Claim Form

Le_Kirk

Your point 5 could be enhanced by adding in the latest case thrown out for Abuse of Process at Caernarfon. If you search the forum for Abuse of Process you will find the updated post # 14 on beamerguy's thread.

The_Deep

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Have you complained to your MP yet?

1505grandad

IPC = International Parking Community

CandyManCan

Thanks Everyone,

I have not complained to my MP yet, do I just email him?

I intend to include pictures of the locations including the signs/area etc do i need to write anything in the defence about that or make reference to it?

Also I read the Abuse of Process thread and was unsure to just write this when I do my witness statement as I think I have put some points about it, just dont want to overload the defence points?

Am I right in saying I only now up until Monday as Keith said above to just write a defence, I don't need to do anything else as of yet.?

Thanks

Coupon-mad

Also I read the Abuse of Process thread and was unsure to just write this when I do my witness statement as I think I have put some points about it, just dont want to overload the defence points?

You use the words I wrote in post #14 of that thread, as it says there. It's quite long!

You can attach it as an annex sheet if you prefer to keep the costs objection separate, as a supplementary submission attached & signed by you separately. Might help the Judge see it and deal with it after you win.

Also submit your COSTS SCHEDULE now, for a 3 figure sum.

KeithP

CandyManCan wrote: »

Am I right in saying I only now up until Monday as Keith said above to just write a defence, I don't need to do anything else as of yet.?

That's right.

Nothing more than a Defence required at this stage.

Le_Kirk

As pointed out by C-m and KeithP, so long as you mention Abuse of Process in the defence, maybe just put the three case numbers that were recently struck out, you can them go to town in the Witness Statement and evidence stage.

CandyManCan

I have just realised the place where the pcn was given (the nearest sign) also states wheel clamping in operation would this make a difference also I will upload a picture shortly. Im thinking if I post the pictures here of the place will they (VCS) try and use anything against me?

I am not able to send the image link any way of doing this for you to see?

CandyManCan

IN THE COUNTY COURT

CLAIM No: XXXXX

BETWEEN:
VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

(Defendant)

DEFENCE

1. The Defendant was the registered keeper of vehicle registration number XXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


2. The facts are that the vehicle, registration XXXXX, appears, from the sparse evidence supplied by this Claimant, to be parked on the material date, the location of which the vehicle there was no signage of private property.
Instead, there was a complete prohibition, a No Parking sign which was stuck on the wall. No signs for private property were and no terms & conditions and no 'parking charge' could have been agreed. ''No parking'' is not an offer and there was no consideration, thus the elements of a contract were not met.

3. The car was parked in such a position that due to the location of signage it would not be possible to see it due to it's position it can be easily obscured in view by other vehicles therefore a contract would not have been entered into with the driver of vehicle, as there is no clear signage or indication to what contract is entered into.

4. The building was currently not in use and had a for sale/to let sign, it has been empty for several months and there has been no contract or notices about private land/property, I would like to see evidence of the date contracts were agreed with landowner and the date in which it was agreed to put these notices up.

5. The property was currently uninhabited for several months and was for sale/to let, during this time it had no parking restrictions in place up until the day this PCN was issued or the day before.

6. The signage on and around the site in question was small, unclear and not prominent and did not meet the Independent Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore, no contract has been formed with the Defendant to pay £100.00, or any additional fee charged if unpaid in 28 days.

7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The claim includes an additional £60.00, described as a debt collection charge. The Defendant believes this to be an abuse of process as these charges were not stated as part of the supposed contract. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim.

9. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

10. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

11. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

12. At best, parking without authorisation could be from for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages for t12County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

13. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 or £160 debt.

14. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

15. The claimant also has a sign next to his which states “No unauthorised Parking, Wheel clamping in operation” which is against the law to clamp cars on private land.

Costs on the claim - disproportionate and disingenuous

16. CPR 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.

17. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.

18. 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.

19. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

20. The Parking Eye Ltd v Beavis!case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. 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.

21. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the!Beavis!case outcome and they never add fake costs on top of the parking charge. 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:

URL LINK HERE I CAN NOT POST“
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...''

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.''

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.''
”
22. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

23. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

24. The Protection of Freedoms Act 2012, Schedule 4 (POFA) 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' (and 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.

25. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, 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...''

26. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. 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 Distract 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 v 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.''

28. 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 and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

29. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

30. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety 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.

Yours faithfully
xxxxx


*** Paragraph 16 - 30 taken from Abuse of Process thread post 14# by coupon mad, as advised ***

Le_Kirk

Every paragraph needs a number. Your hyperlink that you have changed to yellow, can be (and should be) replaced by the case number and heading, I assume it is ParkingEye v Beavis.