Excel / myparkingcharge Final Demand

myparkingchargevictim

Coupon-mad said:

Are you just in time and have you read umpteen zillion other witness statement Excel or VCS threads?

Everything is standard.  We've seen it all before and the god thing about a forum like this is, so should you have done, by reading other similar VCS/Excel court threads.  Their WS is a template and also, writing yours is really simple, as is putting together your evidence and exhibits. 

I BEG YOU (pleeease...)  NOT TO POST THEIR STUPID TEMPLATE WS AND ASK HOW TO RESPOND. 

This is literally covered every week, everywhere on every VCS or Excel thread.  Read any.  Also read the NEWBIES thread about WS and evidence stage as I give plenty of pointers and examples of what a decent WS looks like.

Tuesday will be 14 days so *just* in time.

Trying to find some good WS vs Excel on the forum. Have read the thread you linked to for a good WS (I believe Chefdave's thread).

 I plan to take a trip to the car park tomorrow (and park somewhere else this time :@) and take some pictures of what I would have seen. I hope they haven't changed anything as it has been over a year since the date of the alleged contravention. 

Coupon-mad

Also see this thread where I showed how to argue back about the Semark-Jullien case, to stop a Judge thinking it said something it didn't:

https://forums.moneysavingexpert.com/discussion/6102255/preparation-of-defence-hx-gladstones/p6

You need that in your WS; with non-ParkingEye cases, everyone does now. 

WARNING - OBVIOUSLY NO COPYING DENIALS OF BEING THE DRIVER UNLESS THAT'S TRUE IN YOUR CASE.

myparkingchargevictim

Just a question on content within a WS, reading the WS in the thread above, point #4 makes reference to the claimants WS.
As I understand it, obviously everything in the WS must be a statement of fact. Can I also make reference to Excel's WS and point out some inconsistencies? Or is this saved for the hearing?

KeithP

myparkingchargevictim said:

Can I also make reference to Excel's WS and point out some inconsistencies?

Yes you must do that.

nosferatu1001

Yes, because errors in their WS that you can prove are obviously facts. 

D_P_Dance

I've received in the post to my perm address, a copy of the Witness Statement from Excel Parking. It's lengthy at 41 pages

And probably full of irrelevant guff, misinformation, inaccuracy, and downright lies.  Go through it line by line and point out any of the aforementioned and bring these to the attention of the  judge.  Have you complained to your MP?

MothballsWallet

myparkingchargevictim said:

Whoops, I was certain it was defence, had grammarly kept correcting it to "defense" - think it has the US Dictionary enabled or something.

I will check out those points you raised, thank you!

Americans don't speak English, they speak something else entirely...

myparkingchargevictim

Hi all,

Please see my draft of my witness statement. I would appreciate any feedback! Not sure how to wrap it in a quote on the new forum so will just paste below
------------------------------------------------------

IN THE COUNTY COURT AT ---------------------                                                   CLAIM NO: -------------

BETWEEN

EXCEL PARKING SERVICES LIMITED (CLAIMANT)

V

–---------------------------------- (DEFENDANT)

________________________________________________________________________________

WITNESS STATEMENT OF DEFENDANT

FOR HEARING ON ----------

1. I, –--------- of xxxxxxx, am the Defendant against whom this claim is made upon. The facts below are true to the best of my belief, and my account has been prepared based upon my own knowledge. My defence is repeated, and I will say as follows:

2. On approach into [car park address, postcode], where the alleged contravention occurred, there was a pay window situated within the entrance to the car park with signage in a large font stating “Pay Here”. The window was, however, unoccupied, therefore, this created confusion on where the Defendant was meant to pay.

3. Upon viewing AA2 from the Claimant’s Witness Statement, they fail to show any clear and legible signs which would explain the Terms and Conditions of parking where the Defendant’s vehicle was parked.

4. The only evidence provided shows a picture of the signage which reminds motorists “have you paid for your parking”. However, as mentioned in #2, this signage caused further confusion as the payment window was unstaffed. Had the Defendant seen where the payment should have been made, there would not have been an issue.

5. As a motorist enters the car park, at the time of entry in 2019, there were no signs which stated the Terms and Conditions which directly contradicts #37 from the Claimants Witness Statement. The statement “There are several warning signs prominently displayed and visible within the site” is incorrect within this car park. However, as of August 2020, there are new signs that have been erected, which indicate previous to the signage being present on entry, the motorist could not engage in a legally binding contract.

6. Paragraph #37 from the Claimants Witness Statement claim that “the Terms and Conditions on the signage are printed in a large font size” which is untrue. The Claimant even provides a stock image copy on page 25, which shows the Terms and Conditions using a smaller font size than every other sentence on the signage. Even if signage were present on entry, this would have been hard to read, and therefore my defence still stands. The Supreme Court case of Parking Eye Ltd vs Beavis [2015] UKSC 67 (‘the Beavis case’) is fully distinguished in this case.

7. The Witness Statement relies on older photos taken over a year before the alleged contravention. However, the Claimant has omitted any picture or evidence showing the entrance to the car park, which would otherwise show the contradictory sign.

8. The large contradictory sign at the entrance as seen by the Defendant, has since been removed from the premisis as of August 2020. This means the Claimant must have been aware of the conflicting nature of the signage and the confusion it would cause motorists.

9. I take issue with the Claimant’s disingenuous and untrue words at #17 in their witness statement which states that “the Claimant affixed a card to the Defendant’s vehicle”. No ticket or card of any sort was affixed to the vehicle and is a direct contradiction of the truth.

   Abuse of process - the quantum

10. The Claimant has added a sum disingenuously described as ‘debt collection 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 A1 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed, and the decision stands.

11. Whilst it is known that another case that was struck out on the same basis was appealed so 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.

12. The Judge at Sailsbury 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.

13. “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.”

14. 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 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 cannot have both.

15. 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, 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.

16. As a litigant-in-person, I have had to learn relevant law from the ground up and spent a considerable amount of time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. 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.

17. I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the Court to consider making an award to include these, pursuant to the Court’s powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the Court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery. This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted ‘landowner authority’ document that could be from anyone, as well as trying to mislead me and the Court with a citation of Elliott v Loake which has already been held on appeal to be ‘improper’ in a parking case.

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

myparkingchargevictim

D_P_Dance said:

I've received in the post to my perm address, a copy of the Witness Statement from Excel Parking. It's lengthy at 41 pages

And probably full of irrelevant guff, misinformation, inaccuracy, and downright lies.  Go through it line by line and point out any of the aforementioned and bring these to the attention of the  judge.  Have you complained to your MP?

I did a while ago and got no reply.
I got a reply from his caseworker or something and she apologised as my email had entered some kind of email quarantine (before the days of COVID). She asked if I still needed assistance to which I replied yes. Never heard anything since.

myparkingchargevictim

Further to my WS posted above, I went around there to the car park today and they've completely changed things. They use ANPR cameras on entry and have erected much more signage. The old-style payment huts on entry were used by the previous owners of the car park. Within the witness statement they provided, they show the lease was transferred in 2018 which explains why I still expected the old method of paying.

The signs look new in the pictures, is there any point of me including these to make the point that "they have very recently been erected"? Of course I have no way of proving this in a WS, but in the hearing maybe? Not too sure