Excel & Elms CC Claim - Abuse of process

Jackobi

Chevalier-Firescu v Ashfords 

25. The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP [2021] F83YX432 (Exhibit X), where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to s62 of the CRA, as it created imbalance between the parties.  Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant. 

26. Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied.

27. The Pre-Action Protocol for Debt Claims (Exhibit X), is clearly aimed to avoid such inflated costs:

"2 AIMS OF THE PROTOCOL 2.1 This Protocol’s aims are to:

encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue)"

28. Meanwhile, the Practice Direction – Pre-action Conduct and Protocols (Exhibit X) is more explicit on the requirement for proportionality:

“Proportionality

4. A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.

5. The costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate (CPR 44.3(5)). Where parties incur disproportionate costs in complying with any pre-action protocol or this Practice Direction, those costs will not be recoverable as part of the costs of the proceedings.”

29. In claiming £60 as costs for an automated template debt collection letter the claimant is clearly abusing the Pre-Action stage.

Private Parking Code of Practice 

30. The Code of Practice (Exhibit X) which is published by the Secretary of State for the Department for Levelling Up, Housing and Communities (DLUHC), under the new rule has banned pseudo  'debt recovery costs/damages'  (disproportionately added as a fixed fee on top of a parking charge) in February this year.

31. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice: https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice 

32. "Escalation of costs

The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued.

"Explanatory Impact Document here:

https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice-explanatory-document-how-was-it-developed-and-what-will-it-change 

33. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

34. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  The Explanatory document goes into the rationale behind the ban, as does the DLUHC's link within it, to the 'Response to Technical Consultation - Debt Recovery fees' at paras 29-31 'Government Position': 

https://www.gov.uk/government/consultations/private-parking-charges-discount-rates-debt-collection-fees-and-appeals-charter-further-technical-consultation/outcome/private-parking-charges-discount-rates-debt-collection-fees-and-appeals-charter-further-technical-consultation-response 

35. The abuse is now clearly established and the DLUHC decision and words banning 'debt recovery' costs, damages or fees (however described) on top of a parking charge is a clear steer for the Courts that rationale along the lines of that by DJ Grand in Britannia v Crosby and Her Honour Judge Jackson in her very detailed decision in Excel v Wilkinson were correct.

36. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant. 

Statement of Truth

I believe that the facts stated in this witness statement 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.

Coupon-mad

That is the old version.  As you rightly say, you need to swap half of that and not use the Crosby case.

Here is another great example of a WS, by wobs2k

https://forums.moneysavingexpert.com/discussion/comment/79182222/#Comment_79182222

Le_Kirk

Jackobi said:

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 mentioned 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 wasn't sure if i should include the section about ADR or Landowner rights?

You use anything and everything in your witness statement that supports and backs up what you said in your defence.

Jackobi

wobs2k WS, like you say easy to follow so ive amended parts and hopefully its a lot cleaner!



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 24th March 2017 i visited the Whitton 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 (09/02/21) 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.
POFA and CRA breaches

16. 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'). 

17. 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.

18. Pursuant to Schedule 2 paragraph 6 of the Consumer Rights Act 2015, the sum claimed could be regarded as unfair by the court as it considers the test of fairness laid out in Section 71.
Abuse of process – The quantum

19. 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.

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): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''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. 
Excel V Wilkinson

22. 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).

23. 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.

24. 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.

25. This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

Jackobi

Private Parking Code of Practice 

26. The Defendant's stance regarding this punitive add-on is now underpinned by Government intervention and regulation.The Department for Levelling Up, Housing and Communities('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators must comply with, found here:

https://www.gov.uk/government/publications/private-parking-code-of-practice 

27. Adding 'debt recovery' costs, damages or fees (however described) on top of a parking charge is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: 

"The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issue."

28. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future)cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

29. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers.The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.

30. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

31. The new Act overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumer slacked the means to appeal further.  

32. Where this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

33. The abuse is now clearly established and the DLUHC decision and words banning 'debt recovery' costs, damages or fees (however described) on top of a parking charge is a clear steer for the Courts that rationale along the lines of that by Her Honour Judge Jackson in her very detailed decision in Excel v Wilkinson were correct.

34. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant. 

Statement of Truth

I believe that the facts stated in this witness statement 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.

Jackobi

Hi everyone, I confirmed with the courts that i can send them the WS electronically but i havent heard back from Excel. I havent had anything from Excel apart from a settlement letter last year which they never replied to.
I have to file my WS by wednesday (tomorrow if by post).

Coupon-mad

 "i presumed this was part of the same carpark."

Don't assume or presume.
Change to:

'this had the appearance of bring the same car park.'

Add to the end of #19:

The minor costs of the operation, which primarily involves a standard model (template) automated letter chain is exactly why the parking charge itself is set at £100. There can be no additional costs.

Jackobi

Thank you Coupon-mad i will make the changes. Appreciate this.

In regards to costs, im an upaid carer for my disabled mum and son but my ex will have to take the day off work to look after him if we go to court. Can i still get the £95 for him? Cab fares to and from court, do i put that in the WS now or does that come later?

Jenni_D

Have you done a costs schedule? That should go along with your WS and evidence.

Coupon-mad

Yes you can ask for those costs but would need to put in a costs schedule first.