Getting Ready for the Hearing

Joey_Santiago

Hi - I am in exactly the same boat as you and I am preparing my WS at the moment.

Firstly - great work! I hope you don't mind if I use some of your text, I have very similar points but your phrasing and references, particularly on the AOS are far more professional.

One point which I am using and you might not be aware of is that they changed the signs on 29th Nov 2017 to include the 'NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS' statement. Previous to that date there were no terms at all relating to the parent bay (I have a photograph if you need it)

I checked the IPC code of practice and it states that this requires temporary notices at the entrances making it clear to regular users that the terms and conditions have changed.

I guess it depends when you parked there but I was a few days later so am making the point that if they had followed that recommendation I would have been aware of the conditions and not parked in that bay.

NorfolkBOI

Joey_Santiago wrote: »

Hi - I am in exactly the same boat as you and I am preparing my WS at the moment.

Firstly - great work! I hope you don't mind if I use some of your text, I have very similar points but your phrasing and references, particularly on the AOS are far more professional.

One point which I am using and you might not be aware of is that they changed the signs on 29th Nov 2017 to include the 'NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS' statement. Previous to that date there were no terms at all relating to the parent bay (I have a photograph if you need it)

I checked the IPC code of practice and it states that this requires temporary notices at the entrances making it clear to regular users that the terms and conditions have changed.

I guess it depends when you parked there but I was a few days later so am making the point that if they had followed that recommendation I would have been aware of the conditions and not parked in that bay.

Hello Joey,

No problem at all with copying what you like.

The incident in my case was after this period so it is not applicable.

What I found interesting was the NTK invoice does not have the same breach as the contract.

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

The terms and conditions (sign)

b) 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 and A leads you believe that if kids are in there its ok

Does your NTK have the same issue?

I have seen a witness statement send by NPE also it was very short and weak but it was not mine/posted publicly so i am unable to post it to this forum.

It only cited the Beavis Case with the following.



and this bizarre information I fundamentally disagree with



Have you had a WS from them yet?

Joey_Santiago

Cheers
I have exactly the same statement on the PCN/NTK. I immediately appealed saying I had a child in the car and it was only then that they mentioned exiting the vehicle. Worth mentioning in the WS statement I think.
I've not had a WS from them yet so that's really interesting to see those points, 13 is ridiculous knowing how they have automated the process so much.

Coupon-mad

Joey Santiago, although this is not your thread, just to point you in the right direction, have you read CEC16's thread about why parking firms CANNOT ADD £60 and the Abuse of Process thread post #14, where the SUPPLEMENTARY WS wording comes from?

Joey_Santiago

Coupon-mad wrote: »

Joey Santiago, although this is not your thread, just to point you in the right direction, have you read CEC16's thread about why parking firms CANNOT ADD £60 and the Abuse of Process thread post #14, where the SUPPLEMENTARY WS wording comes from?

I have now Thanks. I had been aware of the AOP element and I added it to my original defence but this update is very useful for my WS. I'll stop hijacking this thread now as I have my own and will post my final WS there. It's got a lot longer over the last few days!

Loum5

NorfolkBOI - I'm just getting my WS ready to send and doing the Supplementary WS for Abuse of Process as recommended by Coupon-mad - I noticed on yours it's numbered incorrectly - you've jumped from 3 to 4.1 then 5 (should be 3.1 then 4) - maybe you already noticed - hope it's not too late if you didn't!!

NorfolkBOI

Many thanks for all the help on here.

As some of you will know there is a little group of us trying to fight unfair charges at earlham house.

Our first claim was a loss where the DJ allowed NPE everything and all charges the defendant did not show his documents to the group so I do not know the strength of his defence or witness statement.

Now in that hearing this contract was presented and his parking date was before the 23rd October 2017

So that contract was obviously deemed ok by the DJ

After then however the next batch of claims have been a whitewash getting thrown out in 2 mins because the contract presented has two signatures both from the director of the parking company NPE.

Now I have their witness statement from my claim ..... and I have both contracts and the following in there.

https://online.flippingbook.com/view/282256/

Usual template then....

Miscellaneous

"21. In October my company signed a lease with Bellgold properties LTD to lease the car parks associated with Earlham House Shopping Centre. As my company was now the "landowner" a new form of permission was required. That is why the form of permission dated 23/10.17, is signed by myself as both the "landowner' and as Director. My company is fully authorised to operate and managed a parking scheme on this land."


1) There is no commercial lease in the witness statement.
2) There is no registered lease in the land registry as required for leases over 7 years

https://online.flippingbook.com/view/707888/

3) There is no lease registered with companies house

https://beta.companieshouse.gov.uk/company/08031075/filing-history

4) Why on earth would a company sign a statement of truth (s) for multiple claims (well over 10) over a month with Solicitors (ergo professional advice) with the 22 October 2017 contract.... get them all dismissed and then say he ho they was a simple mistake I actually am the leaseholder nothing to see here!

5) Can they refer to themselves as the landowner... when in reality they are the leaseholder. Also they have 'National Parking Enforcement LTD on behalf of the landowner' on the contract/sign

6) Bellgold Properties Limited company number 7843612 is not actually called bellgold properties its called Bellgold Civils Limited since 12 September 2019.

7) Is this possible perjury?

http://www.legislation.gov.uk/ukpga/Geo5/1-2/6

Perjury.

(1)If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

(2)The expression “judicial proceeding” includes a proceeding before any court, tribunal, or person having by law power to hear, receive, and examine evidence on oath.

(3)Where a statement made for the purposes of a judicial proceeding is not made before the tribunal itself, but is made on oath before a person authorised by law to administer an oath to the person who makes the statement, and to record or authenticate the statement, it shall, for the purposes of this section, be treated as having been made in a judicial proceeding.

Coupon-mad

You may wish to read CEC16's thread.

NorfolkBOI

I have now read through the witness statement.

I am considering putting following skeleton in.

its a bit long but considering all the issues I did not want to leave the court or the claimants unsure of what I am asking


In the County Court x

x (Claimant)
v

Mrs/Mr x x (Defendant)

Claim no: xxxxxxx

Skeleton Argument of the Defendant for hearing x x 2020

Introduction

1. The claimant National Parking enforcement LTD is a parking enforcement company. They wish to claim £100 charge plus additional costs from the defendant for a parking incident well under 5 minutes in duration. They had previously admitted to the defendant in a letter that they had chosen not to apply a grace period mandated by their accredited trade association the International Parking Community. Instead they declared their compliance null and void due to CCTV evidence.

2. Such evidence along with CCTV requested should have been supplied during the pre-action phase, under the pre-action protocol for debt claims. It was not, and the Claimant being a serial litigator has no justifiable excuse for filing a claim yet withholding information from the consumer, an inexperienced litigant in person, until the hearing is imminent.

3. This skeleton argument covers the Consumer law applicable and other regulatory and legal arguments that apply in addition to the Defendant's own witness statement, and is supplied to assist the court and the parties to narrow the issues. It is also a response to the case law exhibits, photographic and documentary evidence that were suddenly supplied by this Claimant.



Signage Inadequate, Forbidding and unable to form a contract

4. In paragraph 4 of the claimant’s witness statement they state that the signed is “clear and unambiguous”. The defendant disagrees is no evidence of there being a sign with the terms and conditions at the entrance of the car park on the driver’s side and the term mentioning the parking charge itself (and especially the vague added 'costs', which in themselves are objectionable as double recovery - see #7 below) is in the smallest font and cannot possibly be described as prominent. You can hardly even read the version of it provided by the claimant in their witness statement, let alone at distance, and some metres away.

5. In their witness statement they claim the location of parking was “restricted” if so why was there no sign in front of that bay, the divers side of that bay or even a sign conveying its restricted status.

6. In the claimant’s witness statement they confirm that there is no signage on the driver’s side when entering via Earlham road. There is also no signage in front of the bay not any at all on the recreation road entrance.

6.1 The small entrance sign is simply an invitation the actual contract is not in front of the bay and it is perfectly feasible that a driver could exit forward or to the right without seeing a sign containing the bespoke terms and conditions.

6.2 The onerous term is 20 lines down in a smaller font. The additional charge text is some 40 lines down. Both are inconsistent with precedent set in ParkingEye vs Beavis [2015] and should not survive the assessment of fairness in the Consumer Rights Act [2015]

6.3 The claimant in paragraph 16 their witness statement wishes to incorrectly cite Vine v London Borough of Waltham Forest [2000] suggesting that not reading a sign will not stop a contract from being formed.

In reality, the court of appeal judgement found exactly the opposite and that a contract may not be formed if the signage was not sufficiently prominent as to be visible from the parking spot.

6.4 This judgment is binding case law from the Court of Appeal and supports my argument, not the Claimant’s case:

6.5 This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

6.7 The claimant’s signs are clearly forbidding

6.7.1 The claimant’s witness statement has omitted the large sign that states

“Parking for shoppers only” & “no other parking permitted”

6.7.2 Ergo if a visitor is not a “shopper” for example a taxi driver, collecting a friend or making a delivery they are not offered a license to park, completely different to ParkingEye vs Beavis [2016]. They are clearly trespassers and then only the landowner can make a claim for trespass. This is consistent with the Judgement in PCM-UK v Bull [2016] where DISTRICT JUDGE GLEN para 17

“If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

6.7.3 On the contract it states “NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS”

6.7.4 Ergo if you park in that bay without exiting with a child you are a trespasser. If you are not proved to be a shopper you are also a trespasser. In either scenario no acceptance, consideration or intent to form a contract on behalf of the driver. 

ParkingEye vs Beavis [2015] is against this claim

7. Whilst the Claimant wishes to rely on ParkingEye v Beavis [2015] in paragraph 13 of their statement. That case is distinguished, as it related to a car park with clear and brief terms, with the most onerous (the charge) the clearest. The only relevance ParkingEye vs Beavis [2015] has on this case is to support my defence, in that

7.1 The relevant signs were “large, prominent and legible so that any reasonable user of the car park would be aware of their existence and nature” Lord Justice Moore-Bick: 2.4

7.2 “the charge is prominently displayed in large letters and at frequent intervals within it”. That is not the case here Lord Justice Moore-Bick: 3.4 (consistent with Lord Denning’s Red Hand rule Precedent)

7.3 The ParkingEye vs Beavis [2015] case was for an overstay time for invitation, acceptance, consideration and intent was allowed. In this case the claimant cannot even adhere to their own mandated code of practice or the widely accepted ten-minute grace period. ParkingEye are British Parking Association members so they offer ten minutes on entry and ten minutes on exit so they do not make such meritless de minimis claims such as this one for people choosing not to form a contract.

7.4 Double recovery was not an issue as ParkingEye do not add extra fees.

7.5 The claimant has confused the precedent of ParkingEye vs Beavis [2015] they feel is a carte Blanche to harass consumers with frivolous claims. In reality the judgement precedent is that if all the factors adequate non forbidding signage, clear charge in large font, grace period and all code of practice requirements met and then a fair contract under the Consumer Rights Act [2015] may be enforced. That is not the case in this claim.

No Authority to Enforce Charges

8. In paragraphs 21 the claimant states:

"21. In October my company signed a lease with Bellgold properties LTD to lease the car parks associated with Earlham House Shopping Centre. As my company was now the "landowner" a new form of permission was required. That is why the form of permission dated 23/10.17, is signed by myself as both the "landowner' and as Director. My company is fully authorised to operate and managed a parking scheme on this land."

Whilst I am reticent to assert that the contract dated 23rd October 2017 is a false instrument, I have serious concerns about its use in the claimant’s witness statement.

8.1 The claimant has won a claim (s) against other defendants using the contract dated 2015 on its own. Once such claim was number F9GF1Q63 District Judge Reeves in Norwich.

8.2 The claimant then issued a number of claims using the contract dated the 23rd October 2017. These claims did not mention that this “new” contract was due to a lease they simply proceeded as if this was the main contract. F8GF4Q90 also judged by District Judge Reeves in Norwich, is such an example this resulted in the claims being found for the defendant due to the 23rd October 2017 contract being presented as the sole “contract”.

8.3 How is it remotely credible for the defendant to sign multiple statements of truth with professional legal representation. Then loose these claims and then re write the statement of truth to say that now there is another truth and that is that the claimant is now a tenant of the car park and thus the landowner. How can this remotely plausible? Does that mean that all previous claims for incidents after the 23rd October 2017 and before this one have false/incorrect witness statements?

8.4 There is no contract/lease to support the claimant’s status as a tenant on the land owned by Bellgold Properties (now Bellgold Civils) in the claimant’s witness statement bundle. With such a volte-face concerning a previous stated truth its inclusion should be essential.

8.5 There is no registered lease on the land registry entry for the car park as is required for a substantial lease. I have attached the requisite land registry entry to this document.

8.6 With no material evidence to support this new truth I have concluded that there is no contractual authority in place and the claimant is issuing claims which are without merit and doomed to fail.

8.7 If the court agrees then it may well be that the Claimant has changed their narrative to simply regurgitate the same previously dismissed paperwork. The objective must be to avoid answering the important question…The 23rd October 2017 contract how long was it in place? There is a strong possibility in the absence of evidence that the statement of truth in claim F8GF4Q90 was indeed correct.

8.8 If so then in essence the claimant since the 23rd October 2017 has issued possibly hundreds of claims without merit. A high percentage of these claims would have been paid pre litigation and or default resulting in financial hardship and distress.

8.9 I humbly ask the court to put the claimant to proof if the 23rd October 2017 contract is still the contract in place as of December 2019 if not then when was this contract superseded? The court will then have a period of time in which no valid contractual authority was in place and can automatically dismiss such claims at the earliest opportunity.

Right of Audience

9. Given the issues with paragraph 21 of the claimant’s witness statement I would appreciate that the court asks if the claimant’s representative has the requisite right of audience as per practice direction 5.1 39.

9.1 In some previous claims in Norwich County Court the claimant and/or their legal representatives have been represented in the hearing by an “solicitors agent”. Claim F9GF1Q63 is such a claim.

9.2 Given the contentious nature of the claimant’s contractual authority and the recent changes from prior signed “statements of truth’ given, it would be beneficial to speak to either the claimant themselves so they can answer the Judges questions directly. If not a legally representative qualified to carry on reserved legal activities as a direct employee of Gladstone's solicitors.

9.3 I request this so that the relevant disciplinary sanctions can be applied if the court chooses to so.

“If an employee of a solicitor misled the court or misbehaved, the firm which employed him would be liable and could be held accountable in a wasted costs order or in some other appropriate way. Furthermore, the Law Society has power to direct that no solicitor can employ a certain person where the person has been found guilty of inappropriate behaviour. So there is a disciplinary process that extends not only to solicitors, but also their employees.” https://www.lawgazette.co.uk/law/right-of-audience/57199.article

9.4 If the claimant is represented by a freelancer who is not employed directly by Gladstone's and/or is not a qualified solicitor then there is no way to hold them or the company employing them accountable. They would also not be able to answer any questions if the agent was not “assisting in the conduct of litigation “as per paragraph 1(7) Schedule 3 Legal Services Act.

9.5 If the claimant’s representative is deemed not to have met the three stage tests for right of audience then this should dismiss the claim automatically and it is potentially criminal offence under the aforementioned legal services act as per Ellis vs Larson [2016] and McShane v Lincoln [2016].

Costs and Abuse of process

10 My supplementary witness statement dealt with the fact that to add £60 to a parking charge is a disingenuous attempt at double recovery because it is trying to cover the 'costs of the operation' twice. The time and minimal costs of sending debt recovery letters must already be part and parcel of the actual 'parking charge', or that sum itself would fail, due to not matching the justification set out in the ParkingEye Ltd v Beavis [2015] case.

“The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin.”

11 The disingenuous £160 sum and the claimants witness statement section 10, with the double recovery attempt falling foul of the POFA Schedule 4, paras 4(5) and 4(6) and the Beavis case, remove any possibility that a parking firm's operational costs are 'additional' costs or loss with this business model. Even if they are stated on the sign 40 lines down in illegible font.

Schedule 4, Para 4

‘(6)Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).’

12 In the instant case, the 'debt recovery/damages' term is so vaguely buried in the sign's wordy small print that it is impossible to describe those terms as prominent and transparent, as the CRA 2015 requires. A term or consumer notice that falls at the hurdle of the 'grey list' paras 6, 10 and 14 is unrecoverable (CRA 2015 Schedule 2).

13.1 In case the Claimant tries to hide behind the 'core exemption' for price terms, in fact, NO consumer notices (and 'non-prominent' price related vague or hidden terms) are covered by the core exemption. 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 scant regard is paid to consumer law.

14. In the claimant’s witness statement para 26 they state that their costs have risen. This is disingenuous as their primary business model is to enforce parking hence their name “National Paring Enforcement”. In ParkingEye vs Beavis [2015] Parking eye did not charge extra fees as it is a given that the charges themselves where highly profitable and part and parcel of operating a robotic template-based operation. They also knew as market leader that such charges would and should automatically result in claims being thrown out for abuse of process.

14.1 The claimant uses no win no fee debit collection agencies. The claimant is put to proof anything was paid.

14.2 Their legal representatives Gladstone have on their website a percentage-based fees structure hence the large number of claims with the same particulars of claim (Exhibit 1 & 4). Even if this is genuine legal advice it is not claimable. The claimant is put to proof that they did not choose this model.

Conclusion

15 There is no proof in the witness statement that the clamant has provided to substantiate that the numerous previous claims and statements of truth where false/incorrect.

15.1 If the court is minded to agree then the claimant has simply tailored their witness statement to suit the documentation they have. 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.

15.2 If the claimant elects to be represented by an “agent” without qualification and or right of audience presumably to save money or reduce supply chain liability. Thus, denying the court and myself the opportunity to question this representative about the volte face between this witness statement and other prior witness statements. The claim should be dismissed.

15.3 This claim is an unreasonable one and meets the unreasonable behaviour threshold for additional costs.

15.3.1 A claim that is unreasonably made and without merit: The claimant has already lost numerous claims on the 23rd October 2017 contract.

15.3.2 Exaggeration of a claim and/or dishonesty: Re-dressing the failed contract without proof of the new lease. Also attempting double recovery of costs without proof of incurring them.

15.3.3 A failure to follow the standard Small Claims track directions: If the claimant does not meet the following under Practice Direction 27 if the court is minded to apply right of audience requirements.

“3.1 In this paragraph:
(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor or any other person authorised under the Legal Services Act 2007 to act as a litigator or advocate;

As per Clohessy v Homes (2003) the defendant should receive Further costs pursuant to civil procedure rule 27.14(2)(g). These costs attached to the trial bundle submitted to court. Both for wasting the defendants and courts time and to dissuade the claimant from such meritless claims in the future

15.4 As of the x December no written offer to settle has been received and this document has been submitted to the court and the claimants.

16 Signature


Defendant

Signed

Date

Fruitcake

I have only skim read so far, but you should only make statements, not ask questions.

As for the contract(s), they must comply with the Companies Act 2006 and have either two authorised signatories from each party or be signed by a director and witness from each company.

The contract must be with the landowner or with an agent of the landowner who must also have a contract with the landowner.
The contract must be with or flow from the landowner and must state they have authority to issue charges in their own name and to issue court claims.

There are also several typos that need attending to.