county court claim - civil enforcement

Coupon-mad

 This means we need to submit our witness statement by 1 may if so so I intend to post this in the next couple of days and would hugely appreciate help and support. 

Due to the Lockdown, things are different than normal and currently, we say no posting, no printing, save your ink and trees! 

Even for people who have heard nothing about possible telephone hearings, I am encouraging you all to use the email to your local court that I wrote recently in the Telephone Hearings thread and draft order (Word Document for the Judge to use/adapt, hoping that he/she agrees to strike it out) and your WS and defence and all your exhibits.

No printing or posting needed.  Try by email to get the case struck out.

You can check bargepole's post he added yesterday to the Telephone Hearings thread, where he showed a list of Courts and whether they are:

open (but not open to the public)
staffed
suspended

and what that means for you about your case.  Read the list so you know!

This strategy and the email needed, has been discussed on several threads this week, such as @Leviathan747 and @gbbe and @Janetx who have all prepared the WS, evidence, supplementary WS & case law about the added £60, and the Word doc Draft Order needed.  You can copy theirs.

stansmum

KeithP said:

It says fourteen days.

If it doesn't qualify those days in any way, then you shouldn't either.

thanks - good point 

stansmum

Coupon-mad said:

 This means we need to submit our witness statement by 1 may if so so I intend to post this in the next couple of days and would hugely appreciate help and support. 

Due to the Lockdown, things are different than normal and currently, we say no posting, no printing, save your ink and trees! 

Even for people who have heard nothing about possible telephone hearings, I am encouraging you all to use the email to your local court that I wrote recently in the Telephone Hearings thread and draft order (Word Document for the Judge to use/adapt, hoping that he/she agrees to strike it out) and your WS and defence and all your exhibits.

No printing or posting needed.  Try by email to get the case struck out.

You can check bargepole's post he added yesterday to the Telephone Hearings thread, where he showed a list of Courts and whether they are:

open (but not open to the public)
staffed
suspended

and what that means for you about your case.  Read the list so you know!

This strategy and the email needed, has been discussed on several threads this week, such as @Leviathan747 and @gbbe and @Janetx who have all prepared the WS, evidence, supplementary WS & case law about the added £60, and the Word doc Draft Order needed.  You can copy theirs.

Thanks.  Here case will be heard at Sheffield CC which appears to be open.  We will use your draft email and order, and send with our bundle, which we'll check on here before sending.  As I mentioned, we will object to any remote hearing, on the grounds that she is a key worker.  

stansmum

Hi there.  Please see draft witness statement posted below.  I have drawn on recent witness statements with grounds very similar to ours.  any comments very welcome?  I will post separately on here the draft order and covering email too - the court have vacated our hearing and proposed deciding on papers alone, which i will follow your advice and push back on using the Telephone hearings thread info.  Thank you in advance for your help!  

1.    I [insert name], of [insert address], am the Defendant in this matter and will say as follows:

Introduction

2.    I am the registered keeper of the vehicle in question in this case. I am underrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

 

3.    I deny that the Claimant is entitled to relief in the sum claimed, or at all.

 

4.    Attached to this statement is a paginated bundle of evidence marked Exhibits TJBx to TJBx, to which I will refer.

 

5.    To date, I have not received the Claimant’s witness statement or bundle.

 

6.    On [insert date], I parked at [insert address], while visiting a restaurant across the road. I live locally, and have parked here and visited this restaurant frequently over a number of years. I am therefore very familiar with this land and surrounding areas. Before the date in question, I have never received any form of ‘Parking Charge Notice’ or invoice the same as or similar to the one I later received from the Claimant, alleging that I had parked in the car park without displaying a ticket and therefore breached a contract which I had allegedly entered into when entering the car park. I had not purchased and displayed a ticket, as it was not clear to me that this was an operational car park.

 

7.    This ‘car park’ has no distinctive signage on entry to make clear to drivers that the land is a car park and is under a pay and display operation. This is clear from the picture provided in Exhibit TJB1, which I took from my vehicle, and Exhibit TJB2, which is a Google Streets view of the ‘car park’ from this year.

 

8.    There is no distinctive signage for drivers to see on parking their vehicles, indicating the Pay and Display system or the alleged contract that drivers apparently enter into on entry to the car park. As you can see from Exhibits TJB3 and TJB4, signage is sporadic, some of which is at least seven feet in height, making it difficult/impossible to read from a moving vehicle.  The signage explaining the terms and conditions of the ‘contract’ in font that is too small to see unaided and is not concise so as to explain the terms and conditions clearly to a layperson.

 

9.    Further, at the time of my parking in the car park, it was dark – it was between 19:00-21:30 in February. There is no street lighting illuminating the car park or signage, and no additional lighting appears to have been installed to aid drivers in either recognising that this is a car park on entry, or identifying and being able to read the terms and conditions set out.

 

10. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample and the charge clear. I submit that Civil Enforcement Limited do not comply, and the signs described in my statement are on contract to the type approved in the Parking Eye v Beavis case.

 

11. In addition, a reasonable interpretation of Lord Denning’s 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

 

12. Breaches with regard to signage on the property mean that a valid contract could not have been offered to any individual (including visually impaired) and therefore with respect to this claim, no contract was ever in place; thus rendering a breach impossible.

 

13. In addition to the ‘parking charge’, the Claimant has artificially inflated the value of the Claim by adding costs of £70 which have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. 

 

14. CPR 44.3 (2), Exhibit TJB5, 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.”

 

15. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process.

 

16. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

 

17. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. 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.

 

18. Unlike this Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case.

 

19. In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £170. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case.

 

20. The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract. The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair. This is attached at Exhibit TJB6.

 

21. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’). It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.

 

22. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Exhibit TJB7) and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Exhibit TJB8).

 

23. Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made.

 

24. The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (Exhibit TJB9).

 

25. The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity. I aver that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

 

26. Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.'' 

 

27. The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019. Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute. In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.'' 

 

28. In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice. Further, the Particulars of Claim are embarrassing and incoherent failing to detail any conduct or liability that could give rise to a cause of action. There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

 

29. The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction. The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

 

stansmum

continued... 

30. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach. Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

 

31. This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

Conclusion

 

32. The Claimant is in breach of the very rules in place to protect its business and through obscuring the procedures as set out in trade associations codes of Practise and POFA schedule 4, the Claimant maintains a way of confusing motorists and harassing them for grossly inflated Parking charges.

 

33. The Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA, The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

 

34. 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.

 

Statement of Truth

35. I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature of Defendant:

Name:

Date:

 

stansmum

Here is the proposed draft order: 

Draft Order                                                                In the County Court at

                                                                                                       xxx

Claim Number: XXXXX

Date: XXXXX

 

CIVIL ENFORCEMENT LIMITED (Claimant)

XXXXX (Defendant)

 

Before Deputy District xxx sitting at the County Court at xxx on xxxx.

Upon reading the court file

IT IS ORDERED THAT

1.    The claim is struck out as an abuse of process.

 

2.    The test in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269 is met and pursuant to Civil Procedure Rule 27.14(2)(g), the Claimant is to pay the Defendant's fully pleaded costs in the sum of £xxx.xx within 14 days of service of this order.

 

3.    This order has been made by the court of its own initiative without a hearing pursuant to Rule 3.3(4) of the Civil Procedure Rules 1998 and a party affected by the order may apply to the court to have it set aside, varied or stayed not more than 7 days after the date the order was served upon that party.

REASON

4.    The claim contains a substantial charge additional to the parking charge which it is alleged the driver was contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012 Schedule 4 nor with reference to the binding Supreme Court judgement, which expressly approved the parking charge because it included costs of administration (ParkingEye Ltd v Beavis [2015] UKSC67 - paragraphs 98,193 and 198). 

 

5.    Additionally, s71(2) of the Consumer Rights Act 2015 requires the court to consider the fairness of a contract term/notice, and the inclusion of additional charges falls into examples 6, 10, 14 and 18 of the indicative list of unfair terms in Schedule 2 of the Act. It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

nosferatu1001

Have you sorted your costs assessment?

stansmum

nosferatu1001 said:

Have you sorted your costs assessment?

I will post this in the morning. Exhausted my brain for this evening! Thank you for the reminder. 

Le_Kirk

2.    I am the registered keeper of the vehicle in question in this case. I am underrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

Maybe correct this to: -

2.    I am the registered keeper of the vehicle in question in this case. I am underrepresented unrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

Regarding your paragraphs about signage, I think you should make the point that "after having received the PCN, you carried out research on foot and in daylight to investigate the signage."  At the moment it reads as if you saw all that "no distinctive signage" whilst driving in.

stansmum

Le_Kirk said:

2.    I am the registered keeper of the vehicle in question in this case. I am underrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

Maybe correct this to: -

2.    I am the registered keeper of the vehicle in question in this case. I am underrepresented unrepresented with no legal background in county court procedures. I trust that the court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

Regarding your paragraphs about signage, I think you should make the point that "after having received the PCN, you carried out research on foot and in daylight to investigate the signage."  At the moment it reads as if you saw all that "no distinctive signage" whilst driving in.

Good points - I'll make these changes.  Thanks.