Advice after receiving Final Demand

austin2014

Hi everyone, I have to have my WS in for May. I have contacted the court and it sounds like more than likely it will be adjourned. My case is in June. Anyway the court representative has asked if i would like it to be judged on paper. They are offering this too most people but needs agreement from both sides. He said over 90% have rejected that option. So i wont be doing that. For some cases they are even offering Skype. But these are few and far between. I am about to upload my WS, as usual please look through it, I know it is quite long and this really is the first draft. I am so out my depth with this and has taken me over twenty hours to put this together so please keep any criticisms constructive. I'm doing the best I can. @Coupon-mad your help and patience isn't taken for granted. Thank you and everyone else.

austin2014

In the County Court at Derby, Derby Combined Court Centre, Morledge, Derby, DE12XE

Between

Vehicle Control Services (Claimant)

And

(Defendant)

 

WITNESS STATEMENT

I, , of, will say as follows:

I am the Defendant and registered keeper of the vehicle in this case. I am unrepresented with no legal background or training and have no previous experience of County Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

Attached to this statement is a paginated bundle of evidentiary documents marked HC1 to HC34

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2.       The Claimant asserts that my vehicle parked in a restricted/prohibited area.

3.       Before I describe what happened on the day that my vehicle was parked in the £££££ car park, I can confirm that the essence of my defence to this claim is that:

 

a)      To show this was an emergency, where loss of life was possible. This was a fast-paced fire that caused containers of gas to explode. A lorry fire and extensive damage to a building. Serious enough that it had a cordon area of around half a mile (0.6mile), train services to be halted and surrounding buildings damaged from shrapnel. This wasn’t a small fire; it was on the news.

b)      Throughout this process I feel I haven’t been dealt with fairly by VCS in many aspects. Especially in the Defence process. Upon request of information I had no reply within the calendar month, which was reported and confirmed by the ICO. This meant I had to submit a Defence not having all the information I required.

c)       A genuine concern for me is that in a letter from the VCS, they state that the police are a third-party source and are not authorised to instruct motorists to park on private land. It concerns me that members of public could refuse police instruction over this kind of advice, which could lead to serious incidents in the future. I followed police instruction, and now I feel as though I am being punished. Reference £££££££££££

d)      I would like to highlight how many aspects of the whole VCS parking charge process seem questionable and easy to manipulate. I feel that there should have been a degree of common sense and it makes a mockery of the appeals process.

 

Background

 

4.        22/04/2019 (Easter Bank Holiday) I was locking up my place of work just after 1.30pm. We were the only company open on the site that day. At this point the vehicle was parked at the company where I work. (Company)

5.       As I made my way to my vehicle, I could see smoke behind the building directly opposite to my place of work. At this point I walked over the road to see a well-developed fire, this was next to a cage of gas canisters and a lorry. It was clear to see the danger, as I grabbed my phone there was an explosion that shook the floor. I quickly rang 999 at 13:44 which can be shown in Exhibit HC1. I requested this information through the Freedom of Information Office.

6.       When the Fire Department and the Police arrived, I would say there were at least 60 members of public trying to see this fire. Unbelievably car after car was turning up. I gave the emergency services use of our facility and the grounds. The explosions where getting bigger and more frequent. At this point the fire was higher than the building itself and black smoke could be seen for miles, fragments of the blasts was landing all around.

7.       I would like to use this opportunity to show the scale of this fire, backing my claims of how serious this situation was. From a quick google search I can show you the reports from ITV News, BBC News and Derbyshire Live shown in Exhibit HC2, Exhibit HC3 and Exhibit HC4.

8.       Soon after the arrival of the Emergency Services a roadblock was in place for the safety of the public. For the purpose of my next point I would like to show you my current car position, where the fire was located and where the roadblock was in place. Also noting that to enter the site there is only 1 entrance. Shown in Exhibit HC5.

9.       At this point the police officer explained how the vehicle was in the “blast radius”. He then went on to explain that because a roadblock was in place, the only location that could be used was £££££ car park. The building adjacent was on fire at this point and he wanted to get the vehicle as far as possible as a safety measure. The Emergency Services also needed to use the surrounding areas. I would like to point you to Exhibit HC6 for the vehicle’s new location. This was an email statement from A/Inspector ££££££££, that was provided for me Exhibit HC7.

10.   Once the vehicle was parked safely, I had to leave the site. Which I did. I would also like to point out that I park at my place of work on a regular basis. I would never ever have the need to park at  £££££££. This was an extreme circumstance.

11.   I returned to the site in person at 6pm. The roadblock had been extended and stretched over a 0.6 miles distance. Please see the new roadblock location’s in Exhibit HC8. I approached the Police Officer who was based at the roadblock. He interviewed me, then instructed me to go home as it was still unsafe and to call the 101 service for updates.

A)     I made three phone calls to the 101 service which I have acquired from the Freedom of Information Office as shown in Exhibit HC9. I have attached the transcript from the phone calls which I have personally typed out. A cd with the recordings will be provided. I co-operated entirely with the Emergency Services and at no point over the calls, could they validate the site had been opened. I would especially like to point your attention to the last phone call at 21.03, she states the seriousness of the incident and couldn’t confirm if the site was safe/cordon had been lifted. The notice on my car stated 22:10, I would even question whether the Parking Warden should have even been on site.

      Phone call at 18.37pm (Acknowledged that the officer logged my report about the release of my car and that I had to call back later or wait for a call from the Police when it was safe to retrieve vehicle) as shown in Exhibit HC10

austin2014

A)     Phone call at 20.26pm (Acknowledged the roads around the area have re-opened but couldn’t confirm that it was safe to retrieve the vehicle. Was asked to wait for a call back from the officer.) As shown in Exhibit HC11

      Phone call at 21.03pm (Acknowledged that they are still aware of the vehicle situation, updated the log. But stressed it is a serious incident and first and foremost need to make sure the site is safe. Couldn’t tell me if the cordon had been lifted.) As shown in Exhibit HC12.

C)      There is a reference in the calls to an American. This is a gentleman who was working at our site, who also had his car escorted to the same area as mine. He was flying back the next day and paid the fine to avoid any issues with the car rental company.

 

1.       At this point I still didn’t know if the site was open. I messaged the Derbyshire Constabulary over Facebook Messenger. As shown in Exhibit HC13.

A)     I first made contact at 20.48pm asking if the area has been opened.

      I received a message at 22.40 informing me that the roads around the area have been opened. I instantly replied at asking if that included the industrial estate.

C)      I received confirmation the industrial estate had been opened at 01:32am the following day (23rd April 2019).

2.       This was the first time I had confirmation it was safe to retrieve the vehicle. Unbeknownst to me my car had already received the Red (This is NOT a parking charge notice) at 22:10. As shown in Exhibit HC 14

3.       I retrieved my vehicle at around 5.30am. This is the time I first realised I had the red (THIS IS NOT A PARKING CHARGE NOTICE). As shown in Exhibit HC14. At this point there were still 2 Fire Engines on site as seen in Exhibit HC15 and an abundance of Police Officers and News reporters. Upon questioning the Police Officer about the notice on my vehicle he seemed shocked/angry, he thought the person in the van was someone with a genuine concern for his business.

4.       Using the information on the back of the Red (THIS IS NOT A PARKING CHARGE NOTICE), I was able to access the portal on the www.myparking charge.com as shown in Exhibit HC16. I then proceeded to type the serial number and my registration.

5.       At this point I could see all the details about the vehicle, as shown in Exhibit HC17. I would like to point out two separate points from the selection of photos.

a)      The parking attendant needed the use of a flash to capture any signage which would tell me that the lighting is not fit for purpose.

b)      On one of the photos taken, you can clearly see the Fire Engines lights in the background. As shown in Exhibit HC18.

 

Unfair Appeals Process

 

6.       I have given so much background on the incident because I feel that this makes a mockery of the appeals process. I feel strongly that an efficient appeals process or better controls should be preventing situations like my own from ever reaching the courts. I feel as though I never stood a fair chance of winning an appeal, which I will further describe in the following points.

7.       On the first appeal submitted on the 23rd of April 2019 I provided VCS with an explanation of the situation. Even attaching images of news screenshots and messages from the police as shown in Exhibit HC19.

8.       The reply which I received on 07/05/2019 felt generic. It seemed more of a process. At this stage I felt astounded and completely ignored. As shown in Exhibit HC20.

9.       I proceeded with a second appeal on the 12/05/2019. I included the £££££ From the Derbyshire Police, explained again that the car was moved out of the explosion radius. I also requested important information. As shown in Exhibit HC21.

10.   I received the response to my second appeal from VCS 17/06/2019, which also attached prints of the pictures they had taken of my vehicle. As shown in Exhibit HC22. VCS rejected my appeal and I would like to point out issues I have with the response.

A)     They state that the signage is clear. I would argue that when there are gas explosions and a fast-paced fire to contend, it would be fair to say any signage would be an afterthought.

      They state that there is a helpline number that I should have used which is clearly stated on the signs. Unfortunately, I didn’t have the luxury of time in this situation. I had to get out of the area fast on instruction from the Police. There was literally shrapnel from the gas canisters landing all over the business park. VCS write in this letter that they sympathise with my situation, yet the statement saying I should of rang the helpline would have put me in danger.

C)      VCS state in the letter Exhibit HC22 “that a reasonable amount of time is allowed on the car park (Grace Period) for drivers to park their vehicle, read the advertised Terms and Conditions displayed and then either Display a valid permit or leave the car park. On this occasion that Grace Period was exceeded, and as no valid permit was displayed, I became liable for the Charge Noticed issued”. I have many issues with this.

Ø  VCS have completely ignored my appeals and the information about the fire/explosions. This just confirmed to me that they will do what they can to get me to pay, there is no human element or sanity checks.

Ø  In my second appeal as shown in Exhibit HC21 I asked for proof of the actual grace period agreed by the landowner, I advised that failure to provide evidence of said grace period will be disregarded as an attempt to mis-lead. VCS never provided me with that information. Where VCS state “a reasonable amount of time is allowed on the car park (Grace Period) for drivers to park their vehicles”. As shown in Exhibit HC22. My question would be what is classed as reasonable? This is leaving a window of opportunity to manipulate the system.

Ø  Out of personal interest I called the helpline number on the sign, on the 2nd of November 2019 as shown in Exhibit HC23, I rang the number 10 times. It was clear to me that outside of work hours this number is not manned and was just a payment line. In the 10 phone calls I made I didn’t manage to speak to one person. Being that the incident took place on a bank holiday. I would argue I could have even used the helpline.

11.   I received my Letter Before Claim on the date 13th of August 2019 see Exhibit HC24. In response to this, I then sent this letter to VCS Exhibit HC25…. This quote captures the nature of my letter.

 “Please treat this letter as a formal request for all of the documents / information that the protocol now requires you to provide”. I then proceed to ask for certain information that they hold on file, this was to give me a fair chance of creating a defence. The letter in question was signed for and received by VCS on 29th of August 2019 at 10.20am signed £££££. This gave them a calendar month to provide me with the information they held on file.

12.   I received information from VCS regarding my Subject Access Request on the 11th of December 2019 Exhibit HC26, my defence was submitted on the 25th of November 2019 Exhibit HC27. For me this is enough for this case to be deemed as tainted. I never had a fair chance of providing an evidence-based defence, to be clear I was put at a disadvantage.

13.   More importantly VCS broke protocol. This has been confirmed in the email dated 4th of December 2019, (Case Reference Number££££££) Exhibit HC28. I had contacted the ICO to complain using their online complaints procedure. As over a month had passed since my request for my information. ICO state “I am of the view that it is likely that VCS has not complied with its Data Protection obligations”. Funnily enough 7 days after the receipt of this email is when VCS finally replied with my information request.

14.   To be clear I requested integral information on the 29th of August 2019. Information VCS are obliged to supply covered by the Data Protection Act 2018. I received my Subject Access Request from VCS on 11th December 2019. In this period (25th November 2019), I had to submit my defence.

15.   On the Gov Website under Data Protection it states under the header. How long should it take? The website states “the organisation must give you a copy of the data they hold about you as soon as possible, and within 1 month at most. In certain circumstances, for example particularly complex or multiple requests, the organisation can take a further 2 months to provide data. In this case, they must tell you: -within 1 month of your request -why there’s a delay.” See Exhibit HC29. I had no communication from VCS and received the information over 3 months from receipt of my request, therefore this case should be struck out on this premise alone.

austin2014

VCS Reply to Local MP Major Concerns

 

1.       Feeling quite overwhelmed by the whole process I reached out to my local MP ££££££. I provided his team with all the information and they said they would approach VCS on my behalf to try and get this resolved. In the following points I would like to break down major concerns I have with this reply.

2.       The reply to ££££££ was received 3rd September 2019.  VCS REF:£££££, ££££££ REF: £££££££ ET Exhibit HC30.

3.       VCS state in Exhibit HC30 “Mr ££££££ has stated that he parked on site due to his vehicle being evacuated from its normal parking location due to an industrial accident, and that he was instructed by a police officer to park here. Whilst noting the circumstances cited by Mr £££££ these do not warrant the cancellation of the notice. When parking on private land it is the responsibility of the motorist to ensure their compliance with the displayed Terms and Conditions, which are clear that a valid permit must be displayed. If Mr £££££ was not a permit holder at the time of parking, then he had no reasonable cause to believe he could park here without becoming liable for a charge.” – I personally would argue that gas explosions and a fast-paced fire would be classed as a reasonable cause…

4.       My next point in Exhibit HC30. VCS state “Whilst Mr ££££££ does state that he was instructed to park here by the police, third parties are not authorised to instruct motorists to park on this private land outside of the contractual Terms and Conditions.” – Does this claimant think they are above the law and actually want the Court to make a truly absurd finding in this case, that contract law trumps a relevant Police instruction? Even the local Council don’t give themselves that level of authority, and I take you to point 45 under the sub heading Emergencies in the Derbyshire County Council (Off-Street Parking Places) Order 2010, Exhibit HC31. It states “A person authorised by the Council or a police officer in uniform may, using such measures as are appropriate, move or cause to be moved in the case of an emergency to any place he/she thinks fit, any vehicle parked in a parking place”. This is what REAL parking enforcement looks like.

5.       I used this extract to show that if you follow instructions given by a Police Officer in uniform then you are not liable for PCN’s, even when in contravention of signs. This exemption is normal/countrywide and should be stated in the local Traffic Orders.

6.       My next issue in Exhibit HC30 is the following statement. “I would note that a helpline is clearly displayed on our signage which can be used by any motorist who is require assistance and/or to report unusual circumstances such as this, this number is also advertised on our website. Had Mr £££££ contacted us at the earliest reasonable opportunity (and certainly before the recording of the contravention at 22:11, a substantial time later than the industrial accident was resolved) to report his circumstances provisions could have been made for him which could have helped him avoid liability for a charge”. I have several issues with this statement as seen below.

A)     I would ask is this not what their appeals process is for?  To provide a service that manages situations like this. That statement says to me because I missed this completely made up time window, I have no chance of an appeal.

    VCS state that “22:11 was a substantial time later than the industrial incident was resolved”. I would very strongly argue this and like to point you to Exhibit HC2 3 or 4. On the BBC news report, Station Manager ££££££ from the Fire Department stated, “the rubber was still being dampened down the following morning”. The emergency service presence the following morning was still evident. I would also like to point you to previous evidence Exhibit HC12 where I rang the 101 service at 21.03pm, where the emergency services where still very much active. I would also point you to Exhibit HC18, where the picture VCS have uploaded to www.myparkingcharge.co.uk of my vehicle has Fire Engine lights in the background!

C)     I contacted the helpline the morning of me receiving my ticket 23rd April 2019 with a phone call, they stated that it hadn’t been processed yet and if I could put an appeal together then there would be a good chance this can be resolved. I used the RED ‘This is not a parking charge notice’ as shown in Exhibit HC14 to gain access to their online appeals process at www.myparkingcharge.co.uk. My appeal was processed at 08:35am on the 23rd April 2019. In my opinion I reacted in a very respectable timeframe.

D)    I would like to point out that when I received my ticket on the 22nd of April 2019 the car park was completely empty. No business was open (Easter Monday) on the site including ££££££. I would like to bring this to your attention, to show I didn’t even have a point of contact within the facility. My vehicle being in that position in an emergency, did NOT impact a single person that day. Upon retrieval the carpark was still completely empty.  To make matters worse when I google searched (company building) it said that the site is Permanently Closed. Exhibit HC32. Just to add to the confusion, it still states that ££££££ is Permanently Closed as I type this letter nearly a year later.

E)    I mentioned earlier that I did call the helpline on the 2nd of November 2019 as shown in Exhibit HC23, I rang the number 10 times. It was clear to me that outside of work hours this number is not manned and was just a payment line. In the 10 phone calls I made I didn’t manage to speak to one person. Being that the incident took place on a bank holiday. I would argue I could have even used the helpline.

F)    As stated in my Defence. The terms on the Claimant’s signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant’s signage is capable of creating a legally binding contract. Exhibit 35

 

Late Notice To Keeper

 

7.       The ‘RED CARD’ (Exhibit HC 14) left on the vehicle was clearly marked ‘THIS IS NOT A PARKING CHARGE NOTICE’ thus, there was no windscreen PCN, and under Para 9 of the POFA, the Notice to Keeper arrived far too late for liability to pass to the registered keeper. The period is 14 days as shown in Exhibit HC33. I received my NTK on the 21/05/2019. As shown in Exhibit HC34.

8.       It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

austin2014

Costs on the claim – disproportionate and disingenuous

 

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

2.         The arbitrary addition of a fixed sum purporting to cover 'administration/recovery 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.         The standard wording for parking charge/debt recovery contracts is 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.

4.         Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 '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, case law and two statute laws hold that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

5.         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.

6.          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, and all parking firms are very familiar with this case:

7.          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.''

8.          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.''

9.          “ 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...''

10.      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.''

11.      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.''

12.      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.

13.     Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, 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.''

14.     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.

15.      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...''

16.      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, where he agreed that:

50.1   (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).

50.2   (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.

50.3   (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.

 

17.      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.

18.      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).''

19.      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.''

20.      In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

21.     The Defendant is of the view that this Claimant knew or should have known that to claim £160 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.

22.      The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety (due to the similarities with the Southampton case where the entire claim was deemed 'tainted') and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

 

The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

 

I believe that the facts stated in this Witness Statement are true.

 

Signature of Defendant:

 

14/04/2020

 

 

  

 

austin2014

The numbers have copied through completely different to the document.

Coupon-mad

Have the stuff about abuse of process/added £60 false costs as a separate Supplementary WS, like here:
https://forums.moneysavingexpert.com/discussion/comment/77048513#Comment_77048513

and read this thread about anticipating a Telephone Hearing and using email instead of posting your documents:
https://forums.moneysavingexpert.com/discussion/6130456/telephone-hearings-re-parking-firm-claims-can-we-all-discuss-strategy-and-outcomes-here#latest

austin2014

Will do, thank you.

Coupon-mad

More posts have now been added to that thread, and I've written a suggested email to send to the court along with a Word Document Draft Order and all your evidence AND your original defence.  

The email is specifically for people who are at WS stage, before they even hear about a Telephone Hearing, and is designed to get more cases struck out without hearings.

austin2014

Would you recommend to still send by post/hand deliver? I haven't had any instruction not to do that yet. Or shall I use the email route? If I do send by post shall I just send the email you mentioned as a letter instead? Looks really good stuff. Impressive.