County Court form received

nosferatu1001

Failing to send you the SAR in time doesnt go in a defence, as it doesnt deal with the legal reasons you are not liable for the sum claimed.

umbroshinpad

Coupon-mad said:

OK good.

You can cover the other stuff like the Facebook hearsay evidence from the Indian takeaway, and anything else that the SAR shows you, at WS and evidence stage, later.

Thanks coupon-mad, I've had a letter asking me to provide any evidence by the 14th of April, but no hearing date which is what I'd expected after reading the other posts. I assume everything is going to be done differently in light of the Coronavirus shut down and courts not opening. Is this consistent with other people's experiences?

As well as the hearsay evidence and stuff from the Indian, what else should I include in the ws? As the abuse of process argument is partially about arguing the additional charges try and scare people into paying, is it worth writing about anxiety I've had or time I've had to spend researching and writing a defence, which other would have likely made other people pay to start with? 

Additionally, I still haven't received a SAR and when I sent another request the car parking company said that everything had been given to the solicitors so they wouldn't send it to me and I've had no answer from the solicitors when I've asked them either. How else will I get this evidence with time to respond, I assume they need to file first as they are the ones making the claim, but will I have time to respond to their evidence?

Umkomaas

Is this consistent with other people's experiences?

Lockdown has only been in place for a few days. Are you reading of other people's experiences?  You have the same opportunity that we have. 

Please, please read other (relevant) threads to keep abreast of what is an ever changing situation in light of the crisis, regulars are drowning under unnecessary questions from posters who won't/don't do their own research. This is the most powerful forum anywhere in the fight against private parking tickets and is bulging with information, just needs a bit of effort to seek it out. 

Additionally, I still haven't received a SAR and when I sent another request the car parking company said that everything had been given to the solicitors so they wouldn't send it to me 

If it's over 30 days since your request was made, write to them, giving them 7 days to respond or you'll fire in a complaint to the ICO - and do it, don't just threaten it, if you get no/unsatisfactory reply. 

umbroshinpad

Ok, here is an attempt. Any advice appreciated.

Addresses and stuff....
___________________

2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

 

3. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

 

4. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. To my recollection, I have not driven this vehicle to this aforementioned land and I have not parked my vehicle on this site.

 

5. Upon receipt of a Notice to Keeper from the Claimant, I believed the charge was a scam and ignored the charge that I was sent. Consequently, this paperwork has been misplaced. I acknowledge that this was my own ignorance and not a defence for this hearing.

 

6. As I do not have a copy of the Notice to Keeper, I am not able to scrutinise this document to ensure that it is in accordance with the Protection of Freedoms Act 2012. This guidance is attached in AH7 and sets out the conditions for contacting the Driver and Vehicle Licensing Agency (DVLA) in order to access registered keeper’s data (6.1-6.2) and the details which must be included in the notice (6.3).

 

7. Following the receipt of the Notice to Keeper, I received a Letter Before Claim from the Claimant’s Solicitor (Gladstones Solicitors). Again, I presumed that this was a scam and did not respond. However, I kept this letter and it is provided in AH8.

 

8. This letter states that the charge includes “£60.00 claimed by our Client for the time spent and resource facilitating the recovery of this charge.” This additional £60.00 is also included in the Particulars of Claim, and is included in the calculation of interest the Claimant charges me with. At the time these charges were added, the Claimant had sent me two letters. These added costs are disproportionate, vague and in breach of the CPRs and the Consumer Rights Act 2015. Further detail can be found in my Defence, paragraphs 7-8.1.

 

9. The addition of the extra £60.00 charge is also in breach of Parking Eye Ltd v Beavis [2015] UKSC 67 (‘the Beavis case’) an upper limit to charges was set (£85 at the time of the Beavis Case.) This was already held to incorporate the costs of private parking recovery business models, including recovery letters. Additionally, as discussed in my Defence paragraphs 9-9.4, upon hearing this case the Supreme Court also gave due consideration to the profitability of the Claimant (in this case, ParkingEye) when setting this upper cap, noting that the charge “gave their shareholders a healthy annual profit.” This is also reflected in the profits made by ES Parking Enforcement, which can be found in their Unaudited Financial Statements, attached in AH9. The inclusion of the additional £60.00 charge is simply an attempt to increase the profitability of the company and is not required to meet the running costs.

 

10. As stated in my Defence in paragraph 11, this constitutes attempted double recovery and has already been exposed and disallowed in numerous courts across the land. As evidence, I have attached two judgements stating this is the case. In AH1, there is a Judgement made by District Judge Jones-Evans sitting at the County Court in Caernarfon for the case Vehicle Control Services Limited v Mr Jonathan Davies. In AH2, there is an order by District Judge Grand sitting at the County Court in Newport, regarding UK Carpark Management Limited v Esplande Limited. Both of these rulings make specific mention that this additional £60.00 charge is in breach of the Beavis Case. It is clear that the additional £60.00 charge made by ES Parking Enforcement Limited is also in breach of the Beavis Case, is an abuse of process and in breach of the Consumer Rights Act 2015.

 

11. The signage in this case does not meet the standard set by the Beavis Case. In paragraph 100 of the Supreme Court Ruling, it states “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it.” As you can see from AH4, it is not clear that there is a sign at the entrance to the car park. A sign is slightly visible in this photograph, but it appears to be on the right-hand side of the road and above the roof of a Mazda2 (the car in question.) Therefore, it is not noticeable to the driver as they enter the car park.

 

12. The signage is also in breach of the Beavis Case, which states “The charge is prominently displayed in large letters.” AH5 shows the signage used in the Beavis Case, where the £85 charge is clear and obvious, separated from any other text with a contrasting black background and yellow font. By contrast, AH3 shows the sign in this case. The £100 charge is not prominent on the sign. The font is small and the blue does not have a sharp contrast with the white background. Additionally the charge is not prominent on the sign, as it was in the Beavis case, but is contained within a block of text. The £100 is not even the largest text within the text box.

 

13. Whilst also being in breach of the Beavis Case, this sign is also in breach of the IPC Code of Practice, available in AH10, Part E, Schedule 1, page 24. The points raised in the previous paragraph are in breach of point 4; the sign must be “clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site.”

 

14. Point 5 of Schedule 1 states that the sign should have “clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing trespass.” There are numerous parts of this sign where are intelligible or difficult to read, due to the small text upon it. Namely, the need for a valid permit is in small, thin writing. Again, the colour scheme (point 7 of the same page) does not assist in the visibility of this text. Furthermore, there is a significant volume of text on this sign that is not possible to read from this photograph, nor possible to read unless you are a few inches from the sign. This is a clear breach of point 4 of Schedule 1. Furthermore, paragraph 108 of the Beavis Case praised ParkingEye stating the terms “could not have been briefer, simpler or more prominently proclaimed.” This is not the case regarding the Claimant.

 

15. Additionally, there appears to be a sticker on this sign covering previous text. As previously stated, I do not have any of the original letters with the photographic evidence on. However, if this text has changed since the charge being made and my photographs being taken, this is clear evidence that the wording was insufficient at the time of the charge.

 

16. The aggressive approach to restricting parking in this area was confronted by a previous business owner that shared the site. As can be seen at AH6, A Touch Of Spice was forced to close in January 2019. As part of a post on a well-known social media website, the owner made a specific reference to the excessive costs and charges brought to his customers due to the parking restrictions prior to being forced to close his business by the land owners. This highlights further the community’s unhappiness in the approach taken by the Claimant and the negative effect is having on local businesses.

Truth statement.

Le_Kirk

You have referred to old judgments and you will find the updated judgments on this link.  It does take you to a DEFENCE but if you read the whole thread and follow the links you will see that you can adapt it for your witness statement.

umbroshinpad

Thanks, I'd already filed the previous defence CM recommended for these cases, so I tried to just add to that. I'll look at this and adapt.

Le_Kirk

The link I posted was to take you the defence so you could find the judgments that are currently being used.

umbroshinpad

4.      Upon receipt of a Notice to Keeper from the Claimant, I believed the charge was a scam and ignored the charge that I was sent. Consequently, this paperwork has been misplaced. I acknowledge that this was my own ignorance and not a defence for this hearing. I have requested that the Claimant provides me with a disclosure of all information relating to myself via a Subject Access Request on two separate occasions, but these have not been granted. Therefore, I still do not have a copy of this letter.

 

5.      As I do not have a copy of the Notice to Keeper, I am not able to scrutinise this document to ensure that it is in accordance with the Protection of Freedoms Act 2012. This guidance is attached in AH8 and sets out the conditions for contacting the Driver and Vehicle Licensing Agency (DVLA) in order to access registered keeper’s data (6.1-6.2) and the details which must be included in the notice (6.3).

 

6.      Following the receipt of the Notice to Keeper, I received a Letter Before Claim from the Claimant’s Solicitor (Gladstones Solicitors). Again, I presumed that this was a scam and did not respond. However, I kept this letter and it is provided in AH7. 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 £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

 

7.      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.

 

8.      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.

 

9.      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. In my Defence, I have made reference to some such cases. More recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court AH1  and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court AH2.

 

10.  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. 

 

11.  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 at AH9.

 

12.  The allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers 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 and requiring no further assessment. 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.

 

13.  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.'' AH11 shows that ES Parking Enforcement made a healthy profit in 2018.

 

14.  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.''  

 

15.  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, lacking specificity re the location of the event and status of the contracting parties and 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.

 

16.  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.’’

 

17.  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.

 

18.   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.

 

19.   The signage in this case does not meet the standard set by the Beavis case. In paragraph 100 of the Supreme Court Ruling, it states “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it.” As you can see from AH4, it is not clear that there is a sign at the entrance to the car park. A sign is slightly visible in this photograph, but it appears to be on the right-hand side of the road and above the roof of a Mazda3 (the car in question.) Therefore, it is not noticeable to the driver as they enter the car park.

 

20.  The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. AH5 shows the signage used in the Beavis Case, where the £85 charge is clear and obvious, separated from any other text with a contrasting black background and yellow font. By contrast, AH3 shows the sign in this case. The £100 charge is not prominent on the sign. The font is small and the blue does not have a sharp contrast with the white background. Additionally the charge is not prominent on the sign, as it was in the Beavis case, but is contained within a block of text. The £100 is not even the largest text within the text box.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was entered into with the Claimant, whether express, implied, or by conduct.

 

21.  The signage is also in breach of the Beavis case, which states “The charge is prominently displayed in large letters.” This sign is also in breach of the IPC Code of Practice, available in AH10, Part E, Schedule 1, page 24. The points raised in the previous paragraph are in breach of point 4; the sign must be “clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site.”

 

22.  Point 5 of Schedule 1 states that the sign should have “clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing trespass.” There are numerous parts of this sign where are intelligible or difficult to read, due to the small text upon it. Namely, the need for a valid permit is in small, thin writing. Again, the colour scheme (point 7 of Schedule 1) does not assist in the visibility of this text. Furthermore, there is a significant volume of text on this sign that is not possible to read from this photograph, nor possible to read unless you are a few inches from the sign. This is a clear breach of point 4 of Schedule 1. Furthermore, paragraph 108 of the Beavis Case praised ParkingEye stating the terms “could not have been briefer, simpler or more prominently proclaimed.” This is not the case regarding the Claimant.

 

23.  The Beavis case is fully distinguished and a more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 and (ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.

Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation to issue PCNs under these circumstances and to pursue keepers by means of civil litigation. 

 

24.  Additionally, there appears to be a sticker on this sign covering previous text. As previously stated, I do not have any of the original letters with the photographic evidence on. However, if this text has changed since the charge being made and my photographs being taken, this is clear evidence that the wording was insufficient at the time of the charge.

25.  The aggressive approach to restricting parking in this area was confronted by a previous business owner that shared the site. As can be seen at AH6, A Touch Of Spice was forced to close in January 2019. As part of a post on a well-known social media website, the owner made a specific reference to the excessive costs and charges brought to his customers due to the parking restrictions prior to being forced to close his business by the land owners. This highlights further the community’s unhappiness in the approach taken by the Claimant and the negative effect is having on local businesses.

26.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, other terms (or instructions to cancel charges due to a surge of complaints) and there is no evidence that the freeholder authorises this particular Claimant (Companies House lists their company number as 09363453).  Any purported landowner 'contract' which fails to properly identify the two contracting parties and/or which is in any way redacted (including the signatories, which in some parking claims have been revealed not to be that of the landowner) should be disregarded, along with any undated and/or unsubstantiated records, documents, boundary maps or aerial views, or photos which are capable of manipulation.

umbroshinpad

Too many character, so I have taken out the first parts which are the same as my last post.

Coupon-mad

Is this WS stage? 
What's your main point (not about the added £60)?

What exhibits and evidence are you appending?  The NEWBIES thread give you some tips.

Have you found out that the 'statement of truth' in the CPRS changed last week to a longer sentence?