BW LEGAL County Court Claim Issued - please help

Asd345

Thank you all for your help @Coupon-mad, @Johnersh so far (and all others).

I have now amended my WS and have shortened it. Any advice on below? In the exhibit I will attach: proof of payment, Beavis vs PE paras, Wilkinson vs Excel judgment, and a copy of statuary code of practice raised in point 6 below (just need to find it online). Is the rest okay? Should I finalise it? Thank you for your help...

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I am xx 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. 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:

1.      On 18/06/2021, 19/06/2021 & 20/06/2021, I was the driver of the car xx that was parked at North Car Park. Upon parking the car, we followed the signage and instructions, and my partner paid the amount due for each day via the app, entering the location reference number and made payment. Please see evidence attached– see exhibit 1.

2.      The claimant avers that they have no record of my car registration but in relation to the pre-action phase of the litigation have failed to
2.1. Disclose a log or reveal if there are partial reg entries that may be tallied against my car registration. 
2.2. Undertake any enquiries via bank records to confirm the payment made

 

Abuse of process - the quantum

 

3.      This Claimant continues to pursue a hugely disproportionate fixed sum (added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 193 and 198 of ParkingEye Ltd v Beavis [2015] UKSC67 (see exhibit 03). 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 unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable.

4.      Even if there was a minor error on my part, for example with car registration input, the claimant has received full payment and has incurred no financial loss or loss in kind. If the court accepts this, there can be no claim to interest and the litigation wholly avoided with proper engagement with the points raised pre-action.

5.      The additional sums sought by the claimant for an alleged breach of contract are wholly disproportionate to the contractual sum and amount to an impermissible penalty in relation to both the PCN and, certainly, the enhanced amounts (£160 per ticket) which are ill defined in correspondence, vary in amount and are wholly unreceipted or costed. 

6.      Adding debt recovery/costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming 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." This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £160 per ticket upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.  

7.      It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit -03) where she went into great detail about this abuse.

8.      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 engaged with the Claimant at every step and they knew all along that the tariff had 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.

9.      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.

10.   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.

Coupon-mad

Point 6 and also point 7 make no sense because adding costs is not BANNED (that's old news, you've copied from an old example).

Your para 7 also talks about things you haven't mentioned higher up, e.g. 'the DLUHC words' 'the Southampton Judges'...none of that has any context, so delete both 6 and 7.

Prioritise all the wording that Johnersh gave you and move that wording up.

Re-write 7 just to say why you are appending Excel v Wilkinson.  You should copy the words used by @aphex007 about it in their WS, which is more recent and better worded.

Because you haven't used aphex007's example WS as your base, you are also missing any point about 'no landowner authority' putting the C to strict proof of authority flowing from the landowner.

Also remove this out of date heading and the first sentence of para 3 because the added fake costs are not 'banned:

Abuse of process - the quantum

3.      This Claimant continues to pursue a hugely disproportionate fixed sum (added per PCN) despite knowing that this is now banned.

Asd345

@Coupon-mad
Thank you for your help:
I have read the WS statement attached in the sticky thread and reworded my WS (as per your advice)..
Please would you mind reading it again and advice if it's good to go? Thank you.

I am xx 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. 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:

1.      On 18/06/2021, 19/06/2021 & 20/06/2021, I was the driver of the car x that was parked at xNorth Car Park. Upon parking the car, we followed the signage and instructions, and my partner paid the amount due for each day via the app, entering the location reference number and made payment. Please see evidence attached– see exhibit 1.

2.      The claimant avers that they have no record of my car registration but in relation to the pre-action phase of the litigation have failed to
2.1. Disclose a log or reveal if there are partial reg entries that may be tallied against my car registration. 
2.2. Undertake any enquiries via bank records to confirm the payment made

 

Abuse of process - the quantum

 

3.      Even if there was a minor error on my part, for example with car registration input, the claimant has received full payment and has incurred no financial loss or loss in kind. If the court accepts this, there can be no claim to interest and the litigation wholly avoided with proper engagement with the points raised pre-action.

4.      The additional sums sought by the claimant for an alleged breach of contract are wholly disproportionate to the contractual sum and amount to an impermissible penalty in relation to both the PCN and, certainly, the enhanced amounts (£160 per ticket) which are ill defined in correspondence, vary in amount and are wholly unreceipted or costed.

The Beavis case is against this claim

5.      This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, (exhibit 03) 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.

6.      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.

7.      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. Reference is made to HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit -02) where she went into detail about this abuse.

8.      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, the Beavis case paras 98, 193 and 198 (exhibit 03) and the Excel vs Wilkinson case (exhibit 02). All of those seem to be breached in my case.

9.      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 engaged with the Claimant and they knew all along that the tariff had 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.

10.   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.

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.

Coupon-mad

You seem to have removed no landowner authority and the main arguments against the added £60 per PCN, as seen in aphex007's WS.  Yours is much shorter.  

Remove this horrible heading as I suggested already:

"Abuse of process - the quantum"

Asd345

Hi

I'll change that heading and add the landowner authority but I did mention in point 7 about the £60 per PCN and have referenced Excel case to highlight this. 

Coupon-mad

Yes I saw that bit but there's everything about the new Code of Practice missing and nothing about putting the C to proof of landowner authority.

Asd345

@Coupon-mad Landowner point added on number 9. Is the code of practice really needed? I think the below should be enough, especially since I can prove that payment was made and, if that fails, abuse of process should do it ( with reference to Beavis & Excel cases)...

In the court letter that I received, it doesn't state how I should send the WS statement. Should I email it to them as per previous submissions or do I send a printed copy to Court & Claimant? Thank you for your help so far. 

Sequence of Events:

1.      On 18/06/2021, 19/06/2021 & 20/06/2021, I was the driver of the car xx that was parked at xx North Car Park. Upon parking the car, we followed the signage and instructions, and my partner paid the amount due for each day via the app, entering the location reference number and made payment. Please see evidence attached– see exhibit 1.

2.      The claimant avers that they have no record of my car registration but in relation to the pre-action phase of the litigation have failed to
2.1. Disclose a log or reveal if there are partial reg entries that may be tallied against my car registration. 
2.2. Undertake any enquiries via bank records to confirm the payment made

3.      Even if there was a minor error on my part, for example with car registration input, the claimant has received full payment and has incurred no financial loss or loss in kind. If the court accepts this, there can be no claim to interest and the litigation wholly avoided with proper engagement with the points raised pre-action.

4.      The additional sums sought by the claimant for an alleged breach of contract are wholly disproportionate to the contractual sum and amount to an impermissible penalty in relation to both the PCN and, certainly, the enhanced amounts (£160 per ticket) which are ill defined in correspondence, vary in amount and are wholly unreceipted or costed.

The Beavis case is against this claim

5.      This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, (exhibit 03) 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.

6.      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.

7.      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. Reference is made to HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit -02) where she went into detail about this abuse.

8.      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, the Beavis case paras 98, 193 and 198 (exhibit 03) and the Excel vs Wilkinson case (exhibit 02). All of those seem to be breached in my case.

Lack of Landowner Authority

9.       DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

10.   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 engaged with the Claimant and they knew all along that the tariff had 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.

11.   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.

12.   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:

Coupon-mad

That's fine if you prefer to keep it more concise.  Email it to the local court (NOT THE CCBC IN NORTHAMPTON)!

monkeychompy

Can I see exhibit 03? I am trying to adapt this WS. 

KeithP

monkeychompy said:

Can I see exhibit 03? I am trying to adapt this WS. 

That exhibit can be found in a dropbox file posted by @SoJacob earlier this afternoon.

But equally easy, the whole of the Beavis judgment can be found on the internet - just type beavis judgment into google - where you can select the paragraphs you want/need.