Court Hearing - Premier Parking Logistics

su51_2

Thanks for replyingI have kept it going and spent ages finding info on here how to file my defence which l did and followed carefully. This has just arrived and l thought the next stage would be the main hearing.  l really struggle with technology,quite separately from my signal problems and even finding my way round this site, I just did a draft to start my own thread and cant find it now.  Can l start my own thread and do a link to my Spinningfields thread for cross reference.  l don't seem able to cut and paste on here either,is it barred or something?  

Le_Kirk

su51_2 said:

Thanks for replyingI have kept it going and spent ages finding info on here how to file my defence which l did and followed carefully. This has just arrived and l thought the next stage would be the main hearing.  l really struggle with technology, quite separately from my signal problems and even finding my way round this site, I just did a draft to start my own thread and cant find it now.  Can l start my own thread and do a link to my Spinningfields thread for cross reference.  l don't seem able to cut and paste on here either, is it barred or something?  

You seem to have three discussions on the go but I can only see two of them.  Have you perhaps not pressed submit on your draft?  You can start a new thread and add a link to your existing thread 10 March 2020 at 4:08PM <<<LINK
Copy and paste should be allowed, although as a relatively new user, you may be restricted in some way.  You could contact a member of the forum team my e-mail and ask them to reopen you old thread/discussion.

KeithP

@su51_2, the easiest way of progressing your issue is to get your old thread reopened as @Le_Kirk suggested.

Perhaps the simplest way of making that happen is to hit the Report button...  below your opening post on that thread and ask the MSE Forum Team to do that - telling them that it is an ongoing situation that still needs to be progressed.

ETA...
but I now see you have already started another thread.

uksniper

I have allocated today to work through my skeleton statement and if by coincidence, I have received an email from the claimants solicitors stating they may be prepared to settle the matter without prejudice. The hearing date is 5 weeks away.

Is this worth considering making contact?

Jenni_D

Yes ... tell them you'll settle for paying £0 and they cancel the claim. (i.e. a drop-hands offer .. the claim is cancelled and each side bears their own costs).

uksniper

Jenni_D said:

Yes ... tell them you'll settle for paying £0 and they cancel the claim. (i.e. a drop-hands offer .. the claim is cancelled and each side bears their own costs).

So I decided to call and was unsurprised they decided not to accept my offer of zero!

I've included my skeleton statement below, I'm sure the idea of this was to simplify the argument so I've removed some bulk but not sure if it's still too large. Thank you in advance for any comments on how it should be improved

SKELETON ARGUMENT OF DEFENDANT 

FOR HEARING ON 01/10/2021 

  

 

1.       I am Mr XX of XX, and I am the defendant against whom this claim is made. 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 supplied within my previous witness statement and further exhibits within this skeleton statement, referring to page and reference numbers where appropriate. My defence is repeated, and I outline as follows: 

 

Signage

 

3.       The Claimant is reliant on the signage in their witness statement to demonstrate the terms and conditions of the contract between the Claimant and Defendant. The signage (consumer notice) therefore is required to be fair in order to be binding. 

a        Consumer Rights Act 2015 ('CRA') Section 62.7 (b) states for a notice to be fair it must “… reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends.”.

4.       The defendant believes the signs cannot be deemed as fair for the reasons as follows:

a        There are multiple signs on the land with differing terms and conditions in relation to parking. This causes a lack of clarity and confusion to any reader.

b        The most prominent sign (Exhibit XX-05), which was the only sign observed by the defendant at the point of parking, lists a series of terms and conditions. This sign does not refer the reader to other signs in continuation of the terms and conditions to be relied upon. Any reasonable person would therefore believe the terms and conditions displayed to be in entirety of any binding contract. The sign viewed by the defendant does not include the value of the parking charge notice. As such, the defendant cannot have agreed to a term which is unclear and not expressly stated.

c         The claimant is a member of the International Parking Community (“IPC”) and it operates within the IPC Code of Practice (“Code”). Part E – Schedule 1 from the IPC Code (Exhibit XX-06) in relation to signage states “The precise wording on a sign is a matter for the Operator but such wording should not go on to explain the terms and conditions of parking unless ALL of the terms and conditions are then listed.”. The claimant is therefore operating outside of their approved code of practice.

d        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'. In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association and by nature that the defendant was not aware of any additional signs with further terms and conditions it was not ‘bound to be seen’.

Breach of Landowner Agreement

 

5.       The defendant suggests the Claimant is in breach of agreement with the landowner in relation to enforcement of Penalty Charge Notices therefore does not have legal authority in relation to this claim.

a        Point 18. of the Claimant’s agreement with the landowner (Claimant: EXHIBIT 1) states “Enforcement of P.C.N issued to vehicle shall be placed on hold in areas directly affected by damage or missing signs.”. Exhibit XX-04 demonstrates there are signs shown within the plan of parking enforcement provision are missing or located elsewhere.

 

Abuse of process

 

6.       The Claimant has added a sum disingenuously described as 'costs/damages'. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process.

7.       A recent test case Excel v Wilkinson: G4QZ465V was held in July 2020 and looked specifically at the addition of £60 by parking operators presided by District Judge Jackson (now HHJ Jackson). HHJ Jackson ordered the case was struck out as an abuse of process stating “there can be no doubt that the inclusion of the additional costs claim is inclusive of a claim based either on an unfair clause which will not be enforced by the court, double recovery or an attempt to circumvent CPR 27.14 when it is unfair to do so.”.  HHJ Jackson concluded that such claims are proceedings with “an improper collateral purpose” by attempting to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. In striking out the claim, HHJ Jackson stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''. Leave to appeal was refused and that route was not pursued.

8.       The claimant has stated within their witness statement ‘that the sum of £60 is also claimed as a contractual cost pursuant to the Contract which states "non-payment will result in additional charges which will be added to the value of the charge and for which the driver will be liable on an indemnity basis"’. The Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14 details consumer contract terms which may be regarded as unfair are all applicable in this case.  

9.       The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP [2021] F83YX432, where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to s62 of the CRA, as it created imbalance between the parties.  Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant.

10.    Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied.

 

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. 

Jenni_D

3. a claimant doesn't have a defence to file.  

Does a skelly need a statement of truth? Have you filed/served it or is it just a crib sheet for you for the hearing?

uksniper

Jenni_D said:

3. a claimant doesn't have a defence to file.  

Does a skelly need a statement of truth? Have you filed/served it or is it just a crib sheet for you for the hearing?

Oops, I've updated .

I've already filed a defence but this now includes further arguments so I'm not actually sure? 

Jenni_D

If your defence already covered the double recovery and signage arguments then all you're doing is adding evidence, not arguments.  

Coupon-mad

What you’ve written is a witness statement not a skelly.