Pls Help - Court Claim Received / Horizon/Gladstones / Office car park

Tinman45

Here is my updated Witness Statement with the following :-
- Amended points 10. and 11. 
- On point 11. I highlighted/summarised 4 the recent cases from the "Abuse of Process" Thread - let me know if this is OTT as i have also written a Supplementarty WS as advised by Coupon-Mad based on Post #14
- Put my Initials on Exhibits ("AAA_001" etc)
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IN THE COUNTY COURT AT xxx
CLAIM No:  xxx

BETWEEN: 

HORIZON PARKING LIMITED (Claimant)

-and-

xxx (Defendant)
________________________________________
WITNESS STATEMENT
________________________________________

1.     I am xxx, of xxx, the Defendant in this matter. I will say as follows:-

 

2.     When visiting [Company xx] Office at [Office address] I have been both a genuine and authorised visitor attending job interviews by appointment. The case should thus be dismissed under Promissory Estoppel alone.

 

3.     When visiting the xxx office, I signed a visitor book. I was not asked to display any permit on my vehicle on any occasion.

 

4.     I refer the Court to Exhibit AAA_001 which is a photo of the Claimants signage – stating “Authorised vehicles and visitors only”. As I was an ‘authorised visitor’, with reference to the Particulars of Claim “parked in breach of the terms of parking stipulated on the signage (the ‘Contract’)” – I say no breach of contract occurred.

 

5.     Since the dates of the Parking Charges Notices the building has been vacated by [Company xx]. I refer the Court to Exhibits AAA_001 to AAA_003 which are photos showing this. I have therefore been unable to get copies of the visitors’ book. However, to prove that my interview visits were legitimate I refer the Court to Exhibit AAA_004 which is a copy of my subsequent Employment contract with [Company xx].

 

6.     I refer the Court to Exhibits AAA_005 to AAA_007 which are photos of the carpark entrance. This shows that the carpark had no clear signage at its entrance in order to form a contract. I invite the Court to compare this with the Court of Appeal judgement by Lord Justice Moore-Bick on the ParkingEye -v- Beavis (2015) which stated “Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.” And that “a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor”.

 

7.     The signage in the vicinity was too far away to be read clearly and the font too small to reasonably accept any charges and understand and accept any terms and conditions to form a contract. I say this was a pitfall and put me at a disadvantage when using the car park.

 

8.     There was no clear signage when driving up to the entrance before entering the car park. I refer the Court to Exhibit AAA_008 which is a video showing the drivers view - and lack of adequate signage - when driving up to and entering the car park. I say the Claimant took advantage of my lack of familiarity of the terms of the carpark, my necessity as a visitor and indigence being a person trying to secure employment with [Company xx]. I therefore say no contract was either agreed or in place with the Claimant.

 

9.     I hold the Claimant to strict proof that they have the required authority from the Landowner giving them the right to form contracts with drivers/keepers of vehicles using the car park and to make legal claims for alleged breaches of said contracts in their name.

 

10.  The additional £70.00 charges per PCN have been added with no breakdown nor explanation other than a vague description of being “contractual costs pursuant to the Contract” as stated in the Particulars of Claim. These additional charges are nowhere to be found on the Claimants signage, which they say forms the details of the Contract and have come out of thin air. These charges are an abuse of process and an attempt at double recovery. They are also in breach of the Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) – which states that the maximum sum that may be recovered from the keeper is the amount stated on the Notice to Keeper - in this case £80.

 

I refer the Court to my Supplementary Witness Statement which gives more detail.

 

I wish to direct the Judge’s attention to two recent rulings involving similar Claims from the Claimants Solicitors (Gladstones) and a further two on abuse of process:-

 

In Hertford county court - Claim No. F1GF9J4G:

Gladstones freely ADMITTED that the extra charges are FALSE and the Judge dismissed the case entirely.

 

In Mayor's and City of London Court on 6th January 2020 before District Judge Shanti Mauger:

The case was dismissed. The Judge ruled that extra charges (in this case £60) were not lawful and when questioned by the Judge, the Gladstones representative then said they would no longer seek it.

 

I also wish to direct the Judge’s attention to these rulings regarding an “Abuse of Process”.

 

Southampton Court Claim No. F0DP201T on 10th June 2019 before District Judge Taylor

The Judge ruled: “IT IS ORDERED THAT: The claim is struck out as an abuse of process”

Warwick County Court Claim No. F5DP2D6Y on 6th December 2019 before Deputy District Judge Josephs:
The Judge ruled: “CLAIM STRUCK OUT: REASON: ABUSE OF PROCESS”

 

11.  I invite the Court to dismiss this claim in its entirety, to condemn the vexatious litigant conduct of the Claimant and their Solicitors and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14. I refer the Court to Exhibit AAA_009 for the full schedule of my costs.

I believe the facts contained in this witness statement are true. 
________________________________________

Tinman45

Here is my Schedule of Costs
Note: i have spent way more than 6hrs on this (i spent 7hrs on it just today) but dont want to be seen to be "taking the mick" - or shall i put the true number of hours (more like 15) if you think the Judge will honour it?
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 IN THE COUNTY COURT AT xxx

CLAIM No:  xxxxxxx

BETWEEN: 

HORIZON PARKING LIMITED (Claimant)

-and-

xxx (Defendant)
________________________________________
DEFENDANTS SCHEDULE OF COSTS

________________________________________

Ordinary Costs :-  1.     One day loss of earnings for attending hearing - £95.00   2.     Half day parking at xxx Car park - £10.00   3.     Cost of fuel for the 25.6 mile round trip at 45p per mile - £11.52    Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g) :-   4.     Litigant in Person cost of research, preparation and drafting of documents (6 hours at £19 per hour) - £114.00   5.     Stationary, copying and printing - £15.00                                   Sub Total £245.52

£245.52 TOTAL COSTS CLAIMED

________________________________________

Tinman45

Here is my Supplementary Witness Statement
Again Copied from Coupon-Mad's "Abuse of process" Post #14 and edited with my Cases facts/figs (£80 PCN + £70 'Guff' fee)
(COULD NOT ADD ALL DUE TO WORDCOUNT LIMIT But you hopefully get the jist of what this is...)
-------------------------------------------

IN THE COUNTY COURT AT xxx
CLAIM No:  xxx

BETWEEN: 

HORIZON PARKING LIMITED (Claimant)

-and-

xxx (Defendant)
________________________________________
SUPPLEMENATRY WITNESS STATEMENT
________________________________________

The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

1.     Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process.

2.     The Defendant has the reasonable belief that the Claimant has not incurred an additional £70 in damages or costs to pursue an alleged £80 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a)   only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b)  resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

3.     Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £70 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim

4.     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.

5.     This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

6.     In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

7.     At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

8.     At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim

9.     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' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery..

 

(TRUNCATED DUE TO POST LIMIT......)

I believe the facts contained in this Supplementary Witness Statement are true. 
________________________________________

Coupon-mad

Note: i have spent way more than 6hrs on this (i spent 7hrs on it just today) but dont want to be seen to be "taking the mick" - or shall i put the true number of hours (more like 15) if you think the Judge will honour it?

Yes, most ones I handle say about 15 - 20 hours, and you should break it down like this, to save any arguments:
Reading pre-court letters and researching the issues at the earliest stage - 2 hrs
Appeal/POPLA stage (if you tried it) 3 hrs
Complaint to my MP and to the landowner (if you tried it) - 1hour
Reading LBC and 'reply forms' then Claim form and paperwork, and registering for MCOL to respond: 3 hrs
Preparing, researching and signing, printing of my defence - x hours
Preparing, researching and signing, printing of my witness statement - x hours
Preparing, researching and gathering, then printing of my evidence exhibits - x hours
etc.,
NB: the above might not match what you did!  Make sure the hours add up, of course. 

Typo here:

SUPPLEMENATRY WITNESS STATEMENT

And of course you should append the CRA and POFA that kick out the added £70, as exhibits.  The Beavis quotes are fine NOT to attach (avoid unnecessary printing) as long as you quote 98, 193 and 198 as shown, the Judge can look them up.

Don't put capital letters in a WS, as it looks like you are shouting at the Judge, and there's no point referring to other county court level cases that have no transcript and so are just hearsay, so remove this:

 In Hertford county court - Claim No. F1GF9J4G:
Gladstones freely ADMITTED that the extra charges are FALSE and the Judge dismissed the case entirely.

Tinman45

will make the edits and additions so thank you for reviewing 

At the moment i am getting daily calls from Grab-stones asking “if i want to settle what i owe” - any advice on how to reply and get them to stop?

will making a record of these calls help my claim of vexatious and harassing behaviour by the Claimants Solicitors? it’s starting to pee me off 

Tinman45

hi all 
I have taken a 20sec Video clip of me driving up to the Car Park to highlight the poor signage - its a 40mb .mpg file
how do i submit this to the Court as Evidence and deal with it for the hearing?  and the Claimant for that matter. I dont want to spend money on USB drives just for this.

DoaM

Was the video taken using a dashcam? Or someone else holding the phone while you drove? (Or you holding it while someone else drove?) ... you don't want to be filing any evidence that shows you committing an illegal act.

As to your question - I don't know. You can get low capacity USB pendrives for next-to-nothing these days.

KeithP

Tinman45 said:

hi all 
I have taken a 20sec Video clip of me driving up to the Car Park to highlight the poor signage - its a 40mb .mpg file
how do i submit this to the Court as Evidence and deal with it for the hearing?  and the Claimant for that matter. I dont want to spend money on USB drives just for this.

It must be sent on a 'durable medium' to both the Claimant and the Court.

A 'durable medium' is something that once sent cannot be altered by the sender.

In the case of video, that means you are effectively limited to either a CD/DVD, or memory stick/card.

A video file as an attachment to an email is another example of a 'durable medium', but you might need the explicit agreement of the court and the claimant to accept evidence that way.

A link to a Dropbox file, a Youtube file, or indeed a link to anywhere, is not acceptable as you could alter that file after the link has been sent.

You also need to consider how you are going to show the video at the hearing. Take a laptop or tablet with you that is capable of playing the chosen durable medium.

Tinman45

thanks ill burn it on DVD or just forget it - as i intend to email everything out and it was just a bonus (taken photos of same thing)
Question - do i need to Print out and take these to Court on day of hearing

1. My Defence
2. Witness Statement
3. Supplemental WS

Please confirm - if Yes - do i need to include all these in my Court Bundle as a labelled "Exhibit" or just include in the folder with alongside the Exhibits?

Le_Kirk

You take copies for yourself as you have (or should have) filed and served on the court and claimant.  If you refer to evidence in your WS, then yes, you should take the evidence.  Some posters have reported that claimants turn up without defendant's WSs claiming never to have received them so take proof you sent it to them.  Also I have read that courts can also lose defendants bundles.