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County Court Defence against Gladstone+UKCPM advice needed!!!
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swooshy
Posts: 27 Forumite
Hi,
I am new to this forum and would appreciate your input. I have spent hours reading the newbies guide prior to thread creation.
The defendant was not aware of the initial letters sent following the parking 'charge'. Nor was the defendant aware of the letter before court.
The defendant has now received a Court Claim form from Gladstones Solicitors Ltd. The issue date was 15/1/20.
It is not clear as to why this correspondence was not received or how the keeper was eventually contacted with the court claim form.
Amount claimed £335, court fee £35, legal costs £50, total £420
The defendant has filed an acknowledgement of service giving them until 17/2/20 to prepare a defence.
They are claimant is UK CAR PARK MANAGEMENT LIMITED
The history...
The driver was parked in a retail unit with no markings on the road, yellow lines, white lines, or otherwise. There was no physical ticket attached to the windscreen. As a result, being unaware at the time, the driver received yet another 'charge' for parking in the same spot when they returned the following week.
From the newbies thread, it is mentioned that one should obtain a Subject Access Request (SAR) from the parking firm responsible. This would be in order to obtain: all photos taken, details of all correspondence purportedly sent, all evidence they will rely on, and a full copy of the PCN and NTK.
Considering there are only around 2 weeks to post a defence...
Is this still something that should be done at this stage?
Currently, the defendant doesn’t hold any of this information (letters, images or any other information pertaining to the basis of the claim).
After discussions with the DIY store staff, it is apparent that there were other customers who fell in the same trap. The manager of the DIY store stated at the time there was no adequate signage. I have been able to obtain photos of the site from the manager of the DIY store. This reflects the appearance of the signage at the time of the incident and where it was displayed in relation to the road. They are happy to provide supporting letters as needed etc.
It is worth pointing out that the DIY store in question was opposite to an unused retail unit where the driver parked the car parallel to the kerb.
I would be most grateful for your advice and pointers.
The defence has been prepared as follows:
DEFENCE
1.The Defendant received the claim (xxxx) from the Northampton County Court on 23/01/20.
2.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
Preliminary matters:
3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).
4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed, the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so the defendant has had to cover all eventualities being denied a fair chance to defend this in an informed way.
5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.
6. It is denied that “UK CAR PARK MANAGEMENT LIMITED” served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.
In further support of there being a want of cause of action:
7. The PCN was issued on a poorly signed private road where the driver had briefly parked. There was no evidence that this site was 'private land' or being enforced by any restrictive terms, due to insufficient signage. Referring to the IPC Code of Practice (CoP) Part E, it is clear that adequate and clear entrance signs are required.
8. There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. The road was not marked as a no-stopping zone nor transparently signed as a permit-holders or 'managed' site, as their CoP requires.
9. The only sign was attached to a temporary concrete barrier around 80 centimetres in height itself, which could easily be obscured by parked vans, thus creating an entrapment zone. There was nothing to suggest that one sign could relate to parking on the roadway where the kerb was unmarked. There was no clearway sign nor red lines/hatched lines to communicate 'no stopping' and certainly nothing was seen about permits or how to obtain one, or the charge itself.
10. There was no PCN was placed on the windscreen. Therefore, the existence of the 'parking charges' only became apparent when a court claim was received for 'parking charges' apparently incurred on two separate days, five days apart.
11. No terms were seen because the defendant has only just been notified of the offence via the claim form. Thus, there was no fair chance to read any terms at all, so the elements of a contract and agreement on any (unknown) charge are absent. Where terms on a parking sign are not seen/known, then there can be no contract. One can refer to 'Vine v London Borough of Waltham Forest; CA 5 APR 2000, a case won by the consumer on appeal where the Judges also found that clear entrance signs are expected.
12. Any ‘charge’ or terms on signage on the day were not on clear display, but even if the court believes this to not be the case, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.
13. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by immediate ‘fining’ of a car on arrival, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace to obtain any permit or even read the signs.
14. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop with a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
15. It is submitted that (apart from properly incurred court fees) any added solicitors fees or otherwise are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event. There has been no explanation provided as to how the claimant has justified £335 for two 'parking charges'.
16. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.
17. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.
18. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).
19. The court is invited to strike out the claim, due to no cause of action nor prospects of success.
20. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.
Please share any helpful suggestions with me or advice as to what I need to do next.
Thanks.
I am new to this forum and would appreciate your input. I have spent hours reading the newbies guide prior to thread creation.
The defendant was not aware of the initial letters sent following the parking 'charge'. Nor was the defendant aware of the letter before court.
The defendant has now received a Court Claim form from Gladstones Solicitors Ltd. The issue date was 15/1/20.
It is not clear as to why this correspondence was not received or how the keeper was eventually contacted with the court claim form.
Amount claimed £335, court fee £35, legal costs £50, total £420
The defendant has filed an acknowledgement of service giving them until 17/2/20 to prepare a defence.
They are claimant is UK CAR PARK MANAGEMENT LIMITED
The history...
The driver was parked in a retail unit with no markings on the road, yellow lines, white lines, or otherwise. There was no physical ticket attached to the windscreen. As a result, being unaware at the time, the driver received yet another 'charge' for parking in the same spot when they returned the following week.
From the newbies thread, it is mentioned that one should obtain a Subject Access Request (SAR) from the parking firm responsible. This would be in order to obtain: all photos taken, details of all correspondence purportedly sent, all evidence they will rely on, and a full copy of the PCN and NTK.
Considering there are only around 2 weeks to post a defence...
Is this still something that should be done at this stage?
Currently, the defendant doesn’t hold any of this information (letters, images or any other information pertaining to the basis of the claim).
After discussions with the DIY store staff, it is apparent that there were other customers who fell in the same trap. The manager of the DIY store stated at the time there was no adequate signage. I have been able to obtain photos of the site from the manager of the DIY store. This reflects the appearance of the signage at the time of the incident and where it was displayed in relation to the road. They are happy to provide supporting letters as needed etc.
It is worth pointing out that the DIY store in question was opposite to an unused retail unit where the driver parked the car parallel to the kerb.
I would be most grateful for your advice and pointers.
The defence has been prepared as follows:
DEFENCE
1.The Defendant received the claim (xxxx) from the Northampton County Court on 23/01/20.
2.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
Preliminary matters:
3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).
4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed, the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so the defendant has had to cover all eventualities being denied a fair chance to defend this in an informed way.
5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.
6. It is denied that “UK CAR PARK MANAGEMENT LIMITED” served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.
In further support of there being a want of cause of action:
7. The PCN was issued on a poorly signed private road where the driver had briefly parked. There was no evidence that this site was 'private land' or being enforced by any restrictive terms, due to insufficient signage. Referring to the IPC Code of Practice (CoP) Part E, it is clear that adequate and clear entrance signs are required.
8. There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. The road was not marked as a no-stopping zone nor transparently signed as a permit-holders or 'managed' site, as their CoP requires.
9. The only sign was attached to a temporary concrete barrier around 80 centimetres in height itself, which could easily be obscured by parked vans, thus creating an entrapment zone. There was nothing to suggest that one sign could relate to parking on the roadway where the kerb was unmarked. There was no clearway sign nor red lines/hatched lines to communicate 'no stopping' and certainly nothing was seen about permits or how to obtain one, or the charge itself.
10. There was no PCN was placed on the windscreen. Therefore, the existence of the 'parking charges' only became apparent when a court claim was received for 'parking charges' apparently incurred on two separate days, five days apart.
11. No terms were seen because the defendant has only just been notified of the offence via the claim form. Thus, there was no fair chance to read any terms at all, so the elements of a contract and agreement on any (unknown) charge are absent. Where terms on a parking sign are not seen/known, then there can be no contract. One can refer to 'Vine v London Borough of Waltham Forest; CA 5 APR 2000, a case won by the consumer on appeal where the Judges also found that clear entrance signs are expected.
12. Any ‘charge’ or terms on signage on the day were not on clear display, but even if the court believes this to not be the case, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.
13. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by immediate ‘fining’ of a car on arrival, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace to obtain any permit or even read the signs.
14. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop with a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
15. It is submitted that (apart from properly incurred court fees) any added solicitors fees or otherwise are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event. There has been no explanation provided as to how the claimant has justified £335 for two 'parking charges'.
16. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.
17. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.
18. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).
19. The court is invited to strike out the claim, due to no cause of action nor prospects of success.
20. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.
Please share any helpful suggestions with me or advice as to what I need to do next.
Thanks.
0
Comments
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It is not a fine.
Edit your post to remove information about who did what. Only ever refer to The Driver and The Keeper, who are two different people.
The Driver parked, The Keeper didn't receive the NTK or LBC.
Do this now before you do anything else.
If the keeper didn't receive anything because they had moved, instruct the scammer's DPO to erase their old data and update it with the new address for service.
Was there any other reason why the keeper didn't receive anything prior to this?
Send the SAR as per the NEWBIES as soon as possible. Include a copy of the V5C as proof of ID, or a redacted utility/bank/card statement if you no longer have the V5C.
What happened when you complained to the landowner?
Have you complained to your MP yet about this unregulated scam.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Amount claimed £335, court fee £35, legal costs £50, total £420
How have they accounted for £335 ??? What is the breakdown ?
How many tickets are involved
Forget your current defence, wait for input from others here0 -
Hello and welcome to the forums.I have now received a Court Claim form from Gladstones Solicitors Ltd. The issue date was 15/1/20.
I have filed an acknowledgement of service giving me until 17/2/20 to prepare a defence.
You are correct with your Defence filing date but there might be something useful here...
With a Claim Issue Date of 15th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 17th February 2020 to file your Defence.
That's two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.
When you are happy with the content, your Defence could be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
After filing your Defence, there is more to do...- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
- Wait for your own Directions Questionnaire from the CCBC, or download one from the internet, and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread.
- The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
- Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.
0 - Sign it and date it.
-
Amount claimed £335, court fee £35, legal costs £50, total £420
How have they accounted for £335 ??? What is the breakdown ?
How many tickets are involved
Forget your current defence, wait for input from others here
There is no breakdown of costs or any explanation for the £335 claimed.
There are apparently 2 tickets involved, for parking in the same spot 5 days apart. There was no windscreen PCN otherwise this wouldn't have happened.0 -
There is no breakdown of costs or any explanation for the £335 claimed.
There are apparently 2 tickets involved, for parking in the same spot 5 days apart. There was no windscreen PCN otherwise this wouldn't have happened.
Sounds like the incompetent Gladstones again
Max for 2 tickets is £200. Ask them what the £135 extra is for.
Gladstones normally add a fake £60 to each ticket so they must tell you
Now is the time for you to read the abuse of process thread and see how Gladstones are being spanked in court for fake add-ons
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal0 -
You still need to do a bit more editing of post 1. For example,
The history
"… when the Driver returned the following week."
Check everything you have done so far and get into the habit of using the "safe" nomenclature. Parking scammers read this forum.
It doesn't really matter but you have also put the words "defendant" and "me" in the same sentence which is a bit confusing.
For the general comments, the driver parked etcetera, the keeper got a claim.
You only need to refer to the defendant in your defence, but as I said it doesn't really matter as long as the driver isn't identified.
You still haven't explained why the keeper didn't receive anything prior to the claim, or how the scammers/scamlicitors located the keeper.I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.
Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]You never know how far you can go until you go too far.0 -
[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.
Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]
I have written to my local MP highlighting my concerns. I completely oppose the ruthless way these private companies prey on vulnerable members of the public to turn a profit.0 -
Sounds like the incompetent Gladstones again
Max for 2 tickets is £200. Ask them what the £135 extra is for.
Gladstones normally add a fake £60 to each ticket so they must tell you
Now is the time for you to read the abuse of process thread and see how Gladstones are being spanked in court for fake add-ons
Many thanks for this. As you guessed, they have slapped on £60 per ticket with interest.
On reading the court claim letter again, they have justified it as:
£100 per PCN + £60.00 per PCN contractual costs pursuant to the Contract and PCN terms and conditions
+ statutory interest pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.07 per day.
The following will be incorporated into the defence:
16. The Defendant has the reasonable belief that the Claimant has not incurred an additional damages or costs to pursue a total of £335 for two ‘parking charges’. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
17. Whilst quantified costs can be considered on a standard basis, this Claimant's purported 'damages/costs' of £335 for two ‘parking charges’ are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
The Beavis case is against this Claim
18. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.
18.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''
18.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''
18.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''
18.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''
The POFA 2012 and the ATA Code of Practice are against this Claim
19. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.
The Consumer Rights Act 2015 ('the CRA') is against this claim
20. 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.
20.1. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''
20.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.
20.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - 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.
20.3.1. 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...''
20.3.2. 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.
20.3.3. 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.
20.3.4. 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.
20.3.5. A transcript will be publicly available shortly. 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.''
20.4. 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.
20.5. 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.''
21. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.
21.1. The Judge determined that ''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.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.
22. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.
23. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.
24. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.0 -
You still need to do a bit more editing of post 1. For example,
The history
"… when the Driver returned the following week."
Check everything you have done so far and get into the habit of using the "safe" nomenclature. Parking scammers read this forum.
It doesn't really matter but you have also put the words "defendant" and "me" in the same sentence which is a bit confusing.
For the general comments, the driver parked etcetera, the keeper got a claim.
You only need to refer to the defendant in your defence, but as I said it doesn't really matter as long as the driver isn't identified.
You still haven't explained why the keeper didn't receive anything prior to the claim, or how the scammers/scamlicitors located the keeper.
Thanks.
I am not sure why the keeper didn't receive anything prior to this, nor do I know how they were able to get in contact with the keeper.
I have highlighted my concerns with my MP.0
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