Money Claim - Going Court for Private Parking PCN

Jenni_D

4pm is pretty much always the deadline, so don't leave until 4pm to email it ... send it no later than 3pm.

bergkamp10

Jenni_D said:

4pm is pretty much always the deadline, so don't leave until 4pm to email it ... send it no later than 3pm.

Ok sure thing, just that there was no mention of that specifically in the documents we saw. But you all know more than me so I'll get my friend to send it off by 3pm. Just gonna wait to see what people think of the WS. If there are any suggestions or comments I'll help him make the changes and once it's ok then we'll send it off. Thanks again.

Edit: You think I should repost the previous post with the link and questions as it's fallen to the previous page?

Redx

Only the local court can tell you any deadlines , but I don't think they impose them , it's an arbitrary number and we see many WS bundles being submitted late or not at all

Just consider it a line in the sand , not an absolute

Coupon-mad

If you’ve based it on the one by Robert Cox linked in the newbies thread, then that’s been superseded by the one by @jrhys and in particular, don’t use the Southampton Britannia v Crosby judgment. 

Instead use the 2 judgment transcripts in my thread about the Recorder Cohen judgment. You can find my discussions by clicking on my username.

bergkamp10

Coupon-mad said:

If you’ve based it on the one by Robert Cox linked in the newbies thread, then that’s been superseded by the one by @jrhys and in particular, don’t use the Southampton Britannia v Crosby judgment. 

Instead use the 2 judgment transcripts in my thread about the Recorder Cohen judgment. You can find my discussions by clicking on my username.

Yeah, that's the one I used as it's the one that was mentioned in the newbies thread that I was directed to and upon clicking the link there was loads of praise from the senior forum members.

So where should I refer to the recorder cohen judgements in the WS, aside from attaching it as an annex? And completely remove Southampton? The newbies thread may need updating in that case as it reminds us to use it haha.

Looks like I have a bit of work rewording everything. Are there any successfully drafted WS using this recent info?

Coupon-mad

Yes the Newbies thread needs a few updates but I was waiting for other current relevant cases, so that I don’t have to do it twice before Xmas!

Every recent WS this Summer will have been crafted this way so search the forum for Cohen and you should find some.

Umkomaas

@bergkamp10, you do know that CEL more often than not pull out shortly before the hearing date where the Defendant has put together a decent defence, WS and evidence and has submitted everything on time. 

No guarantees, but I'd expect this case to follow that pattern too, so every reason to keep going through all the hoops right up to the wire. 

bergkamp10

Coupon-mad said:

Yes the Newbies thread needs a few updates but I was waiting for other current relevant cases, so that I don’t have to do it twice before Xmas!

Every recent WS this Summer will have been crafted this way so search the forum for Cohen and you should find some.

Ok thanks. I'll look. Do you know of any particularly good ones recently that you can remember off the top of your head?

bergkamp10

@Coupon-mad, so aside from the references to southampton, should I also remove all of these bits in the abuse of power section? Or is there anything useful we can keep?

1.         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.''

 

2.         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.

 

3.         This Claimant knew or should have known, that by adding £70 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-12), 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.

 

4.         This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality.

 

5.         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 show this additional £100 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.

bergkamp10

Umkomaas said:

@bergkamp10, you do know that CEL more often than not pull out shortly before the hearing date where the Defendant has put together a decent defence, WS and evidence and has submitted everything on time. 

No guarantees, but I'd expect this case to follow that pattern too, so every reason to keep going through all the hoops right up to the wire. 

Hopefully mate. Otherwise I'll have to give my friend a whole load of coaching in the leadup to the hearing as it's in person for him. At the moment however I'm just trying to make sure I help him have as good a WS as possible as I think we have another 4 hours or so to change the version I used based on the newbies thread to incorporate the newer stuff.