ELMS Legal - Letter Before Claim threating court

Le_Kirk

3.  The Defendant did not stop to pick up/drop off in a restricted zone.  The Defendant collected passenger from the correct express parking zone.  It was dark and the terms of the signs were unclear and difficult to read, especially whilst driving.  I The defendant was being followed by a van with a camera whilst trying to find the correct parking zone. 

All defences are written in third person; I've changed it for you as above.  Not sure that your paragraph 4 is relevant to a defence.  Possibly it could be used in the witness statement.

StopMakingPoorPeoplePay

KeithP said:

StopMakingPoorPeoplePay said:

Is there a particular font and line spacing a defence should be printed in?

Yes.

That information is in Bargepole's 'what happens when' post linked from the second post of the NEWBIES thread.

Awesome thought I remembered reading something along the way.  Will find it 

StopMakingPoorPeoplePay

StopMakingPoorPeoplePay said:

KeithP said:

StopMakingPoorPeoplePay said:

Is there a particular font and line spacing a defence should be printed in?

Yes.

That information is in Bargepole's 'what happens when' post linked from the second post of the NEWBIES thread.

Awesome thought I remembered reading something along the way.  Will find it 

Found it (y)

StopMakingPoorPeoplePay

Sent defence today and received confirmation it had been delivered to the correct email address.  Thank you so far.

StopMakingPoorPeoplePay

I have received the Directions Questionnaire from ELMS Legal.  

I have also received Directions Questionnaire that I need to complete myself by 25th March.  I have a witness statement from someone however they are not able to attend court, therefore I understand I put '1' for witness being myself, however do you think it is worth using the witnesses' statement in court? I can share a copy here but please advise the best way for me to do this.

Many thanks

nosferatu1001

Yes, use it, and aloloow the court to attach what weight they see fit
I would argue it holds at least as much weight as the rubbish "WS" from the claimant, where the alleged writer wilL NOT be in court, and it isnt going to be a real WS anyway, as it will be full of arguments not disclosed before hand, and very light on fact.

StopMakingPoorPeoplePay

I'm currently looking around the forum for some WS written regarding data breach and abuse of process.  Any links are most welcome!

StopMakingPoorPeoplePay

I've written a wtiness statement.  I was hoping the regulars could have a look and ensure I'm on track.  I haven't yet attached my evidence, just waiting for a few bits to come through then I will do this.  I have also included my defence to check this all matches up.

In my witness statment is it worth mentioning any complaints I have made e.g. to airport?

Also this sounds like a dumb question, but what email address do I send my witness statement to?  Is it the same as the defence?

Witness statement:

IN THE COUNTY COURT

 

Claim No.: xxx

 

Between

 

Vehicle Control Services LTD (Claimant)

 

- and -

 

xxx (Defendant)

 

 

WITNESS STATEMENT OF DEFENDANT FOR MS TEAMS HEARING ON 02/08/2021

 

1.      I am Miss xxx of xxx 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 within the evidence supplied with this statement, referring to page and reference numbers where appropriate.  I will say as follows:

 

3.      The Defendant arrived at Bristol Airport to collect a friend, Miss xxx on inbound flight to Bristol (see Ev1 attached).  Miss xxx has written a Witness Statement (see Ev2 attached).

 

4.      The Defendant did not stop to pick up/drop off in a restricted zone.  The Defendant collected passenger from the correct express parking zone.  It was dark and the terms of the signs were unclear and difficult to read, especially whilst driving.  The Defendant was being followed by a van with a camera whilst trying to find the correct parking zone. 

 

5.      The Defendant saw Miss xxx whilst looking for express parking zone and directed the Defendant to the express parking zone.  Miss xxx was not collected from this point.

 

6.      The Defendant collected Miss xxx from the express parking zone and paid for the full duration of parking dated 31/12/2021 (see receipt, Ev3 attached).

 

7.      The Defendant received a PCN from the Claimant for an original fee of £100, then asked to pay an inflated charge of £160. Apparently, this is because payment was not paid by the deadline given by the Claimant.  Following this I received a Letter Before Claim (Ev4 attached) from ELMS Legal estimating final amount payable from the Defendant would be £272.00.  Most recently on 04/06/2021 I have received further communication from ELMS asking for payment of £135, reduced from £235 to avoid court proceedings (see Ev5 attached).  I am confused about what is being asked for me to pay and why.  As stated in the defence, this is abuse of process.

 

8.      When the Defendant contacted the Claimant for SAR, acknowledgement was received by email (Ev6 attached) from the Claimant (business ref no: 02498820), however I then received an email response to my SARs from EXCEL (business ref no: 2878122) with my personal data attached (Ev7).  This is a data protection breach.

 

9.      The Claim is for a breach of contract however under no terms did the defendant enter a contract with the Claimant.

 

10.  I invite the Court to dismiss this claim in its entirety.  I am unable to attend the hearing meaning I cannot give an oral statement, please use my written witness statement.  I ask in my absence of the hearing for my witness statement, documents attached and defence of case to be considered in the hearing. 

 

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/xxx

Any advice is appreciated.  Thank you!

(defence will be on next comment - not enough word count here)

StopMakingPoorPeoplePay

Defence:

IN THE COUNTY COURT

 

Claim No.: xxx

 

Between

 

Vehicle Control Services LTD

 

(Claimant)

 

- and -

 

xxx

 

(Defendant)

 

____________________

 

DEFENCE

 

____________________

 

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

 

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied.

 

3.  The Defendant did not stop to pick up/drop off in a restricted zone.  The Defendant collected passenger from the correct express parking zone.  It was dark and the terms of the signs were unclear and difficult to read, especially whilst driving.  The Defendant was being followed by a van with a camera whilst trying to find the correct parking zone. 

 

4.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

 

5.  It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

 

6.  Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85. 

 

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

 

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

 

9.  Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases. 

 

10.  Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

 

11.  Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. 

 

12.  The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

 

13.  The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

 

14.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

 

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

 

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

 

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

 

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

 

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

 

15.  Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

 

17.  (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

 

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

 

18.  The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

 

 

 

Statement of Truth

 

I believe that the facts stated in this defence 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.

 

Defendant’s signature:

xxx

Date: 05th March 2021

StopMakingPoorPeoplePay

Also, are Witness Statements written in 1st or 3rd person? thanks