ES Parking / Gladstones claim

therugbyfan

Can I just check that it is acceptable to return the DQs to CCBC by email . . . in the same way that my defence was submitted? I have done it & sent Claimant their copy by recorded post. Is that ok? I re-read the newbies thread but it doesn't specifically mention email ... although I read on another post that you can. Don't want to do the wrong thing. I still have enough time to send by post if necessary.

KeithP

Returning your completed DQ to the CCBC by email, in the same way and to the same address that you filed your Defence, is fine.

However, sending anything by Recorded Delivery, now known as Signed For, was not the wisest move.

Using any delivery service that requires a signature allows the intended recipient to refuse to sign and therefore refuse delivery. Not quite what you want.

In future when using Royal Mail, send it ordinary First Class and get a free Certificate of Posting from the Post Office counter. It is deemed delivered two working days later.

therugbyfan

Thanks KeithP, I hadn't thought about that happening. I can send another copy tomorrow by 1st Class with proof of posting just in case.

Coupon-mad

Well, wait and see if it tracks as 'signed' first! That's what you paid for.

Just don't do that again. You were only meant to email it to Gladstones by the way, not deal with the parking firm.

therugbyfan

It's all good, the envelope has been signed for! Sorry CM . . . I actually meant Gladstone's (not the parking company) when I incorrectly said Claimant.

therugbyfan

Hello, since my last post I have received notice of the court hearing and have to submit my witness statements & evidence to all parties no later than 21 days before the hearing date, by my calculations this would be by Friday 24th April.  I have started to draft it and will post after this for further comment/guidance.  I also have a few questions if someone could help please . . . (1) Do I go through EVERY point from my Defence within the WS? (2) Do I include copies of the Claimant correspondence within the evidence or just take copies to refer to on the hearing date itself?  (3) I have received a copy of the Claimants WS already - is that normal to receive it so early? (4) Regarding the current situation with Covid -19, my witness no. 2 is in the shielding category and is in strict isolation for 12 weeks.  Could I request that the hearing date be postponed as this witness would not be able to attend court.  I understand some cases are being held by phone, but I would want to refuse a trial by phone if offered.  (5) When submitting the WS copies to the other parties, I will send by post to the claimant rep but can the court one go via. email or must it be posted too?  (6) How can I find out if the trial fee has actually been paid?  (date due was Friday just gone) and finally, (6) I intend to use a lay rep on the day of the trial for personal reasons, do I need to notify the court in advance for this?  Many thanks and sorry for so many questions! 

I just tried to post my first WS draft and it says it's over 10000 characters too long!  How to I post it please?

therugbyfan

In The XXXXX County Court

Claim No: XXXXX

Between

ES Parking Enforcement Ltd (Claimant)

-and-

XXXXX (Defendant)

____________

WITNESS STATEMENT OF XXXXX
____________

I, XXXXX, of <address> WILL SAY as follows:

1. I am XXXXX The Defendant in this case and registered keeper, but not the driver, of vehicle reg XXXXX on the material date. 

2. The driver, along with its other two occupants, was in the XXXXX area of Manchester on <DATE> with the intent of dropping one of the occupants off to meet a friend at XXXX Spinningfields Restaurant.

3. That occupant, namely XXXXX, is disabled and the driver was trying to get as close to the meeting point as possible so that XXXXX did not have to walk too far.

4. Being unfamiliar with the area, but seeing a sign for XXXXX Car Park, the driver turned into XXXXX Street hoping this would be the closest point.

5. The driver pulled over for a very short time, in a quiet corner on double yellow lines and causing no obstruction, to check a map on a smart phone.  XXXXX holds a blue badge and he pointed out that pulling over on double yellow lines is allowed within the scheme. 

6. Once the driver had found the address for XXXXX Restaurant, located it on the map and realised they could get a little closer than this to the restaurant, they immediately left the area with all occupants still on-board.  The engine remained running the whole time and nobody alighted the vehicle. 

7. At that time, I did not notice any parking control sign in front of the area where the vehicle stopped and having since returned to the site, I have obtained photographic evidence to show there is indeed NO sign on the post directly in front of where the vehicle was stopped  (see photograph at page X of XX, labelled Exhibit XX-01).

 

8. Also, at that time, it was not known the road in question was classed as ‘private land’.  XXXXX Street, which is accessed directly from XXXXX Street, is an access road to XXXXX NCP Car Park.  The road is U shaped and returns back to the highway at the other end.

9. On entering XXXXX Street from XXXXX Street, there is NO signage to distinguish it as private land or that it was subject to parking controls (see photograph at page X of XX, labelled Exhibit XX-02).

10. I was surprised to receive a PCN from the Claimant through the post relating to this incident and appealed immediately on the basis that I was not the driver, the vehicle was not ‘parked’, a contract was not formed, terms and conditions had not been accepted and therefore no breach or contravention occurred.

11. The photographic evidence supplied by the Claimant covers a period of just 21 seconds using time stamped data (from XX:XX:XX and XX:XX:XX).  The Claimant’s PCN states the parking charge occurred at XX:XX. The Claimant also supplied an enlarged photo with a time stamp in a different format to the original photos – i.e. XX:XX but showing no seconds data, if this is admissible it would make the total time from first photo to last photo (where motion is clearly captured within the still) as just 5 minutes. It is clear that a maximum of 5 minutes “stopped” does not constitute "parking" in any sense of the word.

12. A generic letter was received from the Claimant to confirm the appeal had been rejected due to them having photographic evidence and clear signage on site.

13. I exercised a right to escalate my appeal to the Independent Appeals Service (IAS) and this too was rejected. 

XX. I have since been made aware there is a conflict of interest between the International Parking Community (IPC) and Gladstones Solicitors so believe any attempt to raise an appeal would likely have been rejected and therefore a waste of time. ?? Not sure how to word this paragraph correctly.

therugbyfan

XX. The next correspondence received in relation to the matter was in the form of a generic ‘letter before claim’ from the Claimant’s legal representatives, Gladstones Solicitors.  The charge amount had now increased by an additional £60 to £160 to include an amount for the ‘time spent and resource facilitating the recovery of the charge’.

XX. This is considered an Abuse of Process.  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'. 

XX.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.

XX.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.

XX.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.

XX.3.1. 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

XX.4. 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.

XX.4.1. 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.''

XX.4.2. 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.''

XX.4.3. 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...''

XX.4.4. 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

XX.5. 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

XX.6. 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.

XX.6.1. 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.''

XX.6.2. 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.

XX.6.3. 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.

XX.6.3.1. 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...''

XX.6.3.2. 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.

XX.6.3.3. 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.

XX.6.3.4. 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.

XX.6.3.5. 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.''

therugbyfan

XX.6.4. 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.

XX.6.5. 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.''

XX.7. 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.

XX.8. 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.

XX.9. 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.

 

 

 

XX. The Notice to Keeper from The Claimant does not comply with the mandatory terms of Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. As such they cannot invoke keeper liability and should pursue the driver. The driver has not been identified; the Defendant was not the driver and has no obligation to name the driver under the applicable law, that stopped short of giving private parking firms that level of power in 2012 when the POFA was enacted.

XX. Furthermore, I am aware that the KADOE contract under which The Claimant operates only covers ‘parking’, not ‘stopping’, when accessing keeper details from the DVLA. This is therefore a breach of the Data Protection Act as ‘stopping’ is not covered.  The vehicle was not parked.

XX. ES Parking Enforcement Ltd is not the lawful occupier of the land. I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.

XX. ES Parking Enforcement Ltd is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

XX. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the Claimant may not pursue any charge. I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

 

Statement of Truth:

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

Name

Signature

Date

 

***

 

X. Exhibited to this Witness Statement at ‘XX1’ are the following documents which I wish to rely upon; . . . .

therugbyfan

Posted it in 3 sections - hope that is ok?!