Claim form received, please I need guidance!

pawless_patrol

@UmkomaasRegarding the photos, I haven't taken photos myself because the incident happened in 2017. I can show streetview google images and make sure they are from just before the time of incident (and show that). However their photos are much less clear/fuzzier than google, that's why my interest in using theirs! 
Thanks for the advice re contract. I found out the signature is not from company director/landowner. Great point!

Umkomaas

However their photos are much less clear/fuzzier than google, that's why my interest in using theirs! 

Oh, right. Well if they've not helped themselves, then capitalise on it. Definitely use their pics. 

PS - and thank you for your kind assistance to Norma W. As you said, an awful situation. 

pawless_patrol

Quick question for reassurance: my hearing date is 15 Jun, is it ok to submit my WS on Tuesday 1st? Am I counting the days right?

Le_Kirk

I make 15 minus 14 to be 1, so would agree with you.  Since Monday is a bank holiday and the court is likely to close in five minutes, it would be taken as received on Tuesday June 1st if you submitted now.

Fruitcake

Please show us the scammer's WS by uploading it to dropbox or similar. Just make sure the hosting site does not require a password, does not require people to agree to having their data processed, is not set up in anyone's real name, and does not include other personal data or photos. Believe me, it has happened. Family holiday pics of children!

Your submission date is 14 days before the hearing date according to your previous posts. Ideally show us their WS asap so we can comment on it, and you can then add those comments to your WS.

Please only redact YOUR personal data, and tell us if the scammers have redacted anything.

Use GSV images from either side of the alleged event if possible to show what they looked like at the time, and before any changes were made.

pawless_patrol

Le_Kirk said:

I make 15 minus 14 to be 1, so would agree with you.  Since Monday is a bank holiday and the court is likely to close in five minutes, it would be taken as received on Tuesday June 1st if you submitted now.

Thanks, I had a last-minute panic moment! Tuesday is ok then.

pawless_patrol

Ok, I'm pretty happy with this version of my WS:
WITNESS STATEMENT OF DEFENDANT
1.  I am <NAME> of <ADDRESS>, and I am the Defendant against whom this claim is made. I represent myself as 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. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.
2.  In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:
Sequence of events and signage:
3.  On the material date, XXXX, around 10:30hs I visited the Wembley Stadium Retail Park (ADDRESS) with my XXX child and a friend who was visiting from another country and does not speak or read English. I turned into the main entrance of the carpark and then turned left to park on the left area of the carpark, with my vehicle (XXXXXXX) facing the entrance road. I did not notice any sign that would clearly warn me that there was a limited time for free parking on the site.
4.  We spent the time at the retail park browsing goods at Curry’s, buying groceries at Lidl and having a meal at McDonald’s. We left the site around 12:40hs.
5.  I didn’t receive any Parking Charge Notice (PCN) or Reminder Notice (RN) at my current address at that time XXADDRESSXX. I had moved to that property in August 2016 (Exhibit XX01 shows Letting contract) after splitting up with my ex-partner and leaving the house we shared at XXADDRESSXX. Although I had requested redirection of my post for at least 6 months and updated my address in my official documents and utility bills including my driver licence, I inadvertently missed updating the address on my V5C. The house in XXXX was inhabited since my ex-partner had also moved out, therefore it wasn’t until sometime in October 2017 when we sold the house that I managed to get hold of post delivered at the property. It was only at that time that I became aware of the PCN and RN issued against me, however it was too late to appeal.
6.  Shortly afterwards I returned to Wembley Retail park to inspect the signage in place as I could not recollect having noticed any sign informing of a limited time to park and the charges incurred in case of a breach. It was only then, after parking and closely approaching one of the signs, that I managed to read the small type fonts on the sign informing of the 90 minutes’ maximum stay and a parking charge of £100 in case of breach of the terms and conditions (T&Cs).
7.  The signage in place is inconspicuous and does not comply with the International Parking Community (IPC) Accredited Operator Code of Practice requirements in terms of visibility and font size for a driver to be able to clearly read the T&Cs upon entering the site or parking. Schedule 1 of the aforementioned document (v6, 14th June 2017, page 23 & 24) states that, on a sign “Text 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”. On page 24, on signs “intended to form the basis of contract between the creditor and the driver”, signs must “contain text appropriate to the position of the sign and the relative position of the person who it is aimed at”.
8.  Signage in place fails to engage the attention of visitors. Exhibit XX02, which also forms part of the evidence presented by the Claimant in page 13 of its witness statement (WS), is a photo of a sign taken from a distance of approximately 1m. Even at that close range, the small fonts of approximately 1 cm detailing the limited time to remain on the carpark and the penalty charge in case of breaking T&Cs are barely legible. Also, the position of the signage present, either at the carpark or on the border of the pavement by the shops, meant that once I reached the shops I was no longer able to see/read them as I was facing the back of the signs when walking on the pavement from one shop to the next one. The position of the signs by the shops can be seen in Exhibit XX03, which is also part of the Claimant WS (page 7).
9.  The extent of the inappropriateness of the signage in place, together with the short maximum time allowed for free parking in a retail park with several shops, supermarket and restaurant is strongly suggestive of use of predatory and misleading tactics.
The Beavis case is against this claim
10.  This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.
11.  However, the signs in the ParkingEye vs Beavis case were clear, as stated by Lord Toulson in para 298 “The requirement was displayed in bigger and bolder letters than anything else”, as opposed to the signage alluded in the present case.  Exhibit XX04 shows a comparison side-by-side of the signage from the Beavis case vs. the signage from the present case (as shown in Claimant WS page 15). This comparison emphasises the inconspicuous nature of the Claimant’s signage and distinguishes the Beavis case from this claim. The absence or concealment of signage and varying acceptability of parking areas are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.
12.  Even taken as an extreme close-up, with no proof as to its visibility from the parking area, the sign that the Claimant has presented as evidence has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, even if I had seen signage of the sort presented by the Claimant – which I didn’t as it was inconspicuous – no contract to pay an onerous penalty would have been seen, known or agreed.
13. The Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality (Exhibit XX04). It is noted that the Claimant is relying on an undated Google aerial view where an unidentified person has dotted markings all over the image as a way of signaling the presence of signs yet with no evidence that this is true. As a matter of fact, the number of alleged signs on the “aerial view” (Claimant WS page 4) are more numerous than the number of actual signs visible in exhibits from pages 5 to 15 of the Claimant WS. Nowhere in its WS is stated that the images presented in pages 5 to 15 are a sample and not the total number of signs present at the carpark. I can only assume that the number of signs at the carpark are deliberately misrepresented.
 14.  Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule'. In addition, the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all (despite the Claimant claiming it is in their WS), but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

pawless_patrol

Abuse of process – the quantum
15.  In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is disingenuously described variously as “debt collection costs”, “additional charges levied to cover the cost of recovery”, “additional administration costs”, “debt recovery costs”, “initial legal costs” and “recovery costs”. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is Exhibit XX05). The Judge concluded that such claims are proceedings with “an improper collateral purpose”. Leave to appeal was refused and that route was not pursued.
16.  After hearing this “test case”, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.
17.  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.
 18. 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.''
 19. 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.
 20. 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 XX06), 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.
Obscure Landowner Contract
21.  The Claimant has appended an obscure ‘Contract Schedule’ which has little or no probative value and which offends against the rules of evidence. The ‘Client’ signatory of the ‘Agreement’, Mr XXNAMEXX, was neither the Director of XXCOMPANYXX at the time of signing the alleged agreement nor was ever listed as officer, as shown in Exhibits XX07 and XX08. The signature could be from anyone, even a stranger to the land, and the Claimant provides no evidence that the ‘Client’ is the landowner.
22.  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 is 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.
23.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html
Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''
My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14
24.  Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).
CPR 44.11 – further costs
25.  As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. This has caused a tremendous disruption to my job and personal life, already under great strain due to the nature of my job as a key worker scientist heavily involved in the research and diagnostics of COVID19 (Exhibit XX09 constitutes my key worker letter) together with juggling child caring as a single mother during the pandemic. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain and the fear for the safety and the integrity of my credit records.
26.  Therefore, I am appending with this bundle a fully detailed costs assessment (Exhibit XX10) which 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 first draw the Court’s attention to the fact that the signage in place was entirely inadequate, and that any terms or conditions of parking outlined on such placed signage could not be binding.
27.  Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.
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.
 
Witness’ signature:
<SIGN HERE>

pawless_patrol

QUESTIONS:
1) Not sure para 14 is necessary (the "red hand rule")
2) Also para 23 might be unrelated as it refers to redacted contracts
3) Is it too long? I merged paras from jrhys and robertcox as I felt that jrhys alone was leaving points of my defence undeveloped.

TIA for your efforts!

pawless_patrol

Here is the link to google drive with the redacted claimant WS
https://drive.google.com/file/d/12u35fM43bzBttieQ-9E0njSqp2_Wmns7/view?usp=sharing