WS Help needed for pending CCJ

Coupon-mad

Your WS needs a lot of work, as the numbering is all over the place and things like this are unnecessary padding:

I confirm that the essence of my defence to this claim is that:
6. a. I did not breach the terms and conditions of parking
7. b. The Claimant's signage did not make it clear whether after the paid for parking period offered included time spent after entering the site via its ANPR cameras looking for a space and parking in it and locating and reading the terms and conditions and deciding to accept them, and time spent when leaving the site via the same cameras exiting the space, and then driving out onto a public highway. It is trite law that any uncertainty in a contract should be resolved against the person who offered it under the contra preferentem rule;
8. c. Even if I did breach the terms, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association to apply separate grace periods of at least 10 minutes at the start and end of each period of parking to allow for potential delays in finding a space, exiting the car park and to allow time for drivers to find and read the terms and conditions offered, and the 15 minute overstay is well within these grace periods.

You need to start with the facts, like you see in all other WS (read some on the first few pages of this board right now). Defend as driver, yes.

Then move on to cite the BPA CoP.

Then include as evidence, Kelvin Reynolds' article for the BPA about two grace periods.

Then the wording I wrote in the NCP 0 Taxman 1 thread, using the actual court of appeal transcript in that HMRC case v NCP, printed out as evidence.

Then the wording in post #14 of beamerguy's abuse of process thread, using the links printed out as evidence.

Show us what that draft then looks like!

Dontbelievethehype

Show us what that draft then looks like![/QUOTE]

Hi Coupon Mad. I have added to WS and set it out a bit better, Also have printed out items you said to use. Please advise as to how things are looking and what else needs to be done. Thank you.

In the County Court XXX,

Claim No.

Between

NCP (Claimant)

and

MR XXXXXX (Defendant)


WITNESS STATEMENT

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked Exhibit XX1 to Exhibit XX17 to which I will refer.

1. I XXX XXX am the registered keeper of vehicle in question, and although in the particulars of claim it is unclear as to who the claim is specifically aimed at, for the element of doubt on said date Xth XXXX 20XX I was the driver of the vehicle, and I deny any liability to the claimant.
2. I entered the car park on XXX, in good faith and honest intentions and adhered to terms on display as best as they could be deciphered.
3. I was in XXX that day for a 10k running event which started approximately 10 mins walk from the XXX car park. This event started at XXX, Allowing for my estimated running time of 45-50mins, bag collection after the event and 10 mins walk back to my vehicle, the £4 I paid for two hours parking I felt was enough time to get back to my vehicle and exit the car park in under two hours. Exhibit XX 1-2
4. However upon walking back to my vehicle I started to fell my right calf becoming tight, I hurried back and as I got to the car park and my vehicle my right calf cramped up and at that point it was not safe for me to drive out of the car park until this had cleared. I have experienced this before and know it will clear after several minutes of gentle self massage to the calf. Which indeed it did so and I was safe to drive my vehicle out of the car park.
5. The Claimant asserts that I entered into a contract with them, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. It claims that I was in the relevant car park for a total of 2 hours and 15 minutes, when 2 hours had been paid for. It is these 15 minutes with which the Claim is concerned.
6. It is my understanding that there are three elements to a contract: offer, acceptance and consideration. I could not possibly have accepted any contract offered by the Claimant at the precise moment I drove through the ANPR cameras, at the start of minute One, of the 2 hours and 15 minute period, because at that point no offer had been made. An offer must be communicated to an offeree. There was no offer communicated at the entrance to the car park, but only inside it - the Claimant’s signage setting out the terms and conditions were dotted around the site and could not be seen immediately on entry, and I could not read them from my car. It took me 3-4 minutes to drive in, find a space, find a sign, read it and decide to avail myself of the parking. At that point I say an offer was made (insofar as the sign was capable of making an offer), and I accepted it.


7. Contractually, the Claimant’s signage did not specify that the paid for period parking included time spent finding a space and then leaving the car park via the ANPR cameras. Had this been clear to me, I would have endeavoured to returned to the car earlier. Or paid for a longer period of time.
8. In addition to considering the contractual element of the claim, I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member. A copy of paragraph 13 of the CoP, Exhibit 3, which relates to grace periods. In order to be an accredited member of the BPA, compliance with the CoP is compulsory, and a copy of paragraphs 4.1 and 6 of the CoP, Exhibit 4. The significance of being a member of the BPA and subscribing to its CoP is that the Claimant is only entitled to ask the DVLA for the details of a car’s registered keeper if it is a member (so without membership a private parking company would not be able to function without the ability to trace drivers/registered keepers). Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the carpark once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking (paragraphs 13.2 and 13.4). It is worthy of note that the recommendation is a minimum of 10 minutes, not a maximum.
9. Kelvin Reynolds, BPA Director of corporate affairs says there is a differance between 'grace' periods and 'observation' periods and that good practice allows for this. Exhibit 5.
10. There is no explanation for why the Claimant has declined to apply any grace period at all in my case, which is a clear breach of the CoP.
11. In the parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:
12. 96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.'' Exhibit 6.
13. 111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.'' (emphasis added). Exhibit 7.
14. In this case, the data produced and relied upon by the Claimant shows that the period passing between my car entering and leaving via the ANPR cameras was 15 minutes. Applying the "minimum" 10 minutes either side of the parking, the minimum total grace period I should have been allowed by the Claimant under its own compulsory CoP was 20 minutes. I was therefore well within the grace period. Whilst I accept that following the paid for parking time I was on site for around 15 minutes, this was because of the cramp in my calf, which was outside of my control. The Claimant should have taken a reasonable and proportionate approach, complied with its own obligations under the CoP (not to mention exercised common sense) and should have applied the grace period. Furthermore, the issue the court is being asked to deal with is de minimis and the court's valuable time should not have been taken up with this matter.
15. The claimant and their legal representatives have acted unreasonable at every turn, even after I opted to defend this claim. I have received continuous attempts to bully me into paying them the unconscionable sum they seek to extract from me, which is in excess of the maximum allowed by POFA schedule 4 (5) “the maximum sum which may be recovered from the keeper by virtue of the conferred by this paragraph is the amount specified in the notice to keeper”.
16. The claimant and their legal representatives have sent correspondence to my address totally dismissing my defence casting judgment themselves before any hearing, with more bully tactics demanding I pay unconscionable sum, which are unrecoverable by statute within 14 days. Exhibit 8.

17.The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.
The arbitrary addition of a fixed sum purporting to cover 'administration/recovery 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. Exhibit 9.

18. The standard wording for parking charge/debt recovery contracts is 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.
19. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 '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, case law and two statute laws hold that, when it comes to parking charges on private land, the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

20.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.

21. Unlike this greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. 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, and all parking firms are very familiar with this case:

22. 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. Exhibit 10.

23. Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (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 ofthe 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.'' Exhibit 11. Another struck out claim on 18th November 2018 due to abuse of process see Exhibit 12.

24. That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where 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. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, 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.

25. In Claim numbers F0DP806M and F0DP201T - less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit. These 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 ParkingEye v Beavis. 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...''

26. At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 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 were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he 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. Exhibit 13.
(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 POFA para 9.

* Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Exhibit 14. Due to the statutory duty upon the Courts to consider the test offairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches oftwo statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.

27. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance 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.'' Exhibit 15, 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 ofthe price, provided they are transparent and prominent. Exhibit 16. (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).''

28.The definition of a consumer notice is given at 1.19 and the test of fairness is expended 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. 1.20 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.'' Exhibit 17.

29.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.

30. The Defendant is of the view that this Claimant knew or should have known that to claim £160 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 and costs will be sought by the Defendant on the indemnity basis.

31. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety (due to the similarities with the Southampton case where the entire claim was deemed 'tainted') and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.


Statement of Truth:

KeithP

After para 16, then missing one paragraph, the paragraph numbering reverts to 1 again.

Para 10 (the first one) - "infamous" is probably not the best way to describe a court case when addressing the judiciary.

1505grandad

Are you submitting any evidence?.

Dontbelievethehype

KeithP wrote: »

After para 16, then missing one paragraph, the paragraph numbering reverts to 1 again.

Para 10 (the first one) - "infamous" is probably not the best way to describe a court case when addressing the judiciary.

Thank you will ditch the infamous out of para 10.

After para 16 this is about and relates to the Southampton case which Coupon Mad has advised I use. he also said to use it a supplementary WS, for neatness, to keep the 'excessive inflated costs' argument separate.

Dontbelievethehype

1505grandad wrote: »

Are you submitting any evidence?.

Yes so far have some abuse of process struck out cases, Kelvin Reynolds "grace period".

BPA Code of practice on grace periods, consumer rights act 2015, schedule 2 part 1. 6,10,14

KeithP

Dontbelievethehype wrote: »

1505grandad wrote: »

Are you submitting any evidence?.

Yes...

Then you need to refer to it/them in your Witness Statement.

If you are not sure how to do that, have a look at the example Witness Statements linked from post #2 of the NEWBIES thread.

Dontbelievethehype

KeithP wrote: »

Then you need to refer to it/them in your Witness Statement.

If you are not sure how to do that, have a look at the example Witness Statements linked from post #2 of the NEWBIES thread.

Thanks Keith. Do I need to find all the evidence to back up where I have referred to cases in my WS, for example Beavis or Protection of freedom act scheldue? Also do you think I should just have each Para numbered in flow and not start from 1 again after Para 16?

Coupon-mad

Dontbelievethehype wrote: »

After para 16 this is about and relates to the Southampton case which Coupon Mad has advised I use. he also said to use it a supplementary WS, for neatness, to keep the 'excessive inflated costs' argument separate.

She said... as you saw from my court report, ParkingMad and I are the Brighton ladies from this forum!

for example Beavis

No, except for the paras 98, 193 and 198 that talk about the parking charge already including the costs.

Protection of freedom act scheldue?

Yes - para 4(5) and 4(6) talk about the charge being capped at the sum on the NTK.

Also do you think I should just have each Para numbered in flow and not start from 1 again after Para 16?

Yes, it's much easier to follow normal numbering.

What else are you putting into evidence?

Kelvin Reynolds' BPA article? The BPA CoP page on grace periods?

How long was the car there for or overstayed?

Dontbelievethehype

Coupon-mad wrote: »

She said... as you saw from my court report, ParkingMad and I are the Brighton ladies from this forum!



No, except for the paras 98, 193 and 198 that talk about the parking charge already including the costs.

Yes - para 4(5) and 4(6) talk about the charge being capped at the sum on the NTK.

Yes, it's much easier to follow normal numbering.

What else are you putting into evidence?

Kelvin Reynolds' BPA article? The BPA CoP page on grace periods?

How long was the car there for or overstayed?

Apologies I must have missed the Brighton ladies part. Lovely part of the country, I ran the Brighton Marathon a couple of years back.

I have as evidence so far,Kelvin Reynolds' BPA article, The BPA CoP page on grace periods, And couple of CC order pages where the judge has struck out the claim for abuse of power. Will also add what you have just advised. I shall also be adding my result from the 10k official website, to show I was actually in town for a running event, which lead to me getting cramp and driving out the car park late. The overstay was 15 mins, with a 2 hour paid for parking. I believe I only took 3 mins from driving in to hitting the green button as this is quite a small car park, I think said car park has added more signs on entrance since I parked their.