Claim Form Received at old Address

harmy69

1. Parking Eye vs Beavis Distinguished

Exhibit 9 and 10

1. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

2. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay due to another car not being able to park in the bay with the metal pillar. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage and varying acceptability of parking areas are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

3. Even taken as an extreme close-up, with no proof as to its visibility from the parking area, the sign 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.

4. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015

   https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

   the signage constitutes an unfair customer notice,

1. and pursuant to s62 of the same act,

   https://www.legislation.gov.uk/ukpga/2015/15/section/62

   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 as it was not present – no contract to pay an onerous penalty would have been seen, known or agreed.

   Abuse of process – the quantum

2. 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.

   Please refer to exhibit 11

   as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel Parking Services vs Ann Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in Bradford Court July 2020. The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

3. 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.

4. 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''.

5. The Claimant's legal team continues to pursue a sum on top of the PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by the inclusion of a false, wholly disproportionate and un-incurred 'damages' of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. This is clearly a flagrant abuse of the court process and simply a way of obtaining more money from distressed defendents.

6. This punitive add-on has now been underpinned by Government intervention and regulation. The Department for Levelling Up, Housing and Communities ('DLUHC') published on February the 7th 2022, a statutory Code of Practice which all private parking operators must comply with, found here:

   https://www.gov.uk/government/publications/private-parking-code-of-practice

7. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

8. The Code's Ministerial Foreword is explicit about abusive existing cases such as the present claim stating: 

   "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."

9. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even falsely masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.

10. The Claimant in this instance has definitely not incurred any additional costs (not even for reminder letters, had they even been sent to me) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

1. I did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on any signage. It comes too late when purported debt recovery fees are only quantified after the event.

2. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

3. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

4. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

   POFA and CRA breaches

5. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA'), found here:

   https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted#schedule-4-paragraph-9-2-d

   the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC – the Claimant is put to strict proof of full compliance.

6. Claiming costs on an indemnity basis is unfair, as per the Unfair Contract Terms Guidance (CMA37, para 5.14.3) found on page 87 here:

   https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

1. The Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' found here:

   https://www.legislation.gov.uk/ukpga/2015/15/part/2/enacted

   Part 2,64(4) states A term is prominent for the purposes of this section if it is brought to the consumer’s attention in such a way that an average consumer would be aware of the term. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

2. Section 71 found here:

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

   creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear.

3. It is therefore clear that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

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

1. 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

2. 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. After not receiving a single letter or email and then to suddenly get a Court Claim Form I have had to endure the emotional strain and worry of having to pay such exorbitant charges.

3. Therefore, I am appending with this bundle a fully detailed costs assessment, exhibit 10, 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 first draw the Court’s attention to the fact that the Claimant was aware that there was no signage at the entrance to the parking area and no signage visible from my vehicle, and that any terms or conditions of parking outlined on any elsewhere-placed signage could not be binding. Such matters, forming a significant part of the Claimant’s business model, can be reasonably considered to be within the Claimant’s expertise, and the Claimant could have avoided this claim.

4. 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.

Statement of Truth

I believe that the facts stated in this witness statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Witness’ signature:

<SIGN HERE>

harmy69

Exhibit 1


Exhibit 2


Exhibit 3


Exhibit 4


Exhibit 5


Exhibit 6

harmy69

Exhibit 7


Exhibit 8


Exhibit 9

Exhibit 10



Exhibit 11




I have the full transcript so not sure if you'd like me to post it here...thanks

Coupon-mad

That's fine, looks good albeit you should try to remove any repetition.  Get someone else in the family to read it and look for repetition, even if they don't understand it all...which they don't need to, only you do!

For example, this bit:

1. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015

   https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

   the signage constitutes an unfair customer notice,

1. and pursuant to s62 of the same act,

   https://www.legislation.gov.uk/ukpga/2015/15/section/62

   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 as it was not present – no contract to pay an onerous penalty would have been seen, known or agreed.

is repeated lower down, with this bit (or at least the two sections should be shortened and put together):

1. The Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' found here:

   https://www.legislation.gov.uk/ukpga/2015/15/part/2/enacted

   Part 2,64(4) states A term is prominent for the purposes of this section if it is brought to the consumer’s attention in such a way that an average consumer would be aware of the term. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

2. Section 71 found here:

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

   creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear.

3. It is therefore clear that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

harmy69

Thank you. Once it’s complete does it need to be printed, signed and converted to a pdf same as the defence? 

1505grandad

Just checking  -  the paras will be consecutively numbered?

harmy69

1505grandad said:

Just checking  -  the paras will be consecutively numbered?

Yes. It just wouldn’t number them properly when I was copy and pasting here no matter how many times I tried. 

Johnersh

I'd rephrase "I didn't notice I was incorrectly parked," which rather appears to accept Cs point... 

harmy69

Johnersh said:

I'd rephrase "I didn't notice I was incorrectly parked," which rather appears to accept Cs point... 

Thanks you.. yes that doesn’t sound very confident l. 

rephrase - “I did not incorrectly park my car and would have seen a bright yellow line had there been one.”

I think that sounds more certain. 

Coupon-mad

Much better.