Very confused, not sure whats going on with a CCJ

D_P_Dance

This is neither a penalty nor a fine.  It is an invoice from a company requesting financial recompense for an alleged breach of an alleged contract.    You only owe them anything if a judge says so,.  Please expunge these words from your vocabulary.

teknotel

Ok, how is this now? Have just changed penalty charge to invoice, let me know if there is a more apt term.

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the invoice was issued, but liability is denied.

3       The Defendant is not liable to pay the invoice at all in this situation because the invoice was issued incorrectly. The Defendant was issued the invoice 3 minutes after arriving in the car park whilst he was retrieving the permit from his friend, the space holder’s, property.

4.      Section 1.8.1 of the 2019 contract between Brighton and Hove City Council and One Parking Solution clearly states a grace period of 15-30 minutes must be observed before issuing a invoice.

5.      The Defendant had full permission from the space holder, who is disabled and was being assisted with shopping by the Defendant, along with a valid and in date permit to park here. The property is on the 7th floor of Essex House and 3 minutes is simply not enough time to take the lift, retrieve the permit and take the lift back down to display the permit in the vehicle.

6.      The defendant had been issued a previous invoice in identical circumstances to this one which was successfully appealed through POPLA. The only reason this was not appealed through POPLA was because after the Defendants initial appeal with One Parking Solution Limited where he requested a POPLA appeal case number, this information along with all further correspondence was sent to a different address and not received.

7.      In Jopson v Homeguard [2016] it was found on appeal that the parking company cannot override the tenants right to stop near the entrance of their building to load or unload. 

ParkingMad

I would replace 'invoice' with 'parking charge'.

teknotel

Ok thanks @ParkingMad have done this.

I have a week to get this in and am working on my witness statement now. I am adapting the one linked in the newbies thread as instructed.

Questions I have so far are:

1. The statement refers to a hearing, but I do not have a hearing or date set, I was just asked to submit by defence within 21 days, that would be the 23rd of February.

2. Is my claim number the same as it was for the set aside?

3. point 3 refers to the claimants witness statement in this case, I do not have anything for this, only the witness statement in reference to the set aside, do I just ignore this? Also my claim likely has nothing to do with signage as they issued the ticket after 3 minutes according to their own evidence, can I just focus on this, my permission to park there and jopson?

teknotel

Here is my first attempt at the witness statement, let me know what you think.

Claim number xxxxxx xxxxxx (Defendant) Hearing date: xx/xx/xxxx

In the County Court at Brighton

Claim Number: xxxxxxx

 

ONE PARKING SOLUTION LIMITED (Claimant)

V

xxxxxxx (Defendant)

 

 

 WITNESS STATEMENT OF DEFENDANT

 

1. I am Mr xxxx of xxxxxx, 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

 

3.  A parking charge was issued to the Defendants vehicle at the time on the 10th of June 2019. The defendant accepts he was the driver at the time of the alleged offence.

 

4. The defendant parked in the parking bay at Essex place, Brighton, owned by his disabled friend who he was helping with his shopping on that day. The defendant had full permission from the spaceholder (see exhibit A) as well as a valid in date permit for this space (see exhibit .

 

5. The permit was sensibly kept in the permit holders property on the 7th floor of Essex Place, Brighton, for use when carers or friends are able to assist in driving him to or from the shops when needed.

 

6. Upon picking his friend up with his shopping and taking him home, the defendant and his friend went to retrieve the permit from the space holders’ property.

 

7. The attendant working on behalf of One Parking Solution LTD issued a ticket after 3 minutes observation (see exhibit C), this directly violates the contract One Parking Solution has with Brighton and Hove City Council (see exhibit D), which clearly states that at least 15-30 minutes observation must be upheld before a ticket can be issued.

 

8. In Jopson v Homeguard [2016] it was found on appeal that the parking company cannot override the tenants right to stop near the entrance of their building to load or unload, this directly applies here as the Defendant was with the tenant and they had left the vehicle parked in the space the tenant owned to retrieve the valid permit and this counts as loading into the vehicle.

 

9. This is the third ticket the Defendant had been issued in identical circumstances parking in his disabled friends owned parking space, the one previously had been successfully appealed through POPLA due to written permission from his disabled friend and the valid in date permit being submitted. The first one was paid because the Defendant did not understand these penalty charges were illegal at the time (see exhibit E).

 

10. This ticket would have been appealed through POPLA however the Claimant responded to the Defendants initial appeal (see exhibit F) using a completely different address which lead to the Defendant not knowing about any further communication or action and the Claimant being awarded a default judgement against the Defendant.

 

11. This default judgement and the CCJ awarded to the defendant were successfully set aside at the County Court at Brighton on the 2nd of February on the grounds that the Defendant had a reasonable chance of defending the original charge based on the Claimant issuing the charge after only 3 minutes observation (see exhibit G).

 

The Beavis case is against this claim

 

13. 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.  

 

14. However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed.  As such, I take the point that the parking charge in my case is a penalty, and unenforceable.   This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

 

Redacted Landowner Contract

 

15. The Claimant has appended a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?).  It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act.  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.

 

16. 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...''

Abuse of process - the quantum

 

17. The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit xx-12 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision stands. 

 

18. 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 Crosby case) 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. 

 

19. 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.''  

 

20. 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. 

 

21. This Claimant knew or should have known, that by adding £60 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 - xx-10), 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. 

 

22. This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ, and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I am local and took the evidence photographs appended to this statement myself (on November 24th 2019). I can state from my own knowledge that there are nothing like that many signs in this car park and nothing beside the Pay & Display machine about a risk of paying £100 or about paying within 10 minutes.  There is a tariff list in large lettering and nothing more at the machine where the keys are input. 

 

23. Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA.  Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA.   Not only is the added vague sum not stated on the notices at all (despite the Claimant claiming it is in their Witness Statement in writing and by appending signage that does not exist at the car park), but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs. 

 

CPR 44.11 - further costs

 

24. I am appending with this bundle, a fully detailed costs assessment which also 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 remind the court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.  This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

 

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

 

25. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 

26. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

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.

SIGNATURE

……………………..

xxxxxxxxxxxxx

DATE    xx/xx/xxxx

teknotel

Also my draft defence

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time the parking charge was issued, but liability is denied.

3      The Defendant is not liable to pay the parking charge at all in this situation because the ticket was issued incorrectly. The Defendant was issued the ticket 3 minutes after arriving in the car park whilst he was retrieving the permit from his friend, the space holder’s, property.

4.     Section 1.8.1 of the 2019 contract between Brighton and Hove City Council and One Parking Solution clearly states a grace period of 15-30 minutes must be observed before issuing a parking charge.

5.     The Defendant had full permission from the space holder, who is disabled and was being assisted with shopping by the Defendant, along with a valid and in date permit to park here. The property is on the 7th floor of Essex House and 3 minutes is simply not enough time to take the lift, retrieve the permit and take the lift back down to display the permit in the vehicle.

6.     The defendant had been issued a previous parking charge in identical circumstances to this one which was successfully appealed through POPLA. The only reason this was not appealed through POPLA was because after the Defendants initial appeal with One Parking Solution Limited where he requested a POPLA appeal case number, this information along with all further correspondence was sent to a different address and not received.

7.     In Jopson v Homeguard [2016] it was found on appeal that the parking company cannot override the tenants right to stop near the entrance of their building to load or unload.

Jenni_D

In #7 ... tenant's right (i,e, it is a possessive)

teknotel

Jenni_D said:

In #7 ... tenant's right (i,e, it is a possessive)

Thank you I will update this, I also am aware th enumbeirng is not right and its missing a 12, I will ammend all of this before I send it.

teknotel

Hey guys anyone have any more thoughts before I send this off?

@Coupon-mad
@ParkingMad
@Redx

Thanks, if I dont hear anything I will likely send everything off tomorrow, the defence and WS make sense to me at least lol.

ParkingMad

The witness statement should be in the first person, so change all 'the Defendant' to 'I'.  And it should be accompanied by your exhibits (evidence) like you see in the WS by @jrhys and @Nosy.  You need the transcript of Jopson v Homeguard as an exhibit too, not just a sentence referring to it.  And how about the assessor's response from POPLA proving they upheld your very similar case you appealed?

You could also quote in the WS from the new DLUHC Code of Practice Clause 5.1, about the Consideration Period:

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

It identifies 'the need for a consideration period before the contract between the driver and the parking operator is made and the parking period occurs' and the Consideration Period must include 'the time required for a driver to identify and comply with requirements for payment'.  In this case that would be the extra time needed for obtaining a permit from inside premises up several flights of stairs, accompanying the disabled resident.  Whilst the new Code is only laid before Parliament this month, this is nothing new to a BPA AOS member because the BPA's Kelvin Reynolds (current Director of Corporate and Public Affairs) confirmed in an official BPA news article on the Trade Body's website:

https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

"Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified.  This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

The defence looks OK as long as that is just part of it?  

Assume that the template defence is being used in full and you have re-numbered everything below it.  But you should add the paragraph by @bargepole that he has posted a couple of times this past week, again talking about the new Code of Practice from the Government that has banned debt recovery 'fees' because parking firms were unable to evidence in consultations such fees were fair or necessary to enforce a parking charge, nor even paid to a third party at all (no win no fee).  Add @bargepole's paragraph and re-number.