CLAIM FORM for parking charges in 2018

Dess

I'm sorry everyone... I missed that section and panicked a little bit! I will send it out on Monday morning to the email address that I can find on the Template Defence thread. Thank you

Dess

Hello!

Thanks for all the help you have provided during this time.

I have filed a SAR to the Claimant and the DCB legal team, and they sent an invalid link from which to download the documents (also, they were 3 days late in sending the documents from my initial request). I have emailed them again asking to send the documents as a PDF attachement, but I have received no reply. Any ideas?

I am ready to file the N180, and I followed the guidance on this thread - https://forums.moneysavingexpert.com/discussion/comment/71763411#Comment_71763411 - but I noticed that the new section D1 is missing. I referred to another thread which addressed the new section - https://forums.moneysavingexpert.com/discussion/comment/79267087/#Comment_79267087 - but I want to check if this is still the recommended answer.

Thank you again!

KeithP

Needs an apostrophe in there... Claimant's.

Umkomaas

but I want to check if this is still the recommended answer.

I can't think of a better one.  Do you have an alternative you are thinking of using?

Dess

Hi everyone!

I was hoping you could help with the witness statement I'm drafting. I'm having some trouble putting together the section relative to the abuse of process from VSC regarding what they call 'debt recovery costs'. I was also wondering if the 8% interest rate they cite, as per s69 of the County Courts Act 1984, is legit. Since we have primacy of contract, I don't know if it's worth getting in detail about it, as we never parked there and agreed to the signage in the first place, as we had a lease. What would you suggest?

This is what I have so far

WITNESS STATEMENT OF DEFENDANT

 

1.      I am xxxxxxx, 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.

 

Sequence of events

3.      My partner and I had an Assured Shorthold Tenancy with xxxxxxx, originally commencing on 15 May 2017 and expiring on 14 May 2018. The Shorthold Tenancy Agreement was extended by a further month, with a new expiration date on 14 June 2018 (exhibit A).

4.       There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Therefore, I rely on Primacy of Contract, and I refer to previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit F), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

5.      On the first day of the tenancy agreement, I was issued with a PCN. This was the first time I learned that a paper pass was to be displayed on the vehicle. The day after, I spoke with the receptionist who printed a paper pass and requested that I displayed it on the windscreen. I handed the PCN to the receptionist and they took care of it.

6.      During the initial tenancy (from 15 May 2017 until 14 May 2018) I was issued with other PCNs from the Claimant, and the reception team continued taking care of them. There was never any further action from the parking management team regarding said PCNs.

7.      Before the end of our tenancy agreement, my partner and I expressed the desire to extend the contract by a further calendar month by communicating this to the leasing agent. This was agreed over text messages, and we signed the amended tenancy agreement on 21 May 2018.

8.      Due to a change in reception staff at xxxxxxxxxxx, I never received the paper pass with the new expiry date which led to two PCNs being issued by the Claimant. Please refer to the email exchange between myself and the Assistant Accommodation Manager, xxxxxxxxx (exhibit , following my request for a new paper pass.

Abuse of process – the quantum

 1.      The Claimant has greatly inflated the amount claimed and has added a sum disingenuously described as 'debt recovery costs'. Furthermore, the addition of interest is a vague mention in the signage (exhibit G). The added sum constitutes double recovery, and the court is invited to find the quantum claimed is false and an abuse of process (exhibit H) transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

2.      After two years from the end of the tenancy agreement with xxxxxxxxx, I received a Letter Before Claim issued on 05 August 2020 (exhibit C), which claimed the following fees:

·         Principal Debt £500.00

·         Estimated interest £83.62

·         Estimated court fees £35.00

·         Estimated Total 618.62

3.      Having no legal background, I spent hours researching the relevant topics, and believing the Claimant was not compliant with the Pre-Action Conduct of the Practice Direction, I replied with the Acknowledgement of the Letter Before Claim (exhibit C), and I filed a Subject Access Request (exhibit D). My correspondence was ignored and since I did not receive any further communication, I believed the Claimant was in breach of the Practice Direction and did not have legal standing to proceed with a court order.

4.      Almost two years later, on 29 June 2022, I received another letter of claim (exhibit E) which now claimed an amount of debt of £800.00 plus further costs. I decided to ignore this letter thinking this was another scare tactic from the Claimant since they had not proceeded with the previous letter of claim. On 05 August 2022, I received the claim form which requested a total fee of £1260.08.

5.      The amount claimed has increased by over 50% in just two years from the previous Letter Before Claim, and the Claimant has not justified how the full amount has been calculated. The previous amount already included the estimated interest figure, which cannot be compared to the interest sought by the Claimant today.

As I said, I'm not sure if this is the best way to word things, and I'm wasting a lot of time researching this too, so I would like to simplify the matter a bit. I still need to draft my witness costs.

Thanks in advance for your help!

Coupon-mad

Your facts section looks quite good but bin the template you used that includes Britannia v Crosby as that is an out of date case that we no longer use.

Instead, use the WS bundle example posted in 2022 by @aphex007 with Excel v Wilkinson.

Dess

Thanks @Coupon-mad! I had a look at it and I'm making some edits to the WS draft. I will post it again for review

In the meantime, I have received the WS from the legal rep of VCS, and they are going to rely on Parking eye v
Beavis. This is their response to my Defence:

___________

i. It is alleged that the Defendant is a Tenant on the Land. The Terms and Conditions of parking on the Land make it clear that a Valid Permit needs to be displayed in the windscreen. This was the same regardless of whether the Driver was a resident. Parking management was put in place by the Freeholder for the benefit of all of the residents. The Defendant, if they were a resident, therefore benefited from the parking management service. They could not reasonably expect to accept the benefit of the service, but at the same time refuse to comply with the requirements of it.

ii. It is stated within their defence that the receptionist on site failed to provide the Defendant with a Permit on multiple occasions. Respectfully, it is submitted by the Claimant that it is the Defendant’s responsibility to ensure the terms and conditions of the Land are complied with. If the Defendant could not comply with the terms and conditions stipulated on the signage, alternative parking should have been sought.

iii. The Defendant alleges that there is no contract between them and my company. It is my company’s position that there is and the details of which are set out above. Parking eye -v- Beavis established that this form of contract is perfectly workable.

iv. The Defendant alleges that they were awaiting a permit being issued in order to park on the Land. During this period, the Defendant continued to park on the land in direct breach of its terms by failing to display a Valid Permit. If the Defendant was unable to comply with the terms, they could have sought alternative parking until a Valid Permit was received/obtained. It is submitted that the Defendant was aware of the terms as they had requested a Permit from my Company. Therefore, it is assumed that the Defendant was aware that a PCN would be issued as a result of non-compliance with the terms.

v. It is alleged by the Defendant that the signage displayed on the Land cannot override the existing rights of their Tenancy Agreement. It is the Claimant’s position that the signs displayed on site supersede the terms of the Tenancy Agreement and in any even the Defendant has failed to provide evidence of such. However, the Claimant reserves the right to file a further Witness Statement should the Defendant produce a copy of their Tenancy Agreement. In any event, if the Defendant had an honest belief that they had a right to park on the Land under their Tenancy Agreement, they would not have attempted to comply with the
terms displayed on the Land.

vi. The signs clearly outlined the terms of parking and the Defendant was on notice of the terms upon entering the land. By parking on the land, the defendant accepted the terms. these terms state that if breached, the Defendant agrees to pay within 28 days of issue.

vii. The phrase ‘double recovery’ suggests the same amount is being recovered twice. This is not what is claimed, as explained later in this statement.

viii. The recent successful appeal in Britannia parking group ltd v Semark-Jullien [2020] EW misc 12 (cc) (29 july 2020) found that the inclusion of the debt recovery charge in the claim does not fall foul of the decision of Parking Eye ltd v Beavis [2015] uksc 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a claim of this type does not constitute an abuse of process that would allow for the entire claim to be struck out.

ix. The ‘genuine pre-estimate of loss’ argument was often advanced in parking ticket claims prior to Parking eye -v- Beavis [2015]. This issue was settled in that case. My Company has a legitimate interest. further, my Company is not seeking more than the original charge as the core debt, however my company is now also seeking further costs.

x. My company’s legitimate interest is to fulfil its obligations to the landowner. The landowner’s legitimate interest in managing the Land is to provide parking for those who wish to park on the land. Because there is a clear legitimate interest/commercial justification, the same as that established in Parking eye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case the issue of ‘loss’ is further dealt with in the ‘amount claimed’ section below.

xi. The Defendant alleges my Company has failed to adhere to the landowner's definitions, exemptions, grace period, hours of operation and instructions to cancel charges due to complaints. The Defendant is a third party to the landowner agreement. Privity of contract applies.

xii. The Defendant makes reference to the Department for Levelling Up, Housing and Communities (“DLUHC”) and the ‘new’ parking code of practice originally published in February 2022 within paragraphs 6 - 9 of their Defence. With respect, it is submitted that this
bears no relevance to the matter at hand as the code has not yet been enacted with the current status of the code being ‘withdrawn’ as of June 2022.

xiii. Further to the above, the Defendant’s opinion of the industry being regulated by the Independent Parking Committee and British Parking Association bears no relevance to the Defendant’s liability. With respect, nothing has currently been implemented by the
Government for my Company to adhere to (although this is of course pending). I respectfully ask the question; would the Defendant have deemed it more appropriate for my Company to not adhere to the COP?. Referring to that Code is not ‘misleading’ – it is (at the present time) entirely relevant and section 111 of Parking Eye -v- Beavis [2015] confirmed that.

xiv. The Defendant asks for standard witness costs for attending Court and the Claimant’s unreasonable conduct. The Defendant is reminded that Costs are not to be awarded on the Small Claims Track under CPR 27.14. To avoid any doubt, the Defendant’s costs are rejected and will not be paid.

___________

I'm not entirely familiar with Parking Eye v Beavis, but I don't think this should apply in my case as it doesn't refer to PCNs issued within the bounds of a residential lease. There was no contract between me and them, as I had a lease in place that granted me a parking space within the grounds of the development. The contract was between them and the landlord, to which we paid the fee for the parking spot, so I never worried about what their sign said.

Also, my lease cites that the consequence for illegally parked vehicles was clamping (which was illegal anyway, but still, they never mentioned paying fines to a third-party firm).

What would be the best way to contest their argument on the Parking Eye v Beavis?

Thank you very much for your help!

Trainerman

Similar in some ways to one that I have just received. Amazing how nakedly self serving and twisted they are. Example, the bit about 'Beavis' in (iii) Not very relevant, but twisted in a way to suggest otherwise. Or reference to Selmark-Julien trying to make more of it than it is.

Or the suggestion of 'we mucked up but you should have parked somewhere else, we don't care how far away from your own space you are'

My answer re 'Beavis' and the 'workable contract' is that it is distinguished  because a) in that case there was a legitimate reason to keep a car park accessible because of other potential parkers NOT to keep residents away from their own space (particularly so if you can prove primacy of contract) and b) the signage was clear and capable of forming such a contract. I really hope you can prove primacy.

Seems like you are in a similar place to me -- IF you get a switched on Judge , it should be clear, but if you get one of the others ........
Good Luck !

Dess

Thanks @Trainerman!

I wonder if I should've just lawyered up and let a solicitor deal with it, because the whole things has made me waste so much time and it's given me a massive headache.

Hopefully we'll both get a verdict in our favour.

Good luck to you too!

Le_Kirk

By the time the solicitor has finished totting up his/her bill it would have been cheaper to pay - not that we would suggest you do that - and it would be difficult to find a solicitor who specialises in and/or understands the vagaries of the parking rules/regs.  Just stick with the forum and we will guide you through it.