Witness statements: 2 transcripts re parking firms' false 'costs' - Recorder Cohen QC judgment 2021

Coupon-mad

NB: this doesn't apply to PARKINGEYE cases as they don't add false costs, but all the rest pretty much do at the moment.

We've already identified Excel v Wilkinson as useful to use as an exhibit, as shown in the witness statement by @jryhs that we encourage people to adapt.

Anyone at WS stage against a Parking Firm Claimant who has added £60, £70 or even £82 to the claim please use this as well, add it as the next point under where you use @jrhys' words about Excel v Wilkinson and APPEND BOTH TRANSCRIPTS AS FULL EXHIBITS, NOT LINKS:

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, 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.

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.

What to say about Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

Coupon-mad

The most recent example of how to set out a WS and exhibits is here:

https://forums.moneysavingexpert.com/discussion/comment/78275063/#Comment_78275063



That Recorder Cohen Appeal Decision is explained here:

https://www.associationofcostslawyers.co.uk/News/court-overturns-decision-giving-solicitors-contractual-entitlement-to-indemnity-costs



The two transcripts to make sure you include with your other exhibits*:

Chevalier-Firescu v Ashfords LLP [2021] F83YX432

https://www.civillitigationbrief.com/wp-content/uploads/2021/02/Chevalier-Firescu-Central-London-CC-Judgment-20210129-V-Final.pdf


Excel v Wilkinson: G4QZ465V, July 2020 by Judge (now HHJ) Jackson:

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0


* see the NEWBIES thread for tips about WS exhibits, evidence, photos, etc.

Coupon-mad

Might be worth someone saving the first one as a Dropbox link and sharing that please, in case the Civil Litigation Brief link ever stops working.

My Dropbox is heaving and too full!


WHAT TO MAKE SURE YOU SAY IN YOUR WS AND/OR AT YOUR HEARING WHERE YOU MUST TAKE THE POINT THAT, PURSUANT TO THE CONSUMER RIGHTS ACT 2015, THE ADDED COSTS CLAUSE IS UNRECOVERABLE.

YOU CAN SAY ALL THIS EVEN IF YOU'VE NEVER PLEADED IT BEFORE BECAUSE THE CRA 2015 s71 PLACES A DUTY ON THE COURTS TO CONSIDER IT ANYWAY:

https://www.legislation.gov.uk/ukpga/2015/15/section/71

Thanks to @bargepole for this wording (add para numbers instead of hyphens of course – PLEEEEASE!!!)

-          The Consumer Rights Act 2015 (‘CRA’) sets out the requirements that must be met - whether a consumer pleads it or not - in order for there to be a legally enforceable contract between suppliers of goods and services, and consumers. Section 62 deals with the requirement for contract terms and notices to be fair, and states at (1) and (2) that unfair contract terms and notices shall not be binding on the consumer.

-          Schedule 2 of the CRA gives examples of terms which may be regarded as unfair.  Of particular relevance to the instant case, are examples 10 and 14. Example 10 states: ‘A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.’ It is submitted that the vague term ‘costs on an indemnity basis’ would fall foul of this example, given that the Defendant would have needed to research the meaning of that term, and would not have had the opportunity to do so prior to entering the parking area.

-          Example 14 states: ‘A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.’ It is abundantly clear that the Claimant in this case is attempting to hold the Defendant liable for a sum which is not specified (prominently or at all) on the signage, and of which the Claimant subsequently decides the quantum. On any reasonable construction, this cannot possibly pass the test of fairness and is incapable of binding the Defendant.

-          The term ‘costs on the indemnity basis’ is further identified in the Guidance to the CRA published by the Competition and Markets Authority, which states at 5.14.3 that ‘Other kinds of penal provisions which may be unfair are clauses saying that the business can ... claim its legal costs on an ‘indemnity’ basis, that is all costs, not just costs reasonably incurred. The words ‘indemnity’ and ‘indemnify’ are also objectionable as legal jargon – see the section on transparency in part 2 of the guidance.’

Le_Kirk

Hopefully this is the correct link and the correct file: -
https://www.dropbox.com/s/c58uv2j7nag44ae/Chevalier-Firescu-Central-London-CC-Judgment-20210129-V-Final.pdf?dl=0

Coupon-mad

Brilliant, thanks @Le_Kirk!

Useful as an alternative link in case the Civil Litigation Brief one drops.  Thanks to @Johnersh for giving us links to those articles over the months/years. 

It was due to him that I occasionally trawl CLB nowadays, and found that decision and transcript.

AnotherForumite

Of course the above would not apply if the sum of the charge (£60/£70) is detailed prominently on the signage.

beamerguy

AnotherForumite said:

Of course the above would not apply if the sum of the charge (£60/£70) is detailed prominently on the signage.

Do you not understand the Beavis case ?   
Do you not understand the code of practice for both the BPA and IPC suggesting fake add-ons, is simply a dream world fabrication and just a feeble attempt to increase the parking charge in an attempt to fool motorsts and the courts

Johnersh

No, because that would be a contractually agreed form of liquidated damages. 

But it is not, is it? Ever.  The signs could say a lot of things, frankly. 

Until recently the enhanced costs wasn't even expressly provided for in the IPC code of practice.

I also take the view that indemnification ought to require that costs have been incurred at that level. That evidence is rarely provided. 

beamerguy

Johnersh said:

No, because that would be a contractually agreed form of liquidated damages. 

But it is not, is it? Ever.  The signs could say a lot of things, frankly. 

Until recently the enhanced costs wasn't even expressly provided for in the IPC code of practice.

I also take the view that indemnification ought to require that costs have been incurred at that level. That evidence is rarely provided. 

AnotherForumite is a self confessed parking oompany he should answer

My question would be ...... "why do parking companies think the code of practice has any bearing or legal authority on the motorist"  ???

MissssyD

I’m currently compiling my WS. I never received a pcn so don’t know what the original charge was but the sign says £85. So is it safe to assume that would have been the pcn amount? From what I have been reading POFA says 14 days a NTK needs to be issued. But It seems to me they are relying on a sign which is monitored by ANPR for the keeper to pay this charge without issuing a pcn?additional amount is added on top of the £85. Thanks for sharing the links @Coupon-madI plan to used the excel vs Wilkinson to argue this point. I will also look at the other link. 

Coupon-mad

AnotherForumite said:

Of course the above would not apply if the sum of the charge (£60/£70) is detailed prominently on the signage.

Did you recognise the wording above?!   LOL...I knew this would spark your interest.  I guess you've had a long hard look at that judgment.
 
Thing is, with 'costs'...they have to have been genuinely incurred/paid.  Who would have thought?

And thing is, as well, the POFA tells us that there is a maximum sum that can be recovered.

You can stick what you want on your signs but you are not getting false costs awarded.