County court claims form defence template

Umkomaas

Nosy said:

anyone know where i can find the judge's decisions regarding this case

Stockport mother wins court battle with a parking firm | Daily Mail Online

Unless there is a transcript, which she would have had to pay for, there's  nothing to find. Even if she does have a transcript, it's her property, it's not a public document. 

D_P_Dance

I expect the judge (Magistrate?), considered it to be de minimis.

Nosy

Hi,

I have finally finished my witness statement and i would really appreciate it if you could review and advise or anything to change/add/remove.  I have to have it sent by Wednesday - the only part i am not sure about is the "redacted landowner 

In the County Court at xxxxxxx

 

Claim Number: xxxxx

 

 

 

                                                   EXCEL PARKING Services Ltd                                                                                                 (Claimant)

 

V

 

                                                                    xxxxxxxxx                                    (Defendant)

 

 

WITNESS STATEMENT OF DEFENDANT

FOR TELEPHONE HEARING ON 25/02/2021

 

 

 

1.     I am xxxxxxxxx of xxxxxxxxx, and I am the defendant against whom this claim is made. I have very little legal knowledge regarding court proceedings and legal disputes, this defence and witness statement has been created from my own research, so please accept my apologies for anything which does not look normal. The facts below 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

 

1.     I used the claimant’s telephone service to pay for parking 16th October 2017. I had an account set with the telephone service as it made paying for parking simple using my debit card. The method of using the service for a registered user is as follow: 1, call the telephone service. 2 the system would recognise the members telephone number and ask the member to press a digit to park the vehicle using the same debit card. 3. Enter the last 3 digits of the debit card, which then completes the process with no need to display a ticket on the windscreen.

2.     This was my usual method of paying for parking which I would do whilst walking to my workplace. This method became my routine whilst parking my vehicle in this car park.

3.     On 16th October 2017, as normal I paid the full amount for parking my vehicle using the telephone service. The telephone service as normal accepted the payment and provided verbal confirmation that my parking session has been paid. Exhibit 1 shows the transaction from my bank statement for parking my vehicle with Excel Parking Services.

4.     Later that day when I returned to the car park, I noticed a PCN. It was at this moment I realised that I had used my old VRM instead of the new one. I did inform the claimant of this as it was a genuine human error. As it was a new number plate and being the first time I had parked in a car park with the new plate I completely forgot to change the VRM and there was no option provided to do so either. I did not have any intentions of defrauding the claimant itwas simply an error.

 

5.     I appealed the PCN clearly stating that I paid for parking using my old VRM. The claimant dismissed this appeal stating the terms and conditions require full registration number to be entered. Exhibit 2 obtained from the SAR shows the terms and conditions signboard, which is unclear, the text is at a reduced size and difficult to read.

 

6.     On 6th November 2017 the claimant sent a response to my appeal and demanded a charge for £100 or £60 (if paid within a certain time). I find these charges to be an unfair amount for a number plate error which could h ave easily been resolved by little administration which could have been a fee of £10, which was what was offered by Excel in a similar case Excel v Burgess, Stockport, C3DP33CZ 03/07/2017. After the court ruled in the favour of the defendant, Ms Burgess, an Excel Parking Services spokesman said “‘At the time Ms Burgess appealed, we offered her a reduced charge of £10 in recognition of the circumstances described.”

7.     This case is very similar to the case Excel v Burgess, Stockport, C3DP33CZ 03/07/2017 where Ms Burgess’s husband had paid for parking using his VRM instead of using his wife VRM. The judge dismissed this claim and ruled in the favour of the defendant. The biggest difference between Ms Burgess’s case and mine is that I paid over the phone.

8.     It is clear from the SAR screenshot in Exhibit 3 that the claimant was aware that I had paid for parking using my old VRM.  The claimant confirms my statements and confirms that they received my payment for using the old VRM. My payment was never refunded but instead the claimant decided to start litigation processes.

9.     2.5yrs later I received a ‘letter before claim’ and I am now asked to pay an inflated charge of £160. This is not because I did not pay fully for my stay (which the claimant agrees I did), but because I paid for my old VRM which was already linked to me in their system.

10.  I am not the only person who finds these charges unreasonable for a number plate error, small charges are now becoming common for such errors and number plate related errors now hold charges between £0-£20 which is now the case with BPA regulated car parks as you can see from Exhibit 4.
 

11.   I understand that Excel Parking limited are now part of the IPC but I did notice prior to 2015 Excel Parking Limited were part of the BPA that have stricter measures in place and a maximum cost of £20 for a major keying error. This makes me think that Excel Parking may have moved to the IPC to make it easier for themselves to make unmeritorious claims.

12.  Exhibit 5 shows paragraphs from page 14 of the ‘Parking code Enforcement Framework consultation’ from The Ministry of Housing, Communities & Local Government who also discussed the same charges. This was a response to the widespread concerns about the poor practice and behaviour of some parking operators and as you can see from both Exhibit 3 and 4 it is not only me that finds the claimant’s claim for £160 inflated.

 

13.  Exhibit 5 includes images of the signboards from Parking Eye v Beavis case in comparison to Excel’s signboards. This is to distinguish both cases as in this case I had paid for full parking and the signboard are different with Excel’s signboard text being smaller and more congested compared to Parking Eye signboard.

 

The Beavis case is against this claim

 

13.     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 £85.00 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.   

 

14.     However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed.  As such, I take the point that the requested parking charge in my case is a penalty, and unenforceable.   This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

 

Redacted Landowner Contract  (not sure if this applies in my case as the claimant provided a leaseholder witness statement)

 

15.     The Claimant has appended a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?).  It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act.  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.

 

16.     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...''

 

 

 

Nosy

 

Abuse of process - the quantum

 

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 8 - 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 preBeavis 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. 

 

 

22.     This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ, and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I am local and took the evidence photographs appended to this statement myself (on November 24th 2019). I can state from my own knowledge that there are nothing like that many signs in this car park and nothing beside the Pay & Display machine about a risk of paying £100 or about paying within 10 minutes.  There is a tariff list in large lettering and nothing more at the machine where the keys are input. 

 

23.     Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and 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 Witness Statement in writing and by appending signage that does not exist at the car park), 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.  

 

CPR 44.11 - further costs

 

24. 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 appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  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.  This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

 

25.     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.

 

26.     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.

 

 

SIGNATURE

 

……………………..

 

xxxxxxxxxxxxx

 

DATE    xx/xx/xxxx

 

Nosy

Exhibit 1 – Bank Statement

 Screenshot of bank statement displaying the paid parking charge

 

 Exhibit 2- Excel Parking Signboard

Note the overcrowded and reduced size of the text that states the reasons why a PCN will be issued

Exhibit 3

Note the last Note enlarged below where it is clear the claimant was aware of my successful payment for parking.    

 

  Exhibit 4 – BPA current COP regarding number plate error charges https://www.britishparking.co.uk/write/Documents/AOS/BPA_AOS_CODE_OF_PRACTICE_CURRENT.pdf

 

 

 

 Exhibit 4

Taken from https://www.gov.uk/government/consultations/parking-code-enforcement-framework

Parking Code Enforcement Framework consultation. Enforcing the Private parking Code of Practice (PAS 232 – Privately managed parking – Operation and management – Specification)

Exhibit 5

The view of the entrance sign

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Beavis case sign, for comparison

Exhibit – 6  

ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198

98. Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those Page 43 services would not be available. These two objectives appear to us to be perfectly reasonable in themselves. Subject to the penalty rule and the Regulations, the imposition of a charge to deter overstayers is a reasonable mode of achieving them. Indeed, once it is resolved to allow up to two hours free parking, it is difficult to see how else those objectives could be achieved.

 

193. The penalty doctrine is therefore potentially applicable to the present scheme. It is necessary to identify the interests which it serves. They are in my view clear. Mr Beavis obtained an (admittedly revocable) permission to park and, importantly, agreement that if and so far as he took advantage of this it would be free of charge. ParkingEye was able to fulfil its role of providing a traffic management maximisation scheme for BAPF. The scheme met, so far as appears, BAPF’s aim of providing its retail park lessees with spaces in which their customers could park. All three conditions imposed were directed to this aim, and all were on their face reasonable. (The only comment that one might make, is that, although the signs made clear that it was a “Customer only car park”, the Parking Charge of £85 did not apply to this limitation, which might be important in central Chelmsford. The explanation is, no doubt, that, unlike a barrier operated scheme where exit can be made conditional upon showing or using a ticket or bill obtained from a local shop, a camera operated scheme allows no such control.) The scheme gave BAPF through ParkingEye’s weekly payments some income to cover the costs of providing and maintaining the car park. Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye’s costs of operation and gave their shareholders a healthy annual profit.

 

198. The £85 charge for overstaying is certainly set at a level which no ordinary customer (as opposed to someone deliberately overstaying for days) would wish to incur. It has to have, and is intended to have, a deterrent element, as Judge Moloney QC recognised in his careful judgment (para 7.14). Otherwise, a significant number of customers could all too easily decide to overstay, limiting the shopping possibilities of other customers. Turnover of customers is obviously important for a retail park. A scheme which imposed a much smaller charge for short overstaying or operated with fine gradations according to the period of overstay would be likely to be unenforceable and ineffective. It would also not be worth taking customers to Page 88 court for a few pounds. But the scheme is transparent, and the risk which the customer accepts is clear. The fact that, human nature being what it is, some customers under-estimate or overlook the time required or taken for shopping, a break or whatever else they may do, does not make the scheme excessive or unconscionable. The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit. Unless BAPF was itself prepared to pay ParkingEye, which would have meant, in effect, that it was subsidising customers to park on its own site, this was inevitable. If BAPF had attempted itself to operate such a scheme, one may speculate that the charge might even have had to be set at a higher level to cover its costs without profit, since ParkingEye is evidently a specialist in the area.

 

 

 

Exhibit - 7

 

In the County Court at xxxxxxx

Claim Number: xxxxxxx

Hearing Date: 25/02/2021

 

DEFENDANT’S SCHEDULE OF COSTS

 

 

 

 

Ordinary Costs

 

 

Loss of earnings through attendance at court hearing 25/02/2021: £57.00

 

  

 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

 

 

Research, preparation and drafting documents (12 hours at Litigant in Person rate of £19 per hour): £228

 

 

 

TOTAL COSTS CLAIMED £285.00

 

 

 

 

Signature

 

 

Exhibit 8

 

If this Transcript

 

                                               BRITANNIA PARKING GROUP LTD   Claimant

 

 

-  and  -

 

                                                                                              Defendants

(2) CHRIS CROSBY

 

Coupon-mad

Forget Britannia v Crosby!

There is a 'test case' some of us know about from a Judge who, soon after her judgment in 2020, became a Specialist Civil Circuit Judge.  The case is all about striking out claims due to adding £60 and she struck the claim out and her local Judges are following her lead and striking claims out again.  You can use that one.

 Also that WS is based on an old one, I think.  You needed to base it on the example in the newbies thread, there is only one.  And you can be the first person to use Excel v Wilkinson from the lovely Bradford Specialist Civil Circuit Judge, HHJ Claire Jackson (take a bow, that lady).

1505grandad

"11.   I understand that Excel Parking limited are now part of the IPC but I did notice prior to 2015 Excel Parking Limited were part of the BPA that have stricter measures in place and a maximum cost of £20 for a major keying error. This makes me think that Excel Parking may have moved to the IPC to make it easier for themselves to make unmeritorious claims."

If you wish to put the date they joined IPC the following is in a WS given by Excel in another posters thread (Nosy I believe):-

Nosy

I used WS from @robertcox999, is this the one you refer to @Coupon-mad?
The car park has changed operators  so the images i have used are from the claimant WS. 

Yes i couldn't upload my WS as pdf or MS word either, pasting was the only option. 

Do you know where i can find Excel v Wilkinson?

Thanks @1505grandad

Umkomaas

Nosy said:

Do you know where i can find Excel v Wilkinson?

I think we'd all like to see it, but ....

There is a 'test case' some of us know about from a Specialist Civil Circuit Judge about the adding of £60 and she struck the claim out and her local Judges are following her lead and striking claims out again.  You can use that one if I can work out how to attach it, as I don't think the forum allows PDFs at the mo.

I'm sure @Coupon_mad will post it up as soon as she can. I'm sure @JB111 won't be letting us see his copy!

nosferatu1001

Its a brilliant read, when you get to see it!

OP - just to check, you will not be putting any  links to external websites in your final WS, correct? You cannot do so.