County Court Claim

Coupon-mad

This was a sudden notice of discontinuance (NoD) received just a couple of days after the OP fired off a WS, evidence bundle, supplementary ws with the Southampton Approved Judgement, a Draft Order and covering email.  The PCN was for £80, to which they'd added the usual false sum of £60 and the WS was purportedly signed by OPS but was riddled with errors.

This all went to the court and Gladstones in anticipation of a telephone hearing Order, that then arrived on the same day as the NoD!

Covering email used by the OP was along these lines, as recommended in the TELEPHONE HEARINGS thread:

Claim Number: Gxxxxxxxx 

Hearing Date: xx May 2020 at xxpm

Dear District Judge xxxxxxx, 

Re: Important Preliminary matter and service of the Witness statement and evidence from the Defendant

I am the Defendant.  The appended witness statement and evidence bundle, as well as this covering email, has also been sent to the Claimant's litigation team.  In the event of directions for a future hearing in person at this court, hard copies will be provided when I have access to a printer.

Preliminary matter
I am aware that there is more than sufficient information available in this case to activate the court's duty, as set out in s71 of the Consumer Rights Act 2015 ('the CRA').  

The CRA imposes a duty upon courts in all consumer contract cases, to apply the test of fairness in s71 of the CRA and I draw specific attention to more than one breach of CRA Schedule 2, as explained in my witness statement.   Due to this, and to remove an unnecessary burden on the court, I invite the Judge who may at this stage be considering an Order for a Telephone Hearing or adjournment, to instead exercise the court's case management powers pursuant to CPR 3.4, to strike this claim out without a hearing in any format.   

This has already occurred in multiple parking claims in recent months, with duplicate reasons used by Judges sitting at courts as widely spread as Southampton, Warwick, IOW, Caernarfon, Luton and Skipton.  Failed applications with hearings attended by two barristers acting on behalf of parking firms have taken place at Skipton (February 2020, before District Judge Faye Wright) as well as at Southampton, before District Judge Grand.  I refer to my exhibit transcript of the Approved Judgment in Britannia Parking Ltd v Crosby and Anor (11/11/2019) which pays regard to the Supreme Court binding case law and the duty on the courts to invoke s71 of the CRA.

This parking charge claim has been deliberately exaggerated to reach a global sum of £140 despite the Claimant and their legal advisers being well aware by now, that such a sum is unrecoverable in parking charge cases because it is an attempt to go behind case law and statute law, and taints the entire claim.  As such, the Defendant draws attention to the Claimant's continued 'forum shopping' and their clear intention of finding victims who will pay in full without defending, or a less than competent court to allow them to claim a sum far higher than they can lawfully recover. 

Further, there has been no serious attempt to comply with the CPRs and the Claimant's incoherent, stylised particulars do not constitute compliance.  These cases unnecessarily delay and clutter court listings and represent a contemptuous and significant abuse of process.

To assist with the efficient disposal of the case, I attach an editable (Word Document) Draft Order.

For the avoidance of doubt, should the court decide against striking the claim out, I am not in agreement with the case being heard 'on the papers' because:

(a)  this claim is following the usual oppressive parking robo-claim path, with a very sparse statement of case, later followed by a case made by way of ambush.  The Claimant has produced and sent in the past few days, a pile of paperwork including several errors which make it clear this was not written by the 'witness' whose facsimile signature appears at the bottom of the document.

(b) the case of JD Wetherspoon Plc v Harris and others [2013] EWHC 1088 (Ch.) is an example of the Court using its power to limit the evidence by striking out large parts of a witness statement for abuse, because it was written by a person with no personal knowledge who recited facts based on the documents he had read.  The Claimant's witness statement contains template legal argument, misleading reliance upon ParkingEye v Beavis and even more irrelevant case law such as Elliott v Loake, and a misleading quote from the losing respondents in Vine v Waltham Forest not from the rationale of Roch LJ.  I am advised and find from my research (and Worthing Court may also recognise) this is an error seen time and again in template witness statements written not by the witness but actually by Gladstones' freelance statement writers.  The statement is littered with errors that cannot be the honest belief of the putative signatory and it is more designed to stand in terrorem of defendants  than to assist the Court in determining the substantive issues.  

(c)  In my case, I strongly believe that I must be afforded a fair opportunity to rebut the inaccuracies in the 'evidence' re the car park location/event and highlight the failure to demonstrate a prominent/legible contract, or liability, or legitimate interest.  I am the only local witness, in the true sense that I was in the car park and admit to being the driver, and I believe that, if the claim is to be heard, a decision cannot be fairly made without a hearing in my presence. 

If the claim is not struck out, I would prefer a hearing in person once the pandemic lockdown is lifted.  However, I understand that to formally ask for an adjournment would be at a disproportionate cost which is not an option for me, so I await the court's Order and Directions.  

Coupon-mad

Recommended WS we worked on together, was along these lines:

WITNESS STATEMENT

I am xxxxxxxx  xxxxx, of {address}, the Defendant against whom this claim is made. I represent myself as a litigant-in-person, with no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional. Everything in the following statement is true to the best of my knowledge and belief.

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. I will refer to this bundle as ‘xxxxxxx’

Sequence of Events:

3.1. On the material date I parked at xxxxxxxxx  xxxxxxxx and purchased a scratch card day ticket and displayed it in the windscreen of my car, registration number xxx xxxx.  On my return to my car later in the morning I saw I had a PCN attached to my windscreen. On further inspection I noted that I had inadvertently scratched of the following month of xxxxxxxxx on my ticket but the day/date was correct.

3.2. I contacted the Estates Manager, who had been known to cancel a PCN at their discretion of this minor oversight but in this particular case they explained there wasn’t anything they could do. It all seems to depend on whom one talks to!

3.3. I appealed immediately to One Parking Solution via email explaining the minor oversight. They gave a generic response rejecting my appeal saying that ‘Your vehicle was not parked in accordance with the terms and conditions on site, and you have not provided sufficient evidence to show otherwise’. (The response can be seen in The Claimant's exhibits).

4. Later Events:

4.1 After spending some time researching issues and complaints surrounding Private Parking Companies (hereafter referred to as PPCs), I decided to wait until The Claimant contacted me.

4.2 After obtaining my details from the DVLA, I received a Notice To Keeper from The Claimant, demanding a payment of £80 within 28 days or £40 if paid within 14 days.   I received follow up letters demanding payment and OPS had sent a Letter before Claim in 2019, shown in their evidence bundle, stating that the claimed sum in alleged debt was £80, yet later, I received a Letter Before Claim from Gladstones Solicitors dated 17th October and then another dated 18th November demanding payment of £140 which included additional ‘costs’.  The Notice to Keeper, my appeal and The Claimant's rejection of my appeal, plus the conflicting Letters before Claim can all be seen in The Claimant's exhibits.

4.3.  While I fully appreciate the need for parking control on private land I do not appreciate the apparent business tactics of the claimant One Parking Solution whereby they insist people going about their daily business have entered into some kind of vague “contract” with them, based on the small wording on unobtrusive signs.

5. No Contract Exists:

5.1 I understand from correspondence with The Claimant that their case relies upon the signage at the site constituting a “contract” between myself and The Claimant. The “outstanding liability” on the Particulars of Claim presumably refers to the supposed “contract” formed by this signage.

5.2 The signage is as can be seen in the evidence is quite unremarkable even from a short distance. The wording all shares the same font size and nothing is immediately noticeable as being of major importance.  Some signage is defective and detached and lying on the ground and all signage is inadequately light.In the month when the PCN was incurred the signage was especially insignificant.

6. Inadequate Signage:  see exhibits xx, xx, xx

6.1.  At the time this was a new set of signs  - I believe put up in December, with enforcement commencing just a few weeks before the event - but no-one had brought the terms to the attention of the staff.  Contrary to the BPA Code of Practice version 7 (18.10 quoted below) there were no additional clear signs:  

  ''18.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/ temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.''   

6.2. In any case, my only contract (that I knew about) was with xxxxxxxxx; they issue these daily scratch cards that I purchase from them - not from OPS - and there was no caveat on the permits about additional onerous terms or obligations, costs, nor even the risk of an £80 parking charge, nor to say ''you must also look at the signs - these add contractual terms to the use of this permit''.  Nothing alerted me to the signs. 

6.3.  In the Claimant's witness statement bundle, the putative 'aerial view' seems to be a mocked up GoogleStreetView screenshot with crosses dotted randomly on it, and is neither checked, signed nor dated by anyone.  The document could have ten crosses or a hundred, but it has no probative value and it assists the court in no way at all.  I can attest that there are few signs at the site, even now.  

6.4.  I notice that the photos appended to the Claimant's witness statement are not dated (only the two photos of the sign are dated, out of the first dozen or so) and they are taken from all over the sprawling site.  This is irrelevant to where the car was parked, but even so, they paint a picture of faded unreadable lines and bays, and a noticeable lack of signs in the general view.  There is a close up of a sign that contains some 500 words in small print, not that I would have known to go and read it, given that I was an employee and had never had such terms imposed on me before.  I can't look for terms I have no idea relate to me, on a sign placed on an unremarkable place on a fence.    The sign photo divulges that the scratch cards are indeed 'purchased from xxxxx xxxxxxx' and thus OPS are not party to scratchcard purchase transactions and have shown no evidence that additional information was given to staff to alert them to the risk of any charge for even human error, like scratching the wrong day or month off, in the hurry to get to work at the educational establishment.   This is punishment of someone they know paid and displayed, and in ParkingEye v Beavis is was made clear by the Supreme Court, that a parking charge cannot be issued to punish drivers.

6.5.  A key factor in “ParkingEye v Beavis” was that the relevant signs were “large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature”, that “Motorists could hardly avoid reading the notice” and “the charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it”. The parking charge of £80 is actually one of the smallest fonts on the Claimant's sign.

6.6.   In Vine v London Borough of Waltham Forest, the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In that case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking.  In my case, I note that the Claimant's witness, at #14, has misquoted from Roch in Vine, a mistake made by Gladstones solicitors in every case seen on these 'statements' and this plus cut & paste chunks from irrlevant case law (like Elliot  v  Loake at #7 and VCS v HMRC at #17) is clearly a template.  #15 talks about unlit signs illumination (not raised in defence, not an issue) and #18 regurgitates exact wording used in all Gladstones witness statements and bears no relation to the defence argument and it is suggested that most of this documents was not written by Mr xxxxx xxxxx. 

7.  Further errors in the Witness Statement and bundle of the Claimant, which is an abuse:

7.1  xxxxx xxxxx has signed the agreement, yet he was not a Director of OPS in 2018.  Companies House public records show he became a Director in March 2019, over a year after the event and the contract start date.  I refer to paragraphs from his witness statement, shown below by # number:

7.2.   Contrary to #7, I did not deny being the driver in my defence, I responded in a measured way as registered keeper, given it was uclear from the sparse particulars whether OPS were pursuing me as driver or keeper and I had no idea of the exact words I had used two years before, in a short appeal in the hope of resolving the dispute.  I do not deny driving but I deny any agreement or contract existed with OPS about any parking charge.

7.3.  Whole chunks of the Witness Statement are clearly pre-prepared by Gladstones' self-employed statement writers, and bear no relation to the defence and instead confuse the issue with template legal argument, misleading reliance upon ParkingEye v Beavis and even more irrelevant case law.  The court is invited to strike the Claimant's witness statement out because it is more designed to stand in terrorem of me, the Defendant, than to assist the Court in determining the substantive issues.  

7.4.   #25 wrongly says ''The Sign states the prescribed charge for failing to comply with the terms is £100''.  No, it's £80.  Again this is an error caused by Gladstones writing this document, not the witness.  It also wrongly says ''Further the Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued''.  Not true - OPS' own Letter before Claim in January 2019 shown in their own evidence bundle, stated the claim was for just £80.    It seems Gladstones have added the £60, yet they are also trying to claim the maximum fixed 'legal fee' of £50 on top of that.

7.5.  The Claimant is reminded that his facsimile, putative signature appears under this statement ''The Claimant believes 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.''  It is surprising that so many statements made in his name, cannot be something he honestly believes to be true.

8. Additional Costs – Abuse of Process:

8.1 The Particulars of Claim include £60 for “contractual costs”. The Claimant is put to strict proof that these additional charges are justified. I have the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £80 debt. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself. The Protection of Freedoms Act 2012, Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £80.  

8.2.  I attach a supplementary witness statement and the Southampton Court approved judgment in Britannia Parking v Crosby and anor, where this was recently tested.  It was tested again at Skipton court in a hearing in February 2020, no transcript yet available but the outcome was the same - the exaggerated parking charge claims at those courts remained struck out.

9. Unreasonable Behaviour:

9.1.   I contend that The Claimant has behaved unreasonably in bringing this case against me to the court. Their actions and the actions of Gladstones Solicitors have brought me considerable vexation and stress. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time (I estimate approx xx hours) researching case law online, processing and printing evidence and preparing my defence plus this witness statement.

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. 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.

Signed: 

Date:

ParkingMad

That's brilliant news Staatsgrenze, and well done again Coupon-mad!