Getting Ready for the Hearing

Fruitcake

You have to show the judge that it is possible for a driver to enter the car park and find a space without seeing any signs at all by the sound of it.

Coupon-mad

http://imagizer.imageshack.com/img924/7996/TaMXxX.jpg

Try this as well:

2. I deny being the driver at the time of the supposed event, and therefore put National Parking Enforcement limited to strict proof that any contract can exist between the Claimant and myself as defendant.

2.1. In the alternative, the Claimant must show that their Notice to Keeper complied fully with paragraph 9 of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') (exhibit xx). This is denied, and it is further denied that there was 'adequate notice' of the parking charge in terms of the number of signs in all areas and the prominence and transparency. There was also an absence of any 'relevant contract' or 'relevant 'obligation' and thus, if any mandatory requirement of the POFA is not met, keeper liability cannot pass.

2.3. This position was confirmed in the POPLA Annual Report 2015, at a time when this claimant was an AOS member of the BPA Trade Body, yet using the alternative name for their acronym (at the time they were called 'Norwich Parking Enforcement', then changed their name - reportedly leaving behind a number of unsatisfied judgments - and joined the IPC instead, in pursuit of an 'easier' appeals process than POPLA). In the Report, parking law expert barrister (former PATAS) Lead Adjudicator for POPLA, Henry Greenslade, included an article entitled 'Understanding Keeper Liability' (exhibit xx). which makes it clear that liability cannot pass to the keeper in these circumstances.

EDIT -
THERE IS NOW A TEMPLATE DEFENCE AT THE TOP OF THE FORUM!

NorfolkBOI

I will edit the WS and SWS with this information.

No doubt this is old news but since one of the reasons I am getting into this is to make sure I do not leave a stone unturned here in Norfolk to hopefully reach a situation like Southhampton where the DJs throw these things out as early as possible which is both justice, cost effective and gods work imho

Is it bad form to request that in the event of a case being thrown out for abuse of process/without merit so ask for the following rules to be applied

It looks to me the nearest thing to a home run in the scc is to get or build toward the serial litigant parking company on the road to or be given a limited civil restraint order as per the link above?

Even if it just puts the seed in the DJs mind

my weak attempt

19. If the court concludes that this claim and others made by the same serial claimant are without merit and particularly if abuse of process is a factor I invite the court to specify this fact and consider whether to make a limited civil restraint order as specified in practice direction 3C – Civil Restrain Orders Rules 3.3(7), 3.4(6) and 23.12.

19.1 Given the volume and robotic nature of these claims such sanction would save the courts time, resources and prevent the claimant profiting from abuse of process in claims against those without the means or capacity to defend themselves.


text>>
Introduction
1 This practice direction applies where the court is considering whether to make –

(a) a limited civil restraint order;

(b) an extended civil restraint order; or

(c) a general civil restraint order,

against a party who has issued claims or made applications which are totally without merit.

Rules 3.3(7), 3.4(6) and 23.12 provide that where a statement of case or application is struck out or dismissed and is totally without merit, the court order must specify that fact and the court must consider whether to make a civil restraint order. Rule 52.20(6) makes similar provision where the appeal court refuses an application for permission to appeal, strikes out an appellant's notice or dismisses an appeal.

Limited civil restraint orders
2.1 A limited civil restraint order may be made by a judge of any court where a party has made 2 or more applications which are totally without merit.

2.2 Where the court makes a limited civil restraint order, the party against whom the order is made –

(1) will be restrained from making any further applications in the proceedings in which the order is made without first obtaining the permission of a judge identified in the order;

(2) may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order; and

(3) may apply for permission to appeal the order and if permission is granted, may appeal the order.

2.3 Where a party who is subject to a limited civil restraint order –

(1) makes a further application in the proceedings in which the order is made without first obtaining the permission of a judge identified in the order, such application will automatically be dismissed –

(a) without the judge having to make any further order; and

(b) without the need for the other party to respond to it;

(2) repeatedly makes applications for permission pursuant to that order which are totally without merit, the court may direct that if the party makes any further application for permission which is totally without merit, the decision to dismiss the application will be final and there will be no right of appeal, unless the judge who refused permission grants permission to appeal.

2.4 A party who is subject to a limited civil restraint order may not make an application for permission under paragraphs 2.2(1) or 2.2(2) without first serving notice of the application on the other party in accordance with paragraph 2.5.

1505grandad

And when the above amendments are made see if any of the following are still applicable:-

Para 10 - "..........signs containing the customer notice/terms and conditions (where) not illuminated and contained over 40 lines of text............."

did you mean (were)?

Para 10.4 - "breeching them" - typo - "breaching"

Para 11 - ".........being either the British Parking Association code or that of the International Parking (Committee)" - should of course be (Community)

Para 11.1 - is this not covered in para 3.4 -- anyway para 11.1 seems to be in the middle of signage arguments.

Para 11.3 - "the tiny (secondly) entrance sign - did you mean (second) entrance sign"

Para 18 - "I put (to) the claimant to proof that their debt collection agents" - remove (to) and suggest including (to strict proof)

Para 19 - suggest the same amendments as para 18
also - particulars OF claim

NorfolkBOI

UPDATED>>> Is it worth adding headings to help the narrative?

Witness statement of MR/MRS X

I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

Attached to this statement is a paginated bundle of documents marked XX1, XX2 etc., to which I will refer.

1. I was the Registered Keeper of the vehicle concerned,

2. I deny being the driver at the time of the supposed event, and therefore put National Parking Enforcement limited to strict proof that any contract can exist between the Claimant and myself as defendant.

2.1. In the alternative, the Claimant must show that their Notice to Keeper complied fully with paragraph 9 of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') (exhibit xx). This is denied, and it is further denied that there was 'adequate notice' of the parking charge in terms of the number of signs in all areas and the prominence and transparency. There was also an absence of any 'relevant contract' or 'relevant 'obligation' and thus, if any mandatory requirement of the POFA is not met, keeper liability cannot pass.

2.3. This position was confirmed in the POPLA Annual Report 2015, at a time when this claimant was an AOS member of the BPA Trade Body, yet using the alternative name for their acronym (at the time they were called 'Norwich Parking Enforcement', then changed their name - reportedly leaving behind a number of unsatisfied judgments - and joined the IPC instead, in pursuit of an 'easier' appeals process than POPLA). In the Report, parking law expert barrister (former PATAS) Lead Adjudicator for POPLA, Henry Greenslade, included an article entitled 'Understanding Keeper Liability' (exhibit xx). which makes it clear that liability cannot pass to the keeper in these circumstances.

3. Before I describe the claim regarding xx car park (“the car park”), I confirm that the essence of my defence to this claim is that:

3.1. I did not breach the terms and conditions of parking and have never had a contract with National Parking Enforcement.

3.2. The Claimants signage is unfit for purpose and incapable of forming a contract under Consumer Rights Act 2015 (XX 1). I assert the location of the pertinent signage is also inadequate given the onerous terms applied to specific parking bays buried in small text on signs that are not near in front of them.


3.3. It also forbids the action claimed for “NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS”, and then on the other hand seeks a contractual charge for the forbidden activity.

3.4. Even if the driver did breach the terms the Claimant is obliged by the compulsory Code of Practice of its own accredited trade association to apply separate reasonable grace periods 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 a period of under five minutes is well below what is considered reasonable under International Parking Community15.1 (XX2).

Adherence to a code of practice is compulsory to gain keeper information from the DVLA and is an important factor when considering “fairness” under Consumer Rights Act 2015.

3.5. This claim is a clear abuse of process I have met a number of fellow defendants with identical particulars of claim all with the same date and the same costs despite different legal arguments/complexities. It is not creditable that so many robotic claims have resulted in substantial legal advice.

Background

4. On the x of x 2018 I received a Notice to Keeper by the claimant National Parking Enforcement LTD. This document (XX3) stated that I owed them £100.

4.1. Reason for issue: “Parked in A Child and Parent Bay Whilst Unaccompanied by a Child 12 years or Less”.

4.2. This notice had two photos of my car but no images of the driver, signage and showed a rounded parking time period of 14:41 > 14:45 4 minutes (with no seconds).

5. As I had no knowledge of the incident, I thought it reasonable to request some further information as I would never enter into a contract for 4 minutes parking for £100 (£25 per minute).

5.1. I attach my letter dated (XX4a) regarding the invoice they sent. This letter asked what the charge was for, their loss, proof they had contractual authority from the owner of the land, why was there no grace period as per 15.1 of the International Parking Community code of practice. I also asked for full CCTV footage to see who the driver was, if the times added up and how they could see into the rear of the vehicle with privacy glass as our family had 3 children under 12 at the time.

5.2. I then received a letter from the claimant dated x of x2018 (xx4b) with the following answers to my questions. That the charge was contractual, they refused to provide ownership details or contractual authority. They did provide some photos, images of the signage and that they decreed the notice period null and void based on driver behaviour from CCTV and that CCTV footage was not provided.

5.3. I subsequently replied with another letter (xx4c) clearly stating my goodwill in the matter but highlighting the problems I had with the information provided. I stated that their Notice to Keeper was a speculative invoice based on their rationale and asserted that it would not be paid without the information requested in my earlier letter. I formally requested the CCTV footage as is my right under the data protection act [1998] and later general Data Protection Regulation legislation [2018].

6. I did not receive any further replies from the claimant themselves leaving my reasonable and obligatory requests for information under the Data Protection Act outstanding.

The Site

7. I felt it prudent to visit the site of the car park and took my own photos of the main entrance sign (XX 5) and the signs used in the car park itself (XX 6).

8. When entering the car park top level (entrance one on map xx 21) near co-op, you are met with a clear primary sign (XX 5) forbidding all but “shoppers” during shopping hours. There is also a smaller secondary sign (XX 5) which I had to read on foot as too small to read from a vehicle, it has both the International Parking Community and British Parking Association logos, presumably to indicate that if you choose to use this car park both the International Parking Community and British Parking Association codes of practice would apply. There is also a tiny CCTV logo and small text that terms and conditions apply.

8.1. However, this signage is pointless to this claim as drivers cannot access by car the lower parking area near the parent and child bay via the entrance 1. The two sections are separated by a pedestrian zone.

8.2 To access the parent and parking bay in question you have to either enter via entrance 2 off Recreation Road which is “NO ENTRY” only adjacent to a Salvation Army deposit point. It is common on this site to use this entrance especially if you live that side of it CCTV footage would be able to confirm this route. If the driver did, they would not have known about any terms and conditions at all.

8.3 Alternatively drivers need to enter via Earlham Road which again does not have the same signage as provided at entrance 1 and the information provided by the claimant. This signage is in poor condition.

9. Once parked in the parent (XX 6) bay there is no sign in front of the bay either with the customer notice or directing you to the customer notice. If you exit a vehicle parked front on you have a difficult side on view and given the small text upon entry its entirely plausible that users could miss the main terms and conditions on customer notices entirely. This is contrary to the precedent set by the Vine v Waltham Forest [2000] judgement paragraph 19 (XX7) “to show that the car owner consented or willingly assumed the risk” of their action. “That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable”

10. Some 4m from the driver side (XX 6) the signs containing the customer notice/terms and conditions were not illuminated and contained over 40 lines of text with over 7 different font and text sizes. I have attached a photo of the sign (XX 7), the sign only has the International Parking Community logo and not the British Parking Association logo the entrance sign would lead you to believe.
Inadequate Signage

10.1. The signage is difficult to read contrary to the judgement in ParkingEye v Beavis [2015]. The relevant signs in the ParkingEye v Beavis case were “large, prominent and legible so that any reasonable user of the car park would be aware of their existence and nature” and that “the charge is prominently displayed in large letters and at frequent intervals within it”. That is not the case here. I have attached a copy of the sign in that case (XX 8) this is both entrance signage and the signage containing the customer notice and terms.

10.2. The signage breaches section 64(4) (XX 9) of Consumer Rights Act 2015 “A term is prominent for the purposes of this section if it is brought to the consumer’s attention in such a way that an average consumer would be aware of the term.” (XX1). Again this is both entrance signage and the signage containing the customer notice and terms.


10.3. I saw that the most onerous term on the sign (XX 7) is in smaller font. This is contradiction with the ruling in J Spurling v Bradshaw [1956] (XX 11) In the Supreme Court of Appeal. Lord Justice Denning ruling set the precedent that a contracts most onerous term should be the most prominent “the red hand rule”. On the claimant’s signage the most onerous terms are in a smaller less prominent font. The ParkingEye sign (XX 8) show just how inadequate this signage is compared with more compliant operators.

10.4. On the sign the parent and child bay is subject to unique onerous terms and a specific charge for breeching them, I assert that this necessitates the installation of a clear notice in front of the parent and child bay. In the signage provided it does not meet the standard set by Thornton v Shoe Lane Parking Ltd [1970] (XX 12). In which terms forming a contract should be brought to the attention before or at the time of making a contract. it is impossible to read the signs without leaving the car, searching for the relevant sign and reading it.

10.5. The wording on the sign was prohibitive “NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS”. Unlike in the ParkingEye ltd v Beavis case, the Claimant offered no licence to park if not accompanied out of the vehicle with a child 12 years old or less. A purported licence to stop without a permit or in this case a child under 12 exiting with the driver, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract. In PCM-UK v Bull B4GF26K6 [2016] (XX 13), residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

10.6. The Notice to keeper states the reason for issue
“Parked in A Child and Parent Bay Whilst Unaccompanied by a Child 12 years or Less”
The terms and conditions NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS”. The terms do not match.

Code of Practice Breaches

11. I then referred to the International Parking Community code of practice as this was both on the entrance sign, customer notice and the Notice to Keeper Sent to me. Even if there was a contract it must be “fair’: s. 62 of Consumer Rights Act 2015. As the Supreme Court held in ParkingEye ltd v Beavis the concept of fairness in claims such as this require that a parking firm complies in full with the requirements of the applicable code of practice, being either the British Parking Association code or that of the International Parking Community. After considering the applicable document (XX 14) I assert the following non-compliance issues.


11.1. The photos provided in the claimant’s letters cover a period well under 5 minutes (4m 20 sec). The Parking Charge Notice appears to be in contravention of the International Parking Community Code of Practice (XX 15) which states. “15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”. This does not state that it is voided by a specific action. The British Parking Association and council give 10 minutes at the start and end of parking as reasonable. In the event the claimant had grounds to void the said grace period (which I dispute) it would still require the claimant to disclose full CCTV covering the period of arrival to departure.

11.2. The International Parking Community code of practice part E (XX 13), state that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.

11.3. The International Parking Community guidelines 14 (XX 14) state “You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance”. The fact that there is no signage around this area allied to the tiny secondary entrance sign, leads me to conclude that the Claimant is deliberately obfuscating. The aim to generate Parking Charge Notices for financial gain as opposed to preventing undesirable parking.

11.4. I additionally assert that this makes the obtaining of my private information from the DVLA invalid as adherence to the codes of practice is a pre requisite of making requests from the DVLA Keeper at Date of Event system.

The Claim and Pre-Action

12. I work away from home and I asked my partner to save any letters from National Parking Enforcement. I did not receive anything until a claim form came in x 2019 (XX15) I had no response to my request for CCTV nor had I received any pre action correspondence from x Solicitors. Thankfully I had the original Notice to Keeper pending a reply from National Parking Enforcement otherwise the sparse particulars of claim would not have given me a clue as to what the claim entailed.

13. After responding to the claim, I lodged a formal Subject Access Request via mail and email to make sure that I could have all the requisite information before submitting my defence (XX 16). This was not responded to and I subsequently complained to the information commissioner’s office ICO whom responded in October 2019 (XX 17) in which they themselves have emailed the claimant and asked them to send the information. As of xx of xx this request from the ICO has not been honoured and I intend to follow the matter to conclusion.

14. During this time, I became aware of a number of defendants with the same particulars of claim with the same signature on the same date. No doubt the court will be inundated with such requests and I doubt I am the first of these you will have seen.

15. This unwarranted harassment and baseless automated litigation caused me significant alarm and distress, such that I intend to escalate my complaint to the Information Commissioner for misuse of my data, obtained from the DVLA in 2018.

16. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for a year then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £251 including the legal insult of interest, for what was apparently an unproven £100 charge, allegedly incurred by another party, if incurred at all.

17. It is not credible that so many robotic claims have resulted in any substantial legal advice and I assert that the claimant has chosen to for want of a better term monetise old claims en-masse regardless of merit. These claims for often trivial incidents should be considered de minimis and a waste of the court and defendants time.

18. I have attached a supplementary witness statement to explain how the claimants modus operandi constitutes abuse of process.

19. If the court concludes that this claim and others made by the same serial claimant are without merit and particularly if abuse of process is a factor I invite the court to specify this fact and consider whether to make a limited civil restraint order as specified in practice direction 3C – Civil Restrain Orders Rules 3.3(7), 3.4(6) and 23.12.

19.1 Given the volume and robotic nature of these claims such sanction would save the courts time and prevent the claimant profiting from abuse of process in claims against those without the means or capacity to defend themselves.

20. Declaration

I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14 contained within the attached defendants schedule of costs.

I have also attached Further costs pursuant to civil procedure rule 27.14(2)(g) given the claimants unreasonable behaviour.

I believe that the facts stated in this witness statement are true.

Defendant

Signed



SUPP WS >>>>>

NorfolkBOI

And this as per Coupon Mad :-)

SUPPLEMENTARY WITNESS STATEMENT – xxxx Defendant

Fundamental objections to the Claimant pursuing £160 from consumers, whilst being aware that if a defendant does not submit a defence or is unaware how to defend the matter on facts or in law, the Claimant is going to get a judgment of a knowingly inflated amount.

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'.

1. 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.

2. 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.

3. 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.

4.1. 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
5. 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.

5.1. 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.''

5.2. 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.''

5.3. 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...''

5.4. 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
6. 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
7. 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.

7.1. 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.''

7.2. 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.

7.3. 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.

7.3.1. 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...''

7.3.2. 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.

7.3.3. 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.

7.3.4. 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.

7.3.5. 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.''

7.4. 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.

7.5. 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.''

8. 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.

9. 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.

10. 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.

Defendant

Signed

1505grandad

Wrong document:-

"I believe that the facts stated in this (Defence) are true."

Coupon-mad

Is it worth adding headings to help the narrative?

Yes, that now looks well organised, and keeping the arguments about the added £60 separate should assist the Judge.

Have you done your costs schedule, and contents page & are all pages numbered?

NorfolkBOI

Coupon-mad wrote: »

Yes, that now looks well organised, and keeping the arguments about the added £60 separate should assist the Judge.

Have you done your costs schedule, and contents page & are all pages numbered?

Working on that by tomorrow hopefully.

What where you thoughts on para 19 have you ever come across a limited civil restraint order (or one being mentioned) during one of your hearings?

Apparently if the Judge (of any court) throws out a case that has no merit they should mark it as such and then when there are two or more such cases then consider if that claimant is vexatious etc.

I think with the abuse of process arguments being so persuasive and the cost being consistent across the claims a parking company running things in this way should consider this a risk.

Coupon-mad

What where you thoughts on para 19 have you ever come across a limited civil restraint order (or one being mentioned) during one of your hearings?

Apparently if the Judge (of any court) throws out a case that has no merit they should mark it as such and then when there are two or more such cases then consider if that claimant is vexatious etc.

We've tried and failed, but I'm not trying to put you off trying again!

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

7.3.3. (c) there has a typo (my bad, I've put it right in the Abuse of Process thread now. (c) is NOT about the POFA!

So that (c) needs to end:

...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.