Excel lose application to set aside SIX struck out parking charge cases where £60 was added

Coupon-mad

Just heard from lamilad, who went to Skipton today where six Defendants' cases had been grouped together to hear an application by Excel Parking Services to set aside DJ Fay Wright's continuing summary strike outs (i.e. without hearings).  A copy of one of her strike outs is uploaded so newbies can see what this is about.

Basically this was like the Southampton case...

https://forums.moneysavingexpert.com/discussion/6107909/britannia-parking-v-crosby-southampton-judgment-attach-to-defences-or-witness-statements/p1

...repeated in Skipton today!

I am sure he will add more detail but he tells us this and many congrats to him on this brilliant achievement!

''The set aside was heard today by Judge Wright at Skipton. 6 identical strike out cases consolidated into 1 hearing. I was Lay Rep for Ms C. Excel represented by Mr Dunn, a barrister who said he was at chambers in Leeds

The request to set aside was dismissed and the Claimant was found to have behaved unreasonably . Costs of £331.10 awarded to Ms C. Application to appeal was refused.

Kind Regards

lamilad''

Umkomaas

Well done lamilad, good to know you are still operating in the background. I bet Excel rue the day they ever tangled with you! 😎

Coupon-mad

Also, related to these cases, I heard from IamEmanresu who used to post here but now has other commitments:

His quote from the High Court is well worth us using in witness statements:

IamEmanresu posted (not on MSE!):

Just catching up on your "abuse of process" tactic. I can't see where anyone has referred to the pre-Beavis High Court case ParkingEye v Somerfield where at #419 it says:

 ''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.''

As it is on Bailii you can provide the link rather than the transcript. But is should nail a lot more cases than at present

https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html#para419  

We should use that too. 
That quote should be in people's witness statements from now on and we have been missing a trick by not showing Judges that link to the transcript on bailii.

Humdinger1

As an avid reader of this forum, can I thank all the regular expert contributors who fight against the massive injustices the PPRs attempt.  You are inspirational,  clever, and funny; a much needed but sadly rare combination.  CM, lamilad, umkomaas and so many others, thank you.   You are true examples of what it means to be not a number but a free man! Humdinger x 

Coupon-mad

Free woman, in my case (albeit nothing to do with FMOTL rubbish!).

Good to know that some of our advice & actions are making a difference.
We are determined to stop PPCs from adding anything to parking charges that are already artificially high.  Other issues are also being fought on and off forum!

Humdinger1

Yes, yes CM; totally get that the FMOTL is hogwash; and that you are, in fact, a woman!  Sorry for any confusion,  it was a ref to the 60s cult series The Prisoner.   I read this board for the sheer delight of the attitudes and the prose style.  Not had to follow any advice yet but that day may yet come, as the PPRs will probably feel forced to adopt increasingly unhinged tactics as their current MO becomes more widely stopped; could we even say clamped?

Castle

I think Parking Eye v Somerfield needs to come with a warning that at para #425 the judge finds it to be a contractual charge, not a breach of contract:-
It seems to me that it is particularly important in the case of such an informal contract to see how the message on the signs would reasonably be interpreted, from an objective standpoint, by the ordinary motorist who wished to make use of the parking facilities. Any such motorist would be well aware that charges were normally made for the use of such car parks; and that those charges were commonly graduated, depending upon the time for which he parked. In this particular case, I think that the ordinary user of the car park would see the £75 "penalty ticket" as the price which he would or might have to pay if he used the car park for longer than a period of one hour.

Coupon-mad

That ties in with Beavis as well though, so don't think it is a problem.  

Love the acronym PPRs = 'parking privileges removed'! 

beamerguy

This is now in the ABUSE OF PROCESS THREAD -- PART 2
https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2/p1?new=1

1505grandad

It would be great if some of the more obstinate tail-wagged landowners etc. felt some pain. Perhaps already in hand!!

Erinandi

I was one of the defendants in this case. 
First of all I would like to specifically thank CM for their help in the past few weeks, Lamilad for attending court and being a lay rep and also the other forum members for the help, advice and nudges in the right direction since mid 2017.

I will try and remember everything but there are bits that I missed or did not understand. In court there were only 2(including myself) of the 5 (I thought it was 5 not 6 cases being heard today) cases being  brought. I knew about the other defendant attending and had had some contact with them prior to the case. We all went into the private room with Lamilad and Mr Dunn (the barrister for Excel) came and spoke to Lamilad. Mr Dunn was not expecting any defendants to be in court today - in fact they had to move us to a bigger court room.

Excel had provided a witness statement to the court yesterday however we only saw a copy a few minutes before we went in. and we did not have chance to fully read it. Lamilad knew about one case - Summer Vs Fairclough but had no knowledge of another case - ?Alpine? vs- possibly. In court Mr Dunn put his case forward first tell Judge Wright that there should be consistency in all the courts and told Judge Wright she herself should be consistent in her judgements. He mentioned a case where after she struck out our claims she made a different ruling where she gave claimant 3 choices one of them was to amend the claim to taking out the £60. 

Lamilad used the Summer vs Fairclough to argue our point, though he was corrected a couple of times by Judge Wright when he mentioned it being a fraudulent claim. I started to wonder at this point was it actually going to go our way as she did not challenge Mr Dunn's address.

Judge Wrights summing up of the case was quite lengthy and at this point I was starting to feel a little unwell. At two points I thought  I was going to faint though I managed to pul myself around so i did not always catch what she was saying. In her summing up of the case Judge Wright said that the cases Excel had relied upon in their witness statement have in fact persuaded her that she was in fact correct in her original judgement. She explained that the case she had judged differently was due to the fact that this was a different car park which she is less familiar with. Judge Wright explained that she is very familiar with Cavendish as she has heard numerous cases and made judgements on this in years gone by. Even in claims where the defendant did not attend court Judge Wright said she has never allowed the £60 charge to be added to the claim.
Judge Wright refused an appeal, though I believe it could still go to a higher judge.

With regard to costs we were seeking around £490 with loss of earnings, mileage (I had travelled 1.5hrs away from home), preparation costs, printing and stationary costs and lay rep costs. I fully expected to not get anything as I had chosen Skipton rather than my nearest court and there was no expectation from the court that we attend. I was awarded £331.10. We did not get printing costs as we conceded that the £10 figure had just been plucked out of thin air. Mr Dunn argued that I should not get the full £95 for loss of earnings for a 45 minute hearing and I could in essence go to work for the rest of the day. I confirmed to Judge Wright that I could not go back to work today because I live 1.5 hrs away from the court. 45p per mile was also awarded. Judge Wright said 6 hours was enough to claim for preparation etc. Half the claim for lay rep was awarded too.
The other defendant unfortunately did not claim any costs but hopefully with my costs, Barristers fee  and set aside fee we have hit their pocket, at least for more than they wanted from me in the first place.


I have edited this post to add this from the point of view of an observer in the court. Have some parts that I missed.

"Excel asked for a set aside and lost and were denied the appeal. Judge struck out the claims as Excel knew they were not allowed to recover the £60 excess, she had the choice of striking out part of the claim or all of it, she chose to strike it all out as there was no breakdown of cost and she couldn’t assume it was only £60 added in each claim, they said there was a minimum amount of characters available on MCOL and that’s why the claims were not so detailed. Their bumbling stuttering rep said her "striking out" was "not consistent" as she had allowed them to make amended particulars on a case once, she said she had done this as at the time she wasn’t familiar with the terms and the car park in question but now she is fluent. Excel said they always add on the extra costs as some courts allow it and some don’t and at the time of issuing a claim they cannot know which court it will end up at!!!!!  Total chancers!!!!"