Almost Imminent Court Case pending with VCS

Loum5

Well I have to say, I'm really glad I joined this forum and am so grateful for the quick responses and great points that have been made so far, thank you. I'll start getting things organised over the next couple of days and post again soon.

I also think I've officially missed the deadline for opting into mediation now, which judging by what I've learnt today it would have been a waste of time - I would have been prepared to offer £25 max to make it go away which I doubt they would have accepted.

Loum5

Hi Coupon-mad

I'm really sorry, but I'm struggling to find the thread by CEC16 - could you please point me in the right direction?
Also, I have submitted the SAR today.

Redx

its now on page 5 so you can see how busy this forum is , try learning to use the search function as it will help you

I will take pity on you and link it, but we dont usually link threads as people need to learn to do the research properly

https://forums.moneysavingexpert.com/discussion/6006850/bw-legal-portswood-car-park-southampton


I hope you included proof of I D with your SAR, like a copy of the court claim form, and preferably a copy of the V5C as well

Loum5

Thank you kindly, really appreciated, I can see how crazy it is in here - I've honestly tried to search but a clearly am a Newbie!!

I did my SAR via email this evening, so will add the Court Claim to a reply now and resubmit - I don't have the V5C as I no longer own the vehicle.

Redx

add a redacted recent utility bill or similar , one that shows the date , name and current address on it , plus the copy of the claim form, so 2 proof of I D, otherwise your SAR will be rejected due to no proof of who sent it


GDPR DPA works both ways

Loum5

Perfect, thank you for the tips - on it now.

Loum5

Good Evening

I have been working on my WS over the last couple of days and would really appreciate it if you could have a look over this and feedback to me please. I'm sure it will need more work or condensing or maybe even re-writing(!!), but figured it's a starting point. I have added all the content re 'abuse of process' for the last points from 14. onwards and printed off the two court letters that were advised - so here goes....


I, XX of , and will say as follows:

1. I am the Defendant in this matter. I am unrepresented and have no experience with Court proceedings. I trust the court will excuse my inexperience if I have not set out the documents in the way that the Claimant has.

2. I make this witness statement in anticipation for the court hearing scheduled for 20th December in my defence of the Claimants’ claim.

3. I intend to put forward my case with the following witness statement and the attached paginated bundle of documents marked XX1-XX** to which I will refer to later in this document.

4. Prior to explaining my actions on the day I parked in the X and X carpark (“the Carpark”), I confirm that the summary of my defence to this claim is that:
(a) In August 2015, there were no ‘clearly displayed signs’ at the entrance to the Carpark, and I do not recall seeing signs in ‘prominent locations’, therefore I cannot have understood to have entered into a contract with the Claimant.
(b) I did not leave and then return to the Carpark within the no return/time period as stated by the Claimant in the Particulars of Claim.
(c) The Protection of Freedoms Act 2012, Schedule 4, 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery, and is considered an ‘Abuse of Process’.

5. On the morning of XX/08/2015 I set off to work as normal where I usually parked my car on surrounding streets in the xxx Road area near to my office, but due to high traffic congestion on xxx Road and xxx Road I took an alternate route and turned onto xxx Road heading towards the xxx. To avoid re-joining the congestion, I turned onto xxx Street where the Carpark is situated. I drove into the Carpark taking the first right and parked in the corner situated next to a walkway onto xxx Road. I left my vehicle and exited the Carpark using the walkway and walked approximately ten minutes to my office.

6. On arrival back at the car park on the same day, I discovered the Parking Charge Notice (“PCN”). I am unsure of the exact timings of my stay due to the fact it has been over four years since the alleged contravention took place, but would estimate I initially parked in the region of 9am and left sometime after 4pm.

7. I went to work the following day and explained what had happened to my colleagues. I was at this time, pointed in the direction of a former colleague who had also previously received a PCN in the same Carpark. They explained they had contacted the landowners (xxx Property Group) and were advised the Claimant did not have their permission to issue PCNs on this land and therefore to not acknowledge or enter into any contact with the Claimant. Whilst I am unable to provide documentation to back this up, I also contacted xxx Property Group after receiving the Court Claim. I was advised this information to be correct, and due to the conduct of the Claimant and complaints received, xxx had terminated any such contract.

I will now describe the actions in points 5, 6 and 7 in further detail:

8. xx1 and xx2 show Google Street View photography (“GSV”) to the left and right of the entrance to the Carpark from April 2015. xx3 and xx4 show the same GSV from May 2016. The alleged contravention took place in between these dates in August 2015. It can be seen from all these images that there are NO clearly displayed signs located in the Carpark entrance that would have allowed me to read the Terms and Conditions to make an informed decision to enter into a contract with the Claimant before using the Carpark.

9. xx5 and xx6 show GSV from May 2018 that shows the same view of the entrance to the Carpark as it is today and now operated by UKCPS. xx5 shows that there is now a small sign in the entrance to the left side as described in my original Defence.

10. xx8 shows a Google Maps overhead view of the Carpark, and I have highlighted the way I drove in, the parking space I used, and the walkway I used to exit the Carpark on foot. xx9 shows GSV from May 2018 of a close up view of the parking space I used, and the walkway.

11. xx10 shows GSV from July 2015 from outside of the Carpark looking in of the parking space I used in August 2015, and xx11 shows a view into the Carpark from May 2016. Whilst I can see there are signs from these views, I did not see them at the time of the alleged contravention, and there are no ‘prominent signs’ close to the parking space I used, or at the walkway. I am unable to get close to the signs using GSV to enable me to read any Terms and Conditions, and as the Claimant no longer operates in the Carpark there are no signs present today for me to view personally.

12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
xx12 shows a letter I sent to the Claimant dated 01/07/2019 for ‘Request for documents mentioned in a statement of case under CPR 31.14’. xx13 shows a copy of the receipt for certificate of posting, and xx14 shows a copy of the Royal Mail ‘Track and Trace’ as signed for by the Claimant on 02/07/2019. To this date I have not received any response or acknowledgement to this request, nor anything at all from the Claimant, including their copy of the Directions Questionnaire.

13. It is a fact that I did NOT leave the car park then return within the no return period/time. Thus, the Claimant's Claim is doomed to fail because the alleged conduct did not happen and their own ANPR evidence photos are at odds with their claim particulars, because there can only be two camera images. The claim is fundamentally flawed because it is pleaded on the following premise:

''The claim is for a breach of contract for breaching the terms and conditions set on private land. The defendant's vehicle xxxxxxx, was identified in the x & x car park on the xx/08/2015 in breach of the advertised terms and conditions; namely returning to a car park within the no return period/time''.

No such breach occurred and there is no cause of action. Given that this is a serial litigant which files thousands of parking charge cases, they should not be allowed any relief from sanctions and would be required to apply to the court for permission to amend their particulars at the usual court fee cost, if their claim is to continue.

14. 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'.

15. The arbitrary addition of a fixed sum purporting to cover '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.

16. 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.

17. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 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.

17.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 '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
18. 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.

18.1. 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.''

18.2. 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.''

18.3. 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...''

18.4. 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
19. 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
20. 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.

20.1. 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 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.''

20.2. 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.

20.3. 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.

20.3.1. 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...''

20.3.2. 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.

20.3.3. 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 POFA para 9.

20.3.4. 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 this this claim.

20.3.5. 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.''

20.4. 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.'' 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.

20.5. 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.''

21. 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.

22. 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.

23. If this claim is not struck out for the same reasons as the Judges cited in the multiple Caernarfon and Southampton cases, then 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 Witness Statement are true.


Name

Signature


Date

Coupon-mad

Here, just make it shorter, as you have the POFA mentioned later:

4 (c) [STRIKE]The Protection of Freedoms Act 2012, Schedule 4, 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 £100. [/STRIKE]The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery, and is considered an ‘Abuse of Process’.

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.[STRIKE]POFA para 9[/STRIKE].

Sorry, I had a weird typo in my latest edit of the abuse of process wording!
THAT LAST BIT SHOULD SAY AS ABOVE.

And here, add the suggested words to make it clear that VCS are the same claimants as were slapped at Caernarfon:

20.2. Noting that this claim is from the same Claimant (VCS) they cannot be heard to say they are unaware that their £160 claim is unrecoverable. 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.

Fruitcake

I have only skim read, but have you challenged the alleged contract between the scammers and landowners?

You put them to strict proof they had a contract flowing from the landowner that allows them to issue charges and take motorists to court. The contract must be contemporaneous and meet the requirements of the Companies Act 2006 (needs two signatures from each party or one director's signature and a witness, with each signatories position in the company shown.)

Loum5

Coupon-mad wrote: »

Here, just make it shorter, as you have the POFA mentioned later:

Sorry, I had a weird typo in my latest edit of the abuse of process wording!
THAT LAST BIT SHOULD SAY AS ABOVE.

And here, add the suggested words to make it clear that VCS are the same claimants as were slapped at Caernarfon:

This is great, thank you very much - I have updated my WS accordingly - can I please ask, for points 1-13 - is there anything I should change or miss out in here - these are my circumstances in my words (well - I have you to thank for 13) and don't want to mess it up!! It's blagged my head every day of last week and the weekend!! I can't express enough how grateful I am for your help so far :-)