Claim Form Received from CCBC

KhanH94

Coupon-mad said:

Why do people always come and ask this when we clearly tell people to email it.  Of course, email it.  Our advice wouldn't say it if it wasn't allowed.

Thanks. I explained why I asked. Why do you encourage people to open their own threads to ask questions if you answer this way. 

D_P_Dance

Why do you encourage people to open their own threads to ask questions if you answer this way. 

The answer is perfectly clear.  Plus, the The Court Service website contains voluminous guidance.  We expect people to do most of the research themselves.

Have you complained to your MP?

Coupon-mad

Because it is frustrating and we look at maybe 100 posts per day and reply to most, in our own time, and this one is annoying.

It's annoying because the numbered steps in the template defence thread already tells you this.  It says what to do and to email the DQ.

nosferatu1001

KhanH94 said:

Coupon-mad said:

Why do people always come and ask this when we clearly tell people to email it.  Of course, email it.  Our advice wouldn't say it if it wasn't allowed.

Thanks. I explained why I asked. Why do you encourage people to open their own threads to ask questions if you answer this way. 

You have the most up to date advice in the newbies thread already. It gives no ambiguity over this question .
Asking questiosn already unequivocally answered clutters the thread and board, and takes away from the actually needed questions. 

KeithP

KhanH94 said:

Hello, I have now received my DQ from the courts. On the form it does say to complete and post it back to the courts and the other party but I’ve read on the newbies thread you can also email it across. It’s definitely more convenient for me to email it across but just want to check I won’t get any push back because on the DQ form, it does not mention the option of also emailing it? 

You already have the needed guidance.

Remember that list of instructions you were following when you filed your Defence?

It included these words:

That is why some people get frustrated. 

KhanH94

Hello, got a hearing on 29/4. Got claimants WS on 8th & drafted up mine. Aiming to send by 12th. Plz let me know if I should add/remove/delete whole thing n start again. Inspo taken from a few WS I’ve seen on this forum. included in claimants WS was my defence being a template found online & being disingenuous. Even though it’s 100% true, it hit a nerve. Was wondering if I should add anything about making false claims

Witness Statement
1. I make this statement to support my position in this case.

2. I believe the facts and matters set out in this statement are, to the best of my knowledge true.  

Sequence of events

3. From checking my own personal records, namely email receipts and bank statements, I entered the x car park at approximately 14:07hrs on 7 September 2019.

4.I was aware that I needed to pay for parking at this car park. 

5.On the specific occasion relating to this case, I was with my friend visiting a restaurant.

6. I came across an outdoor car park across the street and had decided to park there. The car park was full however there was a sign stating that there was also an indoor car park a few feet away. I drove round into the indoor car park and had parked in a bay. Signs stated that valid tickets must be purchased. Looking around, I saw no ticket machines inside the car park and had asked another person who also had parked in the car park where I could purchase a ticket and they informed me that the ticket machine was outside. Upon exiting the car park, I saw a ticket machine right outside (exhibit 02) which said payments could be made via the RingGo App and so I used the app to purchase a ticket. A copy of the receipt from the app and also sent via email is shown below (exhibit 03). A Google earth image showing the exact location of the indoor car park and the ticket machine I had paid on can be seen on exhibit 03.

7. Despite making the payment, I returned to my car and found a ticket had been issued for non-payment. The ticket conductor was still on site at the time so my friend had asked the reason for issuing a ticket even though I had paid and showed him the receipt on the app and the conductor stated that I had paid on the wrong machine, the machine belonged to the council and the ticket machine to this car park was further down, on the outdoor car park. The conductor encouraged me to appeal the ticket and email the parking firm as he deemed it was an honest mistake made. 

8. On 7 February 2019, I emailed the claimant an appeal (exhibit 4) In this appeal, I stated that parking had been paid for and a copy of the receipt was provided. In my email, I also stated that if an error had been made then this was no fault of my own as there were no clear signs that stated where the ticket machine was located. The claimant states in their own witness statement that there were signs that clearly stated that payments were to be made on the machine on the outside car park and refers you to exhibit 2 however as you will be able to clearly see, none of the signs provide a guidance to exactly where the ticket machine is.

9. The claimant responded to my appeal email on 8 September 2019 rejecting my appeal. Exhibit 4. 

10. In their own witness statement, the claimant states that I was afforded a 21 day period in which I could appeal and acknowledge that I did indeed appeal the ticket and go on to state that I was able to submit a further appeal however if you see the response to my appeal from the claimant (exhibit 4), the claimant clearly states that they will not be entering into any further correspondence in regards to my matter and that too in capital letters leaving me with no option of challenging the ticket further with them. 

11. I believe the claimant did not thoroughly investigate my appeal and responded with a generic email that the company use for most if not all appeal requests. If you have a look at the appeal response (exhibit 4) you can see that the claimant addresses me by an incorrect name which leads me to believe that their response was either copied and pasted or drafted up in a rush. The claimant was are of my full name as this detail needed to be included in the appeal in order for the claimant to look into the appeal. 

12. It is my belief, that if there was any contract entered into with the claimant, I have fulfilled all contractual requirements in both purchasing parking for the occasion and responding to them. The claimant appears to have chosen to disregard the attempt I have made to resolve this matter.

13. In their witness statement, the claimant states this case is based on identical circumstances to Parking Eye vs Beavis 2015.  This is clearly not the case.  as has been set out above, the Premiere Parking Logistics is a paid car park and I did indeed pay for parking. These are not identical circumstances to the Parking Eye vs Beavis case. I received a PCN and now am asked to pay an inflated charge of £160. This is not because I did not pay for my stay but because I paid at the wrong machine which the claimant has acknowledged. 

14. 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 sign in exhibit 6 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.

The Beavis case is against this claim

15. 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.

16. 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 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.

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 –  Approved judgment in Excel Parking Services v Ann Wilkinson (Bradford Court 01.07.20).  Leave to appeal that case was refused and Judge Jackson became a Specialist Civil Circuit Judge , soon after handing that judgment down:  ‘I have no doubt they will continue to claim £60 damages/costs etc to profit from undefended cases’.  The full transcript of this judgement is exhibited as “EXHIBIT 4”.

Redacted Landowner Contract

18. 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.

19. 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...''

Abuse of process - the quantum 

20.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. 

21. 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. 

22.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.'' 

23. 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. 

24. 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 7), 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. 

25. The 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.

26. 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.

27. 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 

28. 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. 

29. 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.'' 

SOT

Coupon-mad

He's not a Ticket Conductor, nor an officer, nor a warden - nothing like that.  He was a parking firm employee. 

 The conductor encouraged me to appeal the ticket and email the parking firm as he deemed it was an honest mistake made. 

They always say that and people always believe they are being helpful. Sigh, it's obvious what his game was.  They are told to sympathise and tell people to appeal, KNOWING IT IS FUTILE AND YOU WILL BE SUED.  

He knew what he was doing.  Horrifically rogue industry.

KhanH94

Coupon-mad said:

He's not a Ticket Conductor, nor an officer, nor a warden - nothing like that.  He was a parking firm employee. 

 The conductor encouraged me to appeal the ticket and email the parking firm as he deemed it was an honest mistake made. 

They always say that and people always believe they are being helpful. Sigh, it's obvious what his game was.  They are told to sympathise and tell people to appeal, KNOWING IT IS FUTILE AND YOU WILL BE SUED.  

He knew what he was doing.  Horrifically rogue industry.

Ok so shall I take this part out or just change his title? 

There was one particular sign at the car park that did say to pay at the machine on outdoor car park and the claimant has mentioned this in their WS and refers to the pictures they took of signs but they seemed to have missed including a pic of this particular sign. I myself do have a picture of the sign that I took on the day but will not include in my WS as I believe it will work against me

Le_Kirk

11. I believe the claimant did not thoroughly investigate my appeal and responded with a generic email that the company use for most if not all appeal requests. If you have a look at the Upon reading the appeal response (exhibit 4) you it can be seen that the claimant addresses me by an incorrect name which leads me to believe that their response was either copied and pasted or drafted up in a rush. The claimant was are aware of my full name as this detail needed to be included in the appeal in order for the claimant to look into the appeal. 

I would make the changes as indicated above.

Coupon-mad

I'd also change his title but add in something like this:

The employee misleadingly encouraged the Defendant, rather than to pay again at another machine and pinpoint where it was, instead to appeal.  The Defendant now knows that this is a tactic routinely used by this rogue industry, whose employees certainly know that any appeal to an IPC member is futile.  This is why the UK Government and Devolved Administrations have united by introducing a new statutory framework and Code of Practice along with a fair, single appeals service coming in during 2021/22: too late to assist the Defendant but the court is urged to take judicial notice of the broken and unfair system that currently exists.  Certainly signage and arrows pointing to pay machines have been seen in the draft provided for public consultation in 2020 following the enactment of the Parking (Code of Practice) Act 2019.  Unclear signs have been one of the most common complaints noted by MPs for many years and that will end.  Accordingly, the court is invited to find that the scarce signs at this site are neither transparent nor fair to consumers.

From this part onwards (below)  it's old wording so I'd replace it with the end part of the WS by @jrhys which is better worded, as long as you make sure your version includes the quote you have in #22 from ParkingEye v Somerfield which is important because it was High Court (HHJ Hegarty) and then ratified by the Court of Appeal:

Abuse of process - the quantum