WS Help needed for pending CCJ

Dontbelievethehype

nosferatu1001 wrote: »

You can mention abuse of process, as thats true regardless of whether it was initially pleaded or not.

You MUST read the abuse of process thread. MUST.
They will have made up, out of thin air, that £167 figure and hoped a jugde woudnt notice.

Thank you. The deep has posted the link to Abuse of process and it is going to be added to my WS, with the Southampton CC judge ruling.

Coupon-mad

Great, I was just thinking that people with CCJs to set aside need to understand and use the Soton case as well, and that the Consumer Rights Act can help them in arguing that they certainly have prospects of successfully defending the claim once the CCJ is removed.

Also attach Schedule 2 of the Consumer Rights Act 2015 with paras 6, 10 and 14 highlighted as you need to know how this is argued (see my court report in CEC16's thread). It's a strong point of defence about the signs not being clear and specifically about the added £60 being unlawful.

Dontbelievethehype

Coupon-mad wrote: »

Great, I was just thinking that people with CCJs to set aside need to understand and use the Soton case as well, and that the Consumer Rights Act can help them in arguing that they certainly have prospects of successfully defending the claim once the CCJ is removed.

Also attach Schedule 2 of the Consumer Rights Act 2015 with paras 6, 10 and 14 highlighted as you need to know how this is argued (see my court report in CEC16's thread). It's a strong point of defence about the signs not being clear and specifically about the added £60 being unlawful.

Thank you Coupon mad, I shall take on board your great advise and add these into my WS. Do you think I should keep my mitigation in my statement about being the driver and reason for late exit? And also do you think points raised so far are all relavent and read ok?

Dontbelievethehype

Could anyone please advise me if I should admit to being the driver and keep my mitigating circumstances in my witness statement or take it out? Thanks

Coupon-mad

Hang on, your case is not about a CCJ to set aside is it?!

What exactly did your defence say? Did you admit to driving? Show us that wording.

And read the NCP 0 Taxman 1 thread for MORE wording to add, that I wrote there about the Court of Appeal holding that the contract in an NCP PDT machine car park starts NOT when the car drives in, but when the green button is pressed when paying at the machine. A few posts into it, I wrote something for WS stage.

You need a combo of that, and citing the BPA Grace periods and 'observation period' stuff using Kelvin whatsisname's BPA article*) and the latest edit to post #14 of the abuse of process thread (that part can be done as a Supplementary WS, for neatness, to keep the 'excessive inflated costs' argument separate).


*search the forum for Kelvin

Dontbelievethehype

Thanks Coupon Mad, No its not about having CCJ set aside but a hearing coming up in December.

I have drafted up a WS and just wanted some opinions as to its context. I shall post my orignal defence under this message.

Dontbelievethehype

DEFENCE
1, The Defendant is the registered
keeper of the vehicle in question.
The Claim relates to an alleged
debt in damages arising from a
driver's alleged breach of
contract.
1.1. Any breach is denied, and it is
further denied that there was any
agreement to pay the Claimant's
£100 'Parking Charge Notice
('PCN')'.
2, Save as specifically admitted in
this defence the Defendant
denies each and every allegation
set out in the Particulars of Claim,
or implied in Pre-action
correspondence.
3, The claimant failed to include a
copy of their written contract nor
any detail or reason for - nor clear
particulars pertaining to - this
claim (Practice Directions 16
para. 7.3(1) and 7C 1.4(3A) refer).
4, The Particulars of Claim (PoC)
do not meet the requirements of
Practice Direction 16 para. 7.5 as
there is nothing which specifies
how any terms were breached.
Indeed, the PoC are not clear and
concise as is required by Civil
Procedure Rule (CPR) 16.4 1(a)
and CPR 1.4. It just vaguely states
“parking charges” which does not
give any indication of on what
basis the claim is brought, so I
have had to cover all eventualities
and this has denied me a fair
chance to defend this in an
informed way.
5, Due to the sparseness of the
Particulars, it is unclear as to
what legal basis the claim is
brought, whether for breach of
contract, contractual liability, or
trespass. However, it is denied
that the Defendant breached any
contractual agreement with the
Claimant, whether express,
implied, or by conduct.
6, The allegation appears to be
based on images by the claimants
ANPR camera at the entrance and
exit to the car park. This is merely
an image of the vehicle in transit,
entering and leaving the car park
and as such is not evidence of
the registered keeper not
purchasing the appropriate
parking time.
7, The ANPR only shows that the
car entered the carpark and then
exited,What an ANPR fails to
show and the defendant has
received no evidence of; The time
it took to find a suitable parking
space, and to find the parking
machines to purchase a ticket.
There has also been no evidence
given of a ticket not being
purchased for the allotted time.
8, The defendant believes that
without the relevant evidence of
the ticket being bought and
overstaying that they would have
still been within the grace period
allowed.
9, British Parking Association
('BPA') CoP, Grace Periods:
“You should allow the driver a
reasonable period to leave
the private car park after the
parking contract has ended,
before you take enforcement
action.''
It is reasonable to conclude that a
grace period not less than 15
minutes was in the contemplation
of the BPA, given that later in the
CoP in the section about NI
(where clamping was still legal)
the BPA state: ''Vehicles whose
drivers have paid legitimately
for parking but have overstayed
the ‘paid-forʼ time, and are not
committing any other breach of
the regulations, may not be
immobilised unless they have
stayed beyond a reasonable
‘grace periodʼ. The grace period
should be at least 15 minutes
beyond the time their permitted
parking period expired.''
9.1Whilst that section is about
clamping grace periods, this
Claimant is an ex-clamper firm
who would be used to the
relevant period of grace imposed
by the BPA and SIA up until 2012,
and there can be no reason to
think that 'at least 15 minutes'
would not also be the norm to
apply as a reasonable period of
grace before issuing a PCN.
10, It is also to be noted that the
parking site where the alleged
infringement took place uses a
pay and display system that
collects the vehicle registration.
As such the need to utilise ANPR
on top of a paying ticket machine
certainly seems like a route to use
one against the other, against the
rights and interests of thousands
of unsuspecting visitors to the
claimantʼs site.
11, Further, NCPʼs other signs at
that location are high up and
appear to be gobbledegook,
overly wordy, with no clear
information about any 'contract'
and with all terms in small print
with a lack of white space. Vitally,
the £100 charge is in much
smaller lettering with the £100
next to the PDT machine being
almost illegible, setting it at odds
with the clear and prominent £85
parking charge that was upheld
based on the unusually clear and
brief signs in Beavis.
12, The provision is a penalty and
not a genuine pre-estimate of
loss as the Claimant is not the
landowner and suffers no loss
whatsoever as a result of a
vehicle parking at the location in
question.
13, The Protection of Freedoms
Act 2012, Schedule 4 (the POFA)
at Section 4(5) states that the
maximum sum that may be
recovered from the keeper is the
charge stated on the Notice to
Keeper, in this case the PCN
states a maximum of £100
depending on the Claimant's full
compliance with the POFA and
establishing a breach of a
'relevant obligation' and/or
'relevant contract' from
adequately prominent, large
lettering terms on copious and
clear signage.
14, This claim inflates the total to
£241.72 in a clear attempt at
double recovery. The Defendant
trusts that the presiding Judge
will recognise this wholly
unreasonable conduct as a gross
abuse of process and may
consider using the court's case
management powers to strike the
claim out of the court's own
volition. The test is whether the
conduct permits of a reasonable
explanation, but the Defendant
avers it cannot.
15, It was held in the Supreme
Court in Beavis (where £85 was
claimed, and no more) that a
private parking charge already
includes a very significant and
high percentage of profit and
more than covers the costs of
running an automated regime of
template letters. It is also a fact
that debt collection agencies act
on a no-win-no-fee basis for
parking operators, so no such
costs have been incurred in truth.
Thus, there can be no 'damages'
to pile on top of any parking
charge claim, nor 'indemnity
costs if applicable', whatever that
cut&paste phrase may mean. The
Claimant knows this, as do their
solicitors who charge little or no
fee to BPA members, given the
connection between BW Legal
and the BPA Trade Body, the
Defendant asks that the Court
takes judicial notice of this
repeated abuse of consumers
rights and remedies, caused by
BPA/BW Legal clients artificially
inflating their robo-claims.
16, In summary, the defendant
has received no actual evidence
of any breach, the only
information itʼs gathered is that
the vehicle in question used a car
park and has pictures of it
entering and exiting. It is the
Defendant's position that the
claim discloses no cause of
action, is without merit, and has
no real prospect of success.
Accordingly, the Court is invited
to strike out the claim of its own
initiative, using its case
management powers pursuant to
CPR 3.4.
I believe the facts contained in
this Defence are true

Coupon-mad

12, The provision is a penalty and
not a genuine pre-estimate of
loss as the Claimant is not the
landowner and suffers no loss
whatsoever as a result of a
vehicle parking at the location in
question.

Do what? Oh well, too late to remove that pointless point now but your WS & evidence will need to be more on point! Like I said:

...read the NCP 0 Taxman 1 thread for MORE wording to add, that I wrote there about the Court of Appeal holding that the contract in an NCP PDT machine car park starts NOT when the car drives in, but when the green button is pressed when paying at the machine. A few posts into it, I wrote something for WS stage.

You need a combo of that, and citing the BPA Grace periods and 'observation period' stuff using Kelvin whatsisname's BPA article*) and the latest edit to post #14 of the abuse of process thread (that part can be done as a Supplementary WS, for neatness, to keep the 'excessive inflated costs' argument separate).

And read CEC16's thread to understand the latest arguments about the added £60!

Le_Kirk

Coupon-mad wrote: »

Kelvin whatsisname's BPA article*)

*search the forum for Kelvin

It's Kelvin Reynolds .............. from memory.

Dontbelievethehype

Coupon-mad wrote: »

Do what? Oh well, too late to remove that pointless point now but your WS & evidence will need to be more on point! Like I said:


And read CEC16's thread to understand the latest arguments about the added £60!

Thanks Coupon mad. What did you think to my WS mitigation about why the overstay occurred? Do you think I should keep that in, and defend as registered keeper?