dcb legal

Coupon-mad

Just copy & paste it across two posts.

Cody_09

Okay Coupon-mad, thanks.

Cody_09

My draft WS

The facts as known to the Defendant:

 

1. On the day of the alleged contravention, it was raining quite heavily. When I entered the services, I parked at the first available space that I found. I did not see or notice any signage as I entered the site. I remained in my car throughout my stay at the location. I live in XXXXXXXX which is 120 miles away from the location of the alleged contravention and so not familiar with the site. I believe that any signage at the time, was inadequate or unclear as I did not notice it.

 2. The facts in this defence come from the Defendant's own knowledge and honest belief. To pre-empt the usual template responses from this serial litigator, let me state that the court process is outside of the Defendant's life experience, and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with unfounded accusations of not understanding their defence.

 3. A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit EX-2 for comparison. In this case, the signage (EX-1), fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

Abuse of process - the quantum

4. The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added sum constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit EX-3 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

5. 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.

6. 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 pre-Beavis 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.''

7. 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 (exhibit EX-4) 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 cannot have both.

 8. This Claimant knew or should have known, that by adding extra 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 (exhibit – EX-4), 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.

 9. 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, 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.

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.

 

SIGNATURE

 xxxxxxxxxxxxx

 DATE xx/xx/xxxx

  

 

  

 

 

 

 

 

 

 

 

Cody_09

CPR 44.11 - further costs

 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).

 

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

 11. 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.

 

 Exhibit EX-1

 

 

Sign at site. Image captured in July 2018

 

Left side – View from car

 

Right side – Close up view

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit EX-2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit – EX-3

The Approved Judgement from Southampton

 

  

Exhibit – EX-4

 

ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit – EX-05

 

 

In the County Court at xxxxxx

Claim Number: xxxxxxxxx

Hearing Date: xx/xx/xxxx

 

 

DEFENDANT’S SCHEDULE OF COSTS

 

 

Ordinary Costs

 

Loss of earnings through attendance at court hearing 17/08/2023: £95.00

 

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

 

Research, preparation and drafting documents (11 hours at Litigant in Person rate of £19 per hour): £209

 

Stationary, printing, photocopying and postage: £31

 

 

 

 

TOTAL COSTS CLAIMED £335.00

 

 

 

Signature

…………………….

xxxxxxxxxxxxxx

Xx/xx/xxxx

 

Cody_09

Exhibit EX-1








Exhibit EX-2

Umkomaas

Your reference to the Southampton Crosby judgment means your WS is old and needs to be replaced using the example by @aphex007. Tap on his @aphex007 username to take you to his Profile page. Scroll down, under 'Activity' tap 'Threads', find his relevant thread, tap and find his WS (page 15, v3). 

Cody_09

Umkomaas, thank you.

1505grandad

" In this case, the signage (EX-1), fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC')."

Who is the claimant?

Cody_09

Claimant is Cp Plus Ltd

1505grandad

Well they ain't IPC AoS members.