hi. I have received a county court claim form from Northampton.

KeithP

That commercial website is out of date by at least two years, but even if it wasn't, surely you can discard a large majority of those addresses?
I don't think any court address ends with gsi.gov.uk these days.

Look instead at Birmingham County Court's official webpages.

Hi. Would you have a links for the WS by anybody chance?

Coupon-mad has already said:

...you can copy and adapt a WS from my ones in the threads by @blancswann or @painbl as long as you remove stuff not applicable (e.g. don't leave in stuff denying you were the driver, if you were, of course).

Redx

Ballistic87 said:

Redx said:

Which portal ? Not the CCBC

If you nominated your local court , then surely it is your local court dealing with it ?

It says Birmingham court on your letter , did you miss it ?

What does their website tell you to do ??

Witness statements and exhibits are emailed at the moment , not uploaded to any Portal

The CCBC in Northampton has not been involved for many months !!

Hi. The letter doesn’t tell me how to submit my evidence? 

I can see all these emails on the Birmingham website  . 

 

Any idea which one I shoulda use? 

Also  a little off topic, I popped back down to the business today abd informed them about this, as last time spoke with them they said they would get it sorted. Whichever they obviously didn’t. Anyway they took some picture and said they would try again, I’m wondering If it’s too late for them to do anything now? 

It may seem obvious , phone the court and find out , probably filing or hearing , don't ask us , ask the court !!!

It's ALWAYS worth getting the landowner or business on your side , hence why at witness statement time you obtain and submit one from them , ideally , as an exhibit

Coupon mad gave you their names , click on them , read their threads , find the we they used , adapt them accordingly

This is all basic stuff !!

Ballistic87

Hmmmm.  I did try to use the gov website, but looks like it’s  down for some reason. 



Not going to lie, i do feel abit overwhelmed right now, especially with the deadline so close, my mind goes jumbled in situations like this.   So I would love like to thank you all for your contributions and advice. 

myparkingchargevictim

hearings.birmingham.countycourt@justice.gov.uk is the email you want for Birmingham CC.

Ballistic87

myparkingchargevictim said:

hearings.birmingham.countycourt@justice.gov.uk is the email you want for Birmingham CC.

Thank you. I will post a draft of my defence here. 

Ballistic87

 just remembered I i received this email from Gladstone’s a few days ago. 

We act for the Claimant and write further to the Court Order dated 11 August 2020.   In accordance with CPR 27.9 our Client hereby gives notice that it will not be attending the future Please note, our Client is unable to attend the above mentioned hearing and we have kindly requested that their attendance be excused and the hearing conducted in their absence pursuant to CPR 27.9. We confirm the court has been informed and that we have asked the Court to decide the claim in our Client's absence based on the evidence submitted.  

Kind Regards

Redx

standard reply , just means Gladstones client wont be attending, nothing more , everyone seems to get it

Coupon-mad

I gave you the links to the two threads already, that's why their names are in blue in my earlier reply.  

You will need to read their threads and find the two WS I wrote.  This is simple. 

Ballistic87

So I’m hoping this will be ok? I used coupon Mads example   Can i ask Howe /were do I add the “exhibits” ? 

In the County Court at Birmingham 

Claim number

UK CAR PARK MANAGEMENT LIMITED  (Claimant)

               v

Me ( Defendant)

 

WITNESS STATEMENT OF DEFENDANT

FOR  TELEPHONE HEARING On 22/09/2020

I am (my name and address) and I am the defendant against whom this claim is made.   The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.  This hearing was moved to 22nd September, due to various issues caused by the current pandemic I have missed vital post and apologise for not submitting my Witness Statement at the proposed earlier date, I thank the courts for allowing me another chance to submit this. 

2. In my statement I shall refer to exhibits within the evidence bundle supplied with this statement, referring to page and reference numbers where appropriate.  My defence is repeated and I will say as follows: 

Sequence of Events - unreasonable “maximum stay” time 

3.  More then 2 years ago, I received PCN for an “offence” which had occurred on  on 8th August 2018, the location was familiar to me, it is a drive through fast food restaurant which I frequent regularly.  The PCN relates to a Hire vehicle which was hired out to me at the time. 

1. Big johns is a very busy takeaway, especially in the late nights, as it’s one of the few takeaways that are open at the time so can get very busy, so much so that it can take up to 30-45 minutes to get out the other side of the drive through. 
2. Whenever a large order is placed, the staff will normally ask the customer to continue on and wait in the car park, and their order will be brought out to them. So from waiting in the queue, to having your order taken, to finally receiving  your food can sometimes take up to 1 hour. 
3. It is unreasonable for the claimant to put a 90 minutes maximum stay at this business, as on a busy day it is virtually impossible to at first queue, then order your food, receive it and finally consume your meal. Aswell as use the toilet facilities all within the stated maximum stay time. 

No Contract seen or heard 

7.  I had an honest belief as paying patrons of Big Johns, that we were authorised to use the parking facilities for at least the duration of our meal  and no signs were seen to suggest that any terms were attached to the car park, and nor did the staff say anything about how to exempt a vehicle.  Therefore, because the onerous terms were not 'bound to be seen' I had no idea of any parking terms and cannot be bound by them.    The Claimant's signage is unremarkable even from a short distance. The wording all shares the same font size and nothing is immediately noticeable as being of major importance, nor even that is relates to parking regulations of any description. The signage is inadequately lit and was not anywhere near visible enough on an evening in February.  As a matter of fact, I could not have seen it on arrival that night.

9.  Only by walking all around the car park, did I find a sign from this Claimant, “UK CAR PARK MANAGMENT” (EXHIBIT 01).  Of course, on arrival the days night, through no lack of observation on my part, I had been afforded no fair opportunity to learn that terms and conditions applied and was therefore under no duty to seek them out (as held in Vine v London Borough of Waltham Forest [2000] EWCA Civ 1069)  EXHIBIT 03.   I note from research about cases filed by this Claimant that they are known to mislead courts using this authority, by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the decision.  In fact, Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

10.  Due to their size, their placement and the size of the font used, these signs were nowhere near adequate for drawing attention to themselves from any reasonable person in a passing vehicle. None of these signs were located near the pedestrian exits.   Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule'.   A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'.  In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC').  The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

The Court's duty to apply the test of fairness of terms and consumer notices (signs)

11.  In addition, consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the Consumer Rights Act 2015 ('CRA') to consider the terms and the signs in order to identify potential terms and notices that may be unfair (ref s62 and Schedule 2).   Not only were the signs impossible to see (at all) in the dark, due to the Claimant's failure to illuminate them in hours of darkness, but the CRA also makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void.  Thus, the signage fails the test of fairness, on any reasonable interpretation and the claim is wholly without merit.

11.1.  This is explained in the CRA’s Guidance at 5.14.3. The Competition & Markets Authority (‘CMA’) is responsible for enforcing the CRA and their Guidance includes the fact that ‘indemnity’ is likely to be an unfair term in a consumer contract and seeking to recover a sum with which a consumer had no opportunity to acquaint themselves, as well as terms that have the effect of counting the same costs twice, are unfair.  The CMA say: "The fairness of any term is assessed having regard to the other terms of the contract, and even if not excessive when considered separately, may be unfair if it could operate together with another term or terms so as to lead to the trader being compensated twice for the same loss."

Ballistic87

Later Events:

12.  Twice after this incident  I spoke with management at the Big Johns branch in question. On one occasion I spoke with senior management (Name- Adil) who told me that the reason for the car park to be managed by this company was to stop people illegally dumping there vehicles in the car park, and not to punish or prosecute paying customers. He did take photos of all my documents and assured me that he would get it taken care of, he also mentioned how the company tried to prosecute a previous employee for the same “offence” despite them being informed it was an employee who worked 8 hour shifts. 

Inflated and false 'costs' have been added to the parking charge

13.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see EXHIBIT 06 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision in the case of Mr Crosby stands. This Claimant knew or should have known, that by adding £60 in false (unpaid) 'costs/damages' over and above the purpose of the 'parking charge' is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, and para 419 of the earlier ParkingEye Ltd v Somerfield Court of Appeal authority.  As an experienced parking operator, the Claimant should also know that the 60% uplift does not pass when compared to the CRA s62, expanded with examples of 'terms that are likely to be unfair' in Sch 2 (paras 6, 10 and 14 appear to be breached in my case).    

14. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause, when all the fact of that case were examined.   However, there is no such legitimate interest in this case. 

15.  I take the point that the enhanced parking charge in my case is a penalty, and unenforceable.   This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.   I attach the Southampton Court Approved Judgment in Britannia Parking v Crosby and anor, where the question of enhancing a parking charge by a disproportionate percentage (for costs that were neither properly incurred nor additional to the core 'debt') was recently tested.

16.  Whilst it is known that another decision to strike out a parking claim was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same (unpaid and false) costs twice.  The Appeal Judge merely pointed out that he felt that insufficient information was known about the facts of that case, where the Defendant had not appealed nor engaged with the process and no evidence was in play, unlike in the Crosby case.  The Salisbury Appeal Judge merely listed the Semark-Jullien case for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.   In short, that was an appeal against the striking out as a 'draconian measure' and not - as this Claimant may have it - some sort of landmark appeal about the illegality of adding false sums to a parking charge. 

17. The Judge at Salisbury correctly identified that costs were not added in the Beavis case.  True - but (unbeknown to the Salisbury Judge because the Appellant failed to draw the relevant case law to his attention) that had already been addressed in ParkingEye's earlier claim, the authority in ParkingEye v Somerfield[2011] EWHC 4023 (QB) High Court case (ratified by the Court of Appeal in 2012), ref para 419 from HHJ Hegarty:  

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''  

 18.    This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their aggressive and misleading debt demands, which appear to have been very similar to those I received.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both.  

19.  It is certainly an abuse of process to add sums that were not incurred.  However, the Salisbury Appeal Judge was not informed by the Claimant's representative that these enhanced costs were known to be false, following thousands of claims heard by the Courts, where parking firms have been warned not to file claims like it again.  EXHIBIT 07 shows the exasperated words of District Judge Jones-Evans sitting at Caernarfon court in April 2020, when striking out a similar inflated claim by this Claimant's sister company, VCS, after warning parking company advocates over a 'very significant period of time' not to bring cases to court where the parking charge has been inflated by an unrecoverable sum of money dressed up as the costs that must already be within the parking  charge itself.  There can be no excuse that this Claimant, or their advocate, 'doesn't know' that adding false sums to inflate a claim is an abuse of process and the Salisbury Appeal case is entirely distinguished.

Alternative defence issue: Lack of evidence of any landowner authority

20.I have seen no evidence that the landowner authorises this Claimant to put up unlit signs then penalise permitted guests of the Hotel, who should surely be exempt from charges.  Because 'the devil is in the detail' of any landowner contract, and I have found that they vary from site to site with various definitions, exemptions and even hours of operation, a redacted landowner contract will not be enough to satisfy a court.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal made it clear that most redactions are improper where the Court are being asked to interpret a contract.  Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...'' EXHIBIT 08.

Statement of truth:

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

SIGNATURE

DATE