Excel Parking Claim Form - Defence for Review

Coupon-mad

Make sure you have the usual headings at the top of course, claim numbers (both) and parties, etc.

You also need a summary costs assessment, signed and dated.

I've shown some suggested changes, some re typos put right and others are switched order of wording and adding the Southampton judgment as an exhibit number (you can't just attach it without giving it a number):

Coupon-mad

WITNESS STATEMENT

1.  I am Name, of Address, the Defendant against whom these claims are made.  Any debt is entirely denied.   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.’ 

2.  PRELIMINARY MATTER - DUPLICATE CLAIMS AND ABUSE OF THE COURT PROCESS

2.1.  I have noted two claim numbers above and intend this witness statement to address both claims to save my own an the court's time because this Claimant has filed two separate claims against me for parking charges relating to duplicate facts (the only difference being the dates of the two predatory parking charges).  

2.2.  In July, I emailed the Court, referencing Cause of Action Estoppel on the second claim and received a letter stating ''Upon considering an email from the defendant and the Court file a District judge has made the following comments:- "If one or both parties wish to consolidate this claim (first claim ref) with (second claim ref), then they should invite the County Court Money Claims Centre to transfer the file to Warwick so that this can be considered in advance of the trial of this claim on 26th August."   I have done that and believe the second claim is on its way to Warwick.

2.3. I ask the court that these two claims are either:

(a) consolidated (the second claim is in the process of being allocated by the CCBC to Warwick), or

(b) treated as if the first claim is the 'lead case' and the other is struck out in the event that I prevail at the hearing, due to cause of action estoppel, or

(c) summarily struck out upon the Judge reading this statement - and the 26th August hearing vacated - due to two instances of abuse of process by the Claimant which has disadvantaged me and wasted the court's time, during a period where resources are under strain.  One abuse being the fact that both claims are inflated by adding an unrecoverable sum dressed up as 'damages' to the parking charge and the second abuse being that the Claimant has knowingly filed two duplicate claims to me instead of advancing their whole case in the first claim.  I agree for the case to be dealt with on the papers only if it is for the purpose of summary strike out by the Court having read this statement, otherwise I am preparing to attend the hearing and wish for my voice to be heard.

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.

3.  Sequence of Events:

3.1. This was a car park used for work between June 2019 and February 2020, whereby I was paying circa £10.00 daily fees to park.  I did not pay for parking to this Claimant and had no contract with them; the right to park was concluded by way of tokens on a daily basis and I understood this was a scheme set up by the landowner to facilitate parking spaces for workers such as myself.  At no point was I made aware of any parking charge/fine risk and had never heard of Excel Parking Services Ltd, who I now understand from my research are a notorious ex-clamper firm, the likes of which I thought were banned along with other rogue companies from this industry, in 2012.

3.2 On the first material date 24th September 2019, I parked at Fort Dunlop car, registration number xxx xxxx. Having helped my wife at home with our four young children, I was running late for a business meeting, I have  I parked in an end space with the car within the parking bay with drivers wheels on the line (Exhibit 1). Note I was unaware that I had been issued a Parking Charge Notice (PCN) because no notice was placed on the windscreen.

3.3. Again on 22nd October 2019; I was in a rush to support a business meeting, that I parked in the same parking space with again drivers wheel parked on line of end bay (Exhibit 2). This time however a Privacy Notice (PN) (Exhibit 3) was affixed to the windscreen of the vehicle. For which second Claim (Ref) was issued.

3.3. Regarding the second PCN (which was not a PCN at all because privacy notices are 'soft ticketing' which is banned conduct according to the DVLA) I contacted the Front of House security on that evening as I was unaware of what this was; I was oblivious that this car park had a Private Parking Company (hereafter referred to as PPCs) managing the site; as it was a token based car parking system whereby drivers have to pay for their parking based on duration of their stay, before exiting the carpark (and not a pay and display carpark). Front of House advised I needed to contact the Property Manager to discuss. At the desk there was an individual who advised that there had been a spate of complaints to the Property Manager regarding the unnecessary issue of PCN’s to users of the carpark from The Claimant, who he was one - including himself - and that this was a case of PPCs who are using heavy handed and predatory tactics to increase their revenue as much as possible and this approach should be stopped.

3.4 I tried to contact the Property Manager and in the end went via the Office Manager in the organisation I was working in, who thought they maybe able to cancel this unnecessary PCNs’ at their discretion for these minor oversights of parking, but in this particular case they explained there was not anything they could do because it appears that this Claimant was out of control and able to rely upon a contract the Claimants drafted themselves, whereby they don't allow their client landowners to have any say in cancelling PCNs for authorised service users.  The court is invited to find that this destroys any 'legitimate interest' argument and distinguishes this case from ParkingEye v Beavis [2015] UKSC67.

4. Later Events:

4.1 After spending some time researching issues and complaints surrounding PPC’s, I decided to wait until The Claimant contacted me.

4.2 After obtaining my details from the DVLA, I received a Notice To Keeper (NtK) from The Claimant for the second Claim (Ref), demanding a payment of £100 within 28 days or £60 if paid within 14 days (Exhibit 4).

4.3 A few Days after I received a final Demand of £100.00 for the first PCN, (Exhibit 5) I was totally confused and thought this was a mix of details because a PN was not affixed to the windscreen for the first incident and no NtK received. Unfortunately, I did not receive the NtK for first PCN in timely manner as the letter was misplaced in my very busy household; and it was only upon receipt of the Final Notice Reminder received in early November that I was aware of the first PCN.

4.4 I appealed the second PCN (Claim Ref. 2) on 13th November 2019 becuase it had an had appeal date of 14th November 2019 (Exhibit 6).

4.5 I emailed The Claimant regarding the first PCN (Claim Ref 1) on 26th November advising I deemed it was unfair and unnecessary and requested it be cancelled (Exhibit 7)

4.6 The Claimant emailed back 31st December 2019 regarding second PCN (Claim Ref. 2) advising having reviewed the case they are satisfied that the Charge Notice was correctly issued and rejected with a template rejection of appeal (Exhibit 8). I would like to highlight that The Claimant advised that “our charges are neither extravagant nor unconscionable and as such, are commercially justified and legitimately enforceable. This was supported by the Supreme Courts decision in the case of Parking Eye v Beavis (2015)”.

4.7 I did not recieve correspondence back from appeal of first PCN and only received a letter before Claim dated 17th December 2019, demanding payment of £160 which included false additional £60.00 debt recovery ‘costs’ (Exhibit 9).

5. Additional Costs – Abuse of Process:

5.1 The Particulars of Claim include £60 for “debt collection charge”. 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 £100 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 Supreme Court Beavis case confirms this).  Further, 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 £100.  

5.2.  I attach the Southampton Court approved judgment in Britannia Parking v Crosby and anor, where this was recently tested (Exhibit 10).  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, as well as Warwick Court on 6th December 2019 by Deputy District Judge Josephs.

6. No Contract Exists:

6.1  While I fully appreciate the need for parking control on private land I do not appreciate the apparent business tactics of the claimant 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.

6.2 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.

6.3 The signage is as can be seen in the (Exhibit 11) 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.

7. Cause of action Estoppel:

7.1 The Claimant has issued two Claims against myself as Defendant with substantially identical particulars, for essentially the same  cause of action. The issuing of two separate claims, by the same Claimant and essentially for the same cause of action, is an abuse of of the civil litigation process. The long-established case law in Henderson v Henderson (1843) 67 ER 313, and more recent authorities, establishes that the principle that when a matter becomes the subject of litigation, the parties are required to advance the whole case. At no point has either The Claimant or DCB Legal sought to consolidate these claims and have only pursued separate claims.

7.2 I emailed on 26th June 2020, DCB Legal the appointed Solicitors for the second claim (Ref) and advised of the abuse of the civil litigation process and highlighted that the court and myself will have to make preparations for two separate court hearings, unnecessary cost in time and money, and specifically in terms of duplicating the paperwork, intimidation and distress for me as Litigant in person (Exhibit 12).

8. Lack of Locus Standi of the Claimant - no authority flowing from the site owner

8.1 I have reasonable belief that no survey and questionnaire was issued to obtain permission from tenants before the parking enforcement notice was imposed. I understand from the Office Manager of the organisation I was working at that that the first they heard of parking enforcement coming into effect was from a memo issued on 22nd July 2019 from the Property Manager issued to Tenants (Exhibit 13). Therefore it is understood that the landlord has failed to comply Landlord and Tenant Act 1987 Section 37 (5).

8.2 In regard to the Parking Enforcement memo it states: “Parking etiquette will be monitored within this zone, anybody parking in a way that will have a negative impact on other car park users will be issued a ticket.” In fact, the car was parked primarily within the parking bay with both drivers side wheels parked on the lines of the parking bay, but not across parking bays and did not constitute a negative impact on other car park users (Exhibit 14 & 15).  Furthermore, the court is invited to note that the above communication was merely a residents’ update memo, not something that could fall under the POFA definitions of a ‘relevant contract’ or ‘relevant obligation’ and it fails to set out any boundaries or definitions and does not even mention any specific penalty charge (the word ’ticket’ does not communicate any sum of money at all).

8.3  The Property Manager is not the landowner and this appears to be a case of an agent allowing another agent to put some signs up and foist a scheme upon the tenants, to make money from authorised service users.  There is no evidence that this Claimant is, or ever was, authorised by the site freehold landowner and they are certainly not authorised by the leasehold companies onsite, whose staff were being treated as sitting ducks without ever knowing they were suddenly exposed to the onerous risk of parking charges where none had existed before.  The staff's lives were made a misery and this caused a private nuisance to the tenant companies, yet neither the Claimant nor their clients are the site landowner and there was never any commercial justification for, nor agreement on, this ill-advised scheme.

9. Unreasonable Behaviour:

9.1.   I contend that The Claimant has behaved unreasonably in issuing two predatory tickets at a site where they hav eno landowner authority and by adding a false sum on top of the quantum and filing two separate Claims against me. Their actions and the actions of DCB Legal have brought me considerable vexation and stress. Two separate claims have been issued and as I understand this is not permitted. 

9.2.  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. Especially in light that I have four young children aged 11, 7, 5 & 2 which we have had to look after especially more so in these unprecedented times of Covid with homeschooling, This is further compounded by needing to help with the care for my mother who has inoperable lung cancer and emotions of wife who’s father who has undergone extensive treatment for bladder cancer all last year.  

9.3.  I invite the court to find that this Claimant has acted wholly unreasonably and to strike out or dismiss this claim (both claims) 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.

Fiortdunlop2020

Good Morning Coupon-mad I truly appreciate your support and effort you have put into review as well as all the other contributors to date. I must admit I have been at a low point with all this which is frustrating as this is such a critical stage. It has consumed a lot of time and caused stress at home, but when you folks provide support and direction its does help to lift one and make one think its worth the cause.
Many Thanks

Fiortdunlop2020

latest WS I will include hours once I have finalised Summary Costs Assessment. Any further feedback much appreciated
Many Thanks

nosferatu1001

Rememebr your assessment has two parts
Ordinary costs - loss of half days leave OR pay, with proof attached such as a payslip, and any travel if this is in person. Include reference to the CPR that shows this is payable at small claims
UNreaosnable behaviour -this is your time to
- research defence
- prepare and write defence
- obtain evidence
- write WS 
all at £19 per hour. 

Fiortdunlop2020

Hi nosferatu1001
So for unreasonable Behaviour I reckon:

1) Appealing to second PCN or claim #2 - 1.5 hours 

2) Appealing to second PCN or claim #1 - 1.0 hours

3) Reading Letter before Claim and N1 claim documents for claim #1  xxxxxx - 1 hour

2) reading Letter before Claim and N1 claim documents for claim #2 xxxxxx - 0.5 hour

4) Replying to first LBCs  - 4 hours

5) Replying to first LBCs  - 2 hours

5) Researching how to respond to county court claims - 4 hours

5) Writing defences x 2 and submitting these and Directions questionnaires - 16 hours

6) Researching Witness Statements and preparing evidence x 1  - 4 hours

7) Reading the Claimant's Witness Statement and evidence for the March hearing re that claim (not received WS yet)  - x hours

8) Researching Cause of Action Estoppel - 2 hours

9) Writing to DCB legal regarding Cause of Action Estoppel - 1 hour

10) Writing to DCB legal regarding abuse of Process - 1 hour

11) preparing Defendant's own WS and evidence  - x1 9 hours

printing and postage of xx pages  - £xx Will  include as minimal 

47 Hours total = 47 x £19 per hour = £893

Does this seem excessive? I honestly think it is about these timings.

Thanks

nosferatu1001

Doubt you can claim for anything prior to the LBC. 
Its worth trying. remember you need to be able to explain why their behaviour is unreasonable. 

Coupon-mad

I'd say that anything over £500 is unlikely to be considered and that this looks excessive:

8) Researching Cause of Action Estoppel - 2 hours

9) Writing to DCB legal regarding Cause of Action Estoppel - 1 hour

10) Writing to DCB legal regarding abuse of Process - 1 hour

Fiortdunlop2020

Hi nosferatu1001 & Coupon-mad thanks for feedback I will amend accordingly. I thought it did but then on the other hand thought it is actually 2 claims, but will trim down. ...to be frank all of your time should be accounted for ! For which I am truly appreciative.
Re Ordinary Costs would I claim 45p per mile. Re half day out I am self employed and intend to claw back the lost time. As I work on a day rate and if the Unreasonable costs around the £500 mark, think be prudent to exclude as to not inflate over costs further
Thanks

nosferatu1001

No no no n o
Theyre different headings. Youre entitled to ordinary costs. Youre not entitled to unreasonable costs. Dont give up one you must be allowed for one youre not!