Claim Form - Country Court Business Centre

cam40983

Hi all,

I have recieved a letter from the courts today confimring they have recieved my Defence and put it forward tot he claimaints.

Will update you if anything else happens.


Regards

cam40983

Hello Everyone,

Hope your all good.

Today I have recieved an email from Gladstone stating the below:

"We act for the Claimant and have notified the Court of the Claimant’s intention to proceed with the Claim. 

Please find enclosed a copy of the Claimant’s completed Directions Questionnaire, which has also been filed with the Court.  

You will note the Claimant has elected to mediate in an attempt to settle this matter amicably, without the need for further Court intervention. Should you agree to mediation, please inform the Court who will contact both parties to arrange a mediation appointment"

Any advise please?

Regards

KeithP

cam40983 said:

Any advise please?

You need to go back to that list you abandoned after filing your Defence.

Items 8, 9 and 10 on that list answer your questions.

cam40983

KeithP said:

cam40983 said:

Any advise please?

You need to go back to that list you abandoned after filing your Defence.

Items 8, 9 and 10 on that list answer your questions.

i didnt abandon anything, i have issue reading if you want be openly admit thay to satisfy you, hence i keep asking and seems like your the first one always to point me to newbies thread, i have issues reading and understand hence ask for simple advise,  thanks

KeithP

cam40983 said:

KeithP said:

cam40983 said:

Any advise please?

You need to go back to that list you abandoned after filing your Defence.

Items 8, 9 and 10 on that list answer your questions.

i didnt abandon anything,...

Then go back to that list you were following and pick up where you finished reading last time.

Coupon-mad

The list isn't in the NEWBIES thread it's the first post of the Template Defence thread.

That letter is also reported on every other thread involving this solicitor, seen every day here, nothing exciting!   Just a tedious template letter and you'll know from the NEWBIES thread section about 'what happens when' not to agree to Mediation when you actually receive your DQ from the CCBC.

Redx

The simplest advice is in the DEFENCE template by coupon mad , first announcement at the top of this forum , first post in that discussion , you won't get better advice , or more concise advice , or more common sense advice , or simpler advice than what you see in that numbered list , so please study it because KeithP gave you the correct information and correct numbers within that advice too

Ask somebody else to assist you if you have difficulty , you don't have to do this alone

cam40983

Hi,

I have today sent to the Court and to the claimant Solicitor the Direction Questionnaire.

The claimainant has asked for Mediation but in my DQ i have said NO to it.

I will update you once I recieve any updates.

Regards

cam40983

Hi All,

Hope your all well.

I have now heard back from the Court who have the moved the case to my local court and asked for Witness Statement with any paper work to be fillled by 26th April.

I have prepared the folloiwng as my Witness Statement, please kindly advise if anything can be added to help:

Regards

IN THE COUNTY COURT BUSINESS CENTRE
Claim No.: ************

Between

UK CAR PARK MANAGEMENT LIMITED
(Claimant)

-and-


************
____________________

WITNESS STATEMENT

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.       The defendant, residing at ************, at the time of the alleged infringement is the registered keeper of the vehicle registration marked ************A which is the subject of these proceedings.

3.  Defendant is a taxi driver working for ************.

4. Defendant was given a booking by the office to pick up a passenger by the ************ and take her to Vista Centre, Hounslow, TW4 6JQ

5. The passenger ************ works for a company called Jeremys Care Buddies Limited which is based inside the Vista Centre, Hounslow, TW4 6JQ.

6. Defendant took the passenger ************ who are tenants at Vista Centre, Hounslow, TW4 6JQ. Ref1 Attached, Company letter confirming the job.

7. Defendant dropped the passenger ************ inside the Vista Centre, Hounslow at Jeremys Care Buddies office and was told by the passenger Kristina that he needs to wait as she needs to get items from the office and take her back.

8 – Mr Defendant being the taxi driver waited for ************to gather her material from her office Jeremys Care Buddies and once all items required by the passenger were loaded, Mr Defendant left with the passenger and drove out of tenant’s car park.

9 – Mr Defendant being a taxi driver, was doing his duty of taking the customer to her office based inside the Vista Centre Hounslow, and waited in his car to take her back. He did not park his car or leave it parked, the car remained started and Mr Defendant waited inside as instructed by the tenant’s office inside Vista Centre.

10- Mr Defendant did write to UK Car Park Management Limited explaining the situation but his appeal was rejected and was advised to appeal to another forum which Mr Defendant did not do as he had explained what he could and did not get a result.

11- The appeal was done in July 2021 and rejected in August 2021 and on 13th Dec 2021 Mr Defendant received the Claim form, without any before court claim letter. The defendant just received the court papers.

12- In the letter sent by Uk Car Park Management dated 11/08/2021, they stated “When entering the car park, signage clearly states “PARKING FOR TENANTS AND

VISITORS ONLY. USERS MUST PAY FOR PARKING OR HAVE A VALID E-PEMIT”. Letter is attached as REF 2.

13- Going by the statement above, Jeremys Carebuddies is a tenant of Vista Centre, and Mr Defendant was hired by the tenant’s employee to drive her. Hence Mr Defendant did not breach any conditions here and he was working for the Tenants of Vista Centre as a driver.

14- Defendant work as a private hire taxi driver, which need to be booked and once booked the driver is to be paid by the passenger and becomes a private driver of the passenger hence employed for the duration. The defendant was hired by employee of Jeremys Carebuddies and was told to park at the tenant’s car park place as the defendant was hired by the employee of Jeremys Carebuddies. Hence it is unfair that the driver who was waiting for the tenant is being given such penalty when it should have been the tenant’s duty to inform the Car Parking management for the driver they have hired. It is kindly requested that this unfair penalty is cancelled.

15.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

16.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

17.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

18.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #16 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

19.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

20.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

21.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

22.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

23.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

24.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

25.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

26.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

27.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

28.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

29.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence 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.

Defendant’s signature:

Date:

 

 

KeithP

Why does the first sentence of the Statement of Truth in your Witness Statement say "I believe that the facts stated in this defence are true "?