Newbie =DCB Legal Letter of Claim/ Claim Form Help. From First Parking LLP

Coupon-mad

Just get on with EXACTLY what the Order tells you to do, starting with providing your email contact for the hearing.  Do that tonight, right now and no apology for it being late.  No idea why it's not just been done as soon as you spotted it; there is no reason to wait and make yourself even more late.

Gain the high ground by getting that done and then work on your WS and evidence that of course can be emailed these days (normal since the pandemic and the advent of remote hearings).

Not to the CCBC of course!  That admin centre has not been involved since the case was allocated to your local court.

newbie772

 

Hi everyone. I have my WS attached. Does anyone have any thoughts?

1. I am <NAME> of <ADDRESS>, 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.         Firstly, it should be noted that the claimant has appended to their witness statement signage that does not exist at this car park. I have appended the actual signage, photographed myself on November 27th, 2021, and will refer to them throughout.

 

4.         The approach and entrance to the car park is on a busy and tight road that does not state the terms and conditions at all, stating to see the signs in the car park for more detail. The entrance sign is small and only clearly states that only permit holders can park, for which my vehicle had the necessary permit to park there (exhibit xx-05). It states in small and not readable writing, to go inside the car park to see the terms and conditions (exhibit xx-01) .

 

5.         Upon entry, the terms and conditions signage are minimal and unreadable. Like the entrance sign, the only part that is readable is the line stating that permit holders can only park, for which I had the necessary permit to park there (exhibit xx-02 ,xx-03 and xx-05). Furthermore, there are only two only forward-facing signs to the whole car park for over 100 vehicles, with an additional third sign in the top left corner of the car park, viewable to only a few.

 

6.         Contrasting that to the signage for the additional areas in that car park for the parent& child and disabled areas, which have 2 signs for 7 spaces, which despite also being hard to read, are at least adequate in volume (exhibit xx-04).

7.   I am familiar with this car park and my son had used it for almost 2 years, whstt studying at XXX. The place he parked in on the material date was one of the places commonly seen that people park in. The vehicle did not restrict access of that section of the car park for cars coming in, as the route is a one-way system.

8.   Upon recently retuning to the carpark . I saw in the terms and conditions it stated, ‘cannot be on double yellow lines or whatever’ and as there were no yellow lines over that area (EXHBITI DU) parked and still aren’t over two years later. My son was under the belief that, if it wasn’t permissible to park in that area, there would’ve been yellow lines or some clear indication to specifically state that the car couldn’t be parked there . Had there been any clear indication it was not a valid space, the care would not have been parked there, as there are other car parks available at the University.

 

The Beavis case is against this claim

9.      This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause. 

 

10.  However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed.  As such, I take the point that the parking charge in my case is a penalty, and unenforceable.  The absence or concealment of signage and varying acceptability of parking areas are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

 

Abuse of process – the quantum

12. In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’. The added £60 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: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is exhibit XX-04). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

13. 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. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

14. This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ, and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I am local and took the evidence photographs appended to this statement myself (on November 24th, 2019). I can state from my own knowledge that there are nothing like that many signs in this car park. Even from up-close, the terms and conditions are not visible (exhibit xx-06).

Redacted Landowner Contract

15. The Claimant has appended a redacted ‘Customer License Agreement’ which has little or no probative value and which offends against the rules of evidence. The ‘Client’ signatory of the ‘Agreement’ could be anyone, even a stranger to the land, and the Claimant provides no evidence that the ‘Client’ is the landowner.

16.  It is also clear that the document has not been signed by two Directors, nor by one Director in the presence of attesting witnesses, and as such cannot – according to the Companies Act – be considered a validly executed contract. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

 

17.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html

Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

 

18.  As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

19.    I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement.

 

20.    The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

CPR 44.11 – further costs

21. As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) 

22.  Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-05) which covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I first draw the Court’s attention to the fact that the Claimant was aware (exhibits XX-01 and XX-02) that there was no signage stating terms and conditions at the entrance to the parking area and no signage visible from my vehicle, and that any terms or conditions of parking outlined on any elsewhere-placed signage could not be binding. Such matters, forming a significant part of the Claimant’s business model, can be reasonably considered to be within the Claimant’s expertise, and the Claimant could have avoided this claim.

newbie772

-          Does the point of the disabled/child hold having 2 signs in the same car park hold any ground?

-          Does the Beavis case work here? (PCN was for ‘not parking within bay lines’)

-          Can I use the fact they have said the wrong car park from their WS I have received from them recently?

-          I recall going to the parking/permit office at the university however this was over 3 years to complain but have no proof of that. Is it worth mentioning?

-Do I need approval for usage of case for the Bradford case with Judge Jackson?

Jenni_D

To your last point - no; any case that has been given a ruling is a matter of public record, so you can quite lawfully refer to it (and include the transcript if it exists).

Coupon-mad

Certainly state that their WS mentions the wrong car park!

Did they provide a redacted landowner authority?  Your WS you copied a paragraph that says this, is everything you copied entirely right for your case?

Don't have 'or whatever' in #8.

I have appended the actual signage, photographed myself on November 27th, 2021, 

Have you embedded the time and date metadata into your image?