Excel & Elms CC Claim - Abuse of process

Johnersh

This is an opportunity. Other cases like Semark Julien flirt with it, Beavis doesn't address it, this unavoidably refers to bolt-ons in isolation. If it goes against Excel, others won't thank them. 

In other cases the bolt on costs are either permitted or they are not. Rarely are they argued in isolation of the parking charge and where the defendant has (very reasonably) agreed and paid the fee.

C now needs to show that the wording on the sign (usually something like "an additional fee may be charged if you don't pay when requested") amounts to a contractual agreement to pay £60.

But that is a sum that is not specified anywhere on the sign, is not receipted or broken down in a schedule of losses and is not specifically a legal cost. The signs usually say may not will. Its not clearly an agreement to pay a sum of liquidated damages at all. 

If this PCN was from some time ago, don't let them refer to a 2019 code of practice to say that £60 uplifts are permissible, when it is only the current code of practice that refers to an uplift at all 2019(v7) and the key date is when the contract was performed/agreed.

A copy of the signage would be helpful to check the above general points. 

Jackobi

Hi everyone, it’s been a while and hope your all well and seeking your wisdom again. 
 I’ve heard nothing from either Excel or the courts for a while until today (3rd Nov) I received the following N24 General Form of Judgement but shouldn’t this say when the hearing date is or will that come later? 

Coupon-mad

You should get a hearing Order later.

Note carefully what this Order tells you, right down to what the court expects in terms of line spacing and text size, in your WS in due course.

Read example WS by @jrhys and @Nosy to see what the bundle looks like, and start preparing yours.

The VCS v Percy appeal case will cause you problems, so read the transcript.  It was posted last week by @bargepole so you can find it in less than a minute flat. 

That's what you will face from the Claimant so it will be important to say that the signs in THIS case were vague and that there was no contractual agreement to pay any specified sum.  Ask your Judge to consider the appeal transcript from Recorder Cohen QC which was also on appeal and dealt specifically with a clause that mirrors this one.

Your WS will also have to put the C to strict proof that they incurred £60 in costs, given that PCN debt agents that leach on this industry operate on a 'no win no fee' basis.  No cost to Excel.

Again the Recorder Cohen transcript is easy to find from searching or by looking on my profile snd clicking on my DISCUSSIONS (not my close to 100,000 posts!).  I started a thread about the transcripts to use, and I linked them back in May.

I do hope you aren't just piloting in here every few months without coming and reading relevant threads at least every week, snd have an awareness of threads over the Summer.  And that you did the Government Consultation in August?

Staying away from the forum for months does you no good when you have a live claim.  So much happens and new examples and cases (and Government Consultations) occur that you need to know about.

Jackobi

Thank you for your help everyone especially Coupon-mad. I admit i havent been following as much as i would of liked, ive tried to read and understand as much as possible and have followed your advice to create my WS which i will post up shortly and would appreciate your thoughts.
Well done though on the Code of Practice! When i read the VCS v Percy case it did deflate me!

Le_Kirk

Coupon-mad said:

You should get a hearing Order later.

Staying away from the forum for months does you no good when you have a live claim.  So much happens and new examples and cases (and Government Consultations) occur that you need to know about.

Jackobi said:

Thank you for your help everyone especially Coupon-mad. I admit i haven't been following as much as i would of have liked, I've tried to read and understand as much as possible and have followed your advice to create my WS which i will post up shortly and would appreciate your thoughts.

Have you now received an order with a date for a hearing?  You haven't been here since November last year and, as already advised by @Coupon-mad, this is not a good idea.  When is your WS and evidence due for submission?

Coupon-mad

Coupon-mad said:
I do hope you aren't just piloting in here every few months without coming and reading relevant threads at least every week, and have an awareness of threads over the Summer.  And that you did the Government Consultation in August?

Staying away from the forum for months does you no good when you have a live claim.  So much happens and new examples and cases (and Government Consultations) occur that you need to know about.


Jackobi said:

Thank you for your help everyone especially Coupon-mad. I admit i havent been following as much as i would of liked, ive tried to read and understand as much as possible and have followed your advice to create my WS which i will post up shortly and would appreciate your thoughts.
Well done though on the Code of Practice! When i read the VCS v Percy case it did deflate me!

So glad you are up to speed on the new Code of Practice! Good, innit?!

Knocks VCS v Percy into a cocked hat and takes HHJ Saffman's opinion down with it, including where he actually went and found the BPA CoP to quote from (after the hearing to pad out and support his judgment), despite it never being referred to by either party because VCS are not even in the BPA!

HHJ Jackson in Excel v Wilkinson was right all along.

Base the second part of your WS on the one by @ricky_balboa

Jackobi

Good morning!

Yes the new COP is fab and a massive slap in the face for them all! Thank you i will have a read of @ricky_balboa WS before posting mine today in case ive missed anything.

Hearing date 1st June, face to face. Non priority listing.

WS are emailed now right? 

Le_Kirk

You can e-mail your WS to the court and claimant provided they accept file (court) and service (claimant) by e-mail

Jackobi

Thank you Le_Kirk i will contact the courts and Excel, hopefully it will be by email!

I have copied and pasted my WS here because someone mentoned it was easier to proof. I put this together before i read @ricky_balboa version which is very good and i still have to sort out relevant links, exhibits etc.
Also i wasnt sure if i should include the section about ADR or Landowner rights?

Jackobi

WITNESS STATEMENT OF DEFENDANT

1. I am XXXX of XXXX and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge. 

2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Sequence of events and signage

3. On the XXXX i visited the XXXX branch of Iceland for the first time. Iceland is situated next to a Lidl and both have carparks at the rear of the building. Being 71 at the time of the event, disabled with mobility issues, parking in the Iceland carpark was easier for me as it is nearer the shop entrance.

4. I parked in one of the 3 disabled bays (Exhibit X) and headed towards the pedestrian walkway on the right through an alley towards the entrance for Iceland. There were no signs or notices on the wall opposite the parking space or walkway to alert my attention.

5. The Iceland carpark is right next to a council owed carpark with only a pedestrian walkway separarating the two (Exhibit X). As the neighbouring council owed carpark is free of charge for Blue Badge holders, i presumed this was part of the same carpark.

6. On XXXX i received a PCN i dont recall from which parking compay but i appealed it online via MyParkingCharge stating i was a disabled blue badge holder. I got an email response from Vehicle Control Services (Not Excel Parking Services) saying they had made their decision and that i would be notified by post, unfotunately i never received a reply or any other letters.

7. 4 years later (XXXXX) i recieve a 'Letter Before Claim' (Exhibit X) from solicitors ELMS Legal acting on behalf of Excel Parking Services demanding an inflated charge of £160 (PCN charge of £100 and £60 Debt Collection charge). With the threat of legal action i paid ELMS Legal the PCN cost of £100 but not the extra £60 'Debt collection charge' (Exhibit X). I received no response or acknowlegement of payment. 

8. On the 1st April 2021 i was issued a County Court Claim for £135 (Claimant seeks recovery of the parking charge notice, contractual costs and interest). As i no longer have the original PCN from 2017, a Subject Access Request was sent to Excel in May 2021 (Exhibit X). Apart from the automated receipt email, i haven't received anything from them. 

9. XXXX a letter arrived from Mr Burgess from Excel Parking Services informing me that "Elms Legal are no longer acting on their behalf" and a reduced settlement charge of £75 to discontinue the claim with the courts (Exhibit X). Reminding them i had already paid the PCN,  i asked them to explain on what legal authority they had to add on the extra charge. I also chased up the SAR in my response to them by post and email, again i received no reply (Exhibit X).

10. I believe the Claimant is attempting to mislead the courts, the Particulars of Claim set out a generic and incoherent statement of case. The parking charge notice has been paid at the sum of £100 so the Particulars of the Claim are materially in error. The £60 must therefore be an addition to the 'parking charge' stated as 'Debt Recovery Costs' on the Lettter Before Claim from Elms Legal.

11. 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. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this is now banned in the new Code of Practice (Exhibit X).

12. The Claimant has not paid any money to any debt recovery firm and the Claimant is put to strict proof. Even if I had seen the signage – no contract to pay an onerous penalty would have been seen, known or agreed. 

The Beavis case is against this claim  

13. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67 (Exhibit x), 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.

14. 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. 

15. 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.

Abuse of process – The quantum

16. If the claimant wishes to pose this additional sum of £60 as recovery of debt collection costs, the claimant is put to proof that this sum was incurred. Given that the letters are merely generic templates from the claimant’s own ‘debt management team’, it is contested that the debt recovery stage could have cost the claimant £60. 

Excel V Wilkinson

17. Referring back to ParkingEye Ltd v Beavis [2015] UKSC67 (Exhibit X), the Supreme Court allowed the £85 parking charge against Mr. Beavis because it “was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available” (para. 98).

18. In this case however, the claimant already charged a fee of £100 based on the authority of the Beavis case, but also adding another £60 costs. This clearly constitutes double recovery, and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson [2020] G4QZ465V (Exhibit X), a similar case in which £60 had been added to a parking charge, heard in July 2020. The Judge concluded that such claims are proceedings with 'an improper collateral purpose' (para. 41). Concluding:

“The Claimant must be shown that including irrecoverable heads of loss in its claims has consequences otherwise I have no doubt they will continue to claim £60 damages/costs etc to profit from undefended cases. Having regard to all elements of the overriding objective and the need for a sanction to be proportionate I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown.” (para. 43-43)

Leave to appeal was refused and that route was not pursued.

19. After hearing this ‘test case’, which followed numerous Judges repeatedly   disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. This is a crucial and very relevant case because it is a forensic consideration about parking firms adding costs on top of a parking charge that the Beavis case already decided, as it covers more than the cost of an average of four automated demands that are fundamental to the business model.

20. Applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 (Exhibit X) and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd [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. 

ParkingEye Ltd v Somerfield Stores Ltd (ref para 419):
 ''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.'' 

21. 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. 

Britannia Parking V Crosby & Anor

22. See Exhibit X - Transcript of the Approved judgment in Britannia Parking v Crosby & Anor (Southampton Court 11.11.19) F0DP806M and F0DP201T, That case was not appealed and the decision stands. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the Consumer Rights Act 2015 Sch 2, paras 6, 10 and 14 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

23. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). 

24. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.