Horizon/Gladstones claim - court this week

victorian12

After reading up on CPR 16.4 I am worrying that my Particulars actually do show the sufficient level of detail. 

4. The Particulars of the Claim are sparse (“The driver of the vehicle registration
XXXX XXX parked in breach of the terms of parking stipulated on the signage (the ‘Contract’) at Water Gardens Shopping Centre, Harlow, Essex, CM20 1AN on xxxx/2019 and xxxx/2019 thus incurring the parking charges (the ‘PCN’s’). The PCN’s were not paid within 28 days of issue. The claimant claims the unpaid PCN’s from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £60.00 per PCN, £70.00 per PCN contractual costs pursuant to the contract and PCN terms and conditions, together with statutory interest of £19.61 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.06 per day.”). It is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

victorian12

I have looked at the ongoing thread from br28 which is similar to mine and decided to copy the wording for abuse of process , So new version to follow. 

victorian12

Last version (I hope) before sending off tommorow. I would be really grateful if someone could help me out with the question posted above i.e. because my particulars state that '£70 contractual charges' were added does this mean that the costs were adequately described and I shouldn't use the abuse of process paragraphs?

IN THE COUNTY COURT
CLAIM No:xxx
BETWEEN:
HORIZON PARKING LTD (Claimant)
-and-


________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration xxx, of which the Defendant, the former registered keeper, was parked on the material dates at Water Gardens Shopping Centre, Harlow, Essex, CM20 1AN. The PCN stated the contravention as “breach of the terms of parking stipulated on the signage (the ‘Contract’).”

3. The Particulars of Claim state that the Defendant “was the driver/keeper of the vehicle”. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16, 7.5 as there is nothing which specifies how the terms were breached.

4. The Particulars of the Claim are sparse (“The driver of the vehicle registration
xxxx parked in breach of the terms of parking stipulated on the signage (the ‘Contract’) at Water Gardens Shopping Centre, Harlow, Essex, CM20 1AN on 10/01/2019 and 04/01/2019 thus incurring the parking charges (the ‘PCN’s’). The PCN’s were not paid within 28 days of issue. The claimant claims the unpaid PCN’s from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £60.00 per PCN, £70.00 per PCN contractual costs pursuant to the contract and PCN terms and conditions, together with statutory interest of £19.61 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.06 per day.”). It is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. Further and in the alternative, it is denied that the Claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The option to pay online within a time limit is offered as an alternative to using the ticket machine for those ‘in a hurry’. Given the extremely long queues at the ticket machines this seems a necessary option. However, it is not clear if the terms on the Claimant’s signage apply to online payments.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would need to stand directly in front of the sign. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that the vehicle did not have a valid permit to be parked since a cash payment could have been made but incorrectly assigned to another vehicle due to an input error and/or a technical issue with the ANPR system.

8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

9. The two parking charges in question are at a level of £60 each, yet the Claimant is trying to recover an eye-watering £260 (plus interest, court costs and Legal representative’s costs). The purported added 'costs' are disproportionate, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 ('the CRA') 'terms that may be unfair’.

10. The Protection of Freedoms Act (POFA) 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice(s) to Keeper, in this case £120. The claim includes an additional £140 for ‘PCN contractual costs’, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. The Claimant may mislead the court by pointing to a clause in their own Trade Body's CoP that appears to 'allow' added sums by way of damages but the Defendant reminds the court that the CoP is written by the parking firms themselves and is a self-serving document, not regulation, and the two competing 'race to the bottom' CoPs propping up this industry have failed consumers so badly that Parliament is currently working on replacing them with a new CoP, following the enactment of the Parking (Code of Practice) Act 2019.

11. 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 model including recovery letters, which do not represent 'damages'.  The Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages anyway.  By contrast with Beavis, this charge is unconscionable and devoid of any 'legitimate interest' and the Supreme Court stated no less than three times that the operational costs 'must' already be covered by the parking charge, if such a charge is to be held to be a justified/necessary deterrent and disengage the 'penalty rule'.

11.1. To quote from 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.''

11.2. 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.''

11.3. 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...''

11.4. 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.''

11. The claim includes an additional £50 for ‘Legal representative’s costs’, such costs are not permissible under Civil Procedure Rules – Part 27.

12. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. The Defendant is of the view that this Claimant knew or should have known that an exaggerated claim in excess of £100 for an individual parking charge which cannot have the same costs added again, is disallowed under the CPRs, the Beavis case, the POFA and the CRA, and that relief from sanctions should be refused. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to Civil Procedure Rules 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Le_Kirk

Last version (I hope) before sending off tomorrow. I would be really grateful if someone could help me out with the question posted above i.e. because my particulars state that '£70 contractual charges' were added does this mean that the costs were adequately described and I shouldn't use the abuse of process paragraphs?

It is the standard try-on by the PPC/solicitors, just keep the Abuse of Process arguments in.

nosferatu1001

Indeed. keep it in
Just because they CLAIM there was a contract, doesnt mean there was

victorian12

OK great. Defence was sent it today before the deadline. Thanks so much. 

victorian12

Hi again, I have received the Claimant’s completed Directions Questionnaire from Gladstones which includes this statement.
"You will note the Claimant has elected to mediate in an attempt to settle this matter amicably, without the need for further Court intervention. Should you agree to mediation, please inform the Court who will contact both parties to arrange a mediation appointment."

Am I right in thinking I should NOT agree to mediation?

Redx

Read the newbies FAQ sticky thread again , read the advice by bargepole and system

victorian12

OK, I have the court case this week (where did that time go). I have just realised that I was not given a date to submit a witness statement so have not done so. There was absolutely no mention of this on the Hearing notice.
Can I still put across 'my story' without the witness statement?

Le_Kirk

Did it not say something like "both parties to submit all they want to rely on in court 14 days before hearing date" or similar wording, maybe on the back?  If you don't want to be on the back foot get it in NOW.