County Court Defence Help Please

dollydoodar

Coupon-mad said:

Briliant work and a very good witness statement will come out of this, to give you confidence at the hearing!

Wait till you see the rubbish from CEL, look how I tore it apart this week:

https://forums.moneysavingexpert.com/discussion/comment/77345569#Comment_77345569

In fact wait till the last possible day to see if their WS & evidence bundle arrives in time to add the 'Scott Wilson template trashing' paragraphs to your WS!

thank you so much. i will be glad when it has been sent off. it's 14 days tomorrow so i shall have to email it to the courts by then. i have seen others mention that it is sometimes difficult to email CEL so i may have to print and send paper.

i will be gleeful inside if i get the chance to ask the judge about their feeble WS lol.

dollydoodar

i am still finding it difficult to get the abuse of process part straight, mainly because Littlewadies template mentions BW and i have misplaced my claim form so i'm unsure whether BW are on my form. i have never received a thing from them either. do you know if it is always them?

dollydoodar

i am so near the end now but the intitials thing is confusing me. can someone help please? i have been directing the judge to my evidence by way of EX01, EX02 etc and now C-m has told me to put my initials to direct the judge to the struck out abuse of process cases. is there an important reason to use your initials? should i be using my initials for all pieces of evidence?

DoaM

As long as how you've referenced them is how you've named them then it's OK. The advice about using your initials is that it should prevent any confusion in case the claimant use EX01 etc. for their evidence.

dollydoodar

i am unsure as to whether the "breach of contract" part in this para pertains to my case. can someone throw some light on it please?
5.  Further, the Particulars of Claim are incoherent and provided insufficient detail for me to be able to ascertain the nature of the case as pleaded, hence my fairly short, factual defence in response. Although the cause of action appears to be breach of contract, the Claimant has: 

(i) failed to serve a Letter before Claim with a copy of the sign (the contract) as per the Protocol for Debt claims;
(ii) failed in their Particulars, to provide sufficient detail regarding in what manner the alleged contract was breached;
(iii) failed to state in what capacity the Claimant (a non-landowner) is entitled to recover any part of the sum;
(iv) included a false 'contractual charge' sum of £82, which the Claimants and their legal advisors (both) already know - from recent parking charge claims that have been struck out and which they failed to appeal - is an abuse of process;

 

DoaM

CEL are the claimant? That para almost certainly applies.

(i) Did you receive a formal LBC?
(ii) Are their particulars sparse?
(iii) Did they define in what capacity they brought the claim?
(iv) Did they include a false "recovery" charge? How much was it? (£60? £70? £82?)

dollydoodar

thanks for that. i think it's making my head confused as i read over it again and i cannot see any problwm with it now. so sorry, not wasting time intentionally...

dollydoodar

horray! this is what i've done all day lol...please let me know what you think. thank you...
is para 24 okay?
i just need to sort out the struck out cases evidence and check if it's all under 25mb when combined. i feel as though it would be a lot easier for the judge if it were all conatined in one pdf as then he could search for relevant pieces. do you agree?

1. I am XXXXX XXXXXXXX  of  XX XXXXX XXXXX, XXXXXXX, the Defendant in this matter. I will say as follows:

2. I deny that the Claimant is entitled to relief in the sum claimed, or at all and my defence is repeated. 

3. The Claimant is aware that I was a genuine patron of the retail park, my vehicle was correctly parked in a disabled bay, displaying my blue badge. The Claimant is also aware of my disability issues, as they were formally notified by way of my appeal back in January 2018. I appealed to POPLA who wrongly presumed that I was the driver of the vehicle and despite my objections, the Claimant decided they would take me to court. Evidence showing my appeal paperwork (FG01 & FG02). My medical conditions have affected my daily life for many years and at the time of this witness statement and hearing, I am awaiting surgery to remove a surgical mesh implant that has gradually reduced my mobility during the last 10 years to the point that I am unable to work and I am in receipt of Employment and Support Allowance and Personal Independence Payment. The Claimant has never asked for further details about my condition and how it affects me. My health has been adversely affected due to the impending court case. I have struggled to deal with the case due to the many hours of study and admin it has taken. I am not strong enough to cope with this level of pressure and my anxiety and depression levels have been heightened, adding to my already difficult existence. I have enclosed 2 pieces of evidence showing my health issues (FG03 & FG04).

4. It is my position that the conduct of the Claimant is specifically unlawful and far more serious than just a hopeless claim. The Court's attention is drawn to this and the Claimant's other conduct, including but not limited to:
(i) multiple breaches of their Trade Body (the British Parking Association) Code of Practice ('the BPA CoP');
(ii) failing to acknowledge my disability after I had informed them;
(iii) failing to provide adequate notice of the parking charge, with inadequate signs at the entrance to the car park and around the Blue Badge bay area;
(iv) delaying litigation for 2.5 years yet claiming an unconscionable amount in interest;
(v) breaches of the UTCCRs as applied at the time, distinguishing this case from ParkingEye Ltd v Beavis;
(vi) obtaining my data from the DVLA without 'reasonable cause' due to failure to identify & exempt disabled drivers;
(viii) breaches of the Equality Act 2010 in terms of 'indirect discrimination', disadvantaging a person (myself) with protected characteristics and causing me anxiety, hurt feelings and distress which has impacted on my family life. This conduct is illegal immediately, from the point of the event onwards (even before the claimant knew about my medical condition). Pursuing me with unwarranted debt demands, given that I am a disabled driver who appealed and did everything right.

 

5. Further, the Particulars of Claim are incoherent and provided insufficient detail for me to be able to ascertain the nature of the case as pleaded, hence my fairly short, factual defence in response. Although the cause of action appears to be breach of contract, the Claimant has: 
(i) failed to serve a Letter before Claim with a copy of the sign (the contract) as per the Protocol for Debt claims;
(ii) failed in their Particulars, to provide sufficient detail regarding in what manner the alleged contract was breached;
(iii) failed to state in what capacity the Claimant (a non-landowner) is entitled to recover any part of the sum;
(iv) included a false 'contractual charge' sum of £82, which the Claimants and their legal advisors (both) already know - from recent parking charge claims that have been struck out and which they failed to appeal - is an abuse of process;

 

Unreasonable behaviour and risk of discontinuance - my Summary Costs Assessment is attached

6. For the reasons set out in 3 and 4 above, and given the facts in my witness statement below, it is my position that the test has been met in Dammerman v Lanyon Bowdler LLP [2017] EXCA Civ 269 (12 April 2017), the Court of Appeal authority and guidance on how the courts should approach applications for costs under CPR 27.14 (2)(g).   The CoA in Dammerman concluded that the meaning of "unreasonable" cannot be different when applied to litigants-in-person in small claims cases.  The test is whether the conduct "permits of a reasonable explanation" which cannot be the case here.

 

7. In view of the facts of this case, the Claimant’s cavalier attitude and their failure to properly consider their legal position thus far, I believe there is a likelihood that they will now issue a Notice of Discontinuance ('NoD').  However, this means that I must raise the matter of my costs, as fairly assessed to the best of my ability at this stage (see my Summary Costs Assessment appended to this statement, which does not exceed the CPR ceiling of two thirds of the costs that may have applied if I had had the benefit of legal representation).   

8. I respectfully ask that the Judge grants my costs anyway, in the event of a NoD, and uses the court's discretion to dispense with any formal application in this case because I qualify for help with fees (exemption) on income grounds and I have surely been put through more than enough by this litigation, and because the court has a wide discretion on the issue of costs where a party has crossed the line into "unreasonable behaviour" in pre and/or post-action conduct in the small claims track. 

9. Litigation is not risk-free for a parking firm pursuing a person without justification (unlawfully in this case), and this Claimant must take his victim as he finds me. The thin skull or 'egg-shell' rule is a well-established principle in both English law takes into account the physical, social and economic attributes of the other party, which might make them more susceptible to injury or distress, whether physical or mental injury is the result.  The principle requires the Claimant in this case to compensate me to the full extent of my distress and injury to feelings even though they may be more serious than expected because of my pre-existing conditions, predispositions, and vulnerabilities, and in this respect I ask that the Judge gives due consideration to a suitable percentage 'uplift' being applied to my Summary Costs Assessment, as the Judge sees fit, to send a message to this parking firm that they cannot breach consumer and disability laws.  This Claimant has indisputably caused serious distress to me, affecting my peace of mind and upsetting family life, finally dragging me to court, and I fear, at the hearing will now issue a NoD at this late stage and expect to walk away.

Background - the facts and unlawful conduct

10. On the day in question, xxxxxxxxx, myself and my carer were visiting Morrisons supermarket to buy my Christmas food shopping, I have attached the Morrisons receipt (FG05). The vehicle, registration number xxxxxx was being driven by my carer as I am unable to drive manually geared vehicles due to the mesh injury which causes nerve pain in my legs. I had been forced to buy this vehicle at short notice in order to attend a planned holiday. I did not own the vehicle for long, replacing it shortly after with an automatic model. I planned to go to Morrisons that day and had I been aware of the new charges, I most certainly would have obtained a car park ticket to redeem my £1.50 from the cashier at the checkout as I spent £124.29. My carer did not knowingly park my vehicle illegally that day and I too was unaware that we needed to purchase a ticket.

11. When we arrived at the car park, there were no signs at the entrance indicating that disabled visitors needed to pay for parking (FG06). There was a small sign in the vicinity of the disabled parking bays which was located inconveniently, up on a kerb with a salt box in front of it, rendering it impossible to be viewed by a wheelchair user (FG07). There were no other signs around the disabled parking bays. It did not occur to me to read the sign as I had parked in this car park on a number of occasions and it had always been free for disabled visitors. I was unaware that a different company had recently taken over the management of the car park and had changed the parking conditions and as there were no signs advising as such, we simply did not know.

12. Further, when I visited the Butterfly Walk site to investigate the signage, I found it to be wholly inadequate. The signs did not comply with the BPA CoP, section 18.3 (FG08). With regards to letter sizing shown in photo (FG09) provided by CEL, the font size fails to meet the 'mandatory' requirements of the British Parking Association, 450mm. Where they existed, the signs could not be viewed by a disabled person, a requirement as set out in the BPA CoP, see section 18.10 (FG10) - basic stuff for an AOS member that 'permits of no reasonable explanation'.  I fail to see why it is for me, as a disabled shopper back at Christmas 2017 - to be put to such trouble 2.5 years later and hope the Court agrees.

 

13. In section 16.1 of the BPA Code of Practice ('CoP') 2015 (from the material time) it states that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people. (FG11).

14. So this Claimant obtained my DVLA data against the strict rules of their own Trade Body and also acted against the DVLA 'KADOE' rules and Data Protection Act 1998, in that it had no 'reasonable cause' and should never have obtained my data in the first place, and this too 'permits of no reasonable explanation'. 

15. By processing my personal data that it was never entitled to have, to demand monies it was never entitled to seek, for an unconscionable five years after receiving and ignoring my appeals, the Claimant stands in breach of their statutory duty under the Data Protection Act 1998 ('the 1998 Act') now repealed, and the Data Protection Act 2018.  The Claimants were thereby under a statutory duty to process my data only in strict accordance with a) the Data Protection Principles as set out in the 1998 Act Schedule 1, in particular Data Protection Principles 1, 2 and 5; and b) the GDPR Articles 5 (1)(a) and (b) and 6 (1)(f)).   

dollydoodar

16.  Under the 1998 Act, Schedule 1, which was in force at the time that my data was illegally harvested from the DVLA, the data protection Principles provide that:- ''Principle 1: personal data shall be processed fairly and lawfully; 
Principle 2: personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or purposes;
Principle 5: personal data processed for any purpose shall not be kept for longer than is necessary for that purpose...'' 
The Claimants’ use of the Defendant’s data breaches all three of those quoted principles and this again, 'permits of no reasonable explanation'. 

17. The Claimants’ use of my personal data over three years was an abuse, and their storage and continued processing of it was unlawful and unfair.  

18. A course of conduct of unreasonableness is already established before I even come onto the UTCCRs (now encompassed into the Consumer Rights Act 2015 - 'the CRA') regarding the duplicitous and false 'costs', and the Equality Act 2010 breaches in my case.

 

The Equality Act 2010 ('the EA') and the EHRC Statutory EA CoP for Service Providers are breached

19. My rights under the Equality Act 2010 are in addition to, and stronger than rights under article 8 ECHR and I state that there has been discrimination under sections 15, 19 & 21 of the EA which permits of no reasonable explanation (FG12).

20. The unclear signs at this site put me at a disadvantage compared to an able-bodied person. Reasonable adjustments would have been to place signs in larger font at a lower height, at the entrance and at the Blue Badge bays, and a notice on the approach on foot into the retail stores, to ensure that people saw the change of terms and had a fair opportunity to learn about the onerous parking charge. 

21. It is no lawful excuse or justification for the Claimant to say, for example, that they operate ANPR for economic reasons and offer the same terms to all shoppers. By doing so, they have made it impossible for themselves to fairly (or at all) distinguish between disabled Blue Badge holders and other drivers. They have by this conduct, illegally ignored their statutory duty to make 'reasonable adjustments' of policies in anticipation of the needs of the disabled population 'at large'.

22. A service provider (and the Claimant meets that definition as set out in the EHRC's Equality Act 'Services, public functions and associations' Statutory EA CoP) would only be considered to have taken 'all reasonable steps' to avoid discrimination, says the CoP ''if there were no further steps that they could have been expected to take''. This is not true at all in this case and the EA CoP goes on: ''Although reasonable business needs and economic efficiency may be legitimate aims, a service provider solely aiming to reduce costs...cannot simply argue that to discriminate is cheaper than not to discriminate''. 

23. The Statutory EA CoP at Chapter 5: 'Indirect Discrimination' makes it clear that this offence cannot be justified by saying that a trader offering services (such as a parking firm) did not know that an individual was disabled at the time of the event. This is because the duty to make 'reasonable adjustments' begins as an anticipatory duty to the population at large:  ''indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage''.   

24. A local newspaper article (FG13) showing that disability campaigners “Southwark Pensioners’ Action Group” (SPAG) were opposed to the change in Butterfly Walk’s car park conditions. SPAG support the argument, that to stop blue badges being recognised is unlawful at retail parks. SPAG’s chairman. Tom White, said: “This is disgraceful, we at SPAG protested several years ago, that for planning permission to allow a private car park opposite Morrison’s supermarket in Camberwell, they must have blue badge disabled bays.

25. I believe this was an act of 'indirect discrimination' By way of my appeal the Claimant was made aware that I was in a disabled parking space (thus a detriment under s15 was proven) and yet they still wish to pursue the matter via litigation.  Ignorance of the law is never an excuse; this entire course of conduct has demonstrated the worst of this industry and the Claimant is guilty of an abject failure to consider the needs of disabled people and an offence under the EA, which permits of no reasonable explanation. 

  

Landowner authority - either absent or inapplicable

26. I have seen nothing that tells me that this Claimant had the written consent of the landowner at the material time and even if they did, it would undoubtedly have required them to comply with all applicable laws and the BPA CoP, and they have failed.  It is more than likely that a responsible landowner would set out exemptions for Blue Badge holders using those bays - just as the BPA CoP did - and it is not accepted that the Claimant has met the requirements of the BPA CoP part 7 'written authority of the landowner' nor that they had/have any standing to litigate in my case.  


Breach of the UTCCRs (now part of the CRA 2015) and false added costs - an abuse of process

27.  The UTCCRs were repealed by the Consumer Rights Act 2015 ('the CRA') with effect from 1 October 2015. The CRA applies to terms in contracts entered into from that date (with the UTCCRs continuing to apply to terms in consumer contracts entered into before then - e.g. this one).  Whilst in ParkingEye Ltd v Beavis [2015] UKSC67, it was held that the £85 charge in that case - involving a non-disabled driver and very prominent signage - did not breach the UTCCRs due to the facts unique to that Chelmsford location, the relevant regulations and test of fairness must still be considered in every case.

28. Whilst the fairness of the charge was not raised in my defence, this is not an issue because s71(2) of the CRA provides for a duty upon the court to consider the fairness of all consumer terms (e.g. the policy to impose an inflexible time limit and then fail to identify disabled service users or provide instructions or a mechanism to exempt them) and the fairness of consumer notices (i.e. the sparse car park signs with tiny font), whether a consumer raises the issue, or not at all.  The CRA is in similar terms to the UTCCRs, with the same fairness test and a ‘grey list’ (repeated in Schedule 2, Part 1 of the new Act) and the added £82 is a disingenuous attempt at double recovery and certainly disallowed by the applicable consumer legislation (now and in 2014) with reference to paras 6, 10, 14 and 18 of the grey list of terms that are likely to be unfair.  

29. The Claimant has no excuse for filing a claim where £82 has been added. They have received adverse Orders from the courts in recent months and failed to appeal even when a judgment went against BW Legal when they applied to set aside a series of parking claims that were summarily struck out for abuse of process; specifically, adding a false sum of £60 to a parking charge - as in my case:
(i) (FG14) – First Parking LLP claim set aside by Willesden County Court (no appeal).
(ii) (FG15) - multiple parking charge cases struck out by Southampton County Court - same legal representative as in this case. BW Legal tried and failed in an application in late 2019 to set aside the 'strike-out' Orders and this exhibit shows the Approved Judgment and reasoning of District Judge Grand.  

30. BW Legal chose not to appeal, and given that their first duty is to the Court, continuing with more parking claims in other court areas and still adding £60 to every one of them, is an abuse of process and surely a matter for the courts to raise as a concern for the Solicitors' Regulation Authority to investigate, if the court has that power and inclination. If this Claim proceeds to trial, the representative sent by BW Legal for Premier Park will be questioned about this duplicity in view of both companies already knowing that their claims are exaggerated and unrecoverable.

31. Further, at Skipton County court on 27.2.2020 - an area where Judges are also summarily striking out every parking charge case where £60 has been falsely added - Excel Parking Services failed to overturn six strike-out orders, in a mirror image application hearing just like the one BW Legal lost in Southampton. They were refused leave to appeal, the application to set aside was dismissed and the Claimant was found to have behaved unreasonably. Costs of £331.10 were awarded to a lead Defendant in claim no F3QZ38JK (one of the six) because the District Judge Fay Wright held that the Dammerman test was met by the conduct of the parking firm (FG16)

32. The private parking industry continues to demonstrate significant irregularities in their affairs and AOS member parking firms invariably trade in a way that fails to show integrity or a social conscience and disregards consumer law and the public interest, and the Court and my MP will be encouraged to report the conduct of this particular Claimant in my case, to the Secretary of State.

My costs and the Vento Guidelines - to be Summarily Assessed even in the event of a Discontinuance

33. I request the Court to dismiss this claim in its entirety, and to award my fully assessed costs - not just for the attendance at the hearing - such as are allowable pursuant to CPR 27.14.  As stated above, I ask that my Summary Costs Assessment (attached) be granted and that a discretionary percentage or other sum is added, as the Judge sees fit for compensation for injury to feelings in my case, considering my physical and economic vulnerability as explained above and applying the doctrine that the Claimant takes their victim as they find me, as set out in paragraph 8 above.   

34. The Vento guidelines stem from a landmark case from 2003 (Vento v Chief Constable of West Yorkshire Police) where the Court of Appeal set out clear guidelines for Courts and Tribunals to apply when they are assessing injury to feelings awards.  The Vento case decided that there are 3 ‘bands’ for compensation for injury to feelings:

·       the lowest band – £900 to £8,800 for the least serious cases, e.g. where the discriminatory act is a one-off

·       the middle band – £8,800 to £26,300, serious but where an award in the highest band would not be appropriate

·       the highest band – £26,300 to £44,000; these are the most serious cases, e.g. a lengthy campaign of discriminatory harassment which has a profound effect on the victim.

 

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.

 

 

Name 
Signature
Date

dollydoodar

i have changed para 29 (i) back to premier park as the rest didn't make sense with LLP in there