Forum Home» Motoring» Parking Tickets, Fines & Parking

BW Legal/3D Parking – Directions Questionnaire stage - Page 4

New Post Advanced Search

BW Legal/3D Parking – Directions Questionnaire stage

edited 18 January 2020 at 11:49PM in Parking Tickets, Fines & Parking
49 replies 1.2K views


  • Le_KirkLe_Kirk Forumite
    13.8K posts
    10,000 Posts Seventh Anniversary Photogenic Name Dropper
    Nobody NEEDS a skeleton argument; it is what it's name suggests - a skeleton - with no flesh on the bones. It is designed to act as an Aide Memoire to show you a footpath and help you navigate your way through your defence and witness statement. If you submit it to the court, it should also help to guide the judge through your case. This means it is not a reworking of either your defence or witness statement (nor should it be an attempt to shoe horn in any additional defence points) and is a set of bullet points with page/paragraph number where you/the judge go for further info.
  • BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    Fair enough. I was just concerned that there wasn't enough in my original Defence and there will be a lot more new information I'll need to put in my witness statement. Will I be penalised for my Defence and the new information in the witness statement?

    My other question is that my partner will be my other witness on the day (I included her in the DQ) and she was the driver, while I was the keeper. While I can argue that the NTKs are not compliant under POFA and therefore as keeper I am not liable under Schedule 4 paragraph 9(2)f, am I not throwing my partner under the bus for future action from the PPC? Will she also be called to speak on the day and therefore have to admit being the driver and defend herself at the hearing as a result of the facts in her WS?
  • Le_KirkLe_Kirk Forumite
    13.8K posts
    10,000 Posts Seventh Anniversary Photogenic Name Dropper
    You cannot add NEW arguments once your defence is submitted (well, you can but it costs £100, IIRC) but you can craft a cleverly worded witness statement.
  • BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    I have now made a revised draft of the WS, and have also drafted a supplementary WS, which is primarily based on coupon-mad's post 14 in the 'Abuse of Process' Thread. I have also collated the majority of evidence for both the narrative and supplementary WS.

    A summary for those unfamiliar with this thread or who need a reminder, in summer 2018 the driver parked at a business park for work, free car oark for employees. The driver had a valid employee parking permit for the car park. On the days of contravention, there were more cars than spaces available and there was nowhere else for the car to be parked apart from on a grassy verge near the designated car park or in the road within the car park. Many employees were affected by this on regular occasions.

    -I received two postal NtKs from 3D Parking, £100 each but 'discounted' to £60 for early payment. One was received after the 14 day period under POFA 2012.
    - Note, I was RK, not the driver.
    -I appealed these NtKs on the basis of no contract being formed and lack of signage indicating any contract. I didn't tell 3D that I wasn't the driver, as I wasn't sure at the time how to deal with this.
    -3D rejected my appeal. I then followed MSE's advice and ignored all other correspondence until it got to Court Claim stage.
    -When 3D passed on my case to their debt collectors (Trace) and solicitors (BW Legal), the infamous £60 (for '3D's legal costs') for each NtK had been added each claim.
    -Hearing for both claims now due to be held in early February. I need to submit my WS to Court and BW on Wednesday, 22 January.
    -BW were meant to have paid court fee by last Wednesday. I haven't seen any WS as yet from BW. I called the Court last Friday to check where this stood but they said they had a backlog so could neither confirm or deny receipt of payment from BW. I get the feeling if any Claimant WS arrives, it will be late and gives BW a chance to peruse my WS before submitting theirs.
    -When I wrote my Defence I knew a lot less of the law surrounding this than I do now. I have now added these points in my Supplementary WS. Please correct me if this is inadmissible or incorrect.
    - One question I have is that I named another witness for the hearing, who is my partner, and is also very likely to be the driver.;) Is it ‘safe’ for her to be at this hearing given that one of my defences is that 3D don’t actually have the driver so I am not liable under POFA, but she may be? At the time I had thought I may need her at the hearing for support, but if it actually puts her in the crosshairs of 3D/BW I’d rather not.

    Ok, Draft WS and then Supplementary WS to follow.
  • edited 20 January 2020 at 3:46PM
    BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    edited 20 January 2020 at 3:46PM



    3D PARKING LIMITED (Claimant)


    XXXXXXXXX (Defendant)


    Along with this statement is a bundle of documents to which I will refer, and the exhibits I intend to rely on are as follows:
    Ex.1 Defence Statement
    Ex.2 Copies of all correspondence between the Defendant and the Claimant
    Ex3 Copies of all correspondence between the Defendant and the Claimant’s Solicitor
    Ex4. Copies of correspondence from Claimant’s debt collection company
    Ex.5 Copy of Employee Parking Permit
    Ex.6 Photo of signage at XXXXXX at Business Park
    Ex 7 Google Maps of XXXXXXX at XXXXXX Business Park
    Ex 8 Correspondence between Defendant and Court

    1. I am XXXXXXXXX, of XXXXXXX the Defendant in this matter. I will say as follows:

    2. The facts in this Witness Statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.

    3. This Witness Statement is prepared for the hearing at XXXX County Court, on XXXXX XXXX 2020 in support of my own defence against the Claimant.

    4. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way the Claimant may do, I trust the Court will excuse my inexperience.

    5. I am not liable to the Claimant for the sum claimed, and this is my Witness Statement in support of my Defence as already filed.

    6. I assert that I was the registered keeper of the vehicle (registration number: XXXXXX) in question in this case, during the dates of the alleged contraventions on XXXXXXX 2018 and XXXXXX 2018. However, I was not the driver. I was not the ‘day to day’ keeper of the vehicle and I have never driven this vehicle to this business park.

    7. On the dates of the alleged contraventions my vehicle was parked in an allocated area for XXXX (Company) employees, and had a valid employee parking permit affixed to its windscreen. A photograph of this parking permit is attached in Exhibit XX.

    8. On the dates of the alleged contraventions, the available parking bays for XXXX employees were all in use and the XXXX delegated car park was full. This happened regularly as the number of car parks available for XXXXX staff was exceeded by the number of employees who worked at their office. As was customary among many staff, whenever this occurred, employees had no choice but to park their vehicles outside the parking bays or on or near a grass verge adjoining the XXXXXX delegated parking space in order to safely park their vehicles and get to work. Within the delegated parking area for XXXXX employees, there is no clear signage from the Claimant or detail of their Terms and Conditions. Photos of the signage at the business park is in Exhibit XX.

    9. I received two parking charge notices from the Claimant. The first was issued on XX XXXXX 2018, for an alleged contravention on XXXX XXXX 2018. The notice for the second alleged contravention on X XXXXXX 2018 was issued on XXXXX 2018. Upon receipt of the parking charge notices from the Claimant, it was stated within that I had breached the terms and conditions of the parking for “not parked wholly within the markings of the bay or space”. As cited earlier in this statement (6), I was the registered keeper of the vehicle, but not the driver.

    10. The parking charge notices each gave me 14 days from the date of issue to pay the discounted charge of £60.00. Should the charges remain unpaid after this 14 day period, the full charge rate would be due to the Claimant of £100.00 for each notice.

    11. Notwithstanding the POFA 2012 non-compliance of the Claimant’s parking charge notices (please see paragraphs (1) to (5) of my Supplementary Witness Statement), on XXX XXXX 2018 I wrote an appeal letter to the Claimant, stating that there was no contract formed between myself and the Claimant, and that therefore there could not be any breach of contract as no contract had been entered into between myself and the Claimant. My appeal letter is attached in Exhibit XXX.

    12. Within the appeal letter, I further elaborated by quoting the Claimant’s parking charge notices’ reason for issue, being that the “vehicle was not parked wholly within markings of the bay or space”. In response, I stated that there were no markings, yellow, or double-yellow lines indicating where parking was prohibited in this employee parking designated area.

    13. The Claimant rejected my appeal with two letters in response, both dated XX XXX 2018. These rejection letters are attached in Exhibit XXX.

    14. The rejection letter for the first alleged contravention on X XXX 2018, rejected my appeal on the basis that my vehicle “had breached the Terms and Conditions of Parking. The vehicle was not parked in a marked bay contrary to the terms and conditions displayed.” No detail of the Claimant’s Terms and Conditions were provided or explained.

    15. The rejection letter for the second alleged contravention on X XXXX 2018, rejected my appeal on the same basis as above. However, the Claimant also included the following statement within this letter: “We would refer you to Bevis V Parking, Supreme court ruling (sic). Parking in contravention of the terms and conditions displayed, not parked within a marked bay.”

    16. I believe that the case reference the Claimant was referring to in (15) above, although misspelled, is ParkingEye Ltd v Beavis [2015] (‘the Beavis Case’). This is addressed in paragraphs (6) and (7) of my Supplementary Witness Statement.

    17. Going by the timings within the Claimant’s notices, as these charges had remained unpaid after 28 days, after XX October 2018 (28 days after the second alleged contravention) a total charge was payable of £200.00.

    18. I subsequently received two letters dated XXXXX XXXX 2018 from Trace Debt Recovery UK Limited (‘Trace’). Each of the letters was an outstanding demand for £160.00 and stated that the Claimant, as their client, had passed my case on to Trace to recover outstanding debt from me. There was no explanation of how the additional £60 for each notice (60% of the original charge) had been calculated or its addition justified. The total payment now due for the two notices was £320.00.

    19. Trace sent further additional demand for the same alleged contraventions on the Claimant’s behalf in letters dated XXXX 2018. Each of the letters demanded the same amount of £160.00 for each parking charge notice.

    20. On XXXX 2018, I received letters from the Claimant stating that as they had not received payment from me, they had appointed their solicitors, BW Legal, to pursue my case. Correspondence was received from BW Legal dated the same day.

    21. BW Legal’s correspondence of XXXXX XXXX 2018 requested payment of £160.00 for each alleged contravention, and provided the first explanation for the addition of £60.00 to each original charge. Their letters stated that the £60.00 represented the Claimant’s initial legal costs. I address these purported additional costs in paragraphs (8) to (32) of my Supplementary Witness Statement.

    22. BW Legal’s letters also stated that as I had failed to make a payment or raise an appeal within 28 days of the receipt of the parking charge notices, they required payment in full.

    23. As referred to in (11) above, this is untrue, as I did send the Claimant an appeal letter on XXXX September 2018 which was sent within 14 days of the second alleged contravention of XX September 2018.

    24. On XXX January 2019, BW Legal sent correspondence with the subject ‘Letter of Claim’ requesting payment of £160.00 for each parking charge notice. The letters threatened the commencement of legal action against me in respect of the alleged debt and listed estimated interest, court fees and solicitors costs additive to the £320.00 they said I already owed. Adding these additional costs to their original claim, BW Legal said that I owed up to £480.00 for these notices.

    25. Furthermore, BW Legal’s letter also warned me of Court Proceedings should they not receive payment, and threatened to issue a County Court Claim without further reference to me and that a potential County Court Judgement (“CCJ”) could be entered against me.
    26. I received the claim form from the Court dated XXXX July 2019 and submitted the Acknowledgement of Service, and my Defence in a timely manner, despite the Particulars of the Claim not specifying what Terms and Conditions had been breached.

    27. Within my Defence submitted to the Court in August 2019, I stated that neither myself, nor any driver of the vehicle, had entered into any contractual agreement with the Claimant, whether express, implied or by conduct.

    28. My Defence also stated that there was no signage specifying the terms and conditions of parking apart from a notice at the entrance of that section of the business park indicating it was private land and that trespassers would be prosecuted. In fact there was no signage set out at all in the parking area itself.

    29. I have received correspondence from the Court notifying me that the hearing for this case would be held on XXXX XX 2020. This correspondence is included in Exhibit XX.

    30. In the same correspondence it was stated that the Claimant had until 3.30pm on XXXX January 2020 to either pay the £25 trial fee or apply for assistance with the fee.

    31. I contacted the Court on 17 January 2020 to check whether they had received this trial fee, and was informed that there was a backlog on the Court’s paperwork. Therefore the Court administrators were unable to inform me whether the Claimant had made the payment for the trial fee, or if the case had been stayed due to their failure to make this payment on time.

    32. I have proceeded with the submission of my Witness Statement on the basis that the Claimant has paid the trial fee on time and will be attending the hearing.

    33. At the time of writing, I have not received a copy of the Claimant’s Written Statement or their accompanying evidence.

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

    Signature of Defendant
  • edited 20 January 2020 at 3:48PM
    BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    edited 20 January 2020 at 3:48PM



    3D PARKING LIMITED (Claimant)


    XXXX (Defendant)


    Along with this statement is a bundle of documents to which I will refer, and the exhibits I intend to rely on are as follows:
    Ex 1. Protection of Freedom Acts 2012, Schedule 4
    Ex 2. Excerpt from Parking on Private Land Appeals (POPLA) 2015 Annual Report
    Ex 3. Consumer Rights Act 2015, Schedule 2
    Ex 4. UK Car Park Management Limited v Esplanade Ltd (2018) – General Form of Judgement or Order
    Ex 5. Vehicle Control Services Limited v Jonathon Davies (2019) – General Form of Judgement or Order
    Ex 6. F0DP806M_F0DP201T Britannia Parking v Mr C and another – Court Report

    1. Neither of the parking charge notices sent by the Claimant refer directly to keeper liability and are therefore not compliant with the Protection of Freedom Acts 2012 (POFA 2012), Schedule 4, Section 9(2)f. I was the registered keeper of the vehicle but not the driver, and the Claimant cannot hold a registered keeper liable under the applicable law. An excerpt of Schedule 4 of POFA 2012 is attached as Exhibit XXX.

    2. Even if the Claimant could rely on POFA 2012, under this Act, Schedule 4, Section 9 (4) & (5), the notice must be given within 14 days. The first alleged contravention took place on 8 August 2018, and the parking charge notice was issued more than 14 days later on 5 September 2018. This is against the statute, and as the registered keeper of the vehicle, but not the driver in this instance, there is no evidence of adequate notice being received for the claim for the first alleged contravention and it should therefore be struck out.

    3. Further to (1) and (2) of this statement above, the Parking on Private Land Appeals body (POPLA), has clarified how private car parking management companies should utilise registered keeper information they request from the DVLA under Schedule 4 of POFA 2012. This is stated in the POPLA 2015 Annual Report where Henry Greenslade, then Lead Adjudicator of POPLA, wrote on Keeper Liability (pages 12-13 of the Annual Report). This excerpt is attached as Exhibit XXX.

    4. In the Annual Report, Mr Greenslade stated that private car parking management companies could not make a reasonable presumption in law that the registered keeper of a vehicle was the driver.

    5. The Claimant has failed to serve their parking charge notices to the driver of the vehicle and neither of their notices were compliant with POFA 2012, therefore, as the registered keeper, I cannot be liable for either claim.

    6. In the Claimant’s rejection letter of my appeal of their notices, they cited ParkingEye Ltd v Beavis [2015] (‘the Beavis Case’).

    7. The Beavis case is not relevant to support a penalty charge in a permit only car park. In fact, the Beavis judgment was clear that each case is in fact specific and that parking charges are unconscionable and unrecoverable if they are set to punish a driver, which this clearly is. The Beavis case was also judged to have a commercial justification, where the onsite businesses relied on the turnover and availability of free car parking spaces. Mr Beavis was fully aware of the terms and conditions upon parking and chose to challenge based on the monetary value to the car park operator of overstaying the allowed time. In the case of my vehicle, there were no clear signs for a driver to enter into a contract with the Claimant.

    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'.

    8. 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.

    9. The Defendant has the reasonable belief that the Claimant has not incurred an additional £120 in damages or costs to pursue an alleged £200 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.

    10. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £120 '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
    11. 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.

    12. 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.''

    13. 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.''

    14. 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...''

    15. 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
    16. 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
    17. 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.

    18. 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.''

    19. 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.

    20. 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.

    21. 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...''

    22. 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.

    23. 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.

    24. 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.

    25. 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.''

    26. 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.

    27. 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.''

    28. 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.

    29. 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''.

    30. 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.

    31. 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.

    32. 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 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 Supplementary Witness Statement are true.

    Signature of Defendant
  • KeithPKeithP Forumite
    25.2K posts
    Part of the Furniture 10,000 Posts Name Dropper
    A glaring error here:
  • BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    I have redacted many of the dates in my statements to retain some anonymity. But if you feel it is safe and makes it easier for you to understand if I reinsert them, please let me know, and I'll add them back in. Some of them were discussed earlier in the thread.
  • edited 20 January 2020 at 3:49PM
    BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    edited 20 January 2020 at 3:49PM
    A glaring error here:


    Ok, I was testing you there!
    I've spent too much time on this all weekend and everything is blurring into everything else! It was so obvious I missed it. Thanks for that. I've also amended in my main WS as well.
  • UmkomaasUmkomaas Forumite
    32.6K posts
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    Ok, I was testing you there!
    I've spent too much time on this all weekend and everything is blurring into everything else!
    You ought to try dealing with dozens upon dozens of these every single day of each week of the year, then you'll experience real 'blurring into everything else'!
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
This discussion has been closed.

Quick links

Essential Money | Who & Where are you? | Work & Benefits | Household and travel | Shopping & Freebies | About MSE | The MoneySavers Arms | Covid-19 & Coronavirus Support