Claim form for parking over 5 years ago

outsidechancex

Hello, I have read the thread by @Grizebeck about the new question in the DQ. Please is there a concise version of the suggested answer to D1 in the linked thread? The suggested version does not fit into the limited space for D1. 

https://forums.moneysavingexpert.com/discussion/comment/79267087/#Comment_79267087

Is it ok to email the completed N180 form to CCBCAQ@Justice.gov.uk ?

Coupon-mad

No concise version exists - just cut it down by removing extra words, you know, the filler, the "and, but, howevers". We haven't rewritten it more concisely because anyone can do that; keep the meaning but make it your own!

The Template Defence first post lists the first 12 steps in this process, including how to send the N180 and who to send/copy it to.

outsidechancex

Thank you! I had been looking at a different thread on the claim process without that information. 

In reference to the mix up of dates in this case, I have read a thread on another case where the dates were mixed and the claimant corrected the dates in the witness statement and proceeded with the corrected dates at the hearing. My current defence is according to the 4th December date and I have a witness willing to confirm I was elsewhere at a family members birthday on that date, so not at the car park. My question is whether I should continue to include this witness on the N180 form if the claimant is likely to switch the dates in their witness statement in this case too? Or can I ask them to provide a letter supporting that I was at the birthday to include in the witness pack instead?

Coupon-mad

You can put two witnesses (you plus that person) and you are not later bound by that.

It just gives the court staff an idea of how big a room is needed and the Judge might consider how long the hearing should be and allow longer, if there were multiple witnesses rocking up.

outsidechancex

Thanks everyone for the advice so far. I'm working on my WS at the moment. 

In reference to a previous post where there was a mix up of day and month format between the PCN and the claim, and the claimant changed the date to the PCN date in their WS, I wondered what my approach would be should this happen. 

If the claimant reverted to the PCN date, then the DQ would have been issued over 6 years and 6 months from this date. Would this mean limitation expired in relation to the claim? Or is the 6 years from the date the original claim was issued?

Mouse007

outsidechancex said:

 Or is the 6 years from the date the original claim was issued?

The 6 years is indeed the latest date to comence proceedings by. As you now know those proceedings can then take years to play out.

outsidechancex

Mouse007 said:

outsidechancex said:

 Or is the 6 years from the date the original claim was issued?

The 6 years is indeed the latest date to comence proceedings by. As you now know those proceedings can then take years to play out.

And that is even if they try to amend the PCN date to an alternate date on the claim form? Would that not be in effect a new claim and a claim that is past the 6 year mark?

outsidechancex

Hi all,

I have drafted a WS. Any comments on the draft would be hugely appreciated. I have not included the Beavis case as the site in this case was pay and display and I deny being there on the date in the claim. 

My Exhibits include the transcripts for Excel vs Wilkinson and Chevalier-Firescu vs Ashfords.

Claim number: [REDACTED]

 

Between

Excel Parking Services Limited

(Claimant)

- and -

[REDACTED]

(Defendant)

 

___________________________________________________________________________

WITNESS STATEMENT OF DEFENDANT

___________________________________________________________________________

 

1.      I am [REDACTED], and I am the defendant against whom this claim is made. The facts below 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.      I am familiar with this car park and, due to residing at an address [REDACTED], I have used it on multiple occasions between September 2015 and August 2016. Between this period, I had never seen a sign prominently displayed that drew my attention to any £100 charge.

 

4.      I deny that I used this car park site, or that the vehicle [REDACTED] was there at all on [DATE REDACTED]. From [DATE REDACTED] I was no longer residing at an address on [REDACTED], as a result, I had no reason to use this car park site and cannot have incurred a PCN (see exhibit XX-01 for Accommodation contract ending [DATE REDACTED]).

 

5.      The 4th December [DATE REDACTED] is a memorable date, as I was attending a family members birthday party at [REDACTED], followed by a family meal at [REDACTED]. The birthday party and meal spanned from midday to late evening. These locations are approximately 10 miles from the car park site. Furthermore, the car park site is in the opposite direction to my home address, where I have been residing, since [DATE REDACTED] until the present date. The bank statement from meal at [REDACTED] (exhibit XX-02) and a statement from an attendee at the birthday party and family meal (exhibit XX-03) is provided.

 

Abuse of process – the quantrum

6.      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.

 

7.      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''.

 

8.      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 (exhibit XX-05).

 

9.      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.

 

10.  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.

 

11.  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.

 

12.  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.’

 

Landowner Contract (exhibit XX-06)

13.  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.

 

14.  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.

 

15.  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

16.  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

17.  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. I have had to endure the emotional strain of regularly reassuring my partner of the integrity of our credit records.

 

18.  Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-07) 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). Given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.

Mouse007

outsidechancex said:

Mouse007 said:

outsidechancex said:

 Or is the 6 years from the date the original claim was issued?

The 6 years is indeed the latest date to comence proceedings by. As you now know those proceedings can then take years to play out.

And that is even if they try to amend the PCN date to an alternate date on the claim form? Would that not be in effect a new claim and a claim that is past the 6 year mark?

I don't know if the Court would allow the C to change the date. Personally I would hope not, an 8 month date difference should be too significant. A day or two maybe, but not 8 Months.

Your defence is great - and very simple to argue. It is based on their claim that on 04/12...

The Claimant has not supplied any photos of you car on either date (?) but offers up a PCN with a different (12/04) date?

Why should they be allowed to change that now? They would now be too late to bring fresh proceedings if it was 2016.

Coupon-mad

 "The Claimant has appended a redacted ‘Customer License Agreement’..."

Have they? Or are you just copying from another case where a landowner agreement had already been put into evidence?