Napier Parking/BW Legal, CCBS Claim Form received. Help and guidance very much needed!

Dotage

Yes, had a read up on the Semark-Jullien case, most of it went over my head, but it seems that the issue is not as cut and dried as BW Legal would like to state, insomuch, as the net result is that DJ Grand's judgement is overturned in the case of Mr Semark-Jullien, but still stands with regard to Mr Crosby.
On the back of all the sound work done by others, particularly coupon-mad, that I have found, I propose the following as a basis for abuse of process and draft order.

Abuse of Process :-

The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay. This additional charge is not recoverable under the protection of freedoms Act 2012 Schedule 4 nor with reference to the judgement in Parking Eye v Beavis, which expressly approved the parking charge because it included costs of administration. Additionally, s71(2) of the Consumer Rights Act 2015 requires the Court to consider the fairness of a contract term and the provision for additional charges falls into example 6, 10 and 14 of the indicative list of unfair terms in schedule 2 of the Act. It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

Draft order :-

Draft Order                                                                           In the County Court at XXX

Claim Number: XXXXX

Date: XXXXX

 

                                                                               Napier Parking (Claimant)

XXXXX (Defendant)

 

Before Deputy District Judge Whitehouse sitting at the County Court at xxxxx, xxxxx,xxxxx on xxxxx xxxxx.

Upon reading the court file

 

IT IS ORDERED THAT

1.      The claim is struck out as an abuse of process.

 

2.      This order has been made by the court of its own initiative without a hearing pursuant to Rule 3.3(4) of the Civil Procedure Rules 1998 and a party affected by the order may apply to the court to have it set aside, varied or stayed not more than 7 days after the date the order was served upon that party.

 

REASON

The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant is contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2014 Schedule 4 nor with reference to the judgement in Parking Eye v Beavis, which expressly approved the parking charge because it included costs of administration. Additionally, s71(2) of the Consumer Rights Act 2015 requires the court to consider the fairness of a contract term and the provision additional charges falls into examples 6, 10 and 14 of the indicative list of unfair terms in Schedule 2 of the Act. It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

(b) It has been noted by this Court that these Claimants have a tendency to produce witness statements which are prolix.  It remains part of the court’s case management function to exercise rigorous control over such statements.  The witness statement of the Claimant is an abuse, in that the factual errors and template legal argument format show that it was, on the balance of probabilities, prepared by the Claimant's solicitor and not by the Claimant.  Further, it is clearly intentioned to act in terrorem of the Defendant and does not stand as a real attempt to assist the court with the substantive facts of the case; ref CPR 32 (1) ''A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.''  This Claimant's witness statement fails to meet the requirements of the CPRs and it, together with the Claimant's bundle, is hereby struck out.
Dated: xx.xx.2020

Dated xx xxx xxxx

Thanks again all, for your valuable help and guidance through this minefield of corruption.

Dotage

By way of an update, I have today sent the following to the Court with regard to requesting that the hearing is not determined on the "papers" :-

I am the defendant against whom this claim is made. I represent myself as a litigant-in-person, with no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional.

I would ask the Court to accept that I do not agree to this Small Claim being determined on the basis of documentary evidence and written submissions, because I strongly believe that I must be afforded a fair opportunity to rebut the inaccuracies in the 'evidence' provided by the Claimant, that only a face-to-face hearing will give me.

For information, I attach a link below, showing a redacted copy of the Notice of Allocation to the Small Claims Track (Hearing) and Notice of Trial Date that I received, this details procedure for remote hearings etc.
This may be of interest to all, because it is a relatively recent change (May 2021).

https://www.dropbox.com/sh/ow9qcwkt7huhudb/AACKzU8c3O2qJnNQuui-Oiu-a?dl=0

Any comments, and or further advice, would be much appreciated.

Dotage

Hi Guys
I am now getting close to having to submit my WS, however I have received this   https://www.dropbox.com/sh/5miwrd0x7ooznod/AABfyz8V3KYcijzIbPhfxi00a?dl=0 from bwlegal and am a little concerned by it, and would appreciate some advice.
Many thanks

Le_Kirk

Oh no, not the old, tired "it's an Internet defence"!  Doesn't make it any less of a defence!  A judge recently commented, when told about the "internet defence" by a claimant "so what!"  If you look for examples of the language used in the BW Legal letter, on this forum you will find loads of examples of a copy & paste letter or witness statement.

KeithP

Dotage said:

Hi Guys
I am now getting close to having to submit my WS, however I have received this   https://www.dropbox.com/sh/5miwrd0x7ooznod/AABfyz8V3KYcijzIbPhfxi00a?dl=0 from bwlegal and am a little concerned by it, and would appreciate some advice.
Many thanks

So they are complaining about a template Defence by sending you a template letter.

That letter has been seen many many times before. Search the forum for the word 'nonsensical' to see how many times.

Press on with constructing your Witness Statement and gathering you evidence.
What is your deadline for filing those?

Dotage

Thanks for the prompt response, latest (28 days before hearing) is 19th August, would I be best to leave it till the last minute, and if I am going to submit a draft order, should that be at the same time as the WS, or can it be earlier?

Umkomaas

There can be an advantage to delaying the submission of your WS, in the hope that the PPC submits theirs first, giving you a preview of what they are saying, allowing you the possibility of adapting yours to cover off any of their moves. But don't leave it to the final wire, then find you've got technical problems (for example) in submitting!

The draft costs order is normally an addendum to the WS.  

Le_Kirk

It is not a draft order unless you are talking about a set-aside here.  More likely you mean a Summary Costs Assessment.

Dotage

Thanks for that Umkamaas, it was not draft costs order, that I was referring to, but a claim being struck out, as an abuse of process draft order, as detailed in my posts going back to the end of June, or am I loosing the plot a bit?

Le_Kirk

I don't think we use that now, as we dropped the "Abuse of Process" ploy and it is now called "double recovery" and is included in the standard defence template.  There is also a reference for a WS by @jrhys have a look at that one.