Help/Advice needed regarding PCN

Hot_chocolate20

nosferatu1001 said:

Raise that with the court - completely unacceptable. 

I'll have to bring that to the judge's attention next week

Hot_chocolate20

Please can I get some thoughts on this statement that was made by the scammers:

"With respect of Parking Eye-v-Beavis [2015], whilst it is accepted the original charge is

designed to include the ‘operational costs’; this was with reference to maintaining the and, taking payment or sending the relevant POFA compliant notices. It was never intended to include the need to pursue the debt in Court to recover it. If that were the case,it would override the Civil Procedure Rules (allowing fixed costs and recovery of court fees) which of course is not the case. The Defendant has misunderstood the phrasing‘operational costs

Coupon-mad

Yep, take the Judge to ParkingEye v Somerfield, para 419 of the HIgh Court Judgment that pre-dated Beavis and where ParkingEye made it obvious they were indeed trying to add a 'recovery/admin/late payment' cost on top of a £75 parking charge.    That case is in your defence and/or WS if you used this forum's templates.  It covers the situation.   HHJ Hegarty explains why that is unrecoverable and that's why in Beavis 2 years later, ParkingEye had dropped that add-on!

So does Excel v Wilkinson but that's not High Court, it's just a District Judge in Bradford (County Court leval but she is now a Specialist Civil Circuit Judge who sits at the High Court in certain cases).  Hers is very good summary of what's wrong with adding money on top of a private PCN that must already include all the costs of the operation (yes, the letters, those are the costs of the operation that arise when a driver is alleged to have breached a term!).

Le_Kirk

Maybe you should show them what a JUDGE said in this case: -

419. 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.

http://nebula.wsimg.com/e1ece9988ce281a5154163aecbf09e49?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

Hot_chocolate20

 Update - my hearing was today at 14.00
Just want to thank everyone, especially @Fruitcake and @Coupon-mad and @Le_Kirk
I WON!!!!!!!!!!!!!!!!!!!!🎉🎉🎉🎉🎉🎉🎉

And Couldn't of done it without this forum - thank you so much - this has been a burden on me since last June and it feels amazing to have won.
Claimants also arent appealing the decision

Le_Kirk

Well done, a weight off your shoulders and now to have a great week-end!

Redx

Give us a detailed court report as feedback please , when you get chance , Bank lose again , sc#mmers lose again !!

Another one bites the dust !!  😁😁😁. Well done !

Coupon-mad

Yay, ANOTHER ONE BITES THE DUST!

WELL DONE YOU!  Please give us a blow-by-blow account of what happened and who attended and what was said, and which point(s) won the day!

D_P_Dance

They have wasted your time, consider wasting theirs, read this

https://www.citizensadvice.org.uk/law-and-courts/legal-system/small-claims/making-a-small-claim/

Hot_chocolate20

Happy to provide a step by step account - it's the least I can do.

 On the day of the hearing, I was eagerly anticipating receiving an email with the link (which was supposed to be sent the day before).

I called the court 1 hr before the hearing, and it turns out some person got my email address wrong..although the email I sent was a clear as daylight 'this is the email address I want to use, the one I am sending this confirmation email from'

 Worth noting anyone having a hearing online should make sure the court has their email address recorded correctly (even if you've already previously sent them loads of emails previously with your case number).

⭐Okay unto the hearing.

The Judge started by stating that someone has to win and someone has to lose, that's the nature of litigation. He explained that at the end of the hearing a party may appeal. Grounds for Appeal would be if they believed the Judge got an aspect of Law wrong, and not merely because they didn't like what the Judge said.

We all affirmed, acknowledging that we understood.

The Judge then handed over to the C, who was somewhat overconfident.

 

The C started his case by reading their WS, the judge stopped them in their tracks and said 'yes C, we are all well aware what your WS says'

 

The Judge proceeded to state that the D has produced evidence that goes against Cs WS about a contract existing at the date the incident occurred.

 

The Judge asked the C about whether the contract the C were relying on was in force in all those years ago.

 

C made a comment to state that they were unsure but that they didnt see why it would be otherwise and made some other remarks, mainly about the NTK being sent and the D knew full well that there was a contract.

 

The Judge then gave the D a chance to speak, and I pointed our the inconsistencies in their WS

 

AND also the inconsistencies in the pictures C provided of the signage compared to how the signage actually looked like as of this year (2021).

 

It was minor things like the parking times being different, on their evidence compared to what it was really like.

 

The Judge acknowledged the inconsistencies, and was receptive when I stated that the inconsistencies were minor but nevertheless they were still inconsistencies.

 

I mentioned that in effect what the C is trying to do is bind the D to terms of a contract that didnt exist at the time, and if it did exist, wasnt brought to my attention and I wasn't given the opportunity to become familiar with the T&C's before the contract concluded which didnt seem fair.

 

The Judge Agreed.

 

My next point was about the LO contract, which the Judge dismissed, stating that it's permissible, so I respectfully acknowledged his point and stated that I was happy to take the Judge's steer on it as they are the expert

 

The Judge seemed pleased with my pleasant mannerism.

 

I then address the additional £60 charge and stated C justifies it by stating it was cost of recovering the Debt..so I pointed to the Somerfield case Paragraph 419 and directed the Judge to that in the bundled, the Judge followed and agreed.

 

My point about the LBC was dismissed, the Judge said he wasn't too fussed about that, and I acknowledged.

 

Then stated the D now concludes his submissions.

 

The Judge asked the C's solicitor if they had any response to Ds submissions

 

They started going on about the LBC - the judge again re-iterated that he wasn't so concerned about that...but this solicitor kept talking and the judges face said it all hahaha.

 

The judge said he has heard both parties and would now submit his judgement.

 

⭐His Judgement:

 

The Judge stated that he found the D to be a credible character and that the D has submitted evidence which the C has failed to satisfy him that there was a contract in place all those years ago.

 

From the D's evidence, the Judge is sure that the signs have changed 3-4 times at least since the date of the incident.

 

He mentioned that he was't comfortable making a judgement against the D, as the burden on proof in a contract law matter lays with the C, and the C has failed to convince him and he couldn't enter a judgement against the D and is deciding to dismiss the C's case.

 

The C said 'fair enough' then tried to pursue the other Ds, but the Judge said the decision is binding on the other two Ds

 

⭐Costs:

In my WS I removed the costs section as it got shot down on the forum, so I couldn't be bothered with all of that.

 

The Judge said my WS mentioned standard cost for attending court but as we were all at home it was fait to say we haven't travelled out.

 

I agreed, then Judge asked if anyone had any questions about his judgement. We all said no, and he wished us a good afternoon.

The End.