County Court Claim

mercuteio

Same problem again. Doesn't look like I can change this, so not really sure what to do

Anyway, need to get to court now. Any bright ideas, please let me know.

Many thanks.

DoaM

Paste from Word into Notepad (to strip out the MS formatting that is making the forum think you're a script kiddy trying to hack it), copy from Notepad to the forum ... simples.

You might need to send an email to the forum team to get your IP address un-banned.

Coupon-mad

People use notepad to get round this, apparently, as DoaM says.

Or, do what I do, and go through and remove the pesky punctuation characters that this forum doesn't like, for example speech marks and apostrophes that are 'sharp' ones - they look like acute accents.

Remove them and replace them with the upright 'soft' version (like I used there on the word 'soft') and it should work.

mercuteio

Hmm, I'm on a Mac. Right, will try some stuff based on your suggestions - fingers crossed.

By the way, on a separate note, I went to the court today to hand in my documents by about 2:45pm (deadline was at 4pm), but one of the security guards said the office closed at 2pm, so he couldn't give me a receipt, but allowed me to watch him leaving the envelope in a dropbox for the next day. Is that normal? I was very concerned about not being given a receipt, but decided to accept it and write an email to the court straight away letting them know I'd dropped it off and asking for reassurance that this would be accepted seeing as it was before the deadline, even if no-one was in to accept it. Figured that at least gives me something time-stamped which states I had tried to submit on time.

On that note, decided to email the PPC as well, but found that their mailbox limit restricted sending the evidence. So then spent the next 45 minutes breaking down all of my exhibits into small files and sending them one after the other! And now I have all of their automatic replies, I don't think they can say they didn't receive things on time. They should have a postal version too, I hope.

Redx

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mercuteio

Fingers crossed this works . . . this is what I tried to post yesterday. It might be in already, but still, I'd appreciate any feedback/advice/problems I may have caused myself etc. Many thanks! Ok, here goes:

So then, I royally screwed up my time estimations today, and having hoped I would be finished by 12pm, I am currently still checking my Witness Statement. Very, very tight for time

Anyway, such is life. I'm not convinced this is the best witness statement I could have written, but in the timescale I've given myself to understand a large number of legal issues with which I wasn't previously familiar, this is as good as I can currently do. I doff my hat to those members of this forum from whom I have shamelessly plagiarised to my advantage, and of course, to those experts among you from whom I am still continuing to hang off the every word of. Looking forward to taking my very patient pooch for a long-awaited walk now - any feedback would be much appreciated in the meantime.

Many thanks to you all to this point - I am so very, very grateful.

p.s. If I've left any identifiable information in here, please let me know so that I can edit it out.



________________
Witness Statement
________________

I am the Defendant in this matter. I am unrepresented, with no experience of Court procedures. If the contents of this Witness Statement or the evidence and exhibits that accompany it are set out in a manner to which the Court is not accustomed, I trust that the Court will excuse my inexperience.

Attached to this statement is a paginated bundle of exhibits marked as **X, to which I will refer.

1. I am the registered keeper of the vehicle concerned and was the driver at the time of this incident

2. Before I describe the claim regarding ** Car Park (‘the car park’), I confirm that the essence of my defence to this claim is that:

a. I did not breach the terms and conditions of parking and have never had a contract with the Claimant. Three separate private parking companies each have signs within the same car park, such that it is entirely unclear and ambiguous which private parking company I could have made any purported contract with, and as such no contract can be construed under the doctrine of contra proferentem.

b. The Claimant’s signage also forbids the action claimed, stating ‘Staff Parking Only/No Parking on Access Roads at Anytime’, yet on the other hand also seeks a contractual charge for the allegedly forbidden activity.

c. The claim furthermore includes a £60 charge in addition to the £100 contractual charge alleged to have been agreed to, which represents an abuse of process and a breach of the Consumer Rights Act 2015.

d. Subsequent to the current claim, the Claimant has filed a second, substantially identical claim, but made no attempt to consolidate these or advance them as a single claim, instead choosing to pursue them as two separate claims, and thus representing a further abuse of process


Issuance of the Parking Charge Notice (PCN)


3. On the 29th January 2019, the date of the alleged contravention, I was working as a locum doctor in ***** (‘the hospital’), which is a large tertiary referral hospital and Major Trauma Centre. I had been asked to work there from 14th January 2019 for *** days each week, and commuted to *** from ***, where I live, each week.

4. The 29th January 2019 represented my second day on-call. I work in the field of ***, and therefore on-call emergencies that I am involved in treating include urgent calls that require treatment within hours (for example, major bleeding) or emergency calls that require immediate treatment within minutes due to an imminent threat to life (for example, airway emergencies). This distinction bears relevance both now and later in this Witness Statement (see ‘Two substantially identical claims – a further abuse of process’ below).

5. From 14th January 2019 onwards, I had made a regular practice of using the tram system to travel to and from work, and had applied for a staff parking permit for use in the hospital car parks. The hospital has a long waiting list of several months for staff parking permits, and therefore I did not normally drive to work.

6. However, on the morning of 29th January 2019, I had received an urgent call regarding a patient who was bleeding, and felt that I needed to be at work more quickly than the tram would allow. I therefore chose to drive.

7. When I arrived at the hospital that day, I found that the staff car parks were all barrier-protected, requiring permits for entry, but the visitor car parks allowed access. I believed that ** Car Park was a hospital visitor car park, because it appeared to be on the hospital grounds, and was located between several other hospital car parks. I have provided two separate aerial views (Exhibit **1) identifying the location of the car park in relation to the rest of the hospital grounds to demonstrate this. On these aerial views, the hospital grounds are highlighted in green, whilst ** Car Park is highlighted in red.

8. Additionally, the signage within the car park was extraordinarily confusing – so much so that it is quite difficult to describe, though I will attempt to do so both within this Witness Statement, and through a series of photos that demonstrate a walk through the car park (Exhibit **2).

9. In the first instance, there were signs from three separate private parking charge companies within the same space of land – **** Ltd, First Parking LLP and the Claimant, Vehicle Control Services Ltd (Exhibit **3). As can be seen in Exhibits **2 and **3, the Claimant’s signage was not obvious at the entrance to the car park, and in fact could not be seen until much further into the car park. I note that the Claimant purports to have erected ’33 Warning Signs (470mm x 635mm)’ in their Witness Statement (Para 14), but it will be obvious from the photos provided that the total number of signs in place amounts to no more than five, if indeed that many.

10. The signs from these three private parking companies not only conflicted with each other – each asserting that to park was to accept terms and conditions equating to a contract with themselves only – but also conflicted with whether it was a pay-and-display ticket-holder car park, or a permit-holder only car park. **** Ltd indicated that either a valid permit or pay-and-display ticket was acceptable, whilst Vehicle Control Services Ltd and First Parking LLP indicated it was permit-holder only.

11. Furthermore, **** Ltd indicated that it was not a hospital car park, whilst First Parking LLP stated directly that it was a ** Hospital NHS car park. Vehicle Control Services Ltd did not state whether it was an NHS car park or not, but simply stated that it was for ‘Staff Parking Only’.

12. Some signs said “** parking only” (see last photo in Exhibit **3), but there were no other words or symbols on these signs, so it was not clear what ** was, nor whether this was an official sign or not. As it transpires, *** Ltd appears to be a company located near to the hospital, and is the company for whom the Claimant alleges it has a contract to manage the car park with, but there was no indication of this on the signs present.

13. It is of note that within the Claimant’s own evidence (Exhibit **1), a photo demonstrating the confusion caused by their signage is evident, as in this photo it is clear that there is both a sign from the Claimant and a sign from *** (‘***’ in the photo), as well as a sign stating that parking is for ** only, all within reaching distance of one another. I have included this within my own compilation of evidence as well, as Exhibit **4.

14. Within this bewildering, confusing and conflicting array of signage, and with a pressing need to urgently leave my car to assess a critically ill patient, I recognised the First Parking LLP sign as the same sign outside each of the barrier-protected hospital staff car parks, and combining this information with the location and the fact that the ticket-machine was labelled with the name of the hospital, I decided that on balance it was most likely that this was a hospital staff and visitor car park. I therefore chose to park and leave a note for the parking attendant to explain that I was awaiting my permit.

15. It is my understanding that there are three elements to a contract: offer, consideration and acceptance. The premise of the current claim is that I accepted a contract with the Claimant. However, as can be seen from the description and photos of the signage on display within the car park, no contract could possibly have been construed because if such a contract could be construed at all, which it categorically can not, then it would be entirely unclear as to which company this was with. The multiple conflicting signs gave a message that was misleading, ambiguous and unclear, and as such, the doctrine of contra proferentem applies.

16. Additionally, even if the signage available within the car park was only offered by the Claimant, the wording on the sign was prohibitive, stating ‘Staff Parking Only/No Parking on Access Roads at Anytime’. A purported licence to stop without a permit in exchange for payment of a “charge” on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording.

17. I note that the Claimant is part of an accredited trade association, the International Parking Community (‘the IPC’), which has its own Code of Practice. As noted by the Supreme Court in Parking Eye vs. Beavis 2015 (Exhibit **5):

‘Since 2007, the policy of the Secretary of State has been to disclose the information for parking enforcement purposes only to members of an accredited trade organisation. The criteria for accreditation were stated in Parliament to include the existence of ‘a clear and enforced code of conduct (for example relating to conduct, parking charge signage, charge levels, appeals, procedure, approval of ticket working and appropriate pursuit of penalties’’ (Para 96, Parking Eye vs. Beavis 2015, Exhibit **5)

‘A competent lawyer representing a user in individual negotiation might be expected, among other things, to argue that the supplier should at least commit to following the code of practice’ (Para 311, Parking Eye vs. Beavis 2015, Exhibit **5)

18. In this case, the Claimant has failed to follow Schedule 1 of the IPC Code of Practice (Exhibit **6), which states that signs displaying terms and conditions must ‘identify yourself as ‘the Creditor’, seeing as multiple signs identified different Creditors. Schedule 1 also states, with regards additional signage that ‘Signage which is neither an entrance sign or a sign displaying all terms and conditions must not contradict the terms applicable to Motorists or be misleading’.

19. The Claimant makes reference to the Independent Appeals Service (‘the IAS’) provided by the IPC in their Witness Statement (paras 24-27). However, on learning more about the process I opted against the appeals process, because the IAS did not appear to be a truly independent service as the IPC itself is a self-serving body funded by parking companies. It is therefore unlikely that the process would have yielded a different outcome.

The Claimant’s purported “Debt Recovery Charge”

20. Additionally, the Claimant has added a further £60 to the original £100 charge applied under the banner of a ‘debt recovery charge’(Claimant Witness Statement, para 46), which represents an abuse of process and an attempt at double recovery. This is a tactic that has been used by multiple private parking charge companies, including the Claimant, and has most recently been demonstrated to not only be an abuse of process, but also to be in breach of Schedule 2 of the Consumer Rights Act 2015. I refer to some recent rulings where judges lost patience with such Claimants.

21. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019 (Exhibit **7), District Judge Jones-Evans stated: ‘Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.’

22. That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

23. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit. These included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ‘It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998…’

24. At the hearing for BW Legal's N244 application to appeal against two ‘test’ cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019 (for which court transcripts and orders are still awaited), where he agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant 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 POFA para 9.

25. Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the ‘grey list’ of terms that may be unfair) paragraphs 6, 10 and 14 and due to the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers’ defences had raised it before. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been ‘tainted’ by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.

26. Consumer notices - such as car park signs - are not excused by the ‘core exemption’ as set out in the CRA 2015. The CMA Official Government Guidance says: ‘2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test (‘the core exemption’) if they are transparent (and prominent) – see part 3 of the guidance.’ and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).’

27. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ‘A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.’

Two substantially identical current claims – a further abuse of process


28. The Court is invited to take note that the Claimant has issued two current claims, numbers *** and ***, against me with substantially identical particulars. The particulars of the second claim, ***, are included as Exhibit **X.

29. It is perhaps unsurprising that following the issuance of the PCN on 29th January 2019 that led to the current claim, I avoided parking in ** Car Park again. However, referring back to Para 4, in which I mentioned that part of my clinical responsibility includes treating those undergoing an immediate threat to life from airway emergencies, on 6th May 2019, I received an emergency call detailing such an emergency taking place. I still had not been issued my staff parking permit by this time, but needed to be in the hospital as soon as possible.

30. Despite the series of events that followed the PCN from 29th January 2019, I felt I had no choice but to park once again in ** Car Park, as time was of the essence, and it was the closest car park to where the emergency was taking place. I left a note in my car that stated ‘Doctor attending emergency’ (as demonstrated by photos provided following a Subject Access Request shown in **X), but returned to my car later to find another PCN.

31. The issuing of separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. In the event that similar matters proceed to claim issue, they must be particularised as a single claim and not as multiple separate cases, otherwise (as an extreme analogy) a builder purportedly owed money by an individual customer, could file a separate claim for each brick laid.

32. The facts of these cases are duplicated in every respect: Claimant, Defendant, location, parking charge breach allegation, and added unrecoverable ‘debt collection’ and/or ‘legal’ costs for each case, that are an abuse of process in themselves, given that the Claimant did not in fact ever incur such costs and that they are disallowed by virtue of the ceilings set in the Protection of Freedoms Act 2012 and the Supreme Court decision in ParkingEye Ltd v Beavis.

33. Multiple claims and disproportionate added costs run contrary to the overriding objective of Civil Procedure Rule 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and vacate the other hearing.

34. I invite the court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are permissable under Civil Procedure Rule 27.14


Statement of Truth:

I believe the facts contained in this Witness Statement are true

mercuteio

Redx wrote: »

a quick google search for alternatives to Notepad++ shows these text editors

Hurray!!

Thanks guys! Redx, I actually didn't see this, although it would have been useful! Instead I just replaced all the speech marks and automatic numbering. Thanks anyway though!

My IP address is still banned though - I can only see read and post if I connect through my phone!

mercuteio

I actually changed a few bits of it before submission to this version, but the bulk of it is largely the same

Redx

mercuteio wrote: »

Hurray!!

Thanks guys! Redx, I actually didn't see this, although it would have been useful! Instead I just replaced all the speech marks and automatic numbering. Thanks anyway though!

My IP address is still banned though - I can only see read and post if I connect through my phone!

see this post from ages ago about banning of IP due to copy and paste from word or a pdf etc

https://forums.moneysavingexpert.com/discussion/5637311/warning-do-not-copy-and-paste-content-from-word-pdfs-etc-into-your-posts

contact the admins to get your main IP unbanned

Coupon-mad

I'm not convinced this is the best witness statement I could have written,

IMHO that is a very good example.

The only thing to change (if you have time) is my fault (my typo I've now put right)!

https://forums.moneysavingexpert.com/discussion/comment/76513104#Comment_76513104