Excel & Elms CC Claim - Abuse of process

Coupon-mad

The only thing I think you are missing is the usual point about lack of standing, putting them to proof of landowner authority.

And here I would add the bit I've shown in bold:


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.  The Claimant has not paid any money to any debt recovery firm and the Claimant is put to strict proof.

1505grandad

Also Para 6  -  "......That sum cannot have exceeded the BPA CoP ceiling of £100..."

The claimant is an IPC AoS member - nothing to do with BPA

Jackobi

Thank you so much guys!! Will make the amends.
 

I read on another thread where someone wrote to the legal firm or parking company about what legal right they have to charge the extra £60 etc and got the claim dropped. Is it worth me doing this? I never got confirmation they received my £100 payment. 

Umkomaas

Jackobi said:

Thank you so much guys!! Will make the amends.
 

I read on another thread where someone wrote to the legal firm or parking company about what legal right they have to charge the extra £60 etc and got the claim dropped. Is it worth me doing this? I never got confirmation they received my £100 payment. 

Unlikely to have been dropped just because of that. 

beamerguy

Jackobi said:

Thank you so much guys!! Will make the amends.
 

I read on another thread where someone wrote to the legal firm or parking company about what legal right they have to charge the extra £60 etc and got the claim dropped. Is it worth me doing this? I never got confirmation they received my £100 payment. 

The point of writing to them asking for their authority to add £60 is not to get it cancelled which they won't.
As they have no authority they will either reply with nonsensical rubbish or they won't replt at all

The purpose is:
1: If they reply with their rubbish it's perfect to show a judge
2: If they don't reply to their fake claim then you hand it to the judge 
3: Bear in mind that most times the judge will dismiss the fake £60
4: Also bear in mind that the "rent by hour" legals they send are mostly dead from the neck upwards

Jackobi

Ah dead from the neck upwards..

Will have to remember that at the hearing! 

Jackobi

Thank you Coupon-mad and 1505grandad, I've made the amends (Para 5,6,7) for your seal of approval below. Again totally lost without this forum so I thank you for everyone's assistance,

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. The Claimant has not paid any money to any debt recovery firm and the Claimant is put to strict proof.

6. The Claimant is also put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. 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. Not only is this abuse of process against the POFA 2012 but also abuse of process in relation to double recovery.

8.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.

9. 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.

10. 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.

11. 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').

12. 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.

13.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:

14.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.''

15.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.

16.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.

17. 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.

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

Coupon-mad

Why not put in a counterclaim for the £100 back?  Just a thought.  Costs you £25 in fees.

Jackobi

Thank you Coupon-mad! Your so clever 

Not sure I want to put mum through any additional stress but if it was my PCN then definitely! 

Jackobi

Hello! I received my DQ and followed the instructions on the threads but regarding the interpreter question can I act as one for my mum? I’ll ask permission to be a Lay Rep anyway but wasn’t sure if you had to be certified to translate. Thanks guys for your help.