Claim Form received!

Shredder90

Thanks all - tweaked the defence and sent to CCBCAQ@Justice.gov.uk this morning.

Thanks for all your assistance.

KeithP

How is this case progressing?

Shredder90

Have a court case listed for Feb 2020. Need to submit witness statements etc in January.

Coupon-mad

Have you read CEC16's thread and been keeping up to speed with the fact BW Legal know they can't add £60 to a claim, and how to argue that with a supplementary WS all about that abuse of process and breach of the CRA 2015?

Oh yes and we now recommend filing & serving your costs schedule at WS stage.

Shredder90

Hi all,

Just pulling together my statement for this matter. As I read up on the abuse of process part I just want to check this is relevant for me as I am the driver that they are going after and not the keeper? Can I still rely on the "abuse of process additional sums claimed" argument.

Thanks

Coupon-mad

One of the two Defendants at Southampton (the Freeman of the Land one who refused my help but just sat there and hung on our coat tails) was admitted driver.

Of course it makes no difference to saying that three points of law stop a PPC doing this!

Shredder90

Sorry - I don't understand what you're saying.

Shredder90

Here's my statement so far:

I, Shredder90, c/o The Sewers, am the Defendant in this claim and will say as follows:

1. Attached to this statement is a paginated bundle of documents marked TMNT to which I will refer.

2. I have lived at The Sewers, a residential block of flats, since XXX. The residential flats are assigned to individual residents under leasehold agreements (“the Lease”) entered into between each individual resident (“the Leaseholder”), Landord (“the Landlord”) and MC (“the Management Company”). Extracts/A copy of the Lease is set out at TMNT1.

3. The Lease does not contain any terms requiring Leaseholders, their tenants or guests, to display parking permits, nor does it require them to pay a penalty charge to third parties for non-display of a parking permit. Therefore, my case relies on Primacy of Contract. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (TMNT2), where it was found that the parking company could not override a tenant's right to park by requiring a permit to park.

4. At some point, the Management Company contracted the services of a third-party Management Agent to, amongst things, maintain the common parts of the Estate.

5. The Management Agent sent a letter to all Leaseholders in May 2014 enclosing a blank parking permit with instructions for residents to place it in their vehicle when using the car park (see TMNT3). A requirement that neither the Management Agent, Management Company or the Claimant could enforce on residents. A copy of the permit is at TMNT4. Crucially, the letter advised residents that the scheme will commence on 02 June 2104, some 84 years from the date of the hearing.

6. Accordingly, the erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of the Lease.

7. On XYZDATE, I entered the car park of the Estate and found a car (without a parking permit) parked in my usual parking space. I therefore parked in the space behind with my permit on display.

8. If the court is minded to accept that the Claimant was able to place restrictions on the residents use of the car park, the terms on which the vehicles were allowed to be parked is unclear. The signs purporting to bind drivers are damaged (see TMNT5), dirty (see TMNT6) and incapable of being seen from the driver’s seat on entering the car park. Only one sign is potentially visible (see TMNT7) and this is the sign shown at TMNT5 and is clearly damaged and hanging from the railings. This pictorial evidence clearly demonstrates that the signage in this instance was deficient in number, distribution, and wording to reasonably convey a contractual obligation to which a driver could wilfully agree and/or forming a contract.

9. Further, if the Tribunal is minded to accept that the wording/signage was visible and capable of binding drivers, I was clearly parked in accordance with the terms of the sign. The wording of the sign states that vehicles must be parked with a “valid permit”. As stated above, my vehicle did have a valid permit. There is no restriction on which space the vehicle had to be in, as long as the vehicle had a valid permit, which mine did.

10. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance with the Defendant’s schedule of costs (see TMNT8)

I believe that the facts stated in this witness statement are true.



Let me know your thoughts and advice please.

Coupon-mad

You don't understand my answer:

One of the two Defendants at Southampton...was admitted driver. Of course it makes no difference to saying that three points of law stop a PPC doing this!

You know what the '3 points of law' are that stop a PPC adding £60, because they are spelt out in the abuse of process thread post #14 with links to the 2 statute laws in question. I don't need to repeat what the three things in law/case law are, that kick out the £60. It is also explained in CEC16's thread.

it is not a tribunal:

9. Further, if the Tribunal is minded to accept

Shredder90

Thanks for the help Coupon. I've gone back and read over the ABUSE OF PROCESS thread and got my head round it. Having re-read the POFA schedule 4 (and seeing the summary from SchoolRunMum on pepipoo) I'm still not convinced the court will find in my favour on the POFA point but I've gone with the rest and added the below to my statement. Any suggestions would be great. I need to submit everything tomorrow.

Sums claimed/abuse of process
15. The Defendant contends that the sums claimed are disproportionate and a disingenuous attempt at a double recovery, an abuse of process and in breach of the Consumer Rights Act 2015 Schedule 2 “terms that may be unfair”.

16. The Claimant’s purported added £60 ‘debt recovery costs’ are not genuine losses which has been recognised in many court areas, including Southampton County Court.

17. 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. This charge is unconscionable and devoid of any 'legitimate interest', given the facts.

18. Further, 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'. It is submitted the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

19. 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. Specifically, District Judge Taylor, in case number F0DP201T (a case in which the claimant was represented by the same firm representing the Claimant in these proceeding, BW Legal) struck a case out on this basis as an abuse of process. This decision was upheld by District Judge Grand who agreed that the Claimant in that case 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.

20. 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.''