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

Coupon-mad

Indeed, unlike in court when a Judge swallows whatever a barrister or rep tells them (sometimes).

it is simply a charge that is incurred in the same manner as the £100/£60 is incurred.

And that's what HHJ Hegarty said was unrecoverable.  You can't keep layering on false secondary clauses.

Johnersh

I don't feel the need to label it as a 'surcharge/admin fee/late payment fee/DR fee etc' as that would open up too many arguments; it is simply a charge that is incurred in the same manner as the £100/£60 is incurred

With the greatest respect, that's self-evidently nonsense. It is not at all incurred in the same way:

A sign which says the ppc *may* charge additional sums without specifying when, in what amount or exactly what for, cannot possibly enjoy the same status as a contractual term for a fixed amount which is express. 

So...

When somebody parks in breach of contractual terms, there is said by parking companies to be reasonably prominent signage as to the contractual sum that becomes due. In law the term is potentially punative, but following Beavis, not usually a penalty. (note it remains possible that an alternative wording or sum could be a penalty and the judgment is clear that the penalty rule/test was engaged). 

It is only if the driver doesn't pay that additional charges are added - so that is effectively a levy for something else entirely.  

If one wants to suggest the driver knowingly agrees to a fixed sum because its on a sign or that one begets the other, I would suggest that parking companies ought to put it on their signs so as to obviate the need for this discussion. 

Of course, if the parking companies did expressly seek the best part of £200 for (say) a 10 minute overstay, they might run the risk of it being an unenforceable penalty, but that's a matter of judgement for them and any case specific challenge to those terms. 

So instead we usually have in small font some poorly defined charges uplifted some weeks after the original debt was incurred, but upon which parking companies usually charge interest from the date of the parking event. An approach so legally and financially incoherent I could weep milk. 

Insofar as those charges are to indemnify actual costs incurred it is then for the claimant to prove those costs, otherwise it would breach the indemnity principle as it's not indemnify ing any cost at all, but is in essence a sum of liquidated damages. 

 *safely stows soapbox* 

No parking institutions were harmed in the making of this corrective narrative

D_P_Dance

I a sure that they do not, but they attempt to convince the gullible that it is.  IMO this is tantamount to fraud.

Johnersh

"You might very well think that; I couldnt possibly comment" 

Umkomaas

Coupon-mad said:

Bump so people working on WS don't miss these transcripts and points.

If you can still edit the thread title, any chance you can squeeze the title and name of 'Recorder Cohen' in there?  Might help newbies when using the newbie-unfriendly search engine.

Coupon-mad

Done! That should be better.

95Rollers

Coupon-mad said:

Bump so people working on WS don't miss these transcripts and points.

With thanks....and another bump as its been 3 months since this was last at the top of the forum.

Jahson

I am asking here as it may help others who visit this thread, UKPC have sent a claim of £307.08 clearly adding their made up expenses, it is sufficient to cut and paste the following to my Defence? IF I am completely incorrect please let me know and delete this post. Thank you

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.’

KeithP

@Jahson, suggest you save that for your Witness Statement. The Consumer Rights Act is already mentioned in the template Defence - para 4.