Court Defence advice please

bob5678

Fruitcake said:

Please show us the claimant's WS asap. Upload it to Dropbox or similar and paste the URL here. You can then use the comments about it from the regulars in your WS to dispute their evidence.

Please ONLY redact YOUR personal data. I cannot stress enough how important the words are that I have highlighted. Please also tell us if the claimant has redacted anything.

Fruitcake will do that now thank you

bob5678

OCRed scan of Claimant's Witness Statement.

I have redacted my personal details with black boxes

https://we.tl/t-oppipo3472

The Claimant has redacted with blue boxes, information in an appendix - their contract with ReAssure. ReAssure are not the landowner. As I understand it the landowner is Aberdeen Standard Investments.

Umkomaas

Sorry, I won't open the link all the way to the WS as the website wants to drop cookies on my device, I won't risk that. Host it on Dropbox which we trust on the forum. 

bob5678

Alternative link on dropbox

https://www.dropbox.com/s/56tsptkae9yt3h9/scan_sbegum_2021-06-25-12-45-35%20%28Redacted%20OCR%29.pdf?dl=0

Just repeating so all info in once place:
I have redacted my personal details with black boxes

The Claimant has redacted with blue boxes, information in an appendix - their contract with ReAssure. ReAssure are not the landowner. As I understand it the landowner is Aberdeen Standard Investments.

bob5678

Hey folks here is a very rough draft of my WS. It isn't finished and needs a lot of rewriting and missing information added. I will attend to all of that.

It may not be possible for you to respond to this as it is unfinished, but I'm posting it now just to get a sense of if I am on the right track, and because time is short. I will post a more complete version tomorrow.

Thanks

https://www.dropbox.com/s/2xz2rqgk1tbc4vk/Witness%20Statement%2006%20to%20send%20to%20forum.docx?dl=0

 

Fruitcake

The claimant has complained about your use of a defence, reasonably researched via the internet, where they rabbited on about how long and unnecessary it is, then produced a 49 page WS. Hypocrites.

They also query how the defendant can have known that the alleged event occurred in the dark. Er ... the images on the NTK were time and date stamped, and taken in the dark.


Have a look at this thread by Johnersh, who is legally trained, where he refers to an appeal court case. The judge effectively said that redacting evidence at the disclosure (exhibits) stage is unacceptable.
Whilst it can be argued that financial information about amounts paid from one party to another might be considered sensitive information, and redacting it would possibly be reasonable, redacting the identity of the signatories to a legally binding contract is most certainly unreasonable.
It could be reasonably assumed that on the balance of probabilities, redacting the identity of the parties involved in a legally binding contract has been done purely to hide the fact that the signatories are/were not authorised by their employers to form a contract with another party.

Redactions in Disclosure — MoneySavingExpert Forum

I suggest you quote the Hancock vs Promontoria case and attach the judgment. Note that this was an appeal court decision and is therefore persuasive on the lower courts.


Section 43 of the Companies Act 2006 states that a Simple Contract requires the agreement to be signed by persons having express or implied authority. 
(My interpretation). Express authority would be the owner or an officer of the company (director or company secretary).
Implied authority would be a position (job description) authorised in writing by someone with express authority, or included in company documentation such as its articles of association.

Since the signatories' identity and position within each company of the alleged parking agreement have been redacted, it is averred that neither party had neither express nor implied authority to form a Simple Contract with another party in accordance with the above Act. The claimant is put to strict proof that the contrary is true.


Section 44 of the Companies Act 2006 states that for a document to be validly executes, it must be signed by two authorised persons from each party. Authorised signatories are defined by the Act as directors and company secretaries.
Since the signatories' identity and position within each company of the alleged parking agreement have been redacted, it is averred that the document has not been signed by two authorised persons from each company, and therefore it has not been validly executed in accordance with the strict requirements of the above Act. The claimant is put to strict proof that the contrary is true.


The alleged contract is not with the landowner, CBRE, but with an alleged agent of the landowner, ReAssure Limited. For the claimant to have standing to issue charges and court claims, they must have authority with or flowing from the landowner.
No contract between the landowner and the claimant has been provided.
No contract flowing from the landowner to an agent, ReAssure Limited, giving the agent authority to form a contract with a third party, Premier Park Limited, has been provided.
Appendix 2 of the alleged contract between ReAssure Limited and Premier Park Limited refers to a Car Parking Services Agreement Framework, but no such agreement has been provided. There is no proof therefore that the alleged parking contract complies with the Car Parking Services Agreement.

Were any of these documents to exist, or indeed supported the claimant's claim, and since the claimant has referred to them in their witness statement, it is reasonable to assume that they would have been produced.
On the balance of probabilities, it is reasonable to assume that these documents have not been produced because they do not support the claimant's position. It is averred that these documents, contracts, and agreements support the defendant's position that the claimant does not have standing or authority to issue parking charges and court claims against a motorist. The claimant is put to strict proof that the contrary is true.

bob5678

Thank you Fruitcake that's very helpful!

bob5678

Afternoon all
The thing I am currently trying to understand is how much to expand on these excellent points from the defence, in my WS.
For some of these points I will put them in a different context in the WS and/or refer back to previous points, e.g. the concealed traps/pitfalls paragraph will refer back to a previous point. But as the wording stands - they don't strike me as needing any more elaboration. Does that sound right to you?

Edited to add:
Also the sections on additional sums of money sought/double recovery I will make specific to this case. 



5.  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.

6.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim 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.

7.       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.  

8.  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').

9.  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

10.       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.  

11.       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.

12.   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.  

13.   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.

14.       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.

15.   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.

Johnersh

I mean, if the claimant is such a stickler for rules, you could point the court towards jd wetherspoon v Harris, a judgment of Sir Terence Etherton (subsequently Master of the Rolls) which makes quite clear that statements are a place for fact, not legal argument which is the role of the advocate.

The statement of the claimant is light on fact and heavy on argument. Choice phrases like "I am instructed that these were the terms in place" by whom? On what date? It might be correct, but It's basically hearsay... 

Coupon-mad

For some of these points I will put them in a different context in the WS and/or refer back to previous points, e.g. the concealed traps/pitfalls paragraph will refer back to a previous point. But as the wording stands - they don't strike me as needing any more elaboration. Does that sound right to you?

Yes, sounds good.