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CEL requesting payment after POPLA unsuccessful appeal

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Comments

  • Fruitcake
    Fruitcake Posts: 59,464 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    If your exhibit numbers are supposed to be hyperlinks, I can't get them to work. You may not have posting privilges yet for that to happen.

    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • jyom
    jyom Posts: 37 Forumite
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    Fruitcake said:
    If your exhibit numbers are supposed to be hyperlinks, I can't get them to work. You may not have posting privilges yet for that to happen.

    They are bookmarked links within the original document. I havent shared the original document here, only did a copy and paste of the wordings in the WS.

  • jyom
    jyom Posts: 37 Forumite
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    edited 8 June 2021 at 2:29PM
    jyom 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 @jrhys
    New 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.

    DEFENDANT'S SCHEDULE OF COSTS

     

    A.    Ordinary Costs

    Loss of earnings/leave, incurred through attendance of Court Hearing on XXX/2021

    £95.00

    Sub-total £95.00

     

    B.     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 )

    Hi All, any feedback or comment on this WS before I submit it please?

  • D_P_Dance
    D_P_Dance Posts: 11,591 Forumite
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    I love it when OPs claim costs for unreasonable behaviour.  
    You never know how far you can go until you go too far.
  • jyom
    jyom Posts: 37 Forumite
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    CEL have sent their WS today, I have read it and they have not included a contract between them and the gym. Can I mention this in my Witness Statement?
    I have noted on the POPLA appeal which was in their favour, the VRN on the main page of their appeal response is different to mine, can I make a point around the fact that this shows they just use templates to harrass drivers(something around that line). Looks like a case of my word against theirs ( they say the keypad system was working properly and I'm saying I entered my VRN and it was not working maybe thats why my VRN wasnt registered).
    Below are their facts of the case, the other paragraphs are basically the same quotes from Beavis case etc.

    "The facts of this case:
    21. At all material times the Claimant was authorised to manage the car Gym, XXX (“the Car Park”), pursuant to
    the terms of a written agreement with the owners of the Car Park.
    22. On XXXX, the Defendant was the driver of vehicle registration XXX(“the
    Vehicle”). The Vehicle was parked in the Car Park on XXX, and the Claimant’s ANPR
    system recorded the Vehicle entering and exiting the Car Park at XX and XX
    respectively (total duration of stay 1 hour and 9 minutes), and parked without a valid permit.
    Copies of the relevant images taken by the ANPR system have been attached to this
    statement as Exhibit SW1.
    23. On the date in question, there were many clear and visible signs in the Car Park advising
    drivers of the terms and conditions of use. Drivers were permitted to park in the Car Park in
    accordance with the terms displayed on the signage. A copy of the sign in the Car Park on
    the date in issue is attached to this statement as Exhibit SW2. I have also attached copies of
    photographs of the Car Park which shows the other signs which were on display in easily
    visible, prominent locations throughout the Car Park as Exhibit SW3 along with a site plan as
    Exhibit SW4.
    24. As can be seen from SW3 and SW4, the signs in the Car Park set out the terms and
    conditions of parking as follows:
    “Permit holders only. Members/visitors must obtain a parking permit at reception. If you
    breach any of these terms you will be charged £100. These terms apply at all times.
    Additional costs/recovery charges will be incurred if payment is not received within 28 days.”
    25. The photographs provided of the signage were taken on 21/12/2018 and I can confirm that
    these were in place at the date of the violation. I can also confirm that the ANPR system was
    operating properly on the date and time in question and no technical issues have been
    recorded which would have affected the proper and accurate recording of images by the
    system at that location.
    26. Following the violation, the DVLA provided the Claimant with the Defendant’s details as the
    registered keeper of the Vehicle and the Claimant sent the Defendant a PCN, requesting
    payment on 30/04/2019 Exhibit SW5 and in which the Defendant was advised that any
    appeal must be made in writing within 28 days. The Defendant appealed on XXX
    Exhibit SW6 and we responded to this on XXX Exhibit SW7. The Defendant chose to
    appeal further with POPLA on XXX Exhibit SW8 and we submitted our response on
    16/06/2019 Exhibit SW9 and POPLA found in our favour Exhibit SW10.

    27. As a result of the Defendant’s non-payment of the debt, the Claimant (directly/through its
    agents) was left with no alternative but to escalate the matter. The case was passed to a
    debt recovery company (ZZPS Limited) who wrote to the Defendant on XXX Exhibit
    SW11, which further increased the amount owed, in accordance with the terms of parking
    (please see Exhibit 3), which state:
    “Additional costs/recovery charges will be incurred if payment is not received within 28
    days”.
    28. Further to the above paragraphs, the amount claimed (not including fixed costs on issuing
    the claim) is broken down as follows:
    £100 (Parking Charge Notice)
    +£70 (Debt recovery costs)
    +£19.51 (Accrued interest from date of violation, XXX to date claim issued,
    XXX. Claimed under s.69 of the County Courts Act 1994 at the rate of 8% per
    annum)
    TOTAL: £201.51
    29. The fact that the Defendant was a member of the facilities, does not invalidate the ticket
    issued. The terms are clearly stated on the signage; in the event that a driver fails to adhere
    to the stated parking terms, they will be charged at the PCN level.
    30. I refer the Court to the permit report on the date of violation for the Car Park in question as
    Exhibit SW12. As can be seen from the report, the Defendant’s registration was not
    registered for an electronic permit.
    31. The Claimant has been compelled to incur unnecessary legal costs in pursuing this debt and
    would request an order for costs, in accordance with the Civil Procedure Rules CPR
    27.14(2)(g), to be awarded in favour of the Claimant."

    Background and regulatory framework
    2. The Claimant is a company which provides car park management and enforcement services
    to owners of private car parks under written agreement with those owners. The Claimant
    uses Automatic Number Plate Recognition (“ANPR”) cameras to monitor compliance with
    the terms and conditions of parking within those car parks. The ANPR system works by
    capturing images of the text displayed on the number plate of a vehicle which has not
    parked in a compliant manner and has therefore breached the terms and conditions of
    parking within the respective car park.
    3. The Claimant is a member of the British Parking Association (“BPA”), which in turn is an
    Accredited Trade Association (“ATA”) approved by the relevant Secretary of State, and it
    abides with the BPA’s Code of Conduct (“the Code”) for members. The Claimant is an
    “Approved Operator” under the BPA accreditation scheme.
    4. Under section 54 of the Protection of Freedoms Act 2012 (“POFA”), parked cars may not be
    immobilised or towed away by a private operator, but section 56 and Schedule 4 of POFA
    provide for the legitimate and lawful recovery of parking charges. Where a motorist
    becomes liable by contract for a “sum in the nature of a fee or charge” or in tort for a “sum
    in the nature of damages”, there is a right under certain conditions to recover it under
    Schedule 4, paragraph 4.
    5. The conditions set out in POFA are as follows:
    i. The Claimant has the right to enforce against the driver but is unable to do so
    because it doesn’t have the driver’s name and current address; and
    ii. the Claimant has given a notice to the keeper in accordance with paragraph 9 of
    schedule 4; and
    iii. the complainant has complied with all of the notice requirements as set out in
    paragraph 9, including compliance with the requirement to post the PCN so that it is
    received within 14 days of the day after the unpaid charge was incurred.
    6. A further condition is that the keeper’s details must have been supplied by the Secretary of
    State in response to an application for the information (pursuant to paragraph 11 of
    Schedule 4 of POFA). The Secretary of State’s functions in relation to the provision of this
    information are performed by the DVLA.
    7. Under article 27(1)(e) of the Road Vehicles (Registration and Licensing) Regulations 2002 (SI
    2002/2742), the Secretary of State is empowered to make available particulars in the vehicle
    register to anyone who “has reasonable cause for wanting the particulars to be made
    available to him”. Since 2007, the policy of the Secretary of State has been to disclose the
    information for parking enforcement purposes only to members of an ATA.
    8. Therefore, by virtue of its membership of the BPA, the Claimant is able to request disclosure
    of information in relation to the keeper’s details where there is reasonable cause from the
    DVLA under the above statutory and regulatory framework. The reasonable cause is, in each
    instance, the identification of the registered keeper of the non-compliant vehicle in order to
    recover the relevant parking charge.
    9. Because the ANPR system does not issue ‘on the spot’ Parking Charge Notices (“PCNs”) and
    place these on the car at the time of the breach (thereby giving immediate notice to the
    ‘driver’ of the vehicle), the Claimant may, pursuant to the conditions set out in Schedule 4
    paragraph 4 of POFA, seek to recover the unpaid charge from the registered keeper in the
    first instance by way of sending a PCN to the registered keeper at the registered address.
    10. The Code states that PCNs must comply with the statutory and regulatory provisions. The
    Claimant’s PCNs are issued in full compliance with the conditions set out in POFA and
    contain all requisite information so that the registered keeper is made fully aware of the
    options for payment or notification to the Claimant of the person who was driving the
    vehicle at the time the liability to pay the parking charge arose.

    11. In the event that the registered keeper discloses the name and address of the driver of the
    vehicle within 28 days of the PCN issue date, the PCN can be reissued in the name of the
    driver and sent to them at the address disclosed. The PCN is, in these circumstances, reissued
    under a general cause of action against the driver of the vehicle for breach of contract
    (entered into at the time of parking) to recover the parking charge arising as a result of that
    breach.
    12. In circumstances where the registered keeper fails to disclose the name and address of the
    driver pursuant to paragraph 9(2)(e)(ii) of Schedule 4 of POFA, the registered keeper remains
    liable for the unpaid parking charge (paragraph 9(2)(f)).
    The relationship between the Claimant and the users of car parks under its management
    13. The nature of the relationship between the Claimant and driver of the vehicle using the car
    park is a contractual agreement. Prominent notices displaying the relevant terms and
    conditions of parking are erected at the entrance to the car park and throughout the car
    park itself.
    14. In the leading private parking case of Parking Eye Limited v Beavis [2015] UKSC 67, the
    Supreme Court dealt with the issue of a Car Park management company’s standing to bind
    the parties in a contractual relationship, even where it did not have legal title in the land
    itself (i.e. the land on which the Car Park was situate). It was stated that even with a mere
    right to control the Car Park, ParkingEye could contractually bind those who parked in the
    Car Park with a contractual license. Lord Mance went on to explain what constituted the
    valuable consideration in the contract, namely:
    “By promising ParkingEye not to overstay and to comply with its other
    conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise
    have had, to enforce such conditions against him in contract. Even if no
    Parking Charge had been stipulated, enforcement would still have been
    possible in law, even if a claim for damages or for an injunction might not in
    practice have been likely. With the stipulated Parking Charge, the nature of
    the intended contract is even clearer, although the question arises whether
    the Parking Charge is an unenforceable penalty. The quid pro quo provided
    by ParkingEye in return for Mr Beavis’s promise was the grant of permission
    to park for up to two hours in its discretion free of charge, on conditions.
    Each party thus gave the other valuable consideration.”
    15. It is trite law to say that the driver of the vehicle accepts the terms and conditions of parking
    by their conduct, that is the positive act of driving into the car park and parking the vehicle.
    The signage is placed in locations where it will be immediately obvious to the driver that parking is subject to the conditions set out on those notices. Most importantly, large signs
    are placed at the entrance to every car park as is required by the Code.
    16. The driver of the vehicle cannot evade liability for the unpaid parking charge by claiming that
    they were unaware of the terms and conditions of parking where it is established that the
    notices were placed where they were bound to be seen. Once again, the Claimant abides by
    the BPA Code in relation to the placement of notices in prominent locations throughout the
    car parks under its management and further, in relation to the content of the notices. If it is
    in issue, the Claimant relies on passage in the Court of Appeal judgment of Roch LJ in Vine v
    London Borough of Waltham Forest [2000] EWCA Civ 106, at paragraph 19:
    “Normally the presence of notices which are posted where they are bound
    to be seen, for example at the entrance to a private car park, which are of a
    type which the car driver would be bound to have read, will lead to a finding
    that the car driver had knowledge of and appreciated the warning.”
    17. In particular, the notices set out the fact that the driver of the vehicle accepts that parking in
    contravention of the terms and conditions renders the driver liable to the applicable parking
    charge.
    18. The breach of contract arises where the driver of the vehicle contravenes the terms and
    conditions of parking. These terms and conditions vary depending on the car park in
    question and the specific breach is set out in greater detail below.
    19. Where there has been a breach of the relevant terms and conditions, the liability to pay the
    parking charge arises. In Beavis, the Supreme Court (para 115) Lord Neuberger stated:
    “none of the terms impugned on the two appeals contravenes the penalty
    rule, and that the charge in issue in Parking Eye v Beavis does not infringe
    the 1999 Regulations1.”
    20. The parking charge is therefore not a penalty, as it is “neither extravagant nor
    unconscionable having regard to the level of charges imposed by local authorities for
    overstaying in car parks on public land” (see para 100 of the judgment), nor is it unfair under
    the 1999 Regulations, given the Supreme Court’s finding that the [parking] charge “was
    fundamental to the contractual relationship created by Mr Beavis’s acceptance of the terms
    of the notice, whose whole object was the efficient management of the car park.” (see para
    107 of the judgment).





  • Fruitcake
    Fruitcake Posts: 59,464 Forumite
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    edited 8 June 2021 at 5:06PM
    It would be better if you uploaded the PPC's WS to a hosting site such as Dropbox and then pasted the link here. Only redact your personal data, and tell us if they have redacted anything.
    We ned to see the name and signature of the (para)legal who produced the WS, as well as the PPC's evidence and exhibits.

    If the WS does not contain a copy of the landowner contract, then of course you should attack this. The PPC has mentioned it in their para 21. If such a contract were to exist, it would be reasonable to assume it would be provided to the defendant and the court. The fact that no such contract has been produced implies that on the balance of probabilities is does not exist.

    You should also mention the incorrect VRM on their documents. This puts into doubt that the PPC's evidence surrounding your vehicle as well as showing that they have failed to protect another motorist's personal data. 


    With regards to ZZPS in their para 27 and the alleged additional debt recovery costs, you should state that ZZPS are a trading style of DRP, and offer a "no win, no fee" service as can bee seen here.

    Witness Statement and Trial Date - CEL Parking fine - Page 4 — MoneySavingExpert Forum

    Since ZZPS acting as part of DRP did not collect any monies from the defendant, there were no additional costs incurred by the claimant. The £70 claimed by the defendant is therefore a blatant attempt at double recovery, even though it is evident that no such costs were incurred by the claimant.
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  • Coupon-mad
    Coupon-mad Posts: 152,826 Forumite
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     I have read it and they have not included a contract between them and the gym. Can I mention this in my Witness Statement?
    Yes.  

    In a case that I lay repped in 2020, CEL omitted the contract from the bundle they sent to the Defendant, but included it in the version sent to the court.  That simply is not allowed so you need to address this and ask the Judge at the hearing, whether the court has been sent a different set of exhibits than CEL have bothered to send to you, and if they have withheld information from you then surely that is unreasonable conduct in litigation.
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  • jyom
    jyom Posts: 37 Forumite
    10 Posts First Anniversary Name Dropper

    Fruitcake said:
    It would be better if you uploaded the PPC's WS to a hosting site such as Dropbox and then pasted the link here. Only redact your personal data, and tell us if they have redacted anything.
    We ned to see the name and signature of the (para)legal who produced the WS, as well as the PPC's evidence and exhibits.
    Below is a link to their WS - The only thing they have redacted is the list of VRNs on the day.
    I need to submit my WS by end of today or tomorrow morning which is 2weeks to hearing date

  • Coupon-mad
    Coupon-mad Posts: 152,826 Forumite
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    edited 8 June 2021 at 6:27PM
    In the list of people who entered their VRMs, three people have had to do it twice which suggests a problem with the system or keyboard that day:
    MW
    FH
    OV

    Is your numberplate the one shown at 07:12am on the early morning report?  Why did you get a PCN then, for an evening return visit that day?

    You DEFINITELY need to make more fo the fact that you appealed and it has always been your case that you DID enter your VRM, and that it was the system that failed to record it not you (why would you, given you always do swipe your card):


    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.  As always, I claimed my free parking by entering my VRM into the iPad system at reception. There is no reason why I would not do this, and the Claimant's own evidence shows that I used their system properly and regularly in 2019 (including earlier that day at 7:12am).  

    4.  It is my position that the Claimant's keypad system has sticky keys and is known by other gym users (who have had similar unfair parking charges) to be unreliable and unfair.  The sticky keys issue is even shown in the Claimant's own evidence, where three drivers have obviously had to input their numberplate twice due to a digit being missed by the system, and luckily those three people have noticed and re-input the VRM (see the entries regarding numberplates starting MW, FH and OV in the Claimant's system log).  This is evidence that clearly suggests a problem with the system or keyboard that day and, on the face of this, it is wrong of the Claimant's witness to state that the system was working perfectly.  I invite the court to find, on the balance of probabilities, that the system is not infallible.  

    5.  It is also a system that relies upon a signal, and there is no evidence to show that it was not fluctuating, as iPad systems do.  To avoid issues like this, the Claimant should provide drivers with a confirmation receipt to prove the transaction so that gym-users can be confident on every visit that they have indeed exempted their car.  With this system, patrons only learn about the system failing, several days/weeks later when a 'PCn' arrives out of the blue, charging them £100 for a failure that was not theirs, but they cannot prove this and are also denied the right to have their permission to park confirmed by the gym retrospectively.  This in spit of the fact that this Claimant's system holds this VRM from previous inputs and knows that it belongs to a gym user, so the retrospective permission I shows in my appeal should fairly have seen this PCN cancelled.

    6.  Without a receipt for that transaction, by durable medium (such as an email to confirm to a gym member that they are 'clocked in' for parking) this contract - which is a 'distance contract' using an electronic format that relies upon a working iPad and connection/signal - is void and unfair under the  Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.  This is a contract that sees a consumer deemed to have 'agreed' to pay £100 so it certainly meets the type of contract covered by the regulations and is not among the few types of contract that the regulations state are not covered.  A trader has a duty to provide 'key information' to a consumer for a distance contract like this one, and in this case, there has been a failure to provide the required information (at all) or to provide it in the way set out in the regulations.  The regulations require that information should be given in writing in a 'durable medium' such as on paper or by email.  A consumer is also entitled to confirmation of the contract and if the information wasn’t initially provided in a durable form, the trader must provide it at the point of confirmation and they did not. 

    7.  I had the honest belief that their system had accepted my VRM and had no way of knowing their system had failed.  This must be unfair under the Consumer Rights Act 2015 ('the CRA') as well as the above regulations, because the trader holds all the cards and refuses to accept retrospective proof of a VRM that they already know (in their system data) belongs to a genuine gym patron.  The court is required to carry out a test of fairness (s71 of the CRA) whether it is pleaded by either party, or not.   Like the UTCCRs, the CRA contains a list of terms (known as the “grey list”) which will usually be regarded as unfair if they are included in consumer contracts

    8.  I draw the court's attention to SCHEDULE 2 of the CRA: 'Consumer contract terms which may be regarded as unfair' and it appears that examples 6, 10, 14 and 18 are relevant considerations in my case.  To summarise the fairness test that applies to most contract terms and consumer notices under the CRA:
    • The general rule is that all terms in a contract between a trader and a consumer and consumer notices must be fair. In relation to contracts, it does not matter whether the terms are negotiated or non-negotiated (currently, the fairness test in the UTCCRs only applies to non-negotiated contract terms).

    • An unfair term/consumer notice will not be binding on the consumer.

    • consumer notice is any notice or communication that it is reasonable to assume is intended to be seen or heard by a consumer.. Unlike in the old UTCCRS, car park notices (which would include the information displayed at the keypad at reception - which have not been shown by the Claimant) are all covered.

    • A term or notice will be considered unfair if, contrary to good faith requirements, it causes a significant imbalance in the rights and obligations of the trader and the consumer, to the detriment of the consumer.

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  • jyom
    jyom Posts: 37 Forumite
    10 Posts First Anniversary Name Dropper
    In the list of people who entered their VRMs, three people have had to do it twice which suggests a problem with the system or keyboard that day:
    MW
    FH
    OV

    Is your numberplate the one shown at 07:12am on the early morning report?  Why did you get a PCN then, for an evening return visit that day?

    Thanks for drawing my attention to that double entry, fantastic. The 07:12 is not 07:12AM, but rather 19:12, it's the gym system that prints in 12-hr time format, I have mentioned this in the evidence.
    I will incorporate your amendments to my WS nnoowwww. Big Thanks @Coupon-mad
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