Moorside Legal (NCP Parking) - Case struck out

1505grandad

Are you including any exhibits?

Savemethemoney67

Le_Kirk said:

If that is a Witness Statement, it should be written in the first person so "I" not "the defendant".

2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste

Is it a defence or a witness statement?

This is the Witness statement now

Le_Kirk

Then you need to remove references to it being a defence and write it in the first person.

Savemethemoney67

1505grandad said:

Are you including any exhibits?

I have obtained a copy of the CHAN judgement which is Exhibit 1, struggling to find the AKANDE judgement to provide separately but searching for that currently.

Other than that I haven't got any other lined up. In the last year or so they have put up new signage at the location which i'm convinced was after this claim so don't the benefit of going to the car park and photographing it. They haven't provided times on the PoC so couldn't say what time of day, what the lighting would have been like, etc.

Coupon-mad

What about the long list of recommended exhibits in post 2 of the NEWBIES thread?

Le_Kirk

^^^^ Agreed, it is c) on the evidence list.

Savemethemoney67

Before I update you on the outcome, I did add some extra exhibits from the evidence list and also added images of the inadequate signage at the car park comparing it with the PARKING EYE V BEAVIS signage. 

On to today, no representative present for the claimant, which the judge said was normal and that they had notified the court that this would be the case. I had still not been provided with the complainants WS or any evidence and therefore questioned this with the judge who said that when Moorside legal had provided the court with the documentation they stated they had been served and therefore he has to be fair and has now given them until the 9th JANUARY to do so. 

I tried to explain that I was still not aware of the terms and conditions that I had breached - to which he informed me it was an unpaid parking ticket. 

The judge was not on my side at all and basically said that you cant trust what you get off the internet. He said that these defences have been going through the court for about 15 years and they don't work (Despite me evidencing occasions they do work). I'm not sure he actually read the full defence, he said it was long and he brought up PARKING EYE V BEAVIS to try and give me a lesson on how it is distinguished. At this point i informed him that i have addressed that in the WS and demonstrate the poor signage in an exhibit but he just brushed it off.  

At the end he even recommended that i seek legal advise.

So the process starts again ... 

Coupon-mad

LOL!

"He said that these defences have been going through the court for about 15 years and they don't work".

Not only do they work but I only first wrote a Template Defence just 5 years ago.

FIFTEEN YEARS AGO WAS CLAMPING TIMES, PRE-POFA! WE ONLY CREATED A TEMPLATE DEFENCE ADVICE THREAD IN 2020!

I think he's a grumpy opinionated judge who had skim-read your WS and thought you were using FMOTL doomed arguments, which have been stinking out the internet for years.

You were not using doomed rubbish arguments.

The Supreme Court made it clear that every case differs and signage MUST be looked at on a case by case basis.

Also, the CRA 2015 s71 places a legal duty on courts to look at fairness and prominence of terms and signs

In every case. He has to! Beavis does not make parking defences pointless. 99% of parking cases here have been won for many years. These claims are hopeless.

Hopefully you'll get a different judge in the end but at least you are alerted to the fact that, if it's him, you are going to have to be absolutely on point and confident with:

- Chan and Akande (use them first)

- unclear non-prominent signs

- and to rescue you - damage limitation if it's him again and it all goes pear shaped - you need to explain why adding fake 'debt recovery fees' is actually double recovery.

This is because Beavis confirms in multiple paras, that the PCN already covers all costs arising from an alleged breach, which the Supreme Court discussed that the entire business model was based on a pre-action 'letter-chain'. That is the usual MO of any ANPR firm and in Beavis there were 5 letters:

Automated PCN
Automated Reminder
Automated Final Notice
Automated Liability Notice
Automated LBCCC.

All sent in house by Parking Eye.

They were the pre-action letters that were 'reasonably foreseeable costs' by both parties if the driver saw the sign. And the sign only mentioned £85, which more than covered the minor letter chain costs of this business model.

The fact that the pre-action letters are often sent by a third party these days (but not always) is irrelevant. They cannot count the minor costs of pre-action stage twice.

Those small costs for automated letters up to and including LBC amount to less than a tenner (plus £2.50 for a DVLA look-up at the start) and are already accounted for in the PC itself.

Beavis says so very clearly.

Here's a defence where I listed every paragraph of Beavis that tells us - apart from the other issues such as 'legitimate interest' and very clear signs - that a high PCN is justified precisely because it covers "all costs of the operation":

https://forums.moneysavingexpert.com/discussion/comment/81774450/#Comment_81774450

I went through the Beavis judgment recently, with a finer tooth comb than I'd used before and there are LOADS of paragraphs that cover this.

Here's the relevant chunk from that defence (of course, not DCB Legal in your case) that helps you see off the added fake fees which are not 'extra costs':

_______________________________

Many solicitor DRAs in this industry reportedly 'front' the court claim fees in each case and thus have an unusual monetary interest in every claim. If so, this represents systemic abuse of the court process that the Defendant understands has never been properly examined. It cannot be right that:

(a)  a parking operator gains from a share of the spoils of the purported 'DRA fee' and thus makes more money from later stage cases than the face value of a PC if paid in full earlier, and

(b)  potentially champertous claims exaggerate the quantum in every boilerplate claim, by:

(i) pre-loading fixed interest as if it was part of the alleged debt. S69 of the County Courts Act 1984 grants courts a discretionary power to award simple interest but these claims from DCB Legal seek 8% (calculated on an unconscionably high sum from an unspecified date) pre-loaded on the top line of claims. This means improper interest is automatically granted for every default CCJ (the vast majority of cases, hundreds of thousands of cases p.a.) and it is further questioned whether the legal reps keep the 8% interest instead of the creditor; and

(ii) adding a fake sum layered on top of the PC, pleaded vaguely as 'damages'. This is double recovery but these sums are wrongfully banked by parking firms and/or their legal reps, who are believed to share the exaggerated profits in every default CCJ case.

9. The very minor costs of automated pre-action reminders and a Letter before Claim are standard costs already accounted for in the rationale of the high fixed sum of a PC at full rate, according to binding case law.

10. Attention is drawn to the binding judgments in:

(i) ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which is on point and remains the only parking case law that directly addressed the abuse of false 'admin costs' attempting to be added on top of an already doubled PC. HHJ Hegarty (High Court, ratified by the CoA) held that hiking a £75 PC - already increased from £37.50 - up to £135 was not justified and 'would appear to be penal' (ref: paras 419-428).

(ii) ParkingEye had dropped this punitive enhancement by the time of ParkingEye v Beavis [2015] UKSC67 which dealt with a 'typical' ANPR operation, i.e. not hands-on car park 'management' because no staff attend sites on foot to monitor bays and operators are not responsible for the tarmac surface or shoppers' safety. This business model solely involves AI cameras capturing images of cars then churning out and bombarding registered keepers with automated demands, either sent by the operator or a third party sub-contractor (it makes no difference who sends the letter-chain: it cannot be counted twice).

11. Only reasonably foreseeable costs arising from an alleged breach - and only if stipulated prominently on the contract (sign) - may be claimed and they must be accounted for within the PC already. The Supreme Court judges in Beavis made it clear in several paragraphs, that the pre-action costs of the operation which are attributable to a motorist in breach were very low indeed and are more than covered by the PC:

At para 98: The £85 PCs 'provided an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit.'

At para 99: ParkingEye 'meets the costs of doing so from charges for breach...'

At para 100: 'None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest. [...] But there is no reason to suppose that £85 is out of all proportion to its interests. The trial judge...found that the £85 charge was neither extravagant nor unconscionable having regard to the levels imposed by local authorities'.

At para 143: 'The qualification and safeguard is that the agreed sum must not have been extravagant, unconscionable or incommensurate with any possible interest in the maintenance of the system...'

At para 193: The scheme 'covered Parking Eye’s costs of operationand gave their shareholders a healthy annual profit.'

At para 198: 'The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.'

At para 255: 'Where the test is to be applied to a clause fixing the level of damages to be paid on breach, an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable.'

At para 307: the £85 PC 'far exceeded any amount which was likely to be recoverable as damages for breach of contract or trespass.'

12. Yet this Claimant seeks as 'damages' not only a £100 PC but also a double counted sum layered on top under the excuse of it being a DRA fee for the exact same debt demands, soft trace and template LBC that the Supreme Court held was more than covered by the PC itself. The total claimed on the top line of this claim is certainly extravagant and unconscionable, being more than twice the sum in Beavis, where the judges heard that the £85 invoices generated such a huge profit after costs were accounted for, that a surplus of £1000 per week was paid to that landowner. 

13. Contrary to misinformation spread by the private parking industry who like to spin the line that 'the Beavis case didn't deal with costs', the truth is highlighted in bold in the quoted paragraphs above, to prove that the pre-action costs of an automated ANPR business model were thoroughly considered by the Supreme Court.

14. As well as having a legitimate interest basis, the £85 PC escaped being dismissed as a penalty because it was a self-financing, reasonable and not extravagant business model from typical ANPR 'specialists' in that the PC itself covered 'all costs' arising from a breach. And that sum was agreed under contract because it was stipulated in bold on the 20+ signs. The minor costs covered by the PC included DVLA look-up (£2.50) plus a Credit Reference Agency trace (under 30 pence in bulk) and all 'letter chain' costs: i.e. the template reminders that were mandatory since 2012 in the BPA Code of Practice plus a Letter before Claim (current total cost using ZatPark software: £1.88 per letter whether sent by a parking firm or by an agent). Thus, these are standard costs within the PC model, not extra 'damages' to be counted again.

15. The parking sector has been getting away with counting the pre-action 'soft trace and letter chain' costs twice for years. It is the task of the MoJ and/or the MHCLG to stop this clear abuse. In 2022 a Government Minister called this double recovery aspect: ‘extorting money from motorists’. The pre-action stage is neither an extraordinary, remote or extra cost and nor is it 'enforcement'. Template pre-action letters are the very crux of the business model of any ANPR operator and do not fall outside of their usual work. Whether issued by the operator or by a third party, these demands are the equivalent of ParkingEye's in-house 5 letters which were scrutinised in the evidence placed before the Supreme Court.

16. If a court (or the Government, for that matter) was to be misled and allowed the pre-action stage to be counted as a separate 'damages' cost or fee (even a nominal sum extra) it would:

(a) breach the Digital Markets, Competition and Consumers Act 2024 because the false added cost is not stipulated on the signs. Note that this unfair cost now kicks in on day 29, due to the BPA and IPC colluding to create a Joint Code of Practice taking a hatchet to the MHCLG's intended Code. Both trade bodies are riddled with conflicts of interest (both the IPC's owner Will Hurley and the BPA's President Mike Marrs having personal connections to various parking case  DRAs) so it is no surprise that they currently 'allow' double counting of what they call 'DRA costs', and

(b) breach the POFA 2012 schedule 4 because any bolt-on cost added on top of the specified PC is not 'parking related charges' of which 'adequate notice' was given to the driver on prominent signage, and

(c) have the knock-on effect of rendering the PC itself unrecoverable. A PC that is cut adrift from the costs arising from a breach (by repackaging them instead, as added 'damages') would leave the core PC 'all charge and no substance'. A £100 PC is already disproportionate at twice the level of a Local Authority PCN, so if it were stripped of another Supreme Court pillar (that a major function of a high PC is that it must cover all costs and profit) it would have no valid legs to stand on. An empty PC based upon a bare deterrent value alone would be an unrecoverable penalty and could not pass muster under the CRA 2015 and by interpreting Beavis correctly.

Savemethemoney67

I will take that on board and will make some amendments to my defence once I finally have a copy of Moorside Legals WS and the Exhibits they are going to rely on as, the judge mentioned they had pictures of the car parking signs. I am interested to see the signage as I am sure that they have changed since the date of the PCN, albeit i don't know how i will show this myself as google maps is frustratingly up to date. 

 I will look to shorten the defence if i can as it is perhaps repetitive and i need to cover the above in more detail that way if i get the same judge i may limit the damage. 

Savemethemoney67

Moorside Legal have finally sent me a copy of their witness statement - with a further delay to the hearing which will now be the 13th February.