LBCC - County Court Claim - Enterprise Parking Solutions

happych4ppy

KeithP said:

happych4ppy said:

I just received a "Notice of Allocation to the Small Claims Track (Hearing)" with a date that the hearing of the claim will take place, It says by 11th March I will need to have filed on the court and serve each party any written evidence. Is this the witness statement part? thanks

Yes, this is where you file and serve your Witness Statement, evidence and Summary Costs Schedule.

All those are described in the second post of the NEWBIES thread.

So I just copy everything from the example posted here? https://forums.moneysavingexpert.com/discussion/comment/77614685/#Comment_77614685

But put my witness statement of events (similar to what I put in my defence statement), plus add my screenshot of small entrance signs from google image street view, and screenshot of the SAR reply sayin they don't have any payment machine record?

Also do keep everything else such as Beavis case sign, the Approved Judgment from Southampton, plus paras 98, 193 and 198 from Parking Eye v Beavis ?

What about "the IPC or BPA Code of practice, where it supports your case (e.g. grace periods) but be sure to use the RIGHT version for the date of parking" - how do I know the right version for my date of parking?

and what about case transcripts that support argument (from the Parking Prankster's case law page)? 

and finally where do I send the WS? via post to court this case was assigned? or to the same email address where I sent the defence statement etc?

Thanks 

Le_Kirk

That example that you show is quite old now and we normally point posters at those by @jrhys and @Nosy; you can use them as examples of style and format but you cannot just copy and paste, as the circumstances of those defendants will be (slightly) different to your own.  Your WS must back and support your defence with evidence and a summary costs assessment.

happych4ppy

Le_Kirk said:

That example that you show is quite old now and we normally point posters at those by @jrhys and @Nosy; you can use them as examples of style and format but you cannot just copy and paste, as the circumstances of those defendants will be (slightly) different to your own.  Your WS must back and support your defence with evidence and a summary costs assessment.

Thanks, I think I've managed to find the two templates you describe. Can I ask where do I send my WS etc. Do I send it to CCBCAQ@justice.gov.uk or do I send it via post to the Country Court for which the case was assigned? (there is no email address on the recent Notice of Allocation letter I received, it just says parties shall file at Court and serve on each other any written evidence upon which they propose to rely - so do I send to CCBCAQ@justice.gov.uk or via post to the Court?) Thanks

Le_Kirk

No, witness statements go to the court where your hearing will take place (even if it is by video or phone conference).  You presumably chose the court that you put on the DQ.  There is a court finder: -
https://www.gov.uk/find-court-tribunal
You can use this if you know the name of the county court which presumably you do.

happych4ppy

Le_Kirk said:

No, witness statements go to the court where your hearing will take place (even if it is by video or phone conference).  You presumably chose the court that you put on the DQ.  There is a court finder: -
https://www.gov.uk/find-court-tribunal
You can use this if you know the name of the county court which presumably you do.

Thanks, I know the name of the court so do I just post it all there recorded delivery?

Also, can anyone explain how I reference the "no machine record" evidence I got back from the SAR. Do I need to cite anything specific in my WS like "there is no machine log/record therefor the claim cannot be made"?? or do I need to cite some something specific? 

Thanks everyone for all your help this forum has been a blessing

Coupon-mad

Just put it in your own words and show us your draft.

Happy reading, get up to speed with the new Code of Practice from the DLUHC. 

https://forums.moneysavingexpert.com/discussion/comment/79013061/#Comment_79013061

That thread explains why it matters even to existing cases and it's not even in the Template Defence yet because it's so new but you can include information for the Judge about the new Code of Practice, in your WS.  There will be lots there that helps and especially the Government ban on damages/debt recovery add-ons.

happych4ppy

Coupon-mad said:

Just put it in your won words and show us your draft.

Happy reading, get up to speed with the new Code of Practice from the DLUHC. 

https://forums.moneysavingexpert.com/discussion/comment/79013061/#Comment_79013061

That thread explains why it matters even to existing cases and it's not even in the Template Defence yet because it's so new but you can include information for the Judge about the new Code of Practice, in your WS.  There will be lots there that helps and especially the Government ban on damages/debt recovery add-ons.

This is great thanks. My WS is taking shape i'll post my first draft asap. Much love everyone

happych4ppy

WITNESS STATEMENT OF DEFENDANT

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.            I did not see any signs upon entering the car park, nor did I see any signs whilst driving into the car park, through the car park, nor whilst parking in the car park. I did not see any signs or ticket machines while leaving the car parked, nor whilst walking towards the venue for which the car park serviced. Any signs were either not clearly displayed, not easy to read and/or not written in big enough font to read. Whilst inside the venue, and now a paying customer, I was neither informed, nor reminded to pay-and-display or register parking or validate parking, nor was it made abundantly clear that a parking charge service was in operation. Had the parking service charge been clear to me, I would have willingly cooperated with the service.

4.            The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers. The Claimant provides no evidence that any signage claimed to be at the site on the material date was visible from any car entering, parking in or exiting the parking area. Any photographs purporting to show such signage on a different date cannot be considered sufficient to evidence their presence on the date in question. In addition, any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance nor from any areas.

5.             At the point of entry, the entrance terms and conditions is not visible or readable and do not mention anything of relating to risk of paying a fine of £100 or paying within the first 10 minutes - see Exhibit X(google street view of entrance showing position of small entrance sign) and Exhibit Y (close up on entrance sign provided by the claimant in response to my SAR 22nd September 2021 showing lack of entrance terms and conditions). Also note the small font and difficulty in reading this in comparison to the Beavis case sign (reference the case?) (Exhibit Z). In the Beavis case … (explain relevance?)

6.             Even taken as an extreme close-up, with no proof as to its visibility from the parking area, the signs that the Claimant has presented as evidence has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, even if I had seen signage of the sort presented by the Claimant – which I didn’t – no contract to pay an onerous penalty would have been seen, known or agreed.

 

No Evidence of Payment or Registration

7.             On 22nd September 2021 I issued my initial Subject Access Request upon the Claimant (Exhibit #), requesting all data held and evidence they will rely upon including machine record etc. As seen in their initial reply October 14th 2021 (Exhibit #), the Claimant states “we are not able to provide a payment machine record to you for the day/time in question due to ICO guidance on handling of vehicle registration mark data by car park operators”. On Upon further request asking exactly how they intend to evidence the case, the Claimant replied “ The ICO has made it clear that all VRM data held by Car Park Operators with a DVLA KADOE license are not permitted to disseminate the data publicly. For more information please visit the ICO website.” To which I replied, (Exhibit #) “The ICO saying PPCs are not allowed to 'disseminate the data publicly' simply means you are not allowed to put data about people/their cars on public view on your website or elsewhere. "Publicly." That is not to say that you can't provide a machine log with VRMs partially redacted, as PPCs do all the time for POPLA/IAS appeals, and will certainly have to in evidence for court. Please provide me with machine logs, because you are now wilfully withholding evidence that the pre-action protocol requires to be shown to the Defendant.” I have since had zero contact from the Claimant and assert that they do not have sufficient evidence to make their case.

8.             On November 23rd, I received an email someone at Smart Parking Ltd. (Exhibit #) In the email they state, “recently Smart Parking Ltd have acquired Enterprise Parking Solutions – and therefore, I will now be continuing the Subject Access Request you have submitted.” They then continue to explain how they have “looked through the below and I can confirm that through the platform Enterprise Parking Solutions utilise – they do not have a facility to track payments made and therefore, this cannot be provided to you” I would therefore assert, again, that the Claimant does not have sufficient evidence to make their case.

 

The Beavis case is against this claim

9.            This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, ...

10.          However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, ...

No Landowner Contract

11.             The Claimant has appended a redacted ‘Contract Service Agreeement’ 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.

12.            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 ...

13.             In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] ...

Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole ...

 

Abuse of process – the quantum

14.            In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £167 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 £167 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.

15.            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''.

16.            Dozens of other cases have been struck out at allocation stage in that court area alone, on the back of (now) HHJ Jackson's considered 'test case' (as Judges are calling it). This is a crucial and very relevant case because it is a forensic consideration about parking firms adding costs on top of a parking charge that the Beavis case already decided, as it covers more than the cost of an average of four automated demands that are fundamental to the business model. The conclusion of this case is being echoed by other judges.

17.            Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Britannia Parking v Crosby case (Southampton Court 11.11.19) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

18.            The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the pre Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419):  https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''   

19.            This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both.  

20.             This Claimant knew or should have known, that by adding £167 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (Exhibit 7), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest. 

 

Private Parking Code of Practice

21.            The Department for Levelling Up, Housing and Communities ('DLUHC') has published, as of 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice

The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unreasonable and as such, is banned. In a very short section called 'Escalation of costs' the new Code says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  The Ministerial Foreword is unequivocal and robust, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

In the present case, the Claimant has added a sum that their notorious industry variously describes as damages for debt recovery.  These are banned costs which they have neither paid nor incurred.  The Defendant avers that by continuing to pursue claims including this objectionable sum - when this serial litigator Claimant is indisputably aware due to their 'approved operator' membership of an Accredited Parking Association - that these exaggerated 'costs' are banned by the Government, appears to meet the high bar of wholly unreasonable conduct.

The Defendant believes that knowingly inflated claims such as this case should not be allowed to continue.  The Defendant further observes that this conduct by parking firms operating under their previous Codes of Practice (described by several District Judges as 'self-serving') has caused inflated default judgments and consumer harm on a grand scale in recent years.  The Court is invited to strike out the false 'damages/debt recovery' element at the very least and to consider whether the appropriate sanction may be to strike out the entire claim, in order to signal that the Court shares the Government's view regarding one of the most vexatious, greedy and intimidating elements of some members of the private parking industry's conduct in litigation.

 

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

22.            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

23.             As a litigant-in-person I have had to spend considerable time researching the law online ....

24.             Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-05) ... 

25.            Secondly, 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.

happych4ppy

Coupon-mad said:

Just put it in your own words and show us your draft.

Happy reading, get up to speed with the new Code of Practice from the DLUHC. 

https://forums.moneysavingexpert.com/discussion/comment/79013061/#Comment_79013061

That thread explains why it matters even to existing cases and it's not even in the Template Defence yet because it's so new but you can include information for the Judge about the new Code of Practice, in your WS.  There will be lots there that helps and especially the Government ban on damages/debt recovery add-ons.

Ok so here is my WS first draft. I've had to chop some of the common bits out to make it fit the text box limit - hope that makes sense...

Also a couple of questions... 

1) Do I serve my WS on the claimant or the solicitor? and do I send via post like I will to the court?) reason I ask is because as far as I am aware Enterprise has been now acquired by Smart Parking Ltd, I'm not sure Enterprise still even exists...

2) Do I need to reference/cite the specific and most up to date IPC mandatory Code regarding text on signage, if so where will I find this?

3) Regarding my entrance sign comparison to the Beavis case sign, do I need to reference the Beavis case specifics and explain the relevance (or will simply citing it in the Exhibit be enough?) Note: the entrance sign is small and just says "PAY & DISPLAY FREE FOR CUSTOMERS, then in smaller font: "TERMS & CONDITIONS APPLY SEE NOTICES IN THE CASE PARK FOR DETAILS " then some tiny small print and that's it, there are no entrance terms and conditions on the entrance sign.

4) The section about "Beavis case is against this claim" do I need to include this? ... and same for "No landowner contract" do I include this?

5) Do I attach/exhibit the whole SAR response (to prove what wasn't provided i.e. no machine log, no landowner contract?) or do I just attach the parts of the SAR response that I need? (e.g. entrance sign that doesn't show any entrance terms and conditions etc.)

Many thanks, any feedback would be MUCH appreciated. Couldn't have done this without you guys

KeithP

happych4ppy said:

Coupon-mad said:

Just put it in your own words and show us your draft.

Happy reading, get up to speed with the new Code of Practice from the DLUHC. 

https://forums.moneysavingexpert.com/discussion/comment/79013061/#Comment_79013061

That thread explains why it matters even to existing cases and it's not even in the Template Defence yet because it's so new but you can include information for the Judge about the new Code of Practice, in your WS.  There will be lots there that helps and especially the Government ban on damages/debt recovery add-ons.

1) Do I serve my WS on the claimant or the solicitor? and do I send via post like I will to the court?) reason I ask is because as far as I am aware Enterprise has been now acquired by Smart Parking Ltd, I'm not sure Enterprise still even exists...

Your County Court Claim Form has a box entitled...

Address for sending documents and payments (if different)

If there is anything in that box, then that is where you send your Witness Statement and evidence.