matter:
3. I was a bona fide member of xxx gym on the date of alleged parking breach, (Please refer to Exhibit 01 EX-01 & Exhibit 02 (EX-02) of my evidence) and authorised to use the Club’s facilities including the Car Park.
4. I received a Parking Charge Notice from CEL – the claimant on the XXX. I notified the gym staff of this and was advised to send a copy of my membership agreement and usage list as provided by the gym to the claimant and that the claimant will cancel the parking charge. As instructed by gym staff, I sent a letter appealing for cancellation of the parking invoice with the claimant – CEL on XXX(please refer to Exhibit 03 EX-03 of my evidence), with proof of membership and usage list. The letter to CEL was clear that I attended the gym on the day of alleged breach (please refer to Exhibit 04 EX-04 of my evidence) and I had entered the VRN in the keypad system at the gym.
5. CEL rejected this appeal even though I provided a copy of my membership agreement including a copy of gym usage as provided by the gym. The gym usage printout provided by the gym was proof of my attendance at the gym on the day. A gym user would have no reason not to enter their VRM, and instead pay £100 to park, which is equal to 4months membership cost at the time, at a site that is free and used solely by the gym members for their vehicle, as a genuine patron.6. On numerous occasions, I wrote letters to the claimant inviting them to cancel the parking charge, as I will not be held liable because I believe it’s an unfair charge and that I was a genuine member of the gym who has the right to park in the car park as a result of the contract I had with the gym (the landowner). I attempted to use an online resolution website (https://www.XXX.co.uk/) to resolve this issue with the claimant without court action, however, the claimant failed to respond to this invite. (please refer to Exhibit 05 EX-05 of my evidence).
VRN Keypad System error which is unfair and not in genuine interest of Landowner or Patron
7. In fact, the gym contract terms and conditions which I have informed CEL about and have always complied with provides me with the right to use the facilities including the car park and I entered my VRM that day in the same way that I always had. The system produces no receipt in a durable format, or at all, so when you enter the VRM you would have no way to prove it later nor would you know if the system had failed. This is clearly unfair.
8. It is my position that the Claimant's keypad system, which is known to be faulty according to the gym staff, clearly failed or had a fluctuating signal on this occasion. This was unknown to me and totally out of my control. This failure of the Claimant's own iPad system caused this issue, not any conduct by me and there was a frustration of contract which cannot reasonably lead to an unfair penalty against a gym user who entered their VRM in good faith. This case is fully distinguished from the Supreme Court case of ParkingEye v Beavis [2015] UKSC 67 in that there is no commercial justification or legitimate interest in pursuing a known gym user and the parking charge should have been cancelled.
Claimants Unreasonable conduct in dealing with this matter
9. The conduct of the Claimant has been wholly unreasonable and vexatious. As such, I have drafted a schedule of costs pursuant to CPR 27.14(2)g for my wasted time/costs in dealing with this matter. If the claimant was reasonable, they would have accepted I was a member of the gym and therefore the land owner – XXX gym authorises me to park in the car park thus bringing this matter to a close. There was no overstay, nor was there any misuse of a valuable parking space by the me, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'.
The Beavis case is against this claim
10. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.
11. The claimant has been unable to provide a reasonable justification for the parking charge of £100. The car park in this case is solely for use by gym members and part of the gym building. There is no loss of income that would have been incurred by the landowner for a member overstaying in the gym, nor by the Claimant. The gym also does not specify a limited time of use of its facilities, including the car park during it’s opening hours. This is not 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.
12. The Claimant knew or should have known, that £182 charge was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
13. The Claimant knew or should have known, that £182 charge where the signs (please refer to Exhibit 09 EX-09), nor the Notice to Keeper (please refer to Exhibit 08 EX-08) did not specify a sum for this 'debt collection' vague add-on, is void for uncertainty, in breach of the POFA para 9 due to not 'specifying' the parking charges payable (please refer to Exhibit 06 EX-06) 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 (please refer to Exhibit 07 EX-07).
Abuse of process – the quantum
14. In addition to the disputed ‘parking charge’ of £100, the Claimant has artificially inflated the value of the claim by adding costs of £82, that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’ which has not actually been incurred by the Claimant. The added £82 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is Exhibit 10 EX-10). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.
15. After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.
My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14
16. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).
CPR 44.11 – further costs
17. As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.), I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records.
18. Therefore, I am appending with this bundle a fully detailed costs assessment (please refer to Schedule of Costs) which covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).
19. Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.Statement of Truth
I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
A. Ordinary Costs
Loss of earnings/leave, incurred through attendance of Court Hearing on XXX/2021£95.00
Sub-total £95.00B. Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)
There is no reasonable justification or lawful explanation for the Claimant's conduct, which constitutes unwarranted harassment; such conduct to be explained at the hearing.
The following additional costs are sought on the indemnity basis for the Claimant's unreasonable conduct.
The Defendant avers that such costs must apply, given the facts, primarily in order to compensate for the time taken in handling this meritless and wholly vexatiously pleaded court claim, and secondly to send a message to this legally-represented serial litigant that their conduct in the instant case is an abuse of process:
Research, preparation and drafting of documents (12 hours at Litigant in Person rate of £19 per hour) £228
Stationery, printing, photocopying and postage: £15.00
Sub-total £243================================================================
TOTAL COSTS CLAIMED: £338 (A + B )
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