LBC - UKPC/SCS Law

beamerguy

BrownTrout said:

You have to be prepared to challenge these costs
SCS always do a costs schedule like this,

I seem to remember you showed one of these stupid costs schedules from SCSLaw.

Do you think SCSLaw are on the funny stuff again, They really do think a judge is a mug for 4 tickets.  This is Abuse of process to the highest degree and they have a lot of explaining to do, at least their warped sense of humour will give a judge a good laugh

Makes you wonder why UKPC allows such rubbish if they want to win

KeithP

summertech said:

Le_Kirk said:

Straight away one can see that they have added £60 to each PCN allegedly for admin control or some other made up fancy.  If you do not get a sensible reply from SCS Law, make sure you do not miss the deadline for filing and serving.

Yes indeed, my Defence is based on Coupon-mad's template arguing against the legality of the added charges. 

With their WS, the PC have appended BPC vs Matthew Semark-Jullien in which the Claimant successfully appealed a case that had been struck out for AoP - this was on 29th July 2020 so I assume all parking companies are now including this case in their evidence. Has this case had an effect on the success of AoP related defences?

As your Defence is based on C-m's template, you will have noticed that paragraph 7 of your Defence addresses that. 

You need to both understand your Defence and be able to explain the points in it at court if needed.

nosferatu1001

You realise the appeal didnt say this I NOT abuse of process, jsut it cant be struck out without a hearing? Thats all it says! Nothing more!

Coupon-mad

The WS example linked in the NEWBIES thread already deals with the Semark-Jullien damp squib of a case.  There's no need to ask about it.

Le_Kirk

summertech said:

Le_Kirk said:

Straight away one can see that they have added £60 to each PCN allegedly for admin control or some other made up fancy.  If you do not get a sensible reply from SCS Law, make sure you do not miss the deadline for filing and serving.

Yes indeed, my Defence is based on Coupon-mad's template arguing against the legality of the added charges. 
With their WS, the PC have appended BPC vs Matthew Semark-Jullien in which the Claimant successfully appealed a case that had been struck out for AoP - this was on 29th July 2020 so I assume all parking companies are now including this case in their evidence. Has this case had an effect on the success of AoP related defences?

Just bear in mind that the adding of spurious amounts to a claim is not a defence of itself but is a way of keeping the costs down IF you lose.  The Semark-Jullien appeal was a damp squib, search for those words ("Semark-Jullien" or "damp squib") using @Coupon-mad as the author and you will see that she has taken apart that argument.

summertech

Hi all

Would appreciate some advice on the WS below. I think I need to flesh out the evidence but the majority of my points have been covered in my defence.

1.     I am 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.

 

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

 

3.     I was the registered keeper and driver of the vehicle on and thereafter.

 

4.     The claim against me relates to parking charges that allegedly occurred at my previous address where I was a tenant from 29th June 2019 to 28th June 2020. [See Exhibit DT01 – AST Agreement]. As you can see from the appended AST, there is no mention of parking, or restrictions on parking.

 

5.     At some point, prior to the commencement of my tenancy the previous managing agents have contracted with the Claimant company, but they are strangers to the contract between myself and my Landlord. In addition to this, the Managing Agent would have contracted the Claimant company to prevent trespass, not penalise residents.

 

6.     The Claimant has appended a Permit in their Witness Statement, this Permit is only valid for the spaces within the undercroft and it is clear to see from the Claimant’s own evidence that my vehicle was parked in the external spaces. I repeat the point from my defence that the only Permit available for the external spaces is a Visitor’s Permit supplied by the concierge. I am a resident and cannot access a Visitor’s Permit, therefore it is impossible for me to comply with the stated terms.

7.     The parking spaces in question are contained within a gated complex, of which the Defendant possesses a key fob to enter – a type issued only to residents. Therefore, any vehicles parked within the complex are authorised to be there. This does not refer to the spaces within the undercroft, which are behind a separate gate.

 

8.     The Claimant company has been removed from service in the development due to poor performance and harassment of residents.

 

The Beavis case is against this claim

 

9.     This situation can be fully distinguished from ParkingEye Ltd vs Beavis [2015] UKSC67 referenced by the Claimant, 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.

 

Redacted Landowner Contract

 

10.  The Claimant has appended a redacted “landowner contract which has little or no value and offends against the rules of evidence. The boundary/map is not shown, and nothing to say what the landowner’s approach (whoever they may be) is penalising genuine residents who pay towards the building’s upkeep. It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act 2006. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue must flow from the landowner, not an agent.

 

11.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 – [See exhibit DTXX]

 

The Court of Appeal are now clear that most redactions are improper where the court are being asked to interpret the 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…”

 

 

 

 

Abuse of process - the quantum

 

12.  The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  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 DTXX] transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands. 

 

13.  Whilst it is known that another case that was struck out on the same basis 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 costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence. 

 

14.  The Judge at Sailsbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): [See exhibit DD09]

''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.''  

 

15.  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 debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  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 cannot have both. 

 

 

16.  This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest. 

 

17.  This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not prominent in reality. It is noted that the Claimant has appended ‘stock’ images of signs which are not as they appear in situ, and a mocked-up ‘aerial view’ in which an unidentified person has marked supposed signage locations with no evidence that this is true. I can state from my own knowledge that there were nothing like that many signs within the development.

 

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

 

18.  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.  I ask 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 (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 

 

19.  My travel costs depend upon whether the hearing is in person but the fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs 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

 

20.  I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable 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).   In support of that argument, I remind the court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.  This is compounded by the witness attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

Redx

3 doesn't make sense

Missing the statement of truth at the bottom

Coupon-mad

It's unclear to me why you parked in the external spaces if you knew they were for visitors only.  That's how your statement reads.  Surely there is more to say in your favour about the fact that residents are allowed to park there and always have done...or whatever?

summertech

Thanks, I will work on refining the WS. 

Our letting agent confirmed verbally that I could use these spaces but hasn't responded to my request to provide a written statement.

With their bundle the claimant's solicitors have appended a copy of the original lease from 2007, sourced from the Land Registry. They have referred to the following section of the lease:

"...the landlord may at any time or times during the Term in the interests of good estate management impose such regulations of general application regarding the Estate or the properties therein as it may in its absolute discretion think fit (but so that any regulations shall not conflict with this lease) and the landlord shall have the power in its absolute discretion to revoke, amend or add to those regulations or any additions thereto or substitutions before"

Could I rebuke this point by stating that the redacted contract appended by the solicitor has been made between the parking company and an agent of the property management company, (on behalf of a property manager, not director!) of the company (who are also no longer in service at the development) and not the landowner as noted on the LR document?

summertech

In addition to this, the Claimant's solicitor argues that my AST would bind me to the conditions of the Head Lease. I have checked the AST and it says:

"to comply with the obligations of the Head Lease provided a copy of the obligations are attached to this agreement" which they aren't. Can I include this in my WS to argue the above point?