Excel & Elms CC Claim - Abuse of process

Jackobi

Interesting! I did notice that they stated this £60 is the parking charge (not the debt recovery) so I was tempted to just say I paid it but wasn’t sure if that was the correct thing to do. 

If I had paid by credit card I would do as you say and play with fire!!

SayNoToPCN

I would add in the defence that the claimant has misled the court; the cparking charge has been paid, meaning their particulars of claim are materially in error. 

Please note the comment by Bargepole, who IS legally qualified (but not your lawyer, etc...) on the litigation friend part


Personally, based on the listed difficulties I am not sure I agree, but this is not my area of expertise. From what you have said she doesnt lack mental capacity but has issues, such as dearfness and english as second language? that would complicate matters. 

beamerguy

SayNoToPCN said:

I would add in the defence that the claimant has misled the court; the cparking charge has been paid, meaning their particulars of claim are materially in error. 

Not only are ELMS / EXCEL misleading the court they are trying to set some sort of the precedence that the fake £60 is legal ?

We know of the connection with SRS/EXCEL/VCS and Elms which is a disaster, there are links about rubbish involving ELMS but it needs to be asked ... is JB, the so called legal for the SRS bunch so oblivious to such stupidity 

I feel very sorry for JB for approving such rubbish ..... not a good CV when he needs a new job, 

There is every chance that EXCEL and VCS will be destroyed with the new code of practice

Snakes_Belly

What is the first language? Do you speak your relative's first language? They do allow interpreters at court. 

Snakes_Belly

Possibly before the court case there may be some more information regarding the Public Consulation on the new CoP. If there is regulation of the debt collection process this may be useful to your relative's case. At present the debt collection agents can ride roughshod over vulnerable people as there is no regulation. 

beamerguy

Snakes_Belly said:

Possibly before the court case there may be some more information regarding the Public Consulation on the new CoP. If there is regulation of the debt collection process this may be useful to your relative's case. At present the debt collection agents can ride roughshod over vulnerable people as there is no regulation. 

problem is, the scammers will not listen until the new CoP is in action ... for many like the SRS group of scammers ........ they live in the clouds
If the SRS group plying their scam are around this time next year ....   I'll be amazed 

Jackobi

Her first language is Cantonese and I translate for her the best I can although with legal affairs might be trickier.
As someone mentioned If I am her lay representative and I’m allowed to speak on her behalf because of the difficulties she has then that should be ok?

Bargepole comments I agree with but if like you said it’s judged on mental capacity or power of attorney etc then I don’t have medical evidence or power....yet. 

Coupon-mad

As someone mentioned If I am her lay representative and I’m allowed to speak on her behalf because of the difficulties she has then that should be ok?

Yes that's the usual way we do this when a D is elderly or vulnerable but I appreciate what @bargepole has said and her deafness would clearly make a phone hearing difficult.

So maybe this is a rare case where you could act as a litigation friend.    I'm just not sure it's necessary when you can just lay rep and she can attend too.

Jackobi

Hello all! I've done lots of complaining to Iceland and even reported Elms to the SRA. Will target the local MP next!

After trying to read lots of threads and templates, here is my attempt at a defence and I would really appreciate your help in looking it over.

Jackobi

IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between

XXXX
(Claimant)

- and -

XXXX
(Defendant)
____________________

DEFENCE
____________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2.The Claimant is attempting to mislead the courts as the parking charge notice has been paid meaning the particulars of claim are materially in error.

3. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date.

4. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in XXXX at XXXX. The Defendant parked in a disabled space and therefore thought she did not have to pay to park as users with blue disabled badges did not previously have to pay. The Defendant did not see the signage and resulted in a PCN being issued followed by a  Letter Before Claim from solicitors Elms Legal. The defendant paid the £100 PCN.

5. The Claim form Particulars of Claim is unclear as to what legal basis the claim is brought. As the PCN has been paid at the sum of £100, the claim must therefore be an addition to the 'parking charge' and stated as 'Debt Recovery Costs' on the Letter Before Claim. The Claimant has artificially inflated the value of the Claim by adding costs which have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery.

6. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue a £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100 which has been paid. That sum cannot have exceeded the BPA CoP ceiling of £100 and the Claimant cannot recover additional charges. Not only is this abuse of process against the POFA 2012 but also abuse of process in relation to double recovery.

7.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.

8. 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.

9. 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.

10. 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').

11. 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.

12.Unlike this Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

13.Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

14.That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

15.This Claimant is a sister company to VCS, both being owned by Simon Renshaw-Smith. Therefore, given the VCS failed application to be allowed to pursue £160 for £100 parking charge, it cannot be true to say that Excel Parking Services Ltd has the honest belief that they can do the same, and nor is this news to them, because the industry has had seven years to adjust to the POFA 2012 Schedule 4, and four years to pay regard to both the Beavis case and the Consumer Rights Act 2015, all of which (separately or when taken together) completely obliterate any possibility of recovering more than £100

16. The Defendant is of the view that this Claimant knew or should have known that to claim an additional £60 for a already paid parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.

17. 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:
Date: