UKPC DCB Legal court claim after lost Popla appeal

pixie_man

Good morning all, I received letters from the court and have a deadline of 30 May to file the Withess Statement and evidence. I started to draft WS. I would be grateful if you could advise on which cases I should attached to my WS. Thanks 

Le_Kirk

The NEWBIE sticky has all this information and you should read the second post from: -

At witness statement stage (usually NOT LATER THAN 14 DAYS BEFORE YOUR HEARING!) don't forget to file the evidence you will rely upon. Can include:

Use a) to i) and there are even hints on how to write it but don't forget it backs up and supports what you wrote in your defence.

1505grandad

Also do not forget the end of the post by C-m:-

https://forums.moneysavingexpert.com/discussion/comment/81185206/#Comment_81185206

Coupon-mad

pixie_man said:

Good morning all, I received letters from the court and have a deadline of 30 May to file the Withess Statement and evidence. I started to draft WS. I would be grateful if you could advise on which cases I should attached to my WS. Thanks 

I already did, on this thread months ago.

  

pixie_man

Thank you all, Please see below my witness statement. I used as a template the one you sent me link to  @Coupon-mad
I am not sure about points 5 and 6 The Beavis case. Have I used it properly here? I would be grateful for comments and advise. Thanks

 

IN THE COUNTY COURT

Claim No.: xxx

Between

UK Parking Control Ltd

(Claimant)

- and –

xxxxx

(Defendant)

 

WITNESS STATEMENT OF DEFENDANT

 

1. I am xxxxx, and I am the Defendant against whom this claim is made. The facts 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. My defence is repeated, and I will say as follows:

 

Sequence of events:

3. On the 31.12. I decided to celebrate New Years Eve very briefly with a coffee and cake in Darcy’s restaurant located in one of the buildings in xxxxxxx. It was very dark and very cold evening, and it was pouring rain. After dropping the family close to the restaurant (had no umbrella), moved the car to park it in the Visitor Parking area. After parking the car, I run quickly to the restaurant. I was convinced to be within the rights to park there. I did not intend to violate any restrictions. I would go to a different restaurant or parked somewhere else, had I known that parking was restricted in that area. 

I parked in the same place previously, because was told by the restaurant staff, that parking in the visitor’s area is allowed and free of charge. There are no payment machines, nor gates at the entrance. I was convinced parking in this area is free and is not restricted, i.e. no ticket or permit required. I was greatly surprised to receive a PCN. UKPC claims that the car was parked in an area for registered users only. Pictures provided by UKPC were so dark, that they didn't show where the car was parked. I have asked UKPC to send proof of their claim, e.g. better-quality pictures clearly showing a parking violation, but they haven't. The Defendant was convinced UKPC are claiming the car was parked in a resident’s bay. In their response they only vaguely referred me to pictures on their website under the claim reference, which were the same as in the letter. I had to go back to site to realise, that the pictures were taken at the entrance to the site and that there is indeed a sign about a general parking restriction between 5pm and 9am. However, the sign is located on a crossroads, on the opposite site to the incoming cars – Exhibit 01 and Exhibit 02. That makes it difficult to see or read it, when trying to cross the road. Stopping to read what it says would also block the road. Similarly at the visitors parking area, there is only one sign, easily to be missed from a distance – Exhibit 03 and Exhibit 04. One needs to come up really close to read what is written there. The text is also very long and convoluted. The biggest font on the sign near the visitors parking area says REGISTERED USERS - suggesting that the text on the sign is relevant for registered users not visitors- Exhibit 05. In the weather conditions on the night of 31st December I was not in a position to search and then study such signage. 

 

No contract was formed

4. The Claimant has stated that it’s grounds for the claim relate to a ‘breech of contract’. I do not believe that a contract was formed between myself and the Claimant. Nowhere within the generic terms and conditions sign, does it inform the reader that by parking in the car park, they are entering into a contract with the Claimant. Furthermore, the words “contract” or “agreement” do not appear in the Claimants sign, which only talks about matters relating to ‘REGISTERED USERS’, where I did not consider myself as such. Manchester County Court District Judge Iyer in PACE Recovery and Storage Ltd v Lengyel [2017] C7GF6E3R noted in his judgement that the “words “contract” or “agreement” do not appear at all within the sign, which merely refers to the driver “accepting liability for a charge”” and that “the phrase “terms and conditions” are not synonymous with a contract”, see Exhibit 06. DJ Iyer rightly dismissed the case against the Defendant stating that a contract had not been formed between the two parties.

 

The Beavis case is against this claim

5. 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.

6. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case parking is free of charge. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

 

Abuse of process – the quantum

7. In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added an unidentified sum of £70, that is then disingenuously described as 'recovery fee’ or ‘administration’. The Claimant stated that this misleading £70 cost was incurred by the Claimant when instructing DCBL to recover the unpaid penalties. The Claimant is intentionally trying to mislead the court by suggesting these costs represent renumeration for the work of DCBL which is untrue. Consequently, this is a feeble attempt at double recovery by using a generic template in the hope of intimidating the reader into paying for their unjustified charges.

8. With the added £70 constituting double recovery, the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is seen in Exhibit 07) . The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

9. After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

10. The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP [2021] F83YX432, transcript seen in Exhibit 08, where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to s62 of the CRA, as it created imbalance between the parties. Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant.

11. Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied.

 

Landowner Contract

12. The claimant has given no evidence of an BPA compliant Landowner contract which contains wording that specifically assigned them any rights to form contracts with the drivers in their own name.

 

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

13. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

 

CPR 44.11 – further costs

14. As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records.

15. Therefore, I am appending with this bundle a fully detailed costs assessment, see Exhibit 09, which 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).

16. Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.

 

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.

 

Witness’ signature: <SIGN HERE>

Date:

 

IN THE COUNTY COURT

Claim No.: xxxxx

Between

UK Parking Control Ltd

(Claimant)

- and –

xxxxx

(Defendant)

 

EXHIBITS OF DEFENDANT

 

WITNESS STATEMENT OF DEFENDANT_____________________________________ 2

EXHIBITS OF DEFENDANT________________________________________________ 7

Exhibit 01 – Entrance to the car park_____________________________________ 8

Exhibit 02 – Entrance sign_______________________________________________ 9

Exhibit 03 – Visitors Bay signage________________________________________ 10

Exhibit 04- Visitors bay where car was parked___________________________ 10

Exhibit 05 - Signage from up close______________________________________ 11

Exhibit 06 - The PACE Recovery and Storage Ltd v Lengyel [2017] C7GF6E3R transcript____________________________________________________________ 12

Exhibit 07 Copy of Excel Parking Services vs Wilkinson (G4QZ465V) Approved Judgement by Judge Jackson of Bradford County Court.________ 19

Exhibit 08 Copy of Chevalier-Firescu v Ashfords LLP [2021] F83YX432____ 28

Exhibit 09 Schedule of costs___________________________________________ 33

 

 

These are the exhibits marked 01 to 09, referenced in the witness statement, signed X,

Defendant:

 

 <SIGN HERE>

Date: 18/07/21

 

Exhibit 09 Schedule of costs

DEFENDANT’S SCHEDULE OF COSTS

Ordinary Costs Loss of leave through attendance at court hearing: £95.00

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11 Research, preparation and drafting documents: (10 hours at Litigant in Person rate of £19 per hour): £190

TOTAL COSTS CLAIMED: £285 (£190 + £95)

Signed by X,

Defendant: <SIGN HERE>

Date: 18/07/21

 

 

Coupon-mad

Looks good. Just some tweaks.

This date is weirdly wrong:

Date: 18/07/21

And some of your paragraphs are much too long and need breaking up into smaller ones - with all paragraphs numbered.

And I didn't see a paragraph challenging the C about their standing to sue. Landowner authority. Is that because they supplied a convincing document at POPLA stage?

Le_Kirk

Coupon-mad said:

And some of your paragraphs are much too long and need breaking up into smaller ones - with all paragraphs numbered.

........especially the long paragraph between #3 & #4, which is also not numbered!

pixie_man

Thanks for your response @Coupon-mad, Please ignore the date, it was copied with the template. I will obviously update dates before sending. I broke down paragraphs and changed some wording/grammar.

There is point 19 saying about Landowner authority. They didn't show anything of value at POPLA stage. Should I expand it and refer to some other judgements? 
Here is the updated version:

IN THE COUNTY COURT

Claim No.: xxx

Between

UK Parking Control Ltd

(Claimant)

- and –

xxxxx

(Defendant)

 

WITNESS STATEMENT OF DEFENDANT

 

1. I am xxxxx, and I am the Defendant against whom this claim is made. The facts 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. My defence is repeated, and I will say as follows:

 

Sequence of events:

3. On the 31.12. I decided to celebrate New Years Eve very briefly with a coffee and cake in Darcy’s restaurant located in one of the buildings in xxxxxxx. It was very dark and very cold evening, and it was pouring rain. After dropping the family close to the restaurant, moved the car to park it in the Visitor Parking area. After parking the car, I run quickly to the restaurant.

4. I was convinced to be within the rights to park there. I did not intend to violate any restrictions. I would go to a different restaurant or parked somewhere else, had I known that parking was restricted in that area. 

5. I parked in the same place previously, because was told by the restaurant staff, that parking in the visitor’s area is allowed and free of charge. There are no payment machines, nor gates at the entrance. I was convinced parking in this area is free and is not restricted, i.e. no ticket or permit required. I was greatly surprised to receive a PCN.

6. The Claimant stated in the PCN, that the car was parked in an area for registered users only. Pictures provided by Claimant were very dark, and they did not show where the car was parked – Exhibit 01.

7. I had asked UKPC to send proof of their claim, e.g. better-quality pictures clearly showing a parking violation, but they haven't. I was convinced UKPC were claiming the car was parked in a resident’s bay.

8. In their response the Claimant only vaguely referred me to pictures on their website under the claim reference, which were the same as in the letter. I had to go back to site to realise, that the pictures were taken at the entrance to the site and that there is indeed a sign about a general parking restriction between 5pm and 9am.

9. However, the sign is located on a crossroads, on the opposite site to the incoming cars – Exhibit 02 and Exhibit 03. That makes it difficult to see or read it, when trying to cross the road. Stopping to read what it says would also block the road. Similarly at the visitors parking area, there is only one sign, easily to be missed from a distance – Exhibit 04 and Exhibit 05.

10. One needs to come up really close to read what is written there. The text is also very long and convoluted. The biggest font on the sign near the visitors parking area says REGISTERED USERS - suggesting that the text on the sign is relevant for registered users not visitors- Exhibit 06. In the weather conditions on the night of 31st December I was not in a position to search and then study such signage. 

 

No contract was formed

11. The Claimant has stated that it’s grounds for the claim relate to a ‘breech of contract’. I do not believe that a contract was formed between myself and the Claimant. Nowhere within the generic terms and conditions sign, does it inform the reader that by parking in the car park, they are entering into a contract with the Claimant. Furthermore, the words “contract” or “agreement” do not appear in the Claimants sign, which only talks about matters relating to ‘REGISTERED USERS’, where I did not consider myself as such. Manchester County Court District Judge Iyer in PACE Recovery and Storage Ltd v Lengyel [2017] C7GF6E3R noted in his judgement that the “words “contract” or “agreement” do not appear at all within the sign, which merely refers to the driver “accepting liability for a charge”” and that “the phrase “terms and conditions” are not synonymous with a contract”, see Exhibit 07. DJ Iyer rightly dismissed the case against the Defendant stating that a contract had not been formed between the two parties.

 

The Beavis case is against this claim

12. 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.

13. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case parking is free of charge. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

 

Abuse of process – the quantum

14. In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added an unidentified sum of £70, that is then disingenuously described as 'recovery fee’ or ‘administration’. The Claimant stated that this misleading £70 cost was incurred by the Claimant when instructing DCBL to recover the unpaid penalties. The Claimant is intentionally trying to mislead the court by suggesting these costs represent renumeration for the work of DCBL which is untrue. Consequently, this is a feeble attempt at double recovery by using a generic template in the hope of intimidating the reader into paying for their unjustified charges.

15. With the added £70 constituting double recovery, the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is seen in Exhibit 08) . The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

16. After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

17. The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP [2021] F83YX432, transcript seen in Exhibit 09, where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to s62 of the CRA, as it created imbalance between the parties. Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant.

18. Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied.

 

Landowner Contract

19. The claimant has given no evidence of an BPA compliant Landowner contract which contains wording that specifically assigned them any rights to form contracts with the drivers in their own name.

 

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

20. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

 

CPR 44.11 – further costs

21. As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records.

22. Therefore, I am appending with this bundle a fully detailed costs assessment, see Exhibit 10, which 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).

23. Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.

 

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.

 

Witness’ signature: <SIGN HERE>

Date: 

 

Coupon-mad

Looks good. Just a typo:

‘breech of contract’

1505grandad

Just checking  -  will the exhibits list stated in another post above be amended re numbers  -  for instance:-

Your WS states para 10  -  " .........suggesting that the text on the sign is relevant for registered users not visitors- Exhibit 06"

However the exhibit 6 in the list refers to PACE Recovery and Storage Ltd v Lengyel  -  similarly the next numbers do not match the WS.

Also a pedantic observation  -  para 11  -  "......PACE Recovery and Storage Ltd v Lengyel [2017] C7GF6E3R noted in his judgement that the words......."  -  there is no middle "e" in Judgment  -  check the doc. you are exhibiting