Claim Submission Form Received - Acknowledgement filed...now to prepare the defence

D_P_Dance

Beavis alone goes into 100 pages.  IMO it would be fit and proper for the judge to access them on the internet. 

gbbe

D_P_Dance said:

Beavis alone goes into 100 pages.  IMO it would be fit and proper for the judge to access them on the internet. 

thanks so i dont need to print any of the above, great that helps

stupid question, do i need to put a copy of my defence with the witness statement?

KeithP

stupid question, do i need to put a copy of my defence with the witness statement?

No.

Coupon-mad

I would not mention the Caernarfon case in the supplementary WS about the false added £60. 

Instead talk about the Southampton and Skipton cases only, with a copy of DJ Grand's Approved Judgment (6 pages) from November 2019, as found in the template defence thread I started a few weeks back (easy to search for). 

The Skipton case was posted about by me around the same time, where Lamilad turned up and assisted the defendants to beat a barrister and emulate the Southampton case in that all parking claims remained struck out.  The important thing about Skipton was, it was against EXCEL!

gbbe

@Coupon-mad I have switched it out for a paragraph that says:

5.1. In the Skipton Court (Excel Parking Services Ltd v X) on 13 February 2020, District Judge Wright stated: “The claim is struck out as an abuse of process [...] The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012 Schedule 4 nor with reference to the judgement in Parking Eye v Beavis, which expressly approved the parking charge because it included costs of administration. Additionally, s71(2) of the Consumer Rights Act 2015 requires the court to consider the fairness of a contract term and the provision for additional charges falls into examples 6, 10 and 14 of the indicative list of unfair terms in schedule 2 of that Act. It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.”

Do i need to say anything at the end of the paragraph or go straight into .....'5.2. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.........

Am i referring to the Skipton case correctly as the defendant has been redacted? - Excel Parking Services Ltd v X

Coupon-mad

Remove EVERYTHING about Caernarfon; it is pointless using that case where the Judge stopped short of leaving the case struck out.  Put stuff about Southampton FIRST due to chronological order and because it includes a transcript, then add this straight after talking about Soton:

(number).  In February 2020, DJ Wright at Skipton followed suit, refusing to set aside the Court's multiple summary strike-out orders at an application hearing by Excel Parking Services Ltd (the same Claimant as in my case).  The learned Judge's reasoning was the same as at Southampton three months before.  DJ Wright had sight of the Southampton transcript (exhibit x) and dismissed Excel's witness statement as ''entirely without merit'' and the claims tainted, although she stopped short of allowing the lay representative for the six Defendants (of whom two appeared in person for this application hearing) to describe the conduct as fraudulent.  Excel's barrister effectively admitted that his client was involved in 'forum shopping' because they continue to file exaggerated claims with £60 added, on the flimsy excuse that they ''don't know which court they will end up at'' and a few Judges in some areas are still allowing them this double recovery.


(number).   It is settled law that an 'enhanced sum' above the advertised parking charge is a penalty and this was not changed by the Supreme Court in Beavis which only considered a parking charge of £85 and no false additions.  At the High court in ParkingEye v Somerfield at [419], it was held: ''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.''  
Exhibit x: https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html#para419

gbbe

thanks @Coupon-mad

the whole section reads as follows (Ive underlined the additional bit so you can see where it sits)

The Consumer Rights Act 2015 ('the CRA') is against this claim
5. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

5.1. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

5.1.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

5.1.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

5.1.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

5.1.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

5.1.5. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.'' A transcript which is now publicly available (APPENDIX A).

5.2. In February 2020, DJ Wright at Skipton followed suit, refusing to set aside the Court's multiple summary strike-out orders at an application hearing by Excel Parking Services Ltd (the same Claimant as in my case) (APPENDIX .  The learned Judge's reasoning was the same as at Southampton three months before.  DJ Wright had sight of the Southampton transcript (APPENDIX A) and dismissed Excel's witness statement as entirely without merit, although she stopped short of allowing the lay representative for the six Defendants (of whom two appeared in person for this application hearing) to describe the conduct as fraudulent.  Excel's barrister effectively admitted that his client was involved in 'forum shopping' as they continue to file exaggerated claims with £60 added, because they ''don't know which court they will end up at'' and in some areas, a few Judges are still allowing them this double recovery.

5.2.1. It is settled law that an 'enhanced sum' above the advertised parking charge is a penalty and this was not changed by the Supreme Court in Beavis.  At the High court in ParkingEye v Somerfield at [419], it was held: ''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.'' (APPENDIX C)

5.3. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

5.4. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

Coupon-mad

Yes that's fine, although don't call the attachments 'appendix A'.    That's just something we use to tack the judgments onto a defence, but you are not at that stage.

These should be numbered like your other exhibits and called 'your initials1' then 'your initials 2' etc.  And yes you need a contents page and all pages numbered, and a Summary Costs Assessment breaking up the hours of time you have spent over this, in the hope the Judge grants your costs on the 'indemnity basis' and agrees with you, that the conduct of the Claimant has overstepped the high bar into unreasonableness.

Have this section from the above ready to say in your own case, as the point is that in your case this is true as well:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

gbbe

thank you so so much for your help @Coupon-mad !!

RE COSTS........ no question on ordinary costs but question on costs following unreasonable behaviour.......

Also should costs be the last exhibit you refer to?

Research, preparation and drafting of documents (3 hours at Litigant in Person rate of £19 per hour) £57.00

well its taken me a lot longer than 3 hours, more like 3 weeks by the time you have researched and completed the defence too, is there a limit to the number of hours it is advisable to charge for??

Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents (3 hours at Litigant in Person rate of £19 per hour) £57.00
Stationery, printing, photocopying and postage: £15.00
Sub-total £72.00 ======
£ XXX.XX TOTAL COSTS CLAIMED

Coupon-mad

I'd break it down more, as this is meant to be a 'true assessment', so:

Dealing with pre-action letters (including reading time and any appeal you sent) = x hours 
Dealing with letter before claim (including any time spent on a SAR and reading it all) = x hours
Responding to claim form, acknowledgement defence and directions questionnaire = x hours
Preparing witness statement and evidence = x hours
Printing and collating witness statement and evidence (including printing costs) = x hours
Postage costs = £x
Reading the Claimants xx pages of 'evidence' = x hours
Researching the laws and case law (Defendant not being not legally qualified) = x hours
Potential costs for attending a hearing (one day's loss of leave at my actual rate, not capped at £95) = £xxx

TOTAL =