Advice re blue badge owner

[Deleted User]

Coupon-mad said:

Why do you think they dropped the case?  Remind us what the letter said and what their reply was (silence is not an indicator of a case being dropped).

Anyone can sue under breach of contract for up to 6 years in the English county court, so this 17 month delay and silence is nothing compared to the 2015 and 2016 PCN cases we are handling.

The letter you kindly write for me is at the top of page 8. I don't think one can link to a post in a thread on this discussion board?

Thanks for your input.

Coupon-mad

4. We would also note the relevant CoP does not mention Grace Periods in their reference to reasonable adjustments.

LOL!

BW couldn't think how to rebut the point of law about disability discrimination and failure to make a reasonable adjustment (of time) then!

Your case is unchanged. Read the NEWBIES thread 2nd post about this stage.

[Deleted User]

Hello again everybody.

Just a reminder that I have a disability that causes cognitive impairment and dysfunction, if it seems like I'm a bit slow or my posts don't make sense, or I'm not responding appropriately, this is probably way. 

I've received a claim form from County Court Business Centre in Northampton this morning, issue date 18/11/2021. I've read through bargepole's post on court claim procedure: https://forums.moneysavingexpert.com/discussion/5546325/court-claim-procedure-updated-october-2016/p1

I have a few questions as my defence isn't exactly based on what is traditionally described on this forum (I mean it is, but I'm using the whole Equality Act (EA) 2010 disability discrimination angle too). The claimant are doing the whole "double recovery" angle too so that's one part of it.

Bargepole's post above says: "Do NOT put anything in the 'Defence and Counterclaim'. However, Coupon-mad helped me write a letter to the parking company and their solicitor stating that I will be counterclaiming against them based on direct discrimination under the EA (2010) and using: "the well-known case of Vento v Chief Constable of West Yorkshire Police No. 2 (2003) the Court of Appeal set guidelines on the amount of compensation to be given for injury to feelings (the so-called Vento bands). The lower band is appropriate for less serious cases such as where the act of discrimination is an isolated or one off occurrence."

I will need help drafting, writing my defence please along those lines. Would I just copy and paste from the letter I wrote in reply to the claimant, outlining how I would be counter-claiming against them? Or does it need to be a new spiel? 

Due to my disability I would rather not physically go to court if I do not have to. I suffer from a lot of fatigue and attending court would probably put me in bed for two weeks or longer from the physical and mental exertion.

[Deleted User]

The below excerpt is part of the letter (top of page 8 of this thread) Coupon-mad kindly wrote for me in reply to the claimant about 18 months ago and probably what my defence is based around:

I probably just need some help amending this or changing it into a format suitable for filling in the claim form please?

3.  Lack of appropriate grace period

You have failed to comply with the Independent Parking Committee’s Code of Practice as regards the grace period required before the parking contract commenced, and (separately) sufficient grace period for a driver to leave after the hour's parking licence expired.  The second period alone must be a minimum (not maximum ceiling) of ten minutes, and each period must be longer than this, when it comes to disabled car park users.  There is no justification in treating all drivers the same, regardless of their protected characteristics under the Equality Act 2010.

4.  Breach of the Equality Act 2010

You must make ‘reasonable adjustments’ and ensure that you do not put disabled people at a disadvantage compared to an able-bodied person. You must provide a reasonable adjustment in terms of both increased legibility of signage, so that the terms and conditions are legible from within the vehicle, and in addition, you must allow suffient time for disabled service users to reach the machine, read the terms and pay, and also a further period of reasonable adjustment to board their vehicle and leave, after expiry of paid-for time.

It is no lawful excuse or justification for a car park operator to say, for example, that you operate ANPR for economic reasons yet you have made it impossible for yourselves to fairly (or at all) distinguish between disabled Blue Badge holders and other drivers.  You have by this conduct, illegally ignored your statutory duty to make 'reasonable adjustments' of policies in anticipation of the needs of the disabled population 'at large'.  As well as removing physical barriers, this duty includes factoring in flexibility to a 'fixed' time limit, knowing that these timings are likely to cause difficulty and detriment to disabled visitors.  

You are already aware from my appeal, that I am a disabled driver, but for the avoidance of doubt and in an effort to resolve this dispute without resorting to legal action, I am attaching a copy of my Blue Badge and I can state that my medical conditions are:

xxxxxxxx

and the effects that cause me to need longer to process information and physically use my car, are:

cognitive dysfunction

mobility impairment

xxxxxxxx

xxxxxxxx

Based on the above, I believe that you have discriminated against me and I intend to claim for injury to feelings and harassment due to this discrimination and for your continued unlawful processing of my data. 

Should you proceed, my counterclaim will be for: 
(a) damages for distress caused by the Claimants’ misleading actions within the meaning of the Consumer Protection from Unfair Trading Regulations 2008, as amended by the Consumer Protection Regulations (Amendment) Regulations 2014 (“the Regulations”).   
 
(b) damages for distress caused by harassment contrary to the Protection from Harassment Act 1997 

(c) damages for distress and harassment pursuant to the Equality Act 2010

Further explanation:

(a) Misleading actions   
If, which is denied, my decision to park constituted acceptance of an offer to park in exchange for the sum of £100 over and above the tariff paid, then it was a transactional decision within the meaning of the said Regulations. I was unwittingly drawn in and induced into making that decision to pay 70p, which otherwise, I would not have made, by your failure to bring to my attention properly or at all the following information:- 

 i) that by parking, I would be entering into a contract; 
 ii) that my 70p would be taken as payment for just five minutes, contrary to the offer of an hour's parking;
 iii) the onerous nature of the terms thereof, in particular the £100 parking charge to which unspecified costs might be added.  

It is averred that the overall presentation of the tariff and timing information, being wholly inadequate, was likely to deceive the average motorist, thus fulfilling the definition of a “misleading action” under regulation 5 (2)(a) of the Regulations. Since it would have been easy to present the information properly it is reasonable to presume that the deception was deliberate. Accordingly, your conduct amounted to:- 

 i) an unfair commercial practice which is prohibited under Regulation 3 and
 ii) a misleading action within the meaning of Regs 5 & 6, for which redress is available under regulation 27(J)(b).  

 

(b) Breach of The Protection from Harassment Act 1997 
Despite my full payment for an hour's parking and my reasonable responses to your alarmist letters, you have persisted in aggressively and unjustifiably pursuing exaggerated additional 'parking charges' over the course of several months.  This has included sending, either by yourselves or through your agents or legal representatives, debt collection notices threatening legal action.  This conduct is not part and parcel of the reasonable pursuit of a debt and amounts to harassment under section 1, Protection from Harassment Act 1997.   

 
(c) Breach of The Equality Act 2010 ('the EA') and the EHRC Statutory EA Code for Service Providers

Despite knowing about my protcted characteristics and my Blue Badge from the point of my appeal, you have failed to make reasonable adjustments by cancelling the parking charge and allowing sufficient periods of grace, given my needs, either side of my properly paid-for parking time.  Further, you took no account of my congnitive dysfunction in reviewing your ambiguous signage and you should have realised that your terms and specifically the 'tariff & time' wording at this location, was certainly ambiguous and unfair. This represents an offence of 'direct discrimination' from the point of your knowledge of my needs and protected status.

Further, even if you had not known about my individual protected characterisitics, service providers such as an operator making a car park available to the public, have a legal duty under the EA to consider in advance the needs of disabled drivers 'at large' (i.e. without specific knowlege of individual need).  This is 'indirect discrimination' as explained in the EHRC's Equality Act 'Services, public functions and associations' Statutory EA Code of Practice ('CoP') where it says: ''indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage''.   

You have failed in your anticipatory duty to make any provisions for any disabled person to claim more time for their money and/or an extended 'grace period'.  This is settled law and was most recently tested by a case involving DMUK and Mobilise; charities which you purport to support:

https://www.wake-smith.co.uk/news/council-car-park-case-settled-a-victory-for-blue-badge-holders/
Previously Lincoln Council was the first council to be taken to court over Blue Badge parking rules.  Then the above case was brought by Helen Dolphin against Norwich Council, who were forced to change their disabled policy in line with the applicable legislation as detailed in the EA, by introducing reduced rates for disabled drivers with every one hour paid for, entitling the Blue Badge holder to an additional hour free.

By allowing disabled drivers to park, and by referring to Blue Badge holders in your signage yet offering no additions parking time and no exhanced grace periods on appeal, you are placing yourselves in pole position to be the next case tested in court as regards a breach of the EA.  Pursuant to that Act, a disabled person can sue for injury to feelings caused by harassment and discrimination and a failure of a service provider/trader to make reasonable adjustments.  

My rights under the EA are in addition to, and stronger than rights under article 8 ECHR and I state that there has been discrimination under s15, s19 and s21 of the EA which permits of no reasonable explanation.  A service provider - using the definition as set out in the EHRC Equality Act CoP - would only be considered to have taken 'all reasonable steps' to avoid discrimination, says the CoP ''if there were no further steps that they could have been expected to take''.   This is not true at all in this case and the EA CoP goes on: ''Although reasonable business needs and economic efficiency may be legitimate aims, a service provider solely aiming to reduce costs...cannot simply argue that to discriminate is cheaper than not to discriminate''. 


Damages - should you fail to cancel the parking charge within 14 days of receiving this letter:
In the well-known case of Vento v Chief Constable of West Yorkshire Police No. 2 (2003) the Court of Appeal set guidelines on the amount of compensation to be given for injury to feelings (the so-called 'Vento bands'). The lower band is appropriate for less serious cases such as where the act of discrimination is an isolated or one off occurrence.

By reason of the matters aforesaid I have been obliged to deal with unjustified and aggressive correspondence from your for several months and as a Litigant in Person with no previous litigation experience I have suffered substantial damage and distress.  Due to my congitive dysfunction and medical conditions, as well as your choice of timing in threatening court at a time when people are already feeling very vulerable during the current coronavirus crisis, your conduct is worse and the damage more substantial, in its effect on my peace of mind, causing unnecessary distress.

Litigation is not risk-free for a parking firm pursuing a person without justification (unlawfully in this case), and should you decide to proceed as a Claimant despite the above facts, you know that I have protected characteristics and you certainly know about the current Worldwide crisis.  The current vulnerability of the beleaguered British public does not make us 'low hanging fruit' and potential victims for aggressive ex-clamper parking firms like yourselves to continue to threaten and rip off, by misusing the court system as a form of cheap debt collection.

I expect your legal advisers BW Legal might manage to come out of robo-claim mode and dust off a law book, to explain the 'thin skull' or 'egg-shell' rule.  It is a well-established principle in English law that a party must take his victim as he finds him, and this takes into account the physical, social and economic attributes of the other party, which might make them more susceptible to injury or distress, whether physical or mental injury is the result.  The principle requires the Claimant (should you proceed in this case) to compensate me to the full extent of my distress and injury to feelings even though they may be more serious than expected because of my pre-existing conditions, predispositions, and economic and other vulnerabilities in the current crisis.  In this respect I intend to ask that the Judge gives due consideration to a suitable percentage 'uplift' being applied to my Summary Costs Assessment, as the Judge will see fit, to send a message to this parking firm that they cannot breach consumer and disability laws. 

I will seek damages for distress and/or breach of statutory duty in the sum of £1250 (which is at the lower end of established 'Vento' bands) pursuant to the following, from which a consumer right to redress is available:

 i)   Regulation 27 (J) (b) of the Consumer Protection from Unfair Trading Regulations 2008, as amended by the Consumer Protection Regulations (Amendment) Regulations 2014;
ii) Section 3, Protection from Harassment Act 1997;
iii) Equality Act 2010 - including but not limited to s15, s19 and s21 - offences of direct and indirect discrimination.

THE DEFENDANT WILL COUNTERCLAIM:- 

1. Compensation in the sum of £1250 plus estimated interest: £4.32

2. Court fee £70.00
3. Costs to be assessed. As a result of the Claimants’ unreasonable behaviour the Court is respectfully invited to order the Claimants to pay the Defendants’ costs on an indemnity basis, pursuant to Civil Procedure Rules, rule 27.14 (2) (g).   

Coupon-mad

I think have a read of the detailed thread by @ellaro9.  I helped them counterclaim for disability discrimination/harassment and they were successful.

D_P_Dance

 Our course of action has been entirely reasonable and in no way reaches the high threshold of harassment.

Surely that is a matter for a judge?

KeithP

HotelUniform74 said:

I've received a claim form from County Court Business Centre in Northampton this morning, issue date 18/11/2021.

With a Claim Issue Date of 18th November, you have until Tuesday 7th December to file an Acknowledgment of Service. Do not file an AoS before 23rd November, but otherwise there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Tuesday 21st December 2021 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

[Deleted User]

KeithP said:

HotelUniform74 said:

I've received a claim form from County Court Business Centre in Northampton this morning, issue date 18/11/2021.

With a Claim Issue Date of 18th November, you have until Tuesday 7th December to file an Acknowledgment of Service. Do not file an AoS before 23rd November, but otherwise there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Tuesday 21st December 2021 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Brilliant thanks. I just completed this.

[Deleted User]

Coupon-mad said:

I think have a read of the detailed thread by @ellaro9.  I helped them counterclaim for disability discrimination/harassment and they were successful.

OK, so i've spent a couple of hours reading and processing the thread you pointed me towards. I've put the below in so as to give a narrative of what I thought was important from that thread: https://forums.moneysavingexpert.com/discussion/6149245/90-seconds-part-two/

I post the below for my personal understanding, for future reference and to for someone here to check it is correct please?


1. There's a lot of mention of getting the details of the carpark owner and "including them in the claim". Is this something I should be doing, or does it just to @ellaro9 or to me as well? I have previously tried to find out who owned the car park. It appeared to be the masonic lodge behind but they didn't respond to my letter which I have a recorded delivery receipt for.

2. I've seen lots of photos of the car park in @ellaro9 case. They mention that signage wasn't visible from the disabled bay they stopped in. Do I need to take similar photo? I've had a look at their car park on google maps street view and can't see a disabled bay or signage near parking bays, just at the pay machine: https://www.google.com/maps/@50.3877692,-3.9234538,3a,54y,325.02h,77.31t/data=!3m7!1e1!3m5!1s1JZGAEUGK6b9-kBaJZs_Ew!2e0!6shttps://streetviewpixels-pa.googleapis.com/v1/thumbnail?panoid=1JZGAEUGK6b9-kBaJZs_Ew&cb_client=maps_sv.tactile.gps&w=203&h=100&yaw=115.19273&pitch=0&thumbfov=100!7i13312!8i6656?hl=en

3. I think pg 15 https://forums.moneysavingexpert.com/discussion/6149245/90-seconds-part-two/p15 is where the thread gets particularly relevant to my case?

4. I remember reading something about pursuing my court fees (counterclaim) even if they drop claim. Is this something I do at this stage? I'm not reading anything about this.

 5. The "particulars of claim" on *my* claim form state a sum of £114.54, but the amount in the "amount claimed" box is £174.52 before fees and costs. What is going on here? The last claim I received from them was for the double recovery amount of £100 PCN + an extra £60 = £160.

6. @Coupon-mad, i've just given you two "thanks" for posts you made on that thread here: https://forums.moneysavingexpert.com/discussion/6149245/90-seconds-part-two/p18  This is what I should be looking at and adapting to my case? Correct?

Thanks everyone.

[Deleted User]

@Coupon-mad

Do I need to read through and understand all language around the EA (2010) and do I need to read through and understand the cases you cited in the letter you wrote for @ellaro9 eg:

 "damages for discrimination, distress and harassment of a person with protected characteristics, pursuant to the Equality Act 2010 ('the EA') Part 113 'proceedings' and Part 119 'remedies' and the Claimant's breach of their statutory duty as a 'service provider'" 

"The Defendant will rely upon the authorities of (i) Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 and (ii) Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) and other similar authorities as well as primary statute law"

Thank you.