Civil Enforcement CCJ set aside. Wording help please.

vincentvega27

Coupon-mad said:

Good question:

YES and state they are 'reserved costs' and specify that £sum at point (a) then make the other two bullet points (b) and (c) because your reserved costs are most important!

Hi there, I have recently got a new letter from the court. Notice of allocation to the small claims track.

It states the above and encourages me to contact the small claims mediation service. I assume I do not need to do this?

Also no mention of a court date yet, is this normal?

As ever thank you kindly.

vincentvega27

Coupon-mad said:

Good question:

YES and state they are 'reserved costs' and specify that £sum at point (a) then make the other two bullet points (b) and (c) because your reserved costs are most important!

Hi there,

So I received a bundle of docs from CEL including all our previous correspondence, photos and of the car park, ticket machine logs etc. Also a witness statement from their barrister. They also confirmed someone will be in attendance, which is making me think they seem to think they have a chance of winning this. Or is this just more bullying tactics?

I assume the witness statement etc is pretty standard stuff from them but it would be great if someone could confirm that for me. Anything to be worried about?

The defense I submitted is just the standard template outlined here as there´s not much else I can argue. From what I gather my main points are that I never entered into a binding contract with them and the terms of the car park are far too small on the signage?

Have a link to their witness statement and car park photos here, I didn´t have access to the images previously as they 4 years to bring the claim.

https://drive.google.com/drive/folders/1AyeX0NsF9a07lRdFRGoKcmCOy7tAkxmX?usp=sharing

Thank you again!

KeithP

Your real name is fully visible in your drive.google account.

Your full name, your full address, your claim number, your vehicle's registration mark and your pcn number are fully visible in that document you have shown us.

Have you no privacy concerns?

When is your deadline for filing your witness statement and evidence?

vincentvega27

KeithP said:

Your real name is fully visible in your drive.google account.

Your full name, your full address, your claim number, your vehicle's registration mark and your pcn number are fully visible in that document you have shown us.

Have you no privacy concerns?

When is your deadline for filing your witness statement and evidence?

Thanks for the reminder, I´ve restricted access until I have time to redact the personal info.

I´m yet to receive a court date. I´ve submitted my defence as instructed by the court, but unsure of witness statement deadline at the moment.

Thank you

Coupon-mad

This is post-CCJ set aside isn't it?  So you emailed your defence to the local court after the last hearing, along with a costs assessment, and that's all?

The WS from CEL is normal. If you were impressed that they have a barrister please search the forum for his name & Wonga.  You'll learn...and you'll find LOADS of court outcomes.

For a court report about CEL hearings, go back through my DISCUSSIONS (...not my 120k   'Replies'!) and find the CEL court report thread I posted as a thread 3 years ago(ish).  Found them easy to beat and their paralegal was weak.

vincentvega27

Coupon-mad said:

This is post-CCJ set aside isn't it?  So you emailed your defence to the local court after the last hearing, along with a costs assessment, and that's all?

The WS from CEL is normal. If you were impressed that they have a barrister please search the forum for Scott Wilson Wonga.  You'll learn...and you'll find LOADS of court outcomes.

For a court report about CEL hearings, go back through my DISCUSSIONS (...not my 120k   'Replies'!) and find the CEL court report thread I posted as a thread 3 years ago(ish).  Found them easy to beat and their paralegal was weak.

Yes, and that is all I´ve done so far.

OK good to know, and Scott Wilson is the barrister in question. I´ll do the reading you recommended over the weekend.

Coupon-mad

They only have one barrister...read and laugh!

vincentvega27

Coupon-mad said:

They only have one barrister...read and laugh!

Hello again, hope you are well.

I´ve been at my witness statement most of the day and could do with some help. Here´s where I´ve got to. I´m stuck on the Observations of Claimant WS as unsurprisingly the template I´m following (baz417) is countering a different WS. After this section, should I copy my original defense or should it be worded differently on the WS? A little confused about all this as there seems to be a lot of potential repetition.

I was advised to put in my defence is that the location of the ticket machine was not made clear, but I don´t seem to have any precedent or evidence to back this up at my disposal currently.

´The Defendant avers that the entrance signage - and any terms or arrows within the car park that should have drawn attention to a payment machine - must have been wholly inadequate.´

 Here is a link to the Scott Wilson´s WS and the car park pics (redacted).

https://drive.google.com/drive/folders/1EWyQgYTk8-lq1HeLLYelHl-eHYb3y2Hu?usp=sharing

Thank you kindly.

1. I am xxx of xxx 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 xxx) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is as follows:

Facts and Sequence of events

3. On xxx, I drove into xxx Car Park in xxx, parked my car, bought some lunch and left shortly after (xxx minutes).  This was a supermarket car park; such sites are usually free for customers. The car park signage did not clearly display any contract with the Claimant nor did it clearly show where the ticket machine was located. Exhibits xxx

4. I received correspondence from the Claimant and responded that I dispute the parking charge, I also made an SAR request, which I received.

5. On xxx, nearly 4 years after the original incident I was made aware of a CCJ against my name as the Claimant had pursued a claim against me without due diligence in the form of checking my current address, despite my new details being registered with the DVLA and Electoral Register.

Exaggerated Claim and 'market failure' currently examined by the Government

6. The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

7. I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and

(ii)  a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

8. This Claimant routinely pursues a disproportionate additional fixed sum(inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

9. The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7thFebruary 2022, here: 

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

"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."

10. Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

11. Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

12. With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.

13. The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

14. In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). 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 (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

15. This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

16. Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

17. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

CRA Breaches

18. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

19. 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. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

20.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/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

21. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was  right all along in Excel v Wilkinson. (See Exhibit  xx-06)

The Beavis case is against this claim 

22. The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs - (see Exhibit xxxx) - set a high bar that this Claimant has failed to reach.

23. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See Exhibit xx-04 )for paragraphs from ParkingEye v Beavis).

24. In the present case, the Claimant has fallen foul of those tests. There is one main issue that renders this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) 'costs' are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top.  None of this was agreed by me, let alone known or even seen as I stood at the machine, which their evidence shows doesn't warn me about a possible £100 charge. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

1. Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

1. Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space".
   
   
   
   
   

Coupon-mad

Remove repetition.  If it's already said in your defence it doesn't need to be said verbatim in the WS.

Don't forget this new exhibit!
https://forums.moneysavingexpert.com/discussion/6473149/major-judgement-where-judge-strike-out-the-claim-form/p1

Le_Kirk

As @Coupon-mad writes, you don't repeat things in the WS and you don't put your defence in there.  You can say at the beginning "my defence is repeated" but you don't need to actually repeat it because the judge will have it.  Your WS just needs to tell the story of what happened on the day and should back up what you have claimed in your defence with evidence.  For example you have stated "inadequate signage" and you need to provide evidence of that inadequacy either by going there and taking some photos or checking out Google street view or by searching the forum for the location of the car park to see if it has appeared on here before and if anybody has used photos in their WS.  You could also put out a general plea on your thread for "anybody with photos of xxx Car Park" please?
ETA  I've just been back through your thread and found that it was Morrisons in Peckham HERE is a Google Street View link for the place; does it help?  There do not seem to be any large signs showing payment machines just medium sized signs stating 3 hours maximum parking.  I know our local Morrisons has a system where you take a ticket for a stay of about an hour and get it validated in store; if you know you are going to be longer you pay an amount.  I also note that part way through the thread you were working/living in Brazil.  Is that still the case, if so I can appreciate how difficult it would be to take photos!
Searching only brings up two other cases both quite old: -
https://forums.moneysavingexpert.com/discussion/5641697/parkingeye-fine-morrisons
https://forums.moneysavingexpert.com/discussion/5530655/pcn-from-parking-eye-morrisons-car-park-help