Small claim advice needed

jay2896

Thank you, got it! 

My SAR has not yet been returned. I sent it on the 4th of November. Im sure it’s normal for them to leave it until the last minute. If it is returned late without them informing me of the reason before hand I take it this is a big help in getting the case dismissed? 

Redx

jay2896 said:

Thank you, got it! 

My SAR has not yet been returned. I sent it on the 4th of November. Im sure it’s normal for them to leave it until the last minute. If it is returned late without them informing me of the reason before hand I take it this is a big help in getting the case dismissed? 

Yes , last minute dot com , or late , is standard practice

After the 30 days are up , email a chase up SAR giving 7 days notice for a reply , or you will report them to the ICO , not replying to the SAR may assist your case but the big reveal time is at the WS stage , or it's inadmissable in court and you would make objections , pointing out their mistakes and omissions and intransigence ( why wouldn't you ? )

Coupon-mad

The lack of SAR doesn't really help the defence much though.  The Judge will decide on matters relating to contract law.

jay2896

What is the best way to submit the DQ? I’ve found the thread explaining how to fill it in but do you know if I’m better to return this by post or email? If by post should it be recorded delivery? 

KeithP

jay2896 said:

What is the best way to submit the DQ? I’ve found the thread explaining how to fill it in but do you know if I’m better to return this by post or email? If by post should it be recorded delivery? 

You seem to have abandoned that list you were following when you filed your Defence.

Item 6 on that list was...

6. After filing your Defence, there is more to do.

Items 9 and 10 on that list answer your current questions...

The rest of that list is well worth a second read.

jay2896

Thanks Keith, that’s really helpful. 

Sorry I think I’ve lost the location of that list. I’d gone back to the 2nd post in the newbies thread. I try and use that as my anchor once I’ve been down a rabbit hole. I need to get better at understanding this forum. 

KeithP

jay2896 said:

Sorry I think I’ve lost the location of that list.

It's in the opening post on the Template Defence thread.

jay2896

Hi All, 

thanks for your help so far. I am now at the stage of writing my witness statement. I've copy and pasted the more legal sections from other and tried to tell my story in my own words. I would be really grateful for any feedback as i'm not convinced that its wonderful.

WITNESS STATEMENT OF DEFENDANT FOR TELEPHONE HEARING ON xxx 

1. I am 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 and signage

3. In xxxxxxx Myself and a colleague were invited by Mr xxxx of xxxxx to attend a meeting at the companies head office based at xxxxxx   on the evening of xxxxxxx.

4. On the day in question I arrived at Mr xxxxx’s office at approximately 7:45pm. I displayed the parking permit provided by Mr xxxxx in the window of my car (exhibit xxx).  My Colleague and I removed our work bags from the car, went for a short walk (to stretch our legs) before returning to attend the meeting.

5. On the approach to the office of xxxx there are Parking information signs. However, this is a busy dual carriageway and complex roundabout. The signs in this area are unlit and difficult to read after sunset (see exhibit xxxx). Therefore, it is impossible to read the full terms and conditions and maintain control of a moving vehicle.  

6. When pulling into the parking lot for xxxxxx I had not seen any parking signs on the gateway as these signs were hidden by foliage (exhibit xxxx). Please be aware that the pictures in exhibit xxx were taken during winter and therefore have significantly less foliage than in early october. 

7.On receiving the parking notice from xxxxxxx I initially made contact with the company to explain that I had been granted permission by xxxxxx to park in the allocated slots and had delayed the correct permit. I was informed of the appeals process. 

8. On the xxxxxx I submitted an appeal via the website myparkingcharge.co.uk (exhibit xxx) on the xxxxx Mr xxxx submitted an appeal also via my parking charge (exhibit xxxx). The outcome of the appeal was printed on the xxxxx (exhibit xxxx). 

9. I did not have any further contact with the company for some time as this coincided with the beginning of the COVID19 pandemic. During this time I was working as a clinician on the front line in xxxxxxxxx Hospital (exhibit xxx). When I tried to raise this with the International parking community (IPC) I was informed that the window for an appeal had closed. 

10. I have now been issued with a PCN for an inflated charge of £160.

11. A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit *** for comparison. In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). 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 Beavis case is against this claim 

12. 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. 

Redacted Landowner Contract 

13. 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. 

14. 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 

15. 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 *** - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands. 

16. 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. 

17. 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 preBeavis 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.'' 

18. 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. 

19. 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, 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.

20. 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. 

21. 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 

22. 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 I had been granted permission to park by xxxxxxxx. 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. My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 

23. 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. 

24. 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 xxxxxxxx 

DATE xxxxxxxx

thanks 

Coupon-mad

Did they submit a redacted landowner contract?  You've copied wording that says this but is only true if you've had their WS already and it includes a redacted landowner contract.

Also typo here, you don't mean 'delayed':

.On receiving the parking notice from xxxxxxx I initially made contact with the company to explain that I had been granted permission by xxxxxx to park in the allocated slots and had delayed the correct permit. 

Also, things have changed for the better since you last posted!  Same advice as here:

https://forums.moneysavingexpert.com/discussion/comment/79036018/#Comment_79036018

To cover the new Code of Practice you should add 6-25 from this new wording:

https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299

...to your witness statement instead of your 12-24.  Show us how that looks and change 'the defendant' to 'I' because the new wording I wrote there was written for a defence, so it needs converting to first person 'WS speak'.

You must also read the new Code of Practice, published by the DLUHC on 7.2.2022.

Although your WS doesn't say so yet (and it should) it seems your case is about a fluttering permit that fell off the dash?  If so, then cover that and quote from the 'best practice' in the new Government Code of Practice, which covers permits/tickets that fall off dashboards (it's in the Appeals Annex).

Not retrospective but it replaces failed Codes of Practice, so effectively you'd be saying 'here's what a professional parking firm should have done and it's meritless claims like this, that caused the Government to regulate this industry'.

1505grandad

Just checking  -  who is the claimant?