CCJ. Parking fine sent to old address

Umkomaas

Olive_j said:

Johnersh said:

Have you clicked on his username to access his profile, then click on 'Replies', which are then shown in chronological order (latest first)

Obviously with the correct spelling 😉

I still can’t bloody find it! I can’t see ‘replies’ when I click on your profile 🤦🏻‍♀️

Shows on the l/h side of the profile page (691 replies in total - as I type). Click on it, then scroll down the page to see them!

Olive_j

Ahhh. Thank you so much!!! I was looking under badges/ reactions/activity 🙈

Redx

Olive_j said:

Ahhh. Thank you so much!!! I was looking under badges/ reactions/activity 🙈

Definitely under , replies , meaning posts he has made , on the left , whereas discussions are threads , started by him , so not where you were looking 😋😋

I would strongly recommend that everyone reads his replies , as many as possible , all good advice 👍👍👍

Olive_j

When discussing CPR 44.11 further costs, do I need to include the examples of misconduct and if so, should I mention no entrance signage and PCN not POFA compliant as reasons for the misconduct? If so, should I also mention their additional costs as a reason? 

Coupon-mad

Misconduct is more about conduct in pre-action and during the litigation/court process, so it’s more about:

- not bothering to trace the Defendant before issuing the claim, contrary to the CPRs and specifically a requirement of their Code of Practice 

- causing a CCJ and these unnecessary extra hearings and potential costs

- adding false costs which are double recovery and contrary to the POFA 2012 (the applicable statute) which says in the Explanatory Notes at 221, that no claim can be made against a registered keeper for more than the parking charges that stood at the time of the notice to driver (ie on the day)

- issuing a claim against a registered keeper that wrongly said in the POC, that the Claimant could hold the Defendant liable as keeper, when the Claimant knows that’s not true in this case due to the date that the NTK was deemed served in law.  This is the only legislation relating to the parking industry and it is a simple deadline, nothing hard to understand about the keeper liability service deadline.

- compounding the above by signing a WS under a statement of truth, that attempts to mislead the court with smoke and mirrors about the actual date that NTK was posted. It is in their own evidence that it was posted too late but the WS tries to tell the court that it was ‘issued’ two days earlier because the company had put a misleading date on their document, knowing it to be untrue.

Olive_j

Hi all, I'd really appreciate any input on my WS, particularly around the costs section. Many thanks in advance!

Sequence of events

2. I learnt of the existence of this Parking Charge Notice (PCN) on X when I checked my Experian Credit File. I immediately contacted Northampton County Court Business Centre to obtain relevant information relating to the default judgment. 

3. I was unaware of the PCN from X, which was issued on X and posted on X, as it was sent to my previous address, X. I moved to X, two months previously, on X. 

4. The claim form was issued on X, without the Claimant performing a suitable check of my last known address. The International Parking Community (IPC) Code of Practice v6, Part E, Schedule 5 (page 33) [Exhibit XX-01]states:

Before issuing court proceedings on any unpaid parking charge which is over 12 months old, the operator must first perform a suitable check of the defendant’s last known address.

5. As the Claimant failed to perform such a check, the claim form was also sent to my previous address and I was unaware of the default judgment until I checked my Experian Credit Report on X.      

6. On X, I sent a Subject Access Request (SAR) to the Claimant to request all documentation which was sent to my old address. I also sent a data rectification notice to ensure all future correspondence is sent to my current address. 

 

No entrance signage

7. I looked on Google Street View to find out the location of the alleged PCN. The car park did not display any entrance signage to allow motorists entering the car park to read, understand and accept the terms and conditions [Exhibit XX-02]. Consequently, the driver did not know there were any restrictions on entering the car park.

8. The lack of entrance signage is a clear breach of the IPC Code of Practice Part E Schedule 1 – Signage (Page 22) [Exhibit XX-03] which states:

Entrance Signs should

a) Make it clear that the motorist is entering onto private land.

b) Refer the motorist to signs within the car park which display the full terms and conditions.

9. The lack of entrance signage also contravenes Lord Denning’s red hand rule in J Spurling Ltd v Bradshaw where Lord Denning states:

I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.

10. By 2019, the car park entrance had been narrowed by adding a wooden fence, and there were signs on each side of the entrance (Exhibit XX-04).

11. The PCN refers to terms and conditions being clearly set out on the signage installed within the car park. The bundle received from the Claimant’s solicitor Gladstones, does not show a photograph of the signage at the location, only a computer-generated image of a sign. Any photographs purporting to show such signage cannot be considered sufficient to evidence their presence on the date in question. 

12. The Google Street View photograph shows a small sign attached to a low perimeter wall at ground level. The signage is not prominent and is incapable of forming a contract with the motorist. It would be impossible to read this sign from a car or from eye level in the car park.

 

PCN is not POFA compliant

13. The Protection of Freedoms Act (POFA) 2012 9(5) states:

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. 

(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

14. The History Log in the SAR received from the Claimant shows a discrepancy between the date the PCN was issued and the date it was posted. The Claimant states the PCN was issued on X. However, the History Log shows it wasn't sent until X [Exhibit XX-05] . 

15. The PCN must be served within 14 days to be POFA compliant. The alleged incident date was X.  It could not have been received by day 14, X because the Claimant’s own evidence shows it was sent on X.  The PCN was therefore served late and so the Claimant cannot use POFA 2012 Schedule 4 to transfer liability to the keeper.

16. I attach a bank statement, showing my Transport for London train ticket to work in Central London and lunch purchased whilst on my lunch break on 23rd July 2018, thus demonstrating I was not the driver on that date [Exhibit XX-06].

17. The PCN alleges that my vehicle was observed at 15:14. It does not state the period of parking, which is mandated by POFA 2012 Schedule 4.

 

Grace Period

18. The IPC Code of Practice Part B Section 15 (page 12) states that a grace period of a minimum of 10 minutes must be allowed before any parking enforcement occurs [Exhibit XX-07]. The Claimant has not shown that they have allowed any grace period.

 

No evidence of a landowner contract

19. The self-ticketing agreement provided [Exhibit XX-08] does not form a contract between the landowner and the private parking company. It is an agreement between the leaseholder of the car park and the Claimant. The agreement is not signed by a director of UKCPM. For a contract to be validly executed according to S44 of the Companies Act 2006, it should be signed by a director of UKCPM and by the landowner. 

 

Double Recovery – the quantum

20. In addition to the disputed PCN 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-09). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

21. 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''. 

22. 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 XX-10] 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.

 

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

23. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

CPR 44.11 – further costs

24. 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. Additionally, the default judgment has caused great emotional stress whilst attempting to renew our mortgage. My wife is currently 32 weeks pregnant and the situation has had a negative impact on her emotional wellbeing. As a result, we have been unable to secure finance to purchase a family car as planned.

25. Therefore, I am appending with this bundle a fully detailed costs assessment [Exhibit XX-11] 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 draw the Court’s attention to the Claimant’s failure to perform a suitable check of my last known address prior to issuing the claim, despite receiving no contact from myself between the alleged incident on 23rd July 2018 and issuing the claim form on 8th August 2019, contrary to CPR 6.9 (3)(4)&(5) and The International Parking Community (IPC) Code of Practice v6, Part E, Schedule 5 (page 33) [Exhibit XX-01] which states: 

Before issuing court proceedings on any unpaid parking charge which is over 12 months old, the operator must first perform a suitable check of the defendant’s last known address. Had such a check been performed, the Claimant could have avoided these unnecessary extra hearings and additional costs.  

The Claimant has added false costs which are double recovery and contrary to The POFA 2012 which states:

Right to claim unpaid parking charges from the keeper of vehicle

4(5) The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

The Explanatory Notes at 221 also states: 

The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6). 

The Claimant issued a claim against myself as registered keeper and wrongly stated in the Particulars of Claim, that the Defendant could hold myself as the registered keeper liable. 

This is untrue due to the date that the Notice to Keeper was deemed served in law. The PCN must be served within 14 days to be POFA compliant. The alleged incident date was X. It could not have been received by day 14, X because the Claimant’s own evidence shows it was sent on X. The PCN was therefore served late and so the Claimant cannot use POFA 2012 Schedule 4 to transfer liability to the keeper.

Coupon-mad

Not sure why you have 1-6 if you’ve already achieved the set aside.  This WS is about the defence to the PCN and should start by the D telling the Judge that they knew nothing about this matter but that they were not the driver, then the POFA point comes first, surely.  Get that in the Judge’s head as a point of law and you win.

Olive_j

Thank you @Coupon-mad. How about the below costs. Not sure if its appropriate or excessive:

DEFENDANT’S SCHEDULE OF COSTS

Court Costs

Reimbursement for hearing costs:

            £255

Ordinary Costs

Loss of leave through attendance at court hearing:

            £95.00

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents:

10 hours at Litigant in Person rate of £19 per hour:
Defence	6 hours
Witness statement	4 hours
£190

TOTAL COSTS CLAIMED:

£540

Coupon-mad

Seems good as long as the D is ready to explain the unreasonable conduct as I listed before because most Judges won’t allow costs.

Olive_j

@Coupon-mad I’d explained them in the costs section but should I just leave costs out then?