New Claim form - One Solutions Parking - Private land

Shadowcheater

Hello, Hope everyone had a good Christmas.

Yesterday I got an email from DCB legal with a copy of their Directions Questionnaire.
I have not received mine from the court, so I found the N180 form online and filled it in.
I said "NO" to mediation and that I wanted the hearing in my local court.

I am just about to send it back, should I use the same email that I used to send my Acknowledgment of service? (ccbcaq@justice.gov.uk)
Also, should I send a copy to DCB Legal?

Many thanks.

KeithP

Shadowcheater wrote: »

I am just about to send it back, should I use the same email that I used to send my Acknowledgment of service? (ccbcaq@justice.gov.uk)
Also, should I send a copy to DCB Legal?

Yes and yes.

Shadowcheater

Sorry and Thank you.

Umkomaas

This thread is about One Parking Solutions that looks likely to become extremely complicated. Introducing issues in relation to a NCP court case against you will take 'complications' beyond comprehension and the thread will be a mess of confusing advice. 

Please strike through every post you've made here relating to NCP and start a new thread about your NCP court case. 

KeithP

Also remove all identifying detail from your most recent post.

A quick scan shows your Claim Number and your vehicle's registration mark clearly visible.

Coupon-mad

When you start a new thread about the NCP one, instead use the new template defence and show us the draft based upon it (new thread about the template defence that I started 2 weeks ago).

Re the OPS one, as soon as you have a court date then you need to show us your witness statement draft and your list of evidence, and your Summary Costs Assessment.  Read the threads by Lego-9 and keypulse for examples.


I future, as you have so many parking charges (more than most) can I suggest as well that you make a point of reading parking signs every time, and moving your car if it's private land.  Do not look for car parks, look for parking on street as your first choice, including yellow lines for quick loading and unloading, which is exempt.

Shadowcheater

Hello, I now have a court date for a telephone hearing, 28th September - Brighton County Court.

I found a wonderful WS by Coupon-Mad and blended it into my own now much improved WS.

I shall also share my Summary of Costs. I have photos of the signs in night light and a video. 
Britannia v Crosby approved judgment - Southampton Court, caernarfon-moran-strike-out, Excel - Abuse of process, Hancock-draft-judgment-final-14-July-2020, Phoenix - Abuse of Process, Schedule 2 of the Consumer Rights Act, Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 (5 April 2000)

In the County Court at (your town court name)

Claim No: xxxxxxxx

xx parking firm’s name as on the claim form xx  Ltd (Claimant)

               v

xx your name as on the claim form xx  (Defendant)

WITNESS STATEMENT OF DEFENDANT

FOR  TELEPHONE HEARING ON xx/xx/2020

 I am xxxxxx xxxxxx of (postal address) and I am the defendant against whom this claim is made.   The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.  This hearing was re-listed, though the first notice of the court date was not recieved by myself and the re - listing only arrived on the 16th of September some four days after the date on the Notice to restore hearing. I now find myself in some haste and I have been very distressed by the entire claim, having to spend many days on it and ignoring my daughter at home in order to fight the injustice.  Because the Notice of Restored hearing as delayed, this witness statement and evidence is not served late when compared to any Order of the court for this case, as far as I can tell as a Litigant in Person. 

2. In my statement I shall refer to exhibits within the evidence bundle supplied with this statement, referring to page and reference numbers where appropriate.  My defence is repeated and I will say as follows:

I confirm that the essence of my defence to this claim is that:

3.     It is denied that:

3.1. A contract was formed

3.2. There was an agreement to pay a parking charge.

3.3. That there were Terms and Conditions prominently displayed around the site or that the parking areas were clearly delineated or the signs adequately lit.

3.4. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.

3.5.The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.

Sequence of Events - no contract seen or agreed:

4. On the evening of 3rd December 2018 I went to visit a friend who lived in Ivory Court, it was the first visit to her flat and I was unfamiliar with that particular area and parking conditions. I arrived outside Ivory Court at 20.xx in the evening, it was pitch black and the weather was very cold. 

5. Directly outside the block of flats was a large and mainly car park. I parked my vehicle in what was assumed to be a communal parking area on the material date. There were approximatively 34 spaces,with no distinction between visitor spaces and residences marked bays. There were only four cars parked in this large area I was not causing an obstruction nor preventing residents to park.

6. I looked for parking information and could not see any signage. It was an unlit area and there was no lighting directed on the two small signs that I found after I was issued a parking charge. Therefore, because the onerous terms were not ‘bound to be seen’ I had no idea of any parking terms and cannot be bound by them. I will rely on Link Parking v Mr L C9GF5875 [2016] where it was found that there was no visible entrance sign at a residential site and as a result the case was dismissed. 

7.  I visited my friend for thirty minutes (SL3) and I was shocked to find a yellow plastic envelope affixed to my windscreen and found it to contain a “Parking Charge Notice”.   I decided to take photographs of the poorly lit car park and non-illuminated signage at any of the pedestrian exits leading to the hotel.  These photos were taken that night and show the same lighting conditions. (EXHIBIT 01)

8. When searching for parking signage, I needed my phone light to see it. The Claimant’s signage is unremarkable even from a short distance. The wording all shares the same font size and nothing is immediately noticeable as being of major importance, nor even that is relates to parking regulations of any description. The signage is inadequately lit and was not anywhere near visible enough on an evening in December.  As a matter of fact, I could not have seen it on arrival that night.

9. Only by walking all around the car park, did I find two signs from this Claimant, “ONE PARKING SOLUTION LTD” (EXHIBIT 02).  Of course, on arrival, through no lack of observation on my part, I had been afforded no fair opportunity to learn that terms and conditions applied and was therefore under no duty to seek them out (as held in Vine v London Borough of Waltham Forest [2000] EWCA Civ 1069)  EXHIBIT 03.   I note from research about cases filed by this Claimant that they are known to mislead courts using this authority, by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the decision.  In fact, Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

10.   Due to their size, their placement and the size of the font used, these signs were nowhere near adequate for drawing attention to themselves from any reasonable person in a passing vehicle. None of these signs were located near the pedestrian exits.   Not drawing onerous terms to the attention of a consumer breaches Lord Denning’s ‘red hand rule’.   A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and ‘bound to be seen’.  In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community (‘IPC’).  The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

The Court’s duty to apply the test of fairness of terms and consumer notices (signs)

11.  In addition, consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the Consumer Rights Act 2015 (‘CRA’) to consider the terms and the signs in order to identify potential terms and notices that may be unfair (ref s62 and Schedule 2).   Not only were the signs impossible to see (at all) in the dark, due to the Claimant’s failure to illuminate them in hours of darkness, but the CRA also makes it clear that words like ‘indemnity’ are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void.  Thus, the signage fails the test of fairness, on any reasonable interpretation and the claim is wholly without merit.

11.1.  This is explained in the CRA’s Guidance at 5.14.3. The Competition & Markets Authority (‘CMA’) is responsible for enforcing the CRA and their Guidance includes the fact that ‘indemnity’ is likely to be an unfair term in a consumer contract and seeking to recover a sum with which a consumer had no opportunity to acquaint themselves, as well as terms that have the effect of counting the same costs twice, are unfair.  The CMA say: “The fairness of any term is assessed having regard to the other terms of the contract, and even if not excessive when considered separately, may be unfair if it could operate together with another term or terms so as to lead to the trader being compensated twice for the same loss.”

Shadowcheater

Later Events:

10.   On XXrd December 2019, I received correspondence from the Claimant, notifying me that their solicitors (DCB Legal) would pursue the parking charge as if it were a ‘debt’.  Within this letter the claimant indicates that the parking charge has been enhanced by £60 (i.e. double recovery) noted as ‘associated costs’.  (EXHIBIT 05).  This does not match how the sum is described in the Particulars of Claim and is clearly an attempt to ‘gild the lily’ by inflating an already disproportionate penalty which has no legitimate interest behind it when inflicted upon visitors of residences.  Whilst I fully appreciate the need for parking control on private land I do not appreciate the apparent business tactics of this Claimant, whereby they insist people going about their daily business have entered into some kind of vague “contract” with them, based on the tiny words on small and obscured signs. One Parking Solution are responsible for the letters from their agents, DCB Legal.  Both the Claimant and their agents have sent me many harassing and distressing letters over the past two years, making veiled threats towards my credit rating and even my employability.

Inflated and false ‘costs’ have been added to the parking charge.

11.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see EXHIBIT 06 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision in the case of Mr Crosby stands. This Claimant knew or should have known, that by adding £60 in false (unpaid) ‘costs/damages’ over and above the purpose of the ‘parking charge’ is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, and para 419 of the earlier ParkingEye Ltd v Somerfield Court of Appeal authority.  As an experienced parking operator, the Claimant should also know that the 60% uplift does not pass when compared to the CRA s62, expanded with examples of ‘terms that are likely to be unfair’ in Sch 2 (paras 6, 10 and 14 appear to be breached in my case).    

12. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a ‘legitimate interest’ in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause, when all the fact of that case were examined.   However, there is no such legitimate interest in this case. 

13.  I take the point that the enhanced parking charge in my case is a penalty, and unenforceable.   This is just the sort of ‘concealed pitfall or trap’ and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) ‘justified’ parking charge as opposed to an unconscionable one.   I attach the Southampton Court Approved Judgment in Britannia Parking v Crosby and anor, where the question of enhancing a parking charge by a disproportionate percentage (for costs that were neither properly incurred nor additional to the core ‘debt’) was recently tested.

14.  Whilst it is known that another decision to strike out a parking claim was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same (unpaid and false) costs twice.  The Appeal Judge merely pointed out that he felt that insufficient information was known about the facts of that case, where the Defendant had not appealed nor engaged with the process and no evidence was in play, unlike in the Crosby case.  The Salisbury Appeal Judge merely listed the Semark-Jullien case for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.   In short, that was an appeal against the striking out as a ‘draconian measure’ and not - as this Claimant may have it - some sort of landmark appeal about the illegality of adding false sums to a parking charge.

15.  The Judge at Salisbury correctly identified that costs were not added in the Beavis case.  True - but (unbeknown to the Salisbury Judge because the Appellant failed to draw the relevant case law to his attention) that had already been addressed in ParkingEye’s earlier claim, the authority in ParkingEye v Somerfield [2011] EWHC 4023 (QB) High Court case (ratified by the Court of Appeal in 2012), ref para 419 from HHJ Hegarty:  

‘’It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.’’  

16.  This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the ‘tort of deceit’ by their aggressive and misleading debt demands, which appear to have been very similar to those I received.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can’t have both.  

17.  It is certainly an abuse of process to add sums that were not incurred.  However, the Salisbury Appeal Judge was not informed by the Claimant’s representative that these enhanced costs were known to be false, following thousands of claims heard by the Courts, where parking firms have been warned not to file claims like it again.  EXHIBIT 07 shows the exasperated words of District Judge Jones-Evans sitting at Caernarfon court in April 2020, when striking out a similar inflated claim by this Claimant’s sister company, VCS, after warning parking company advocates over a ‘very significant period of time’ not to bring cases to court where the parking charge has been inflated by an unrecoverable sum of money dressed up as the costs that must already be within the parking  charge itself.  There can be no excuse that this Claimant, or their advocate, ‘doesn’t know’ that adding false sums to inflate a claim is an abuse of process and the Salisbury Appeal case is entirely distinguished.

Alternative defence issue: Lack of evidence of any landowner authority.

18.  I have seen no evidence that the landowner authorises this Claimant to put up unlit signs then penalise permitted guests of the Hotel, who should surely be exempt from charges.  Because ‘the devil is in the detail’ of any landowner contract, and I have found that they vary from site to site with various definitions, exemptions and even hours of operation, a redacted landowner contract will not be enough to satisfy a court.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal made it clear that most redactions are improper where the Court are being asked to interpret a contract.  Ref. paras 74 & 75 ‘’...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...’’  EXHIBIT 08.

 My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

19.  I ask the Court at the very least, for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of ‘wholly unreasonable conduct’ is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing, plus the court may award a set amount allowable for loss of earnings or loss of leave.

20.   Travel costs do not apply for a telephone hearing but the fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed at PD 27, 7.3(1) ‘’The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or 

witness due to attending a hearing ... a sum not exceeding £95 per day for each person.’’

CPR 44.11 - further costs for the wholly unreasonable conduct of this Claimant

21.  As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  As I stated at the start, family life has been severely impacted and this matter has been hanging over me for over a year now.  I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate further costs and I invite the court to consider making an award to include these, pursuant to the court’s powers in relation to misconduct (CPR 44.11).   Not only could this claim have been avoided and the Claimant has no cause of action and no legitimate interest in pursuing visitors of residents, relying upon the entrapment of unlit signs (conduct that this ex-clamping firm should have left behind, years ago) but it is also vexatious to pursue an inflated sum that includes double recovery.  It is my position that the Claimant’s conduct in pre-and post-litigation has crossed the line of unreasonable conduct.

22. 

I invite the Court to dismiss this claim in its entirety, and to award my costs of the preparation and the attendance of the telephone 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. 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

Date

Shadowcheater

Summary Assessment of Costs
Claim No. xxxxxxx, 

Reading Letter before Claim and N1 claim documents for claim  xxxxxx - 2 hours

Researching how to respond to county court claim - 1 hours

Writing defence and submitting these and Direction questionnaire - 3 hours

Researching Witness Statements and preparing evidence  - 3 hours

Reading the Claimant’s Witness Statement and evidence for the September hearing - 2 hours

Asking three times for a SAR and not receiving correct information - 2 hours

Preparing Defendant’s own WS and evidence  - 4 hours

Printing and postage of xx pages  - £15

Total hours 17 @ £19 per hour, plus £15 = £338

The total is justified and necessary and has been fairly assessed by the Defendant at this point in time (pre hearing costs) and in accordance with the rules about LiP costs that you have researched, does not exceed two thirds of the typical costs that a solicitor would have charged for handling all documents and writing defences for this claim.

Sexxxx xxxxxxx

21st September 2002

KeithP

Haven't you already filed with the court and served on the Claimant your Witness Statement and evidence?

It's only seven days to the hearing.