PCM Claim Form time to write a defence

Johnson2015

First  time doing WS bundle.
1. Can I email everything to courts and to GS?
2. Can I submit a redacted version here for commentary?

B789

1. Yes.
2. Yes.

Johnson2015

https://1drv.ms/w/s!AgjqlnZZWePCnioi28RLO_ipfXwn

Here is the link to a redacted version of my WS and Evidence Bundle.

Heads up, I have included in the exhibits Home Guard V Jopson but I have not referred to it within the main WS. I'm not sure how to include it. Do I need a separate paragraph about 'primacy of contract' within the main body? Whereabouts should I include it? After the driver's WS? Please advise if there is anything else that I may need to include incase I have missed it off the list posted on WS thread. Finally, thank you all for your support and advice. I will be submitting my WS in a weeks time. 

Coupon-mad

You must refer to your exhibits. Search the forum for the below keywords and copy one someone wrote earlier this year; searching & copying is how this board works:

Jopson witness statement

Johnson2015

Coupon-mad said:

You must refer to your exhibits. Search the forum for the below keywords and copy one someone wrote earlier this year; searching & copying is how this board works:

Jopson witness statement

Thank you for your assistance. 

Johnson2015

Primacy of Contract

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no legitimate interest in punishing authorised loading/unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading/loading by a driver who has legitimate business and rights to do so.

These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

This question was tested  in an Appeal case in June 2016 (transcript attached see Exhibit 2). Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.

Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case and transcript I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:

Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.

I have lifted this from another WS. Is this ok to use?

B789

Johnson2015 said:

I have lifted this from another WS. Is this ok to use?

Absolutely.

Coupon-mad

Yes - looks good!

Johnson2015

In the County Court at XXXXX XXXXX                              Claim Number: XXXXXX

 

PARKING CONTROL MANAGEMENT (UK) Ltd

(Claimant)

V

    XX XXXXXXXXXXXXX

    (Defendant)

 

WITNESS STATEMENT OF DEFENDANT

FOR HEARING ON XXXXXXXXXX

 

Witness Statement

1. I am XX XXXXX of XXXXXXXXXXXXXXXX, 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 images/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:

3. I am XX XXXXX (see Image 01: Marriage Certificate Proof of Name Change) The vehicle XXXXXXXX was one of two vehicles I own (see Image 02: V5 Document Proof of Ownership). It was parked in a visitor bay (see Image 03: XXXXXXXX Visitor Bay) outside my flat where I lived (see Image 04:  XXXXXXX XXXXX Tenancy Agreement and Image 05: Council Tax Bill 2023/2024).

4. The car had been parked up for some time as it was the school holidays and the vehicle is only used for work purposes by the driver, whom at the time worked in a Secondary school.

5. On the morning of the ticket being issued, I looked out of my bedroom window to see a ticket had been put on my vehicle windscreen. I decided to take a photo immediately of the vehicle with the ticket displayed.  The visitor bay, the entrance signage, and the signage next to the bay were subsequently taken later on (see Images 06-09).

 

Witness Statement from Driver

6. I, XXXXXXXXXXXX, am the driver of the vehicle XXXXXXXXXX. This was my main vehicle for driving to my place or work.  The vehicle had been parked up for the Easter holidays, and so had not been in use since Good Friday April 2nd 2021.

7. I park in a visitor bay as my spouse (XXXXXXXXXXXXXXXX) parks the family car in the residential parking bay. I parked my vehicle in the visitor bay as I have always done since moving into our property in January 2017.

The Beavis case is against this claim

8. 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.

9. 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.

 

Redacted Landowner Contract

10. The Claimant has appended a redacted ‘landowner contract’ which has little or no prohibitive value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?). It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

11. In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

 

Abuse of process - the quantum

12. 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 (see Evidence 1: Transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

12. Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

13. The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the preBeavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

14. This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

15. 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, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (see Exhibit 1), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

16. This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ, and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I am local and took the evidence photographs appended to this statement myself (on XXXXXXXXXXX). I can state from my own knowledge that there are nothing like that many legible signs in this car park.

17. Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all (despite the Claimant claiming it is in their Witness Statement in writing and by appending signage that does not exist at the car park), but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

 

CPR 44.11 - further costs

18. 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 appealed and engaged with the Claimant at every step and they knew all along that the tariff has 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. This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

19. 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.

20. 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:

21. 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.

SIGNATURE XXX XXXXXXXXXX

DATE XXXXXXXXXX

Exhibit 3: Defendant’s Schedule of Costs

 

In the County Court at

XXXXXXXX

Claim Number: XXXXXX

Hearing Date: XXXXXXXXX

DEFENDANT’S SCHEDULE OF COSTS

Ordinary Costs

Loss of earnings through attendance at court hearing XXXXXXX £95.00

 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11 Research, preparation and drafting documents (16 hours at Litigant in Person rate of £19 per hour): £304

 

Stationary, printing, photocopying and postage: £24

 

TOTAL COSTS CLAIMED £423.00

 

 Signature ……………………. XXXXXXXXXXXXX

 

N.B Can I ask the Court to request that the Claimant issue any cheque in my married name ( XXXXXX and not my maiden name XXXXXXXX.

Johnson2015

B789 said:

Johnson2015 said:

I have lifted this from another WS. Is this ok to use?

Absolutely.

B789 said:

Johnson2015 said:

I have lifted this from another WS. Is this ok to use?

Absolutely.

I want to add about what the contract says and use Jopson V Homeguard but I am unsure of where to reference my exhibit.  My draft WS is above. Any advice would be really helpful please.I have to submit next week!!!!

I could add the following to my WS and include the exhibit here??? Would that work/make sense??

8. The tenancy agreement (see image 04) which was signed on xxxxxxxxxxxxx, states “3.13 to park vehicles only in garages or designated parking spaces”.The visitor bay is one of many in XXXXXXXXXX and it is my understanding that the visitor spaces were for the use of any resident, relative or visitors to XXXXXXXXXXXXXXX.

9.It was not until later on in the year that a letter was sent to my address stating that PCM were taking over the management of the parking.  Sometime, after that I was sent two passes one for the residential bay and one for the visitor bay.