Claim form received, please I need guidance!

nosferatu1001

Have you got a local court yet? Once you get that letter, the next will be from local court with a hearing date. Pointless filing before then

pawless_patrol

nosferatu1001 said:

Have you got a local court yet? Once you get that letter, the next will be from local court with a hearing date. Pointless filing before then

I've got a Notice of transfer of proceedings to a local court. Will wait for the one with the hearing date them. Thanks!

pawless_patrol

Hi all, the end is finally in sight (whatever the outcome!). I've got the notice for a telephone hearing on 15th June. There is a recommendation for mediation which I have ignored. I have to deliver copies of all documents on which I intend to rely at the hearing no later than fourteen days before the hearing. Today I have received BWL WS, a long document with 88 paragraphs responding to each point in my defence, including the typical "copy & paste template from the internet" "beyond the knowledge of the defendant" "nonsensical or irrelevant". I've sourced jrhys WS and modelling my own on it. I'm not sure whether my WS should try to rebut their rebuttal. Advice, please?

Coupon-mad

No need to respond to their templatey stuff about daring to research and use a widely-used internet forum.  A PPC once said that in a court case where I was the lay rep, and the Judge said ''Mr xxxxx, my answer to that is, so what?''

pawless_patrol

Coupon-mad said:

No need to respond to their templatey stuff about daring to research and use a widely-used internet forum.  A PPC once said that in a court case where I was the lay rep, and the Judge said ''Mr xxxxx, my answer to that is, so what?''

Thanks,CM. Not really that bothered about that, although their implication that, because I copied & pasted, I must not have understood what was written is a little insulting...I'm more concerned about their rebuttal to the points in my defence, whether should I get back at their counter argument.

Coupon-mad

Have a look at the WS by @jrhys which is the most recent one and includes the transcript for Excel v Wilkinson, which isn't a precedent but explains the issues surrounding adding £60 on top of a parking charge, very well indeed.

pawless_patrol

Hi all, I'm preparing my WS and I have questions  . Apologies if they are too obvious or silly!
1) Looking at the WS template, I'm not sure the paragraph 15 and 16 fits my case:

15.      The Claimant has appended a redacted ‘Customer License Agreement’ which has little or no probative value and which offends against the rules of evidence. The ‘Client’ signatory of the ‘Agreement’ could be anyone, even a stranger to the land, and the Claimant provides no evidence that the ‘Client’ is the landowner.

16.       It is also clear that the document has not been signed by two Directors, nor by one Director in the presence of attesting witnesses, and as such cannot – according to the Companies Act – be considered a validly executed contract. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

In my case, the claimant WS has attached an unredacted contract for the supply of parking enforcement services. It is signed by one person on behalf of each side (the retail park and the claimant). Would points 15 and 16 still fit my WS? 
2) The claimant WS shows photos of the signs in place and a close-up. Can I refer to those pictures in my WS or should I attach my owns? Can I copy pictures from their WS to use in mine?
I have gone to explain that I didn't appeal because I didn't receive the PCN in time due to have moved. Should I attach a proof of residence as an exhibit? If so, can it be a bill or does it need to be letting contract?
3) I'm also justifying costs due to work disruption as I'm a key worker and scientist heavily involved in Covid response. Should I add as exhibit my key worker letter from my employer?
That's all for now. Thanks again for your enormous help!

pawless_patrol

Also, as in the latest template from jrhys, now the key case is Wilkinson. Should I now skip Southampton, the reference to Semark-Jullien and Parking Eye vs Sommerfield as in robertcox WS? All these paragraph below feel relevant to my WS as otherwise there would be several points of my defence left unexplained.

17. 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 xx-12 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.
18. 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.
19. 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.''
20. 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.
21. 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 (exhibit - xx-10), 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.

Umkomaas

In my case, the claimant WS has attached an unredacted contract for the supply of parking enforcement services. It is signed by one person on behalf of each side (the retail park and the claimant). Would points 15 and 16 still fit my WS? 

Not in their present form. But you must use any arguments that expose holes in the contract - is the retail park the actual landowner, or is it just a managing agent?  Is the signatory a director of the company (check it on Companies House website)?  Argue that two signatures from each side are required to form a contract (check @Fruitcake's helpful posts on this area of contract law).  Are the dates of signing the contract prior to the date of the parking event?

2) The claimant WS shows photos of the signs in place and a close-up. Can I refer to those pictures in my WS or should I attach my owns? Can I copy pictures from their WS to use in mine?

Use your own photos, especially if you can argue that they prove that signage was inadequate. Use you 'worst' ones - ones partly covered in foliage, 8 feet up a pole, minuscule text, the parking charge not prominent, any covered with graffiti, or broken/damaged. Often PPCs just use stock photos of signage - argue that, they aren't the signs at the car park in question, but yours are. Make sure your photos are date and time stamped. If you've taken them with a phone or digital camera, there are ways (via apps) to bring forth that metadata on to the photos - check out via Google. 

I have gone to explain that I didn't appeal because I didn't receive the PCN in time due to have moved. Should I attach a proof of residence as an exhibit? If so, can it be a bill or does it need to be letting contract?

Use what you have available, the letting contract is probably more potent than a (utility?) bill. 

3) I'm also justifying costs due to work disruption as I'm a key worker and scientist heavily involved in Covid response. Should I add as exhibit my key worker letter from my employer?

Why not, use all artillery available to you. Your involvement at scientific level in the fight against Covid (thank you 👏) will hopefully put the PPC in bad-light, and hopefully resonate with a Judge in these dark times. 

Should I now skip Southampton, the reference to Semark-Jullien and Parking Eye vs Sommerfield as in robertcox WS?

Yes skip Southampton, Wilkinson is now more relevant and contemporary and has not been tainted by any form of Semark-Jullien 'non-appeal'.  Still leave in the references to S-J and PE v Somerfield. 

The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process

I wouldn't use 'abuse of process' (although it is used in Wilkinson). Double recovery is now seen to be the correct option, but in one of your statements you use both terms in the same sentence/paragraph. I think where you use Wilkinson, you could slide in 'abuse of process' as the Judge used that in her judgment (from recollection, but please check it out). But it is not a silver bullet to kill the case off. 

Finally, could I ask you for your help, by reading the following please. 

We ask for nothing for our voluntary work here in helping for free. But, just for a short while, can we ask you please to go to this link and read there Lyn Reeves' (@Coupon-Mad here) account of a very disturbing case involving a private parking ticket that has turned very nasty. If you can help in even the smallest way, that would be so much appreciated. 

https://www.gofundme.com/f/much-ado-about-nothing-urgent-help-for-norma?utm_campaign=p_cp_url&utm_medium=os&utm_source=customer

pawless_patrol

Many thanks, Unkoomas. Just donated, what an awful situation!