CPMS - LETTER OF CLAIM RECEIVED UPDATE 2021 - FINAL WITNESS STATEMENT HELP

Castle

I noticed that there're no photos of any actual signs in situ; I wonder how the patrol officer missed them!

greengeko

@Umkomaas terrible isn’t it. 

Also I note that nowhere within the “agreement” does it give them permission to pursue or issue court proceedings 

The child like felt tip is me as I’ve redacted (hopefully) any personal information (I’ve also redacted the name of the paralegal)

@Castle
Funny that isn’t it - and when they clearly state that they can be seen in those photos in the WS!

Was a bit overwhelmed initially but I’m feeling slightly more confident the more I go over it. 

Any other points people feel are worth mentioning?

Fruitcake

No map of the site boundary, no images of actual signs on site, so no proof signs capable of forming a contract with a driver were present of the time of the alleged event.

As already mentioned, the alleged contract/agreement only shows authority to issue PCNs. Authority to issue court claims is absent so they have no standing to do so.

Again as already mentioned, the client/agent has not signed the agreement but has inserted a facsimile of signature. The name of the person who allegedly signed the agreement on behalf of the claimant has not been given.
Therefore there is no proof that either person has authority, whether express or implied, to form a contract with another party. This breaches the strict requirements of Section 43 of the Companies Act 2006 with regard to a Simple Contract.

The agreement has not been signed by two authorised signatories as defined by Section 44 of the Companies Act 2006, therefore the the document has not validly executed in accordance with the Act.

greengeko

Hello everyone,

This is my final opportunity to get feedback on my WS as I will be submitting this tonight.

My redacted WS - https://drive.google.com/file/d/1orKvw_fqhmpxSbC1ruYlG8uYetXUI6RT/view?usp=sharing

I have yet to add my index and do the final proof read of this.

I have included the points already made - thanks @Fruitcake and @Umkomaas and @Castle

BW Legal WS (only my name and claim number redacted as instructed) - https://drive.google.com/file/d/1n6AeFtXdC-SGC5LWrPbTo-T-6LPzrX7h/view?usp=sharing 

Please, I would be deeply grateful of any additional advice or points anyone could add.

Redx

No I did not include the link but the thread can be found so you can read what I read , it was another Queen song victory !! for the defendant , so  AOBTD !!

Coupon-mad

17. The Claimant refers to Link Parking Limited v Harris (2020) and One Parking SolutionLtd v Norma Wilshaw (2021). with respect to this. Both are county court matters and non-binding.  The latter case is ongoing and not relevant because it is not concluded, with an extended appeal time that does not begin until after a hearing set for Summer 2021. It is probable that the decision in the latter case will be appealed due to assumptions and findings by the Judge in the February decision that are considered to be errors of law and/or plainly wrong.

I would remove #31 as it adds nothing, and replace it with reference to Excel v Wilkinson, copying the wording about that case in the WS drafted today by @jrhys.

greengeko

Thanks @Coupon-mad that's incredible helpful!

@Redx if it's the case I have just looked at I can only hope I get Iyer to hear the case!

Any other input would be greatly appreciated

greengeko

Sequence of Events

 

3.     On the day in question, I was attending a flat viewing at the NV buildings and email confirmation of this can be seen in exhibit #01. As such, despite the incorrect assumption by the Claimant and their legal representation, I was clearly a tenant of the business within. I cannot be reasonably expected to enter into a contract to rent a flat without having viewed it in person first. The freeholder will maintain the site with fees collected from leaseholders which in part is generated by tenants who rent the private accommodation. This process is integral to the business model and therefore it can only be taken that I had business within the site.

 

4.     I had driven along the road ‘The Quays’ and approached from the south-west direction. If you approach the carpark from this direction, there was only a single sign visible to me at the entrance to the car park (exhibit #02 and #03). It states only that ‘PARKING RESTRICTIONS APPLY’ and to ‘READ SIGNAGE WITHIN’ (exhibit #04). No further signage can be seen.

 

5.     I was met by the property agent at the entrance to the car park (which is secured by gate access – exhibit #03). I was then given access to the car park by the agent who subsequently instructed me to park the vehicle in the area in which it was left.

 

6.     On exiting my car, I viewed the surrounding area in which no signs related to parking were visible to me (exhibit #05). I was again informed by the authorised agent that I should leave my car where it was parked and that it would be fine to do so. I completed the flat viewing and was given access out of the car park via the secured gate.

 

No Authority from, or Contract with, the Landowner

 

7.     The “Agreement” provided by the Claimant in no way proves they have authority from the landowner to manage the site in question. The Client listed on this agreement is “Complete Property Management Solutions Ltd”. As per the title register from HM land registry (exhibit #06) the freeholder is clearly listed as “FREEHOLD MANAGERS (NOMINEES) LIMITED”. The Claimant has provided no evidence as to who “Complete Property Management Solutions Ltd” are and by what authority they have to authorise the Claimants right to manage and enforce the Terms and Conditions of the car park.

 

8.     This “Agreement” only gives the Claimant rights to “issue parking charge notices to vehicles not complying with the terms and conditions set out within our signage”. Nowhere is it stated that the Claimant has authority to “recover contractual charges from users who contravene the terms of the Claimant’s contractual license to use the Car Park” or issue court proceedings as they have claimed.

 

9.     The “Agreement” directly breaches the strict requirements of Section 43 of the Companies Act (2006) with regard to a Simple Contract. The client has not signed the agreement but has inserted a facsimile of signature. The name of the person who allegedly signed the agreement on behalf of the Claimant has not been given. Therefore, there is no proof that either person has authority, whether express or implied, to form a contract with another party. Section 43 of the Companies Act states that a contract may be made “(a) by a company, writing under its common seal or (b) on behalf of a company, by a person acting under its authority, express or implied.” Nowhere on the agreement provided is there any reference or seal related to the freeholder of the land (FREEHOLD MANAGERS (NOMINEES) LIMITED). Nor does it contain any seal or heading related to “Complete Property Management Solutions Ltd” (even though it is averred that they have no authority to grant such authority). Neither criteria are fulfilled and therefore a contract to manage the land could not have been entered into by the Claimant.

 

10.  Furthermore, the agreement is not affixed with the common seal of the landowner and nor has it been signed by two authorised signatories as defined by Section 44 of the Companies Act 2006, therefore the document has not been validly executed in accordance with the Act.

 

Signage

 

11.  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’. I have included a copy of this sign in exhibit #07 for comparison. 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 code of practice states that signs displaying terms and conditions must ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’ (exhibit #08). It is also stated that these signs should be adequately displayed if they are ‘intended to form the basis of contract between the creditor and the driver’. At no point was I able to see such signs, nor are there any to be clearly visible around where the vehicle was parked (exhibit #05).

 

12.  I invite the court to note the black and orange colour scheme present in the Beavis sign (exhibit #07). The Claimant’s Terms and Conditions sign is a mixture of blue and yellow text on a white background with a mixture of small font that would not be visible at a reasonable distance and is clearly distinct from ParkingEye’s sign. The words “ATTENTION” and “PARKING CHARGE OF £100”, two key elements to the sign are yellow in colour. These vital pieces of information are easily obscured by direct sunlight especially considering the white background, something which would have been wholly likely given the weather conditions in May. Additionally, I note that the non-binding and non-authoritative agreement between the unknown party and the Claimant was dated October 2014. This means approximately 3 years and 8 months would have elapsed between the signs being erected and the alleged event. The Claimant has provided no evidence that these signs were maintained or replaced over this time. Nor have they provided evidence of the condition of the signs in situ. As such the signs would have likely faded, further reducing there already poor visibility.

 

13.  The Claimant and their legal representation have stated that the signs are “clearly displayed and they were in situ on the Contravention Date as shown by the photographic evidence taken by the PA”. Nowhere in the evidence supplied by the Claimant are the signs “clearly displayed” nor is there any evidence that they were in in situ at the time of the alleged event. Again exhibit #05 also clearly shows that no signs were present or clearly visible around where the vehicle was parked.

 

14.  The Claimant has provided a poor-quality aerial site plan. On which there seems to be several, poorly distinguished, coloured marks in an attempt to indicate apparent location of signage relating to parking. However, there are no images of the actual signs on site either at the time in question or currently. Furthermore, there is no indication of site boundary in any of the items provided. As such the Claimant has failed to provide proof that signs capable of forming a contract with a driver were present at the time of the alleged event. There is no evidence that signs are “prominent” and that the “Terms and Conditions are clearly displayed” as the Claimant has stated. As such a contract could not have been formed.

 

15.  I made every reasonable attempt to look for additional signage within the car park on the date of alleged event having also enquired to the authorised property agent. Despite what the Claimant may suggest, an entrance sign does not constitute any form of contract or agreement. Nor can its presence be relied upon to make a decision about the visibility or condition of other signage within the car park. Neither can it be used to draw assumptions about my attempts to view or enquire about terms and conditions within the carpark.

 

16.  The IPC code of practice also states that the Claimant must in any signs displaying terms and conditions ‘identify yourself as ‘the Creditor’’. The claimant has supplied a stock image of a terms and conditions sign, but no evidence of this sign in situ at the location in question. Nowhere in this is the Claimant identified as ‘the Creditor’.

 

17.  The Claimant refers to Link Parking Limited v Harris (2020) and One Parking Solution Ltd v Norma Wilshaw (2021). Both are county court matters and non-binding. The latter case is ongoing and not relevant because it is not concluded, with an extended appeal time that does not begin until after a hearing set for Summer 2021. It is probable that the decision in the latter case will be appealed due to assumptions and findings by the Judge in the February decision that are considered to be errors of law and/or plainly wrong.

greengeko

No Contract Was Formed

 

18.  The Claimant has stated in the particulars of this claim that it is a ‘contractual charge’ due for a ‘contractual breech’. I do not believe that a contract was formed between myself and the Claimant. Nowhere within the generic terms and conditions sign that I have been supplied with (which I assume the Claimant ascertains was there during the event) does it inform the reader that by parking in the car park, they are entering into a contract with the Claimant. Furthermore, the words “contract” or “agreement” do not appear in the Claimants sign, which only talks about “accepting liability”. Manchester County Court District Judge Iyer in PACE Recovery and Storage Ltd v Lengyel [2017] C7GF6E3R (exhibit #9) noted in his judgement that the “words “contract” or “agreement” do not appear at all within the sign, which merely refers to the driver “accepting liability for a charge”” and that “the phrase “terms and conditions” are not synonymous with a contract” (para 13). DJ Iyer rightly dismissed the case against the Defendant stating that a contract had not been formed between the two parties.

 

19.  I believe that in this case, if it is decided by the court that a contract was formed (something which I explicitly deny), the principle of promissory estoppel applies. I was clearly instructed by the authorised property agent to park outside a marked parking bay. The Claimant has no basis nor authority (as outlined by the points in this statement) to decide if Julie Twist Properties was able to form a contract with myself.

 

20.  If it is decided by the court that a contract was indeed formed between myself and the Claimant, then the doctrine of impossibility of performance applies. The generic terms and conditions sign (if this was in place at the time) talks about ‘ALLOCATED PARKING ONLY’ and that you must park on your own allocated bay. Despite being an authorised visitor, I do not possess an allocated bay. This was not an act of omission by myself nor was it foreseeable as I had no way of knowing the terms and conditions before or after entering the car park. Therefore, parking in an allocated bay was something I simply could not do.

 

21.  The Claimant has stated with respect to the point of allocated bay parking that I was “not at liberty to park in the Car Park”. Nowhere is it stated within in the Terms and Conditions signage provided by the Claimant that I needed to vacant the site if I did not have allocated parking. The Claimant cannot pursue me for a “contractual charge” for parking if it takes the stance that I was not at liberty to park (despite being given access through the secured access gate). Had I seen the signage I would of course made the relevant further enquires to clarify this matter.

 

A Notice to Keeper Was Never Received

 

22.  A physical parking charge notice nor a notice to keeper was ever received by myself. I only became aware of the alleged event in July 2020 when I received a letter from ‘Debt Recovery Plus Ltd’ demanding £160 for an unpaid parking charge. I contacted the Claimant at this time but despite receiving acknowledgement of my email I did not receive a response (exhibit #10). Following a further letter from ‘Debt Recovery Plus Ltd’ in August 2020 I again contact the Claimant who again did not respond despite email acknowledgement (exhibit #10). As such I was denied any initial appeals process. The fact I did not challenge the PCN was in no way deliberate (as insinuated by the Claimants legal representation), I am unable to purposefully ignore correspondence that I never received. Furthermore, in light of this it is my belief that the Claimant had no interest in resolving this matter and is only interested in the addition of further underhanded charges. I had no further contact from BW Legal or the Claimant from the 10th October 2019 until the 30th April 2020. When, during a global viral pandemic, the Claimants legal team again decided again to pursue me with regard to this matter. During this time, I have been working as a busy NHS doctor in the emergency department and more recently the critical care unit. The additional stress this dishonest claim has added during this time has been substantial.

 

The Beavis Case Is Against This Claim

 

23.  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.

 

24.  However, there is no such legitimate interest in this instance as no other cars or allocated space holders were prevented from parking. As such, I take the point that the 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.

 

Abuse of Process – The Quantum

 

25.  The Claimant has added a sum disingenuously described as 'recovery costs'. 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 #11 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

 

26.  The Claimant has stated that these ‘debt recovery costs’ are costs incurred by the Claimant in instructing BW Legal to recover the unpaid parking charge. Why then in the correspondence from ‘Debt Recovery Plus Ltd’ do these charges appear prior to the involvement of BW Legal (exhibit #12)? The Claimant is intentionally trying to mislead the court by suggesting these costs represent renumeration for the work of BW Legal which is false. Instead, they are a disingenuous attempt double recovery under the premise of additional cost which in fact is a standardise and automated letter chain.

 

27.  Whilst it is known that another case that was struck out on the same basis 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 costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

28.  The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''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.”

 

29.  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 debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 (exhibit #13) that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. 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.

 

30.  This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit #13), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

 

31.  As stated previously this is an attempt at double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (exhibit #14). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

 

32.  After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

 

33.  Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added sum only vaguely alluded to on the notices but the official CMA guidance to the CRA covers this and 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, even if the added sum was on the signs.

greengeko

My Fixed Witness Costs - ref PD 27, 7.3(1) and CPR 27.14

 

34.  As I have had to take a day of annual leave in order to attend the hearing, I ask for my fixed witness costs (exhibit #15). I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 

35.  The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings) ... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

36.  As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. The Claimant has made baseless accusations regarding the amount of time I have spent preparing suggesting my documents are simply copied and pasted works. This is untrue and a significant amount of time has been spent preparing these.

 

Statement of Truth

 

37.  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.