County Court Claim Form Received

KeithP

kingofsting wrote: »

I've just completed my Directions Questionnaire which must be completed by 11 November 2019.

I'm wondering if I can email this to the County Court Business Centre and to Premier Park Ltd, or do I need to post them?

Email it to the CCBC in the same manner and to the same address that you sent your Defence. Refresh your memory about that by re-reading post #6 above.

Send a copy to the Claimant - address on your Claim Form.

kingofsting

Notice of Allocation to the Small Claims Track (Hearing)

My claim has been allocated and takes place on 20 March 2020. I have until 4PM on 18 December 2019 to provide a written statement of all persons giving evidence (that's just going to be me) I also need to send the Court and the Claimant all copies of documents i intend to rely upon at the final hearing (they must be in a bundle with each page clearly numbered)

nosferatu1001

Yep, the expected stage
So get your WS together, all your exhibits referenced etc and prepare to HAND DELIVER to the court, and POST t the claimant *unless* you can get them to agree to allow you to use email.

kingofsting

Whilst preparing my WS I've identified an issue with my defence; ironically, in para 18 I state:

"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"

Although there is no written signature the Claim Form is in fact electronically signed by the Claimants Legal Representative Zarvin Vandrewala - that'll teach me to cut and paste!!!

Is there anything I can do about this mistake??? I'm now really worried I'm going to lose

Coupon-mad

Ignore that completely, it is absolutely not the slightest bit important! No worries.

Search the forum for supplementary witness statement costs schedule and copy recent examples of those, add in your own facts in the first person, to a main WS about the matter/the claim/the conduct of the Claimant/their dreadful signage, etc., and show us all of the above and a list of your planned 'exhibits' (evidence) to support your case.

Do not forget any case law you mentioned in your defence, now is the time that is appended to your WS, and make sure you read CEC16's thread to understand why PP can't add £60 and how to argue against that as damage limitation, at least, in case you get a duff Judge!

kingofsting

Here's my WS, Supplementary WS & Costs Schedule:

IN THE COUNTY COURT AT EXETER
CLAIM NO: *****
BETWEEN:
PREMIER PARK LIMITED (Claimant)
-and-
** **** **** (Defendant)


WITNESS STATEMENT
1. I am ******* ******, of ** **** ****, *****,*** *** the Defendant in this matter.

2. I deny every allegation set out in the Particulars of Claim.

3. On * *** ****, my wife and I visited Branscombe Beach, and parked our vehicle registration no, **** *** in the car park.

4. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from five years ago, it is impossible to expect me as the vehicle keeper to recall who might have been driving.

5. My wife and I paid for parking before walking along the coastal path to Beer, and back to Branscombe. Unfortunately, we underestimated the time our walk would take and returned back a little late (neither of us can recall precisely how late but we believe, without doubt, it was a matter of minutes and not hours).

6. I did not hear, or receive anything, for over a year but then started to receive letters from BW Legal, acting on behalf of Premier Park Limited.

7. I did various online searches, at the time, and recall dismissing BW Legal as scammers, particularly as they were demanding such an unreasonably high amount of money. I felt vindicated in my decision to dismiss them as I received no further letters, or contact of any kind, from the claimant on this matter.

8. I was then surprised to receive a letter before claim from the claimants representatives. I did some research into why I may have received this and it seems the Claimant and similar parking companies are submitting masses of court claims for old “parking charges” and are inappropriately using the court system as a form of debt collection.

9. I requested a SAR from the Claimant which has provided through the post. The photographs of the vehicle do not show the driver or any of the signage they speak of, thus nulling any idea of a contract being agreed. Evidence of request for SAR and receipt of documents are attached as exhibits A and B.



8. The Claimant has failed to respond to my request of 10 September 2019 in which I requested copies of PDT machine records, the time the car park was entered, the time the ticket was purchased, evidence of the amount paid and the amount of time for, and the cost to park for one hour. Evidence of this request is attached as Exhibit C.

9. The signage at Branscombe Beach Car Park was also completely inadequate. At the time of the alleged contravention the signage was positioned on a very busy one-way entrance, on a roundabout, making it almost impossible to stop and read. Evidence of the position of the sign is attached as Exhibit D which is a Google Earth aerial photograph of the carpark; the position of the signage is circled in red.

10. The Claimant has added a disingenuous cost of £60 claiming it is for contractual costs pursuant to PCN Terms and Condition. The Claimant should know 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. The Beavis case and POFA are further referenced in the Supplementary Witness Statement below.

I invite the Court to dismiss the claim and to award my costs of 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
Date

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 arbitrary addition of a fixed sum purporting to cover '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.

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.

3. The Defendant has the reasonable belief that the Claimant has not incurred an additional £105 in damages or coststo pursue an alleged £70 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.

4. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £105 '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
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. 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.

5.1. 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.''

5.2. 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.''

5.3. 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 thecosts of operating the scheme and make a profit from its services...''

5.4. 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
6. 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
7. 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.

7.1. 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.''

7.2. 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.

7.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - 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.

7.3.1. 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...''

7.3.2. 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.

7.3.3. 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.

7.3.4. 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.

7.3.5. A transcript will be publicly available shortly. 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.''

7.4. 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).'' 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.

7.5. 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.''

8. 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.

9. The Defendant is 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.

10. If this claim is not struck out for the same reasons as the Judges cited in the multiple Caernarfon and Southampton cases, then full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.


Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature











































DEFENDANT'S SCHEDULE OF COSTS

Ordinary Costs


Loss of earnings/leave, incurred through attendance at Court 20 March 2019 £140.60

Return mileage from home address to Court (12 miles x £0.45) £5.40

Parking near Court £5.00

Sub-total £151.00


Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents (3 hours at Litigant in Person rate of £19 per hour) £57.00

Stationery, printing, photocopying and postage: £15.00

Sub-total £72.00



£223.00 TOTAL COSTS CLAIMED

Le_Kirk

9. I requested a SAR from the Claimant which has provided through the post.

Better as: -

9. I [strike]requested[/strike] submitted a SAR [strike]from[/strike] to the Claimant, the results of which [strike]has[/strike] have been provided [strike]through the[/strike] by post.

Coupon-mad

4. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from five years ago, it is impossible to expect me as the vehicle keeper to recall who might have been driving. It was either myself or my wife but we have visited this site several times and as such, it's only a 50/50 chance and thus, the balance of probabilities is not tipped either way and cannot be held to fall in favour of a Claimant who appears to be making an unlawful presumption about a registered keeper being assumed to be the driver. Without evidence, the Claimant would have rely upon 'keeper liability' provisions prescribed under statute and fully comply with the POFA 2012, Schedule 4, including providing prominent signs with 'adequate notice' of the parking charge, which was not even listed among the large font list of tariffs at the machine.

Remove this, never have an admission that lets a PPC seize on it:

Unfortunately, we underestimated the time our walk would take and returned back a little late (neither of us can recall precisely how late but we believe, without doubt, it was a matter of minutes and not hours).

How long was this alleged overstay again?

Did PP send the NTK by the second week, to arrive in time with you, served within 14 days?

kingofsting

Thanks! The alleged overstay was 1hr 27 mins

No - PP did not send the NTK within 14 days - their first communication was allegedly sent 31 days after the date in question

kingofsting

How long was this alleged overstay again?

Did PP send the NTK by the second week, to arrive in time with you, served within 14 days?

Reading other posts it looks as though the NTK is only needed within 14 days in the event of there being no windscreen notice - I had a windscreen notice - does it make this element of the argument null and void?

The alleged overstay was longer than i remembered too - 1hr27mins...