Claim form received. Help needed

Umkomaas

aso2007 said:

KeithP said:

Of course a glaringly obvious mistake in your Witness Statement is in the first sentence of your Statement of Truth.   

Could you please direct me where the mistake is 

9th word along in the Statement!

Coupon-mad

17.     This same Claimant had a case that was struck out on the same basis (Abuse of process) at the county court at Skipton in February 2020 (See Exhibit 6).

Excel will tell the court that they are currently appealing a strike out decision from the Leeds/Bradford area court now, which is an area that has been continuing to strike claims out for adding false costs that represent double recovery.  Excel will say it isn't double recovery of course.  Just be ready for something of a bunfight and they might quote OPS v Wilshaw, where the Circuit Judge HHJ Simpkiss clearly had no clue what the fake added costs were for, didn't ask, made a wrong assumption that unspecified costs were allowable (he also failed to apply the Consumer Rights Act 2015, at all, to the terms or the signs...sigh). 

Just to warn you that will be cited too but a Judge who assumes wrongly that the fake added costs are for the DVLA look-up and shows zero sign of understanding or applying the court's duty to consider the test of fairness of terms and signs (both), hardly leads to a persuasive decision.   

But you may have to point out the error of his ways as I suspect we will all have to do this year.  

Other Circuit Judges are saying the opposite and/or considering these false costs a lot more carefully and with knowledge of the CRA 2015.   Judges are happy to ignore VCS v Crutchley and VCS v Ward, they will also no doubt cheerfully ignore OPS v Wilshaw if they have knowledge of what the real and fake costs actually are, in a parking model and see that decision for what it was.  

Re your WS, you've said nothing at all about what you understand the allegation/breach to be, and what really happened according to the driver (who wasn't you).  For instance, your JUdge has nothing  in this WS to tell him/her what sort of car park this was and what the alleged breach was (not paying?  overstaying?  VRM keypad error?  Paying at the wrong machine?  Parking on a crack in the pavement?).

aso2007

2nd draft:
I added an account of what happened as suggested by CouponMad.

IN THE COUNTY COURT

Claim No.: xxxxxxxxxxxxxx

Hearing date: xxxxxxxxxxx

 

Between

Excel Parking Services Limited 

(Claimant) 

- and -  

xxxxxxxxxxxxxxxxxx                        

 (Defendant)

____________________

WITNESS STATEMENT OF DEFENDANT

____________________

1.       I am Mr xxxxxxxxx, the defendant against whom this claim is made. The facts below are true to the best of my belief.

2.       It is admitted that I was the registered keeper of the vehicle in question but liability is denied. It is also denied that I was the driver of the vehicle in question at the time of the alleged incident (As I am a teacher, I was in school at this time: See Exhibit 1). 

3.       Wednesday 18th March 2020: education secretary announced the closure of schools starting from Friday 20th March 2020. This announcement left us all with lots of questions, worries and panic.

4.       19th March 2020, my wife parked the car in the square shopping centre in Chorlton and went to quality save to buy some essentials for our 4 children. The driver was not given adequate notice that this was supposedly a paid parking area. The duration was 20 minutes (10 minutes + 10 minutes grace period).

5.       I first heard about this parking charge after receiving ‘demand for payment letter’ dated 14/05/2020(Received on 19/05/2020). The Claimant suggests that a Notice to Keeper was sent on 30/03/2020 and a reminder was sent on 28/04/2020; however, such letters were never received and I would not have ignored them, as is shown by my level of engagement since (See Exhibit 2). As this was during the first national lockdown, I assume that post was lost.

5.       There was very little information about the parking company. I searched their address online “2 Europa Court, Sheffield Business Park” and the email I found was litigation@vehiclecontrol.co.uk which I contacted on the 19th May 2020 (See Exhibit 2). I have received an auto-reply to acknowledge receipt of my email. However, I have not received any response to my email.

6.       I submitted the Subject Access Request SAR to obtain all information that the claimant holds on me. The claimant is required to respond within 30 days of this request. The request was sent on 04/06/2020 and a reminder was sent on 22/06/2020. The claimant did not respond until 22/07/2020. This is a direct violation of the data protection act of which the claimant claims they are compliant.

7.       I felt harassed by the bombardment of debt recovery template letters. I tried to resolve the matter and contacted the claimant by email but I was denied an opportunity to appeal the claim. Additionally, some of my emails were ignored.

Signage

8.     Signage is on the passenger side on entry and does not engage drivers. It is at right angles to car on entry, so it would be unsafe for driver to turn head 90 degrees to read a sign.

9.    Sign is a mass of confusing words. The charge is £100 hidden in the small print at the bottom of the sign. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read.

10.     Additionally, the terms on the 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 be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

11.     A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this (See Exhibit 3 for comparison). In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

Abuse of process - the quantum

12.     The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit 4 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

13.     Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

14.     The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

''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.''

15.     This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

16.     This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (See Exhibit 5), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

17.     This same Claimant had a case that was struck out on the same basis (Abuse of process) at the county court at Skipton in February 2020 (See Exhibit 6).

CPR 44.11 - further costs

18.     I am appending with this bundle a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that I engaged with the Claimant and they knew that I had not received the first two letters and that they denied me the opportunity to appeal this penalty. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.

19.     As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

20.     The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

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.

Defendant’s signature:

Date:

1505grandad

"Excel Parking Services Limited 

(Claimant)"

"5.       There was very little information about the parking company. I searched their address online “2 Europa Court, Sheffield Business Park” and the email I found was litigation@vehiclecontrol.co.uk which I contacted on the 19th May 2020 (See Exhibit 2)."

Have not looked back through the thread but was wondering what has vehiclecontrol.co.uk (a completely different entity) got to do with the claimant?

"9.    Sign is a mass of confusing words. The charge is £100 hidden in the small print at the bottom of the sign. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read."

Claimant is a member of the IPC AoS (as stated in para 11) not BPA

Coupon-mad

You need to add in a section about lack of keeper liability under the POFA, because the NTK was never received.  Even if the court deems it was properly posted in time (and the C is put to strict proof of when it was actually posted) the wording is incapable of holding a registered keeper liable.  And there was also a lack of 'adequate notice', 'relevant obligation' or 'relevant contract', all pre-requisites of the POFA Schedule 4 but all absent, due to woefully sparse signage and a hidden pay & display machine.

aso2007

Coupon-mad said:

You need to add in a section about lack of keeper liability under the POFA, because the NTK was never received.  Even if the court deems it was properly posted in time (and the C is put to strict proof of when it was actually posted) the wording is incapable of holding a registered keeper liable.  And there was also a lack of 'adequate notice', 'relevant obligation' or 'relevant contract', all pre-requisites of the POFA Schedule 4 but all absent, due to woefully sparse signage and a hidden pay & display machine.

Thank you CouponMad, without your help and the other stars of this forum I would have given up a long time ago.

aso2007

I have added another section (Lack of keeper liability) as suggested by Coupon-Mad.
The deadline is to be delivered by the 24 th March. 
I have also received a letter from ELMS offering a one-off settlement offer of £135.

aso2007

I hope this is my final draft. Any comments will be much appreciated.

IN THE COUNTY COURT

Claim No.: ------------------

Hearing date: --------------

 

Between

Excel Parking Services Limited 

(Claimant) 

- and -  

-------------------------------------                        

 (Defendant)

____________________

WITNESS STATEMENT OF DEFENDANT

____________________

1.       I am Mr -------------------------, the defendant against whom this claim is made. The facts below are true to the best of my belief.

2.       It is admitted that I was the registered keeper of the vehicle in question but liability is denied. It is also denied that I was the driver of the vehicle in question at the time of the alleged incident (As I am a teacher, I was in school at this time: See XX/01).

3.       Wednesday 18th March 2020: the Education Secretary announced the closure of schools starting from Friday 20th March 2020. This announcement left us with lots of questions, worries and panic.

4.       19th March 2020, the driver parked the car in the square shopping centre in Chorlton and went to Quality Save to buy some essentials for my four children. The driver was not given adequate notice that this was supposedly a paid parking area. The duration was 20 minutes (10 minutes + 10 minutes grace period).

5.       I first heard about this parking charge after receiving a ‘Demand for Payment Letter’ dated 14/05/2020(received on 19/05/2020). The Claimant suggests that a Notice to Keeper was sent on 30/03/2020 and a reminder was sent on 28/04/2020; however, such letters were never received and I would not have ignored them, as is shown by my level of engagement since (See XX/02). As this was during the first national lockdown, I assume that post was lost.

6.       There was very little information about the parking company. I searched their address online “2 Europa Court, Sheffield Business Park” and the email I found was litigation@vehiclecontrol.co.uk which I contacted on the 19th May 2020 (See ME/02). I have received an auto reply to acknowledge receipt of my email. However, I have not received any response to my email. It is until later that I realised that Excel operate under two trading names, Excel Parking and Vehicle Control Services. They share the same address and I found the right email which is litigation@excelparking.co.uk.

7.       I submitted the Subject Access Request SAR to obtain all information that the claimant holds on me. The claimant is required to respond within 30 days of this request. The request was sent on 04/06/2020 and a reminder was sent on 22/06/2020. The claimant did not respond until 22/07/2020. This is a direct violation of the data protection act of which the claimant claims they are compliant.

8.       I felt harassed by the bombardment of debt recovery template letters. I tried to resolve the matter and contacted the claimant by email but I was denied an opportunity to appeal the claim. Additionally, some of my emails were ignored.

9.       I believe the Claimant should be held accountable for their vexatious behaviour that has caused me and my family anxiety and distress especially during this difficult time of the pandemic and I am sure many other people may be forced into a corner where they pay for a similar illegitimate claim.

Signage (See XX/03)

10.     Signage is on the passenger side on entry and does not engage drivers. It is at right angles to car on entry, so it would be unsafe for driver to turn head 90 degrees to read a sign.

11.    Sign is a mass of confusing words. The charge is £100 hidden in the small print at the bottom of the sign. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the IPC AoS code of practice as hard to read.

12.     Additionally, the terms on the 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 be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

13.     A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this (See XX/04 for comparison). In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

Abuse of process - the quantum

14.     The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see XX/07 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

15.     Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

16.     The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

''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. ................................''

17.     This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

18.     This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (See XX/05), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

19.     This same Claimant had a case that was struck out on the same basis (Abuse of process) at the county court at Skipton in February 2020 (See XX/06).

Lack of keeper liability under the POFA

20.     The Defendant was not the driver and avers that in 2020 there was more than one named driver on the relevant insurance, and exercises his absolute right not to name the driver even of known for certain (the Defendant was not in the car so was not a witness to the actual parking). Because the Claimant cannot evidence or suggest that the Defendant was the driver, they can only hold the registered keeper Defendant liable for the conduct of another driver, if the Claimant has fully complied with the Protection of Freedoms Act 2012, schedule 4 ('the POFA').

21.     As the defendant was not the driver of the vehicle on the day/time in question and is not the liable party, no adverse inference can be drawn and there is no application of the law of agency in this scenario, as this Claimant's owner Simon Renshaw-Smith is well aware, following several cases involving his two parking firms (Excel parking and VCS), including a persuasive appeal at Manchester County Court, where HHJ Smith overturned an error in the lower court (Excel v Smith - C0DP9C4E/M17X062, 8/6/2017).  This case transcript will be adduced in evidence to show that this Claimant's claim is wholly unreasonable and vexatious because they undoubtedly know there is no cause of action against a registered keeper, absent evidence that they were the driver, which is denied (See XX/08).

22.     The Claimant has failed in several respects, therefore there can be no 'keeper liability' and there is no other lawful mechanism by which a registered keeper can be held liable for parking events in private land. Omissions and non-compliance issues include the following, in respect of which the Claimant is put to strict proof:

·         No relevant obligation or relevant contract existed nor has been evidenced.

·         No 'adequate notice' of the parking charge, given the inadequacy of this Claimant's signage.

·         The Notice to Keeper (NTK) fails to communicate the mandatory information, including misstating the prescribed period whereby the keeper might have fallen liable. The NTK states that the Defendant would potentially be liable: 'after 28 days from the date this Notice to keeper was issued...' but this does not match the statute (which merely needs a parking operator to copy some minimal wording) and requires the period to be stated thus: 'from the day after this NTK was served'. The words 'issued' and 'served' have completely different and specific meanings in the POFA. Depending upon the date of posting and service, the difference in the date that a keeper might potentially become liable in law would be between two and seven days, and it is impossible for the Claimant's wording to be correct.

23.     This issue of lack of keeper liability was tested in Excel v Lamoureux (See XX/09) (C3DP56Q5, Skipton County Court, 17/11/2016) where Distract Judge Skalskyj-Reynolds summarised the issue: ''I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012 or keeper liability''.   The issue has also been tested against this Claimant, reported multiple times, including in VCS v Quayle  C1DP0H0J. Liverpool, 04/05/2017 where Deputy District Judge Gourley found, in the presence of VCS' barrister:  ''They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.''

24.     The claimant also failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, failing to deliver the notice within the relevant time of 14 days as prescribed by section 9 (4) of the Act. 19th March 2020 was the date of the alleged incident. NTK was never received and the first letter I received was a ‘Demand for Payment Letter’ dated 14/05/2020(received on 19/05/2020).The claimant cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

CPR 44.11 - further costs

25.     I am appending with this bundle a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that I engaged with the Claimant and they knew that I had not received the first two letters and that they denied me the opportunity to appeal this penalty. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.

26.     As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

27.     The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

Redx

Do not forget the latest version of the statement of truth at the bottom

Change your exhibit numbering to your initials plus a number in the final draft , such as

ABC/01 , ABC/02 etc

aso2007

Redx said:

Do not forget the latest version of the statement of truth at the bottom

Change your exhibit numbering to your initials plus a number in the final draft , such as

ABC/01 , ABC/02 etc

Yes, a statement of truth is included (I removed it here as I reached the maximum number of characters allowed).