County Court Claim Received - Daughter was the Driver

Old_Bird_65

Okay, I hope my amended Witness Statement and Supplementary Witness Statement are okay now. The supplement is rather long as I copied pretty much all of beamerguy's Abuse of Process copy as well as additional comment on the Southampton and Skipton cases.
I know Redx that you suggested I elaborated on CEL's response to the missing NTK on my supplement. but that paragraph on my WS wasn't huge and I couldn't figure how to easily split referencing and elaborating between the two documents. Anyway, see what you think....

Old_Bird_65

In The County Court at Lewes                                                                     Claim Number: *********

 Civil Enforcement Limited (Claimant)     V                   ************ (Defendant)

 WITNESS STATEMENT

I, ****************, of ******************** will say as follows:

The facts set out in this Statement are within my own knowledge save where I state otherwise. Where I refer to facts that are not within my own knowledge I will give the source of my knowledge of those facts. Please note, all correspondence referred to in this Witness Statement can be found in date order, in the Evidence Bundle (JD/01)

I am the Defendant in this claim and keeper of the ******* Registration ******* in question. My daughter, *********, was the driver of the vehicle at the time of this incident.

1. On 14th May, 2018 my daughter parked in the ‘Car Park at The Centre’, High St., Polegate, BN26 6AQ, in order to take the train to London. She used the ‘Phone & Pay’ facility to pay her £4 parking charge, which she told me took 3 attempts to successfully complete, as follows:

Call 1: Lasted 3 mins 28 secs. Having followed all the automated instructions and submitted debit card details, the recorded voice failed to confirm that the transaction was completed.

Call 2: Call didn’t connect

Call 3: Lasted 3 mins 36 secs. She followed all the automated instructions and submitted debit card details, the recorded voice indicated that the transaction was complete.

We later extracted the call data from *******’s phone (Evidence: JD/02)

The payment channel did not indicate any failure to process payment on the 3rd attempt and responded as if payment had been made. As such, ******* believed the necessary payment had been made, so proceeded to the train station. She told me at no time was any error message sent to her phone indicating a problem.

2. In late June, 2018 I received a ‘Letter of Notification Regarding Keeper Liability’ from the Claimant (dated 25/6/18) – 42 days after the incident. This letter referred to a Parking Charge notice (PCN) they had allegedly issued to me more than 30 days previously. It claimed my outstanding debt was £100 and the Independent Appeals Service was no longer available to me. I had received no such PCN (aka Notice to Keeper (NTK)) and this letter was the first I knew of the incident.

3. My daughter and I checked her bank statements and discovered that her £4 payment hadn’t been debited from her account.

4. On 3rd July ’18 I submitted an online appeal to the Claimant, copy and pasting the letter I had composed on the same date. As well as explaining the issue my daughter had with the Phone and Pay system, I explained that I had received no communication whatsoever from them prior to receiving their letter chasing payment. I also registered my dismay that I had lost the right to appeal through the Independent Appeals Service, because of the delay in them contacting me.

5. The Claimant responded on 26th July, informing me that my appeal had been unsuccessful. They insisted that the Phone and Pay system had been working correctly on the day of the incident. In response to my complaint of having received no PCN/NTK, the Claimant provided no proof of posting or any other evidence that the Notice had indeed been posted, but rather offered me a 14 day window to pay the parking charge at the initial reduced rate of £60.00. The Claimant re-iterated this point in a letter to my MP, Nus Ghani, dated 21st August, ’19, by saying:

“Whilst she states that she did not receive the original PCN, she was in no way prejudiced by this as she was still afforded the opportunity to appeal with us and with POPLA, as well as being offered the chance to pay the reduced rate of the PCN.”

I submit to the court that this was an indication that they could not be certain that they had indeed posted a PCN to me.  

6. I appealed to POPLA on 15/08/18, which was rejected. POPLA ruled that the ‘Notice to Keeper’ (NTK) the Claimant had supplied them was compliant with the Protection of Freedoms Act 2012 (POFA). At this point I was invited by POPLA to view the evidence supplied by the Claimant and this was the first time I saw a copy of the NTK which the Claimant alleged to have sent me. I appealed the decision on 4/09/18 which was again rejected

7. The Claimant also supplied ‘Phone and Pay’ transaction reports for the day of the incident as evidence to POPLA that the system was functioning correctly. Jessica’s 2 calls which appeared on the Claimant’s phone log took place at 12:24 and 12:28. The transaction report shows no successful Phone and Pay payments between 09:55 and 20:20 during that day - a total of 10 hours, 25 mins. For a busy car park adjacent to a mainline train station this is surprising. (Evidence: JD/03) I checked the Trustpilot reviews for Phone and Pay to see if others have had similar problems to me and found many frustrated customers and an average review rating of 1.5 out of 5 stars (Evidence: JD/04)

9. On the car park signage, in contrast to the huge font the ‘parking charges’ were displayed in, the Terms and Conditions relating to any additional punitive parking charge were buried in the small print which is too small to be read from a passing vehicle. In comparison to the signs which were approved of in the ParkingEye v Beavis Case, the fonts in this case are tiny. (Evidence: JD/05) This is contrary to Lord Denning's 'Red Hand Rule' which says:

“I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.”

It is also contrary to the requirements of the Consumer Rights Act 2015. (Evidence: JD/06) In addition to this, the entrance sign creates confusion by making the instruction ‘Payment must be made within 10 minutes of arrival’ as well as ‘make payment within 2 hours 30 minutes of arrival’. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract, thus, no contract has been formed with the driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.

10. The Phone And Pay facility is indisputably an offer of a 'distance contract' which does not comply with The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (Evidence: JD/07)

 

11. The Claimant generated a court claim against me on 17th July, 2019 which prompted me to issue a Subject Access Request on 12th August, 2019. In response, the Claimant finally sent me an NTK on 10th September, 2019, almost 16 months after the incident.

 

Statement of Truth:

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

 

************                    Date:

Old_Bird_65

Supplementary Witness Statement pt.1

In The County Court at Lewes                                Claim Number: *********

 

Civil Enforcement Limited (Claimant)   V    **************** (Defendant)

 

 

SUPPLEMENTARY 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.      The original fee stated on the Notice To Keeper was £100, which has been inflated to £199.07. The breakdown in the Claimant’s Witness Statement includes £82 for ‘debt recovery’ costs. This amounts to an Abuse of Process not in keeping with the guidelines set out in CPR 44.3 (2). 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.      I have the reasonable belief that the Claimant has not incurred an additional £82 in damages or costs to pursue an alleged £100 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 £82 '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.

 

4.      The Beavis case is against this Claim

 

4a) 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.

 

4b) 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.''

4c) 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.''

4d) 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...''

4e). 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.''

Old_Bird_65

WITNESS SUPPLEMENT PART 2.

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

 

6.      The Consumer Rights Act 2015 ('the CRA') is against this claim

Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

6a) In the Caernarfon Court in Case number F2QZ4W28 (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.''

6b) That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. 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. The considered sum in that case was reduced to £100 with a full case hearing to follow, 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.

6c) In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Crosby and anon - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

i) Cases summarily struck out in that circuit 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 the Beavis case. 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...''

ii) BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

iii) That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 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 below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who 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 Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

iv) At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using 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, which they had not. The same issues apply to this claim.

v) In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''(Full printed judgement document in Evidence: JD/08).

Since District Judge Grand’s judgement, other courts around the country are  following suit in 2020 with ‘exact match’ reasoning. An example is the case in Skipton where District Judge Wright struck out the claim of  Excel Parking Services, for the same reason. (Evidence: JD/09)

6d) Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA 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).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

6e) The definition of a consumer notice is given at 1.19 and the test of fairness is expanded 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. [...] 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.''

6f). In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

6g) The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

7. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is my 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.

8. I am of the view that this Claimant knew or should have known that to claim in excess of £100 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.

9. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by me at the hearing, such as are allowable pursuant to CPR 27.14.

 

 

Statement of Truth:

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

 

**************

Date:

Old_Bird_65

Sorry it's so long! Because there are some quite big chunks quoting the different cases and legal documents in the Supplementary Witness Statement, I was hoping I could get away with just adding two pieces of evidence - the Southampton and Skipton Judges ruling sheets.

Old_Bird_65

I haven't included the Schedule of Costs because it's exactly the same as it was before.
Just one more question... for the judgement document for Britannia V Crosby + Anon, should I redact all references to the Defendant who was defending himself?
Thanks for your helps again.... hopefully it's gradually get a bit closer!

nosferatu1001

Include it. Make sure you state it has been assessed as not more than 2/3 the cost if you had had legal rep. 
No, you do not redact the judgement at all. You do not, in any way shape or form TOUCH that document. Think about it for a second and you will understand why blanking out portions of a *judgement* is unlikely to go down well. 

Old_Bird_65

Okay, here's the Schedule of Costs again. I really wouldn't have a clue what my costs would have been if I'd used a legal rep, so maybe you could advise me please?......

In The County Court at Lewes, The Law Courts, High Street, Lewes, BN7 1YB

Claim Number: **********

Civil Enforcement Limited    (Claimant)   V    ***************** (Defendant)

 

 

DEFENDANT’S SCHEDULE OF COSTS

 

Ordinary Costs

 

a)       One half day loss of earnings for attending hearing:                                                        £ 50.00

b)       Half day parking in Lewes:                                                                                               £  5.00

 

Further costs for Claimant's unreasonable behaviour,

pursuant to Civil Procedure Rule 27.14(2)(g)

1.       Litigant in Person cost of research, preparation & drafting   

           of documents (19 hours at £15 per hour):                                                                     £285.00

Preparing and submitting of appeals:                                2 hours

Writing to landowner and MP:                                           1 hour

Researching phone records & other facts:                          1 hour

Reading pre-court letters and researching

the issues at the earliest stage:                                           3 hours
Reading LBC & related paperwork:                                     1 hour

Investigating procedures & registering for MCOL:               1 hour
Researching, preparing, scanning & submitting defence:    4 hours
Preparing, researching, printing of my witness statement    4 hours
Preparing, researching and gathering, then printing

of my evidence exhibits:                                                       2 hours

 

2.       Stationary, copying and printing:                                                                            £  5.00

                                                                                                                                          ______

                                                                                     Total Costs Claimed:                   £345.00

nosferatu1001

Given a Band D fee earner charges £120 an hour or so, youre well inside the costs. 
What about your mileage at 45p per mile, there and back?
did you have any postage costs? any mileage to/from car parks to get pictures? 
It all adds up.

Old_Bird_65

Good thinking! I need to drive to Lewes and back to deliver the WS as well as to attend, plus the bundle I'm sending to CEL is heavy! I will work those out and add them too. Thanks!