Claim for 5 PCNs

lowryder

This is the witness statement I received.
https://drive.google.com/file/d/1zNchnqNwEbsQxOPwyL2YnI7oimQmFmHY/view?usp=sharing

I have covered my personal information with white rectangles that have a black border. The 'blurriness' in the last two pages (i.e. contract with the landowner) was put in place by them.

It's funny how the witness said (point 27 and 28) that they may not be able to attend the hearing and if they don't they will instruct an advocate to do so and she requests that their fee be added to the amount sought...

@D_P_Dance
I am not familiar with this procedure; do you mean that I should email my MP directly and complaint about DCBLegal adding the fake 60GBP for each PCN and then making a claim aginst me?

Coupon-mad

22 xiii is hilarious!  My goodness. what a load of badly-argued twaddle.

DCBL haven't added the fake money, the parking firm Claimants have.  DCBLegal are the robo-claim firm handling the paperwork, that's all.

What have they supplied by way of proof that the car was parked near clear signs and what have they provided as evidence of no payment sessions?  I think you might struggle to convince a Judge about the £100 PCNs because if there is evidence of non-payment then as keeper, you are liable because we know these are POFA NTKs. 

 Also, the Judge will want to know why the driver ignored FIVE PCNs on the windscreen like they meant nothing and why you then presumably ignored the NTKs and thought nothing was wrong, and the driver continued to collect PCNs.  Why?  I am asking you because the Judge will and this case looks like someone was taking a chance.  Was that true, or was a student merely unloading books or shopping for a few minutes?  How man minutes was the car observed for, on each of the 5 occasions (look at the photos and times, 2 minutes?  25 minutes?   This will make a huge difference to the case).

I am not saying you have no chance but I am telling you what a Judge will say and I think you need to 100% have it clear in your head why a PPC can't add £60 a pop on top of an already inflated £100 PCN.  And you need to understand the BPA grace periods if the photos were only taking over a matter of 2 minutes flat, because you MUST include that in your WS if the car was only briefly stopped.

Read the example WS by @jrhys from the other week and make sure your exhibits include Excel v Wilkinson and this excerpt below (paras 419 - 428 of HHJ Hegarty's findings in ParkingEye v Somerfield, which is the only case at that level where additional costs were discussed (in ParkingEye v Beavis they were not in play because ParkingEye had stopped adding them by then, due to Somerfield!).

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

https://www.dropbox.com/s/ohz46rq6vr21htc/ParkingEye Limited v Somerfield Stores Limited [2011] EWHC 4023 (QB).pdf?dl=0

Johnersh

Interesting that the signage refers to costs C has incurred. So ask them to prove £60 was incurred for each case.

(NB if their debt collectors were no win/no fee in relation to recovery of pre-action fees. They self-evidently haven't charged as you are now being sued for not paying. That info can freely be found online.)

If C cannot prove those costs. (they should be itemised in a schedule and any receipts for other costs incurred provided) then I'd suggest they are irrecoverable. Writing letters is merely business overhead.  If they wanted to charge a fixed fee for non payment in addition to the parking charge (ie £60 additional fixed fee) the sign could have specified such liquidated damages.

Love that Semark-Julien is quoted as an authority for the fact that such charges weren't actually considered.  I mean, its a case that assists no-one! 

lowryder

Coupon-mad said:

What have they supplied by way of proof that the car was parked near clear signs and what have they provided as evidence of no payment sessions?  I think you might struggle to convince a Judge about the £100 PCNs because if there is evidence of non-payment then as keeper, you are liable because we know these are POFA NTKs. 

What have they supplied by way of proof that the car was parked near clear signs and what have they provided as evidence of no payment sessions?  I think you might struggle to convince a Judge about the £100 PCNs because if there is evidence of non-payment then as keeper, you are liable because we know these are POFA NTKs. 

I cannot see any evidence of non-payment unless I misunderstood your question. I have attached all EXHIBITS in case you would like to check. There is also another EXHIBIT that I have not added for brevity; It only contains all the NTKs.

EXHIBIT 2

https://drive.google.com/file/d/11E-E0wj4tvgoH4BjuXKhra9XP5g6ZmH0/view?usp=sharing

EXHIBIT 3

https://drive.google.com/file/d/1m03XbtTqBrQ8WNN1B6eDMVYn8zV8DwsM/view?usp=sharing

Coupon-mad said:

Also, the Judge will want to know why the driver ignored FIVE PCNs on the windscreen like they meant nothing and why you then presumably ignored the NTKs and thought nothing was wrong, and the driver continued to collect PCNs.  Why?  I am asking you because the Judge will and this case looks like someone was taking a chance.  Was that true, or was a student merely unloading books or shopping for a few minutes?  How man minutes was the car observed for, on each of the 5 occasions (look at the photos and times, 2 minutes?  25 minutes?   This will make a huge difference to the case).

We are three drivers on the car that was parked and it’s unclear who and when/if they ignored. Certainly, it wasn’t me. I was going in and out of the country at the time to my home country and was even considering not to come back at some point. I assume my house mates probably dumped them without telling me.
The first four PCNs were issued in a short window (2-3 weeks) before any of the NTKs were issued. Then there is a long gap and there is another one in Jan 2020. Then later in 2020 I received the letters from DCBLegal claiming the 800GBP.

The durations are the following – 11 mins, 41 mins, 12 mins, 19 mins, 12 mins.

Coupon-mad said:

I am not saying you have no chance but I am telling you what a Judge will say and I think you need to 100% have it clear in your head why a PPC can't add £60 a pop on top of an already inflated £100 PCN.  And you need to understand the BPA grace periods if the photos were only taking over a matter of 2 minutes flat, because you MUST include that in your WS if the car was only briefly stopped.

Read the example WS by @jrhys from the other week and make sure your exhibits include Excel v Wilkinson and this excerpt below (paras 419 - 428 of HHJ Hegarty's findings in ParkingEye v Somerfield, which is the only case at that level where additional costs were discussed (in ParkingEye v Beavis they were not in play because ParkingEye had stopped adding them by then, due to Somerfield!).

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

https://www.dropbox.com/s/ohz46rq6vr21htc/ParkingEye Limited v Somerfield Stores Limited [2011] EWHC 4023 (QB).pdf?dl=0

My understanding is that the 100GBP is already inflated to deter people from not paying the parking fee and it is not a real reflection for the damages I create nor their operating costs. Therefore, adding 60GBP on top of that has no real justification and as such, in my opinion it can be considered abuse of process.

Have I got this right?

Thank you a lot for the links!!! They are super helpful.

Johnersh said:

Interesting that the signage refers to costs C has incurred. So ask them to prove £60 was incurred for each case.

(NB if their debt collectors were no win/no fee in relation to recovery of pre-action fees. They self-evidently haven't charged as you are now being sued for not paying. That info can freely be found online.)

If C cannot prove those costs. (they should be itemised in a schedule and any receipts for other costs incurred provided) then I'd suggest they are irrecoverable. Writing letters is merely business overhead.  If they wanted to charge a fixed fee for non payment in addition to the parking charge (ie £60 additional fixed fee) the sign could have specified such liquidated damages.

Love that Semark-Julien is quoted as an authority for the fact that such charges weren't actually considered.  I mean, its a case that assists no-one! 

This is definitely something I'll add to my WS. Cheers! That's really helpful!.

I'm a bit confused by the Note Below though.

Coupon-mad

OK, so you are saying that they have provided no evidence at all that the driver(s) didn't use JustPark and pay by phone?

They lose, then.  You get that, yes?!   How can they win?  A Judge will want to see evidence.

There is no need to pay & display when paying by phone and they've provided no evidence of non-payment, at all.  And it's not for you to supply because you were not the driver, you believe, on these occasions. You always paid and are an honest witness and you are surprised at the lack of evidence from this parking firm.  The claim has no legs, doesn't even get off the ground without evidence.

Are you about to do your WS?  Show us the draft.

Fruitcake

The contract has been heavily redacted. Whilst the address of the Uni has been given, the name of the client has been redacted so there is nothing to say who the contract is supposed to be with. For all the court knows it could be the company that empties the bins, not that my comment is meant to detract form the people that provide that most excellent service.

There is nothing in the contract to indicate that the university is the landowner.

Have a look at this thread by Johnersh, who is a solicitor, where the judge said that redactions during disclosure (in your case the exhibits stage) is unacceptable.

Redactions in Disclosure — MoneySavingExpert Forum

This was an appeal court case so it is persuasive on the lower courts. You should therefore quote the appeal judge's findings in Hancock vs Promontoria.

Whilst redacting financial details that could be construed as commercially sensitive (how much the scammers get paid by their client for example) would probably be acceptable, hiding the identity of the client would not.

The client's signature is illegible and both their name and position within their client's company has not been given. Therefore there is no proof the client's signatory had standing to sign a contract within the strict requirements of Section 43 of the Companies Act 2006 with regards to forming a Simple Contract.. It is a very short part of the Act so you should read it and understand how to argue it at your hearing.
A signatory must have "express or implied" authority to form a contract with another party. Express would mean that person is an officer of the company such as a director or compony secretary or owner or someone with significant interest in the company (major shareholder). Implied authority would be a named position within the company such as a transport or property manager. The position would have to be named by an officer of the company or stated within something like the company's articles of association, specifically saying a person holding that named position has the authority to form contracts.

The identity or position within the company of the client signatory has not been given, so there is no proof they had the authority to sign a Simple Contract within the meaning of the above Act.

I cannot see anything within the alleged contract that gives the scammers authority to issue court claims in their own name. 

The contract makes no mention of the PoFA or keeper liability, but instead states, "to a person who has committed a Parking Contravention."
My interpretation of that is that only the person who has committed a parking contravention, the driver, can be issued with a charge, not the keeper who was not the driver, not in the car, and may not even have been in the country at the time of the alleged event.

Section 69 of Consumer Right Act 2015 says:

69 Contract terms that may have different meanings
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

I would suggest that the interpretation I have given is the same one that you and the man on the Clapham omnibus would have.

The person who has signed the document states that it is a request, (not an agreement). There is no proof that a contract was ever agreed.

lowryder

Wow... you both guys @Coupon-mad @Fruitcake are a rare breed... It's Easter(I'm Orthodox) for me and had a really though week as well (had to do company accounts for the whole year for my ltd, apart from the usual business ), so I haven't got the chance to do the WS yet. Will do it and will base all of it off your suggestions. Tomorrow I will post it here.
Off-topic: with my expertise and your amazing knowledge, only thing that crosses my mind is to do something similar to https://donotpay.com/ pro bono.

Literally... you're an inspiration to all of us.

lowryder

Is it ok to acknowledge and refer to their WS in my WS?

KeithP

lowryder said:

Is it ok to acknowledge and refer to their WS in my WS?

Yes.                  

Fruitcake

lowryder said:

Is it ok to acknowledge and refer to their WS in my WS?

Yes of course. They have provided *cough* evidence and you are going to do your best to rip it apart.
They would have done the same had they got yours first.

Refer to their paragraph numbers in their WS and debunk as many of them as possible in turn.
Do the same with their exhibits such as signs and the dodgy contract.

Show us your draft before you submit it, but don't miss your filing date.

You should also explain why you didn't know about the windscreen scamvoices in much the same was as your earlier post. 

Keep all points as brief where possible, and on point.
Remember the WS is written in the first person because you are a witness, the only witness if the scamtendant doesn't appear (which they won't).
If you have any queries about the NTDs then you can point out that the scamtendant isn't there for you to question, and her/his notes haven't been included in the exhibits either.