Napier Court Claim Form

agent17

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. 

13) However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case where I am entitled to park behind my shop. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 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.

POFA and Consumer Rights Act

14) Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 (POFA), the sum claimed exceeds the maximum sum which may be recovered from the keeper.

15) Pursuant to Schedule 2 paragraph 6 of the Consumer Rights Act 2015, the sum claimed could be regarded as unfair by the court as it considers the test of fairness laid out in Section 71.

The Quantum and abuse of process

16) This Claimant continues to pursue a hugely disproportionate sum; it is denied that the quantum sought is recoverable, indeed it represents a penalty. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] KSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that admin costs inflating it to £135 'would appear to be penal'. 

17) In addition to this, the ‘additional charge’ constitutes a double recovery and the court is invited to find the quantum claimed is false and an abuse of process as found by HHJ Jackson in Excel v Wilkinson (EX-07) in which £60 had been added to a parking charge.

18) This is now underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

19) Adding debt recovery costs, damages or 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." 

20) 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.

21) 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 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.  

22) This Claimant has not incurred any additional costs (not even for reminder letters) 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.

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

24) The new Act 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.  

25) Where this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  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.

agent17

Aggressive Debt Collection

26) The Code's Ministerial Foreword is unequivocal about abusive 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." 

27) This foreword seems particularly pertinent in the case of this Claimant’s debt collectors, whose tactics are particularly aggressive. Indeed, within their defence, paragraphs 31-33 describe my defence as ‘nonsensical and/or irrelevant’ and ‘unreasonable’; I believe this to be both unprofessional and unnecessarily derogatory (and have therefore referred them to their regulatory authority).

28) With the court process well outside of my life experience, my defence was signed only after extensive research on appropriate fora and was supported by knowledge that I had gained during study of the relevant case law. Not having the benefit of being in the Legal Profession, I have attempted to represent myself to the best of my ability.

29) That the Claimant’s solicitors should ‘smear’ my defence with such language in order to attempt to engage ‘unreasonable costs’, suggests exactly that aggressive nature to which the minister refers. I hope that the court can encourage firms such as the Claimant’s solicitors to act in a more becoming manner for the benefit of both consumers and the courts themselves.

Lack of landowner authority evidence and lack of ADR 

30) DVLA registered keeper data is only supplied to pursue parking charges issued on private land, where there is an independently signed landowner agreement (this is part of the KADOE rules for AOS BPA or IPC members). It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, etc. and there has been no evidence that the freeholder authorises this Claimant to issue PCNs at the place where the vehicle was and/or for the reasons given. Nor is it known what the land enforcement boundary and start/expiry dates are or were. The Claimant is put to strict proof of same and that they have standing to enforce charges by means of civil litigation in their own name. 

31) The Defendant further avers that the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). Both the rival parking Trade Bodies provided 'appeals services' which reportedly fail to consider facts and rules of law properly, and find in favour of parking firms most of the time: e.g. despite purporting to be decided by legally qualified Adjudicators, the IPC's version upheld appeals in just 4% of decided cases, as reported in their 2020 Annual Report. Both POPLA and the IAS will be replaced by the DLUHC's new Appeals Service as soon as possible and looking at the Appeals Annex in the new Code, disputed cases such as this would very likely have been cancelled without the need for court, had a proper ADR existed. The fact is, there was no fair ADR on offer and - whether or not a defendant engaged with it - the Claimant's reliance upon it is not something that should sway the court into a belief that a fair process was followed before litigation.

CPR 44.11 - further costs 

32) 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 would like to point out that I originally called the company to contest this but received no reasonable response other than to use the ADR mentioned in point 31. I further remind the court that I informed the Claimant via email of my right to park, including copy of lease details, but received no reply or counter argument. 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 

33) 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. 

34) 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.''

Conclusion:

35) It is submitted that, whilst a delay in retrieving said permit from front office of building may have occurred, the Defendant paid rent for two units and that rent included the right to park or load/unload behind those units. Considering this basic fact, and that no legally binding contract was entered into between the Defendant and Claimant, there can surely be no reasonable justification for an attempt to £100 charge for the privilege of parking in a space that has already been paid for.

36) Also, the ‘additional charges’ are unreasonable in the face of case law precedent and, subsequently an Act of Parliament, yet the Claimant’s representative’s tactics remain base and aggressive in pursuing this additional ‘income stream’.

37) I therefore request that the court find the quantum claimed is false and constitutes an abuse of process.

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 trust without an honest belief in its truth.

Signature: XXXXXX

Date: 31st May 2022

EX-08 Defendant’s Schedule Of Costs

In the County Court at xxxxxx Claim Number: XXXXXX Hearing Date: XXXXXX 

Ordinary Costs 

DEFENDANT’S SCHEDULE OF COSTS 

Loss of earnings through attendance at court hearing 13/10/2020: £95.00 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11 

Research, preparation and drafting documents (24 hours at Litigant in Person rate of £19 per hour): £456

TOTAL COSTS CLAIMED £551.00 

Signature:

XXXXXX

Date:

XXXXXX

Coupon-mad

Very good so far but there are more authorities you need to add to support your case.

I would do this on a separate sheet headed SKELETON ARGUMENT and attach the transcripts I already suggested.

Google and get them from the 'bailii' link on Swarb and read/understand the Judge's findings at the end (Swarb is good as it summarises the decision in layman's terms):

Sounds like you are saying, the shops were granted a right to use those bays before Napier rocked up and rode roughshod over that grant.  That's not lawful!  
See Sultana v Plustrade and Kettel v Bloomfold(Google those two authorities and find the actual court transcripts - Swarb is usually the best webpage to provide bailii transcripts - and use both as exhibits).
You should also use PACE v Lengyel and Jopson v Homeguard as exhibits, I think, based on what I can glean about your case.  Both are in the Parking Prankster's case law pages.  Add them too.
Search the forum for witness statements where people have already used all those cases in the recent past (last few years), because you can then copy their copy, so to speak, to explain the relevance of those authorities.

No need to sign a skelly. It does need some words describing what each authority is and how it supports your case though.

You can say that particular care is needed by any parking firm before enforcement commences because leaseholders may have rights that cannot be qualified or overruled e.g. by imposing a requirement on the resident of a flat or a shop-owner to display a permit to park and risk 'penalties' for doing so, which would be in contravention of their rights under their lease.

Any variation of lease cannot be at the whim of the landowner or managing agent, as the authorities show. An onerous change had to be approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987. There was no evidence that any such consensus was reached, given that as a tenant, you were never asked (at all) and just had a cumbersome and predatory scheme foisted upon you and your bay numbers ripped from your shop wall. A commercial parking model was being operated in your allocated bays (previously locked behind a gate and exclusively for your use) which were now on offer to anyone!

Not saying anything at the time and displaying a permit for a quiet life cannot be seen as agreement to vary the lease as set out in the L&T Act. You never knew that you had any choice in the matter but you do know that now and this regime has caused the landowner to be in derogation from grant.

And add to your skeleton argument, two more Exhibits: 

- Section 37 of the Landlord & Tenant Act which talks about the consultation required before riding roughshod over rights and easements and interfering with grants in a lease, and

- The UKCPM case that @bargepole has a written judgement for...I've posted a dropbox link to it before, can't get it on my phone right now.

1505grandad

No para 11

Para 27  -  "Indeed, within their (defence), paragraphs 31-33 describe my defence as ‘nonsensical and/or irrelevant’ and ‘unreasonable’;..."  -  should this be (claim) or perhaps (response to my Defence)  -  no doubt the experts will know the correct wording. 

agent17

1505grandad said:

No para 11

Para 27  -  "Indeed, within their (defence), paragraphs 31-33 describe my defence as ‘nonsensical and/or irrelevant’ and ‘unreasonable’;..."  -  should this be (claim) or perhaps (response to my Defence)  -  no doubt the experts will know the correct wording. 

Thanks but it's been emailed over already. I copy/pasted it from one of the WS on this forum, wonder how many others have missed that little error...

agent17

Coupon-mad said:

Very good so far but there are more authorities you need to add to support your case.

I would do this on a separate sheet headed SKELETON ARGUMENT and attach the transcripts I already suggested.

Google and get them from the 'bailii' link on Swarb and read/understand the Judge's findings at the end (Swarb is good as it summarises the decision in layman's terms):

Sounds like you are saying, the shops were granted a right to use those bays before Napier rocked up and rode roughshod over that grant.  That's not lawful!  
See Sultana v Plustrade and Kettel v Bloomfold(Google those two authorities and find the actual court transcripts - Swarb is usually the best webpage to provide bailii transcripts - and use both as exhibits).
You should also use PACE v Lengyel and Jopson v Homeguard as exhibits, I think, based on what I can glean about your case.  Both are in the Parking Prankster's case law pages.  Add them too.
Search the forum for witness statements where people have already used all those cases in the recent past (last few years), because you can then copy their copy, so to speak, to explain the relevance of those authorities.

No need to sign a skelly. It does need some words describing what each authority is and how it supports your case though.

You can say that particular care is needed by any parking firm before enforcement commences because leaseholders may have rights that cannot be qualified or overruled e.g. by imposing a requirement on the resident of a flat or a shop-owner to display a permit to park and risk 'penalties' for doing so, which would be in contravention of their rights under their lease.

Any variation of lease cannot be at the whim of the landowner or managing agent, as the authorities show. An onerous change had to be approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987. There was no evidence that any such consensus was reached, given that as a tenant, you were never asked (at all) and just had a cumbersome and predatory scheme foisted upon you and your bay numbers ripped from your shop wall. A commercial parking model was being operated in your allocated bays (previously locked behind a gate and exclusively for your use) which were now on offer to anyone!

Not saying anything at the time and displaying a permit for a quiet life cannot be seen as agreement to vary the lease as set out in the L&T Act. You never knew that you had any choice in the matter but you do know that now and this regime has caused the landowner to be in derogation from grant.

And add to your skeleton argument, two more Exhibits: 

- Section 37 of the Landlord & Tenant Act which talks about the consultation required before riding roughshod over rights and easements and interfering with grants in a lease, and

- The UKCPM case that @bargepole has a written judgement for...I've posted a dropbox link to it before, can't get it on my phone right now.

Coupon-mad said:

Very good so far but there are more authorities you need to add to support your case.

I would do this on a separate sheet headed SKELETON ARGUMENT and attach the transcripts I already suggested.

Google and get them from the 'bailii' link on Swarb and read/understand the Judge's findings at the end (Swarb is good as it summarises the decision in layman's terms):

Sounds like you are saying, the shops were granted a right to use those bays before Napier rocked up and rode roughshod over that grant.  That's not lawful!  
See Sultana v Plustrade and Kettel v Bloomfold(Google those two authorities and find the actual court transcripts - Swarb is usually the best webpage to provide bailii transcripts - and use both as exhibits).
You should also use PACE v Lengyel and Jopson v Homeguard as exhibits, I think, based on what I can glean about your case.  Both are in the Parking Prankster's case law pages.  Add them too.
Search the forum for witness statements where people have already used all those cases in the recent past (last few years), because you can then copy their copy, so to speak, to explain the relevance of those authorities.

No need to sign a skelly. It does need some words describing what each authority is and how it supports your case though.

You can say that particular care is needed by any parking firm before enforcement commences because leaseholders may have rights that cannot be qualified or overruled e.g. by imposing a requirement on the resident of a flat or a shop-owner to display a permit to park and risk 'penalties' for doing so, which would be in contravention of their rights under their lease.

Any variation of lease cannot be at the whim of the landowner or managing agent, as the authorities show. An onerous change had to be approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987. There was no evidence that any such consensus was reached, given that as a tenant, you were never asked (at all) and just had a cumbersome and predatory scheme foisted upon you and your bay numbers ripped from your shop wall. A commercial parking model was being operated in your allocated bays (previously locked behind a gate and exclusively for your use) which were now on offer to anyone!

Not saying anything at the time and displaying a permit for a quiet life cannot be seen as agreement to vary the lease as set out in the L&T Act. You never knew that you had any choice in the matter but you do know that now and this regime has caused the landowner to be in derogation from grant.

And add to your skeleton argument, two more Exhibits: 

- Section 37 of the Landlord & Tenant Act which talks about the consultation required before riding roughshod over rights and easements and interfering with grants in a lease, and

- The UKCPM case that @bargepole has a written judgement for...I've posted a dropbox link to it before, can't get it on my phone right now.

Gah! I've already emailed it...

Can I send skeleton separately? Also, I think the lease was outside the act so not sure if what you suggest applies?

Coupon-mad

Yes send the skelly separately, a week before a hearing is fine.

What do you mean 'the lease was outside the Act'? How can it be?

agent17

Coupon-mad said:

Yes send the skelly separately, a week before a hearing is fine.

What do you mean 'the lease was outside the Act'? How can it be?

Sorry for delay, I got back to my life for a bit and forgot about this damned case lol.

I don't know how it can be, but it is apparently (or was cos I actually left the building in September last year)  i.e. no right to extend lease and landlord could kick people out without issue. Something like that anyway. 

Anyway, I got some paperwork though today saying I have to attend court for a conciliation (?) meeting that lasts 20mins (wrong word I think but I guess it was to do with both sides coming to an agreement). And then it said a remote hearing would be set if we didn't work it out. Have to send form in July and hearing in September.

So, is this remote hearing normal? It does say I can ask for a 'proper' hearing or something, should I be doing that? Tbh, I just want this over, it's doing my head in, I sometimes think I'd rather have paid it instead of wasting so much time but then my sense of justice kicks in and I intend to fight to the death... 😂 

Coupon-mad

Ask for a proper hearing. Refuse Mediation.

agent17

Coupon-mad said:

Ask for a proper hearing. Refuse Mediation.

Sorry for delay, updated my iMacs to new OS and they all stopped working, spent last few days fixing them... 

I don't have an option to refuse it on this letter and it says conciliation not mediation so I'm not sure if this is a new thing?