Claim Form - UK Car Park Management/Gladstone

richiew2k

Update WS (ignore the numbers I will reorder before sdending)

In the County Court at 2:00PM on 24th March 2020
Claim No. FXXXXXXX
Between
UK Car Park Management Limited (Claimant)
and
richiew2k (Defendant)

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Witness Statement

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1. I am richiew2k, of [Address], [Postcode], the Defendant in this matter. I will say as follows:

2. I am a full-time employee of xxxxxxx who held an on-going agreement with the claimant in order to park in the parking location. Usk Way xxxx.

3. The ongoing agreement between the defendant and the employer was a monthly fee of £10 (Paid by Direct Debit) and the company subsidised an addition £30. (Exhibit DJ1 is presented to confirm that the defendant was fully up to date with their payments.)

4. It is therefore not valid for the claimant to request the claimed amount as the parking was taking place under this agreement which had been in place since 2013.

5. My vehicle Registration number was parked at this location on 19/09/2018 as I was undertaking my everyday employment activities.

6. The claimant company had only recently taken over parking management from the previous parking management company and no communication was presented to the driver via their employer’s parking process to confirm that the parking arrangement was no longer valid, had ceased or any additional procedures were required. Therefore employees including the driver continued to park in this location as per the agreed arrangement.

7. Due to the nature of our work a valid permit was not always displayed at this location as this had led to situations of vandalism resulting from members of the public who did not agree with decisions the company had made. One example of this was I personally had acid thrown over my car whilst visiting a client.

7. This parking arrangement with the Claimant has since ceased and alternative parking arrangements have been offered to the driver. This was as a result of the Claimant issuing unnecessary charges such as this to further employees of xxxx.

8. I adhered to all charges that were required pursuant to the parking licence agreed with the employer, and the vehicle was at all times parked within the correct zones to deem that no penalty is justified. Further, the Claimant offered nothing of value to the employees, who already had an established and unfettered right to park, thus no consideration can be deemed to have flowed between the parties. No contract existed and even if the Claimant stuck up some of their tawdry small print signs with parcel twine and glue, temporarily defacing the location at the time, those notices had and still have no legal effect.

9. Accordingly, it is denied that I breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct as no enforceable contract offered at the time by claimant, no cause for action can have arisen.

10. The Claimant also stated in the Particulars of Claim that the claim is for ‘breach of the terms of parking stipulated on the signage”. However, as the long term agreement through the employer had always been to use this location then no ticket was required to be purchased. the claimant has failed to provide evidence of that agreement. Upon recently visiting the parking site, I noticed that new signage has been put in place. There would be no need to replace signs if they were already adequate. Also on these signs there is no reference to an additional £60 that can be added to a fine (See Exhibit DJ2)


11. It is denied that the signs used by this claimant at the time of this charge created a fair or transparent contract with a driver in any event hence incapable of binding the driver as the claimant failed to comply with International Parking Community Code of Practice ‘PART E Schedule 1 – Signage’.

12. The Claimant is put to strict proof that it has sufficient proprietary 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

13. Costs on the claim - disproportionate and disingenuous
- CPR 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.

14. I have 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.

14.1. 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. This £60 is not mentioned on any of the signs that are displayed currently within the parking location (See Exhibit DJ2)

The Beavis case is against this Claim
15. 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.

15.1. 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.''

15.2. 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.''

15.3. 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...''

15.4. 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
16. 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
17. 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.

17.1. 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.''

17.2. 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.

17.3. 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.

17.3.1. 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...''

17.3.2. 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.

17.3.3. 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 Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

17.3.4. 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 to this claim.

17.3.5. 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.''

17.4. 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.

17.5. 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.''

18. 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.

19. I am 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.


20. 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

I believe that the facts stated in this Witness Statement are true.

Signature
Date

Coupon-mad

Also on these signs there is no reference to an additional £60 that can be added to a fine (See Exhibit DJ2)

It can't be added and it's not a 'fine' so don't say that! Instead:

Also on these signs and contrary to the CRA 2015 schedule 2, there is no reference to the additional £60 - or any quantified sum - that the Claimant is trying to mislead the court about, by adding it to the parking charge (See Exhibit DJ2)

You need to add evidence numbers to all the things you are appending, as I listed before. Show us your mock up pic of the signs at the time next to the Beavis case sign, you do it like this:

https://forums.moneysavingexpert.com/discussion/comment/76727783#Comment_76727783

The Beavis case image of their yellow/black sign is easy to Google for.

richiew2k

unfortunately I dont have pictures of the signs that were present back when the claim is from. The claim was back in 2018

I only have recent pictures of the signs unfortunately

https://imgur.com/a/fFCR3Nq

Apologies maybe I am misunderstanding the term appending? the only evidence i have so far is the evidence that i was up to date with payments and the new signs?

Coupon-mad wrote: »

It can't be added and it's not a 'fine' so don't say that! Instead:

You need to add evidence numbers to all the things you are appending, as I listed before. Show us your mock up pic of the signs at the time next to the Beavis case sign, you do it like this:

https://forums.moneysavingexpert.com/discussion/comment/76727783#Comment_76727783

The Beavis case image of their yellow/black sign is easy to Google for.

richiew2k

is this what you mean by showing a comparison?


https://imgur.com/a/jIgUFNB

Coupon-mad

unfortunately I dont have pictures of the signs that were present back when the claim is from. The claim was back in 2018

Google StreetView has it I expect, if you use the little arrow to change the date?

Your WS has two number 7 points.

the only evidence i have so far is the evidence that i was up to date with payments and the new signs?

I told you what evidence to attach (append) in my post last night. Can't get much clearer than me listing what to attach and spelling out the laws and the CoP, at midnight...

is this what you mean by showing a comparison?

I just showed you an example! Did you let the link settle on my post?

richiew2k

Coupon-mad wrote: »

G
I told you what evidence to attach (append) in my post last night. Can't get much clearer than me listing what to attach and spelling out the laws and the CoP, at midnight...

Apologies maybe i am misunderstand not all of us are as familiar with the way that legal defences etc should be written as people like yourself but you mentioned what i needed to attach but the ones you mention are all within my WS?

So do you mean i need to find each individual case and attach the full court report referenced for each one?

Sorry I am confused

richiew2k

Coupon-mad wrote: »

I just showed you an example! Did you let the link settle on my post?

Yes but in my case these are the signs for me, what is the main purpose it is trying to prove? That the text is really small? Does my comparison really prove that enough for the court or is it best me leaving it out?

Coupon-mad

So do you mean i need to find each individual case and attach the full court report referenced for each one?

Yes (but no, not the full law or transcript!). Your WS says what you are relying upon so we assume you went and read it all and found it is not too much to print those few paragraphs?

You will have seen that the CRA Schedule 2 is just 1.5 pages of A4, for example. Clearly you print that and highlight paras 6, 10 and 14 like I did in Southampton in November, as explained in CEC16's thread.

Same with the POFA Schedule 4 - your WS says which para is relevant.

And with the Beavis case 3 quotes, you attach them (just those quotes on A4).

And with the CMA Guildance I quoted, you attach JUST that page.

And with the IPC CoP, clearly you print that paragraph about signs...

Yes but in my case these are the signs for me, what is the main purpose it is trying to prove? That the text is really small?

Yes! But only the signs that were there at the time (NOT NEW SIGNS), as per Google StreetView. I use it in court quite often.

richiew2k

Thank you for this, so I now have my WS and appended in it is -

1) Proof that my monthly payments were up to date
2) CRA 2015 Sch 2 - Full schedule with highlighted paragraphs 6, 10 and 14
3) International Parking Community code of practice part E - Schedul 1 - Screenshot of PDF for this schedule
4) POFA sch 4 - with 2 paragraphs highlighted

Questions remaining on

4) Beavis Quotes - I have read the CEC16 thread however i am not able to establish exactly which 3 quotes your refering too?
5) CMA guidance - apologies where was this quoted?

Coupon-mad wrote: »

Y
You will have seen that the CRA Schedule 2 is just 1.5 pages of A4, for example. Clearly you print that and highlight paras 6, 10 and 14 like I did in Southampton in November, as explained in CEC16's thread.

Same with the POFA Schedule 4 - your WS says which para is relevant.

And with the Beavis case 3 quotes, you attach them (just those quotes on A4).

And with the CMA Guildance I quoted, you attach JUST that page.

And with the IPC CoP, clearly you print that paragraph about signs...


Yes! But only the signs that were there at the time (NOT NEW SIGNS), as per Google StreetView. I use it in court quite often.

richiew2k

Update WS for Review


In the County Court at 2:00PM on 24th March 2020
Claim No. xxxx
Between
UK Car Park Management Limited (Claimant)
and
richiew2k (Defendant)

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Witness Statement

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1. I am richiew2k, of [Address], [Postcode], the Defendant in this matter. I will say as follows:

2. I am a full-time employee of xxxxxxx who held an on-going agreement with the claimant in order to park in the parking location. Usk Way xxxx.

3. The ongoing agreement between the defendant and the employer was a monthly fee of £10 (Paid by Direct Debit) and the company subsidised an addition £30. (Exhibit DJ1 is presented to confirm that the defendant was fully up to date with their payments. THIS WILL LINK TO A COPY OF EMAIL CONFIRMATION FROM FINANCE TEAM THAT PARKING WAS UP TO DATE)

4. It is therefore not valid for the claimant to request the claimed amount as the parking was taking place under this agreement which had been in place since 2013.

5. My vehicle Registration number was parked at this location on 19/09/2018 as I was undertaking my everyday employment activities.

6. The claimant company had only recently taken over parking management from the previous parking management company and no communication was presented to the driver via their employer’s parking process to confirm that the parking arrangement was no longer valid, had ceased or any additional procedures were required. Therefore employees including the driver continued to park in this location as per the agreed arrangement.

7. Due to the nature of our work a valid permit was not always displayed at this location as this had led to situations of vandalism resulting from members of the public who did not agree with decisions the company had made. One example of this was I personally had acid thrown over my car whilst visiting a client.

8. This parking arrangement with the Claimant has since ceased and alternative parking arrangements have been offered to the driver. This was as a result of the Claimant issuing unnecessary charges such as this to further employees of xxxx.

9. I adhered to all charges that were required pursuant to the parking licence agreed with the employer, and the vehicle was at all times parked within the correct zones to deem that no penalty is justified. Further, the Claimant offered nothing of value to the employees, who already had an established and unfettered right to park, thus no consideration can be deemed to have flowed between the parties. No contract existed and even if the Claimant stuck up some of their tawdry small print signs with parcel twine and glue, temporarily defacing the location at the time, those notices had and still have no legal effect.

10. Accordingly, it is denied that I breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct as no enforceable contract offered at the time by claimant, no cause for action can have arisen.

11. The Claimant also stated in the Particulars of Claim that the claim is for ‘breach of the terms of parking stipulated on the signage”. However, as the long term agreement through the employer had always been to use this location then no ticket was required to be purchased. the claimant has failed to provide evidence of that agreement. Upon recently visiting the parking site, I noticed that new signage has been put in place. There would be no need to replace signs if they were already adequate. Also on these signs and contrary to the CRA 2015 schedule 2, there is no reference to the additional £60 - or any quantified sum - that the Claimant is trying to mislead the court about, by adding it to the parking charge (See Exhibit DJ2 -This will link to photos of the current signage)


12. It is denied that the signs used by this claimant at the time of this charge created a fair or transparent contract with a driver in any event hence incapable of binding the driver as the claimant failed to comply with International Parking Community Code of Practice ‘PART E Schedule 1 – Signage’. (Exhibit DJ3 – This will link to a clear page from the PDF)

13. The Claimant is put to strict proof that it has sufficient proprietary 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

14. Costs on the claim - disproportionate and disingenuous
- CPR 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.

15. I have 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.

15.1. 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. This £60 is not mentioned on any of the signs that are displayed currently within the parking location (See Exhibit DJ2 – This will link to clear photos of the signage)

The Beavis case is against this Claim
16. 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.

16.1. 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.''

16.2. 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.''

16.3. 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...''

16.4. 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
17. 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. (Exhibit DJ4 – This will link to POFA 2012 Sch 4 – with highlighted paragraphs)

The Consumer Rights Act 2015 ('the CRA') is against this claim
18. 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. (Exhibit DJ5 This will link to CRA 2015 Sch 2 – Full document 1.5 pages)

18.1. 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.''

18.2. 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.

18.3. 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.

18.3.1. 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...''

18.3.2. 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.

18.3.3. 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 Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

18.3.4. 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 to this claim.

18.3.5. 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.''

18.4. 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. (Exhibit DJ6 – Awaiting confirmation what this should link to)

18.5. 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.''

19. 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.

19. I am 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.

20. I would also like to bring it your attention that it is important that you understands that the company sitting in front of you is the very same company who other judges have said "Not Lawful" and "Exorbitant Charges"

21. 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

I believe that the facts stated in this Witness Statement are true.

Signature
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