Excel Parking / DCB Legal - Witness Statement advice please!

Car1980

See if you can work in this "unattributed payment" wording and point out it is ironically standard wording within the debt collection industry.

https://forums.moneysavingexpert.com/discussion/6612313/filled-in-the-wrong-vehicle-reg-advice-sought#latest

Does anything like that even feature in the debt collection letters you will have received?

Scrutney2

Car1980 said:

See if you can work in this "unattributed payment" wording and point out it is ironically standard wording within the debt collection industry.

https://forums.moneysavingexpert.com/discussion/6612313/filled-in-the-wrong-vehicle-reg-advice-sought#latest

Does anything like that even feature in the debt collection letters you will have received?

Thanks - unfortunately no, there's nothing like that on the DCB Legal letters.

However, the Court Order from Judge Pema seems very relevant - this case is identical to mine... Do you think it would be appropriate to include this as an exhibit in my Evidence?

Coupon-mad

Yes definitely. Wording has already been written in WS about this. Search the forum.

Scrutney2

Coupon-mad said:

Yes definitely. Wording has already been written in WS about this. Search the forum.

Got it - thanks.

Johnersh

You can add to the list, unless I'm missing something, that the claimant has:

1. failed to disclose the entitlement to operate at the site, notwithstanding the challenge in the defence
2. The exhibit is incomplete and in any event not verified with a statement of truth 
3. The exhibit provides no evidence that C is paid to operate the site as is suggested in the WS.
4. The WS is essentially a computer print out. It is evidence of nothing. The maker of the statement may never have visited the site and has not given evidence of fact. The photographs relied upon pre-date the PCN by 10 months. They have no direct knowledge or give evidence that the signs remain in situ at all or that they are readable at night.


IMHO, This is still a penalty case under Beavis. The primary obligation is to pay, the secondary obligation is to pay the PPC if in default of performance (parking, paying, leaving on time). Unlike Mr Beavis, the defendant did all that. There is no commercial loss at all, since there was payment and no other customers were restricted from visiting and paying.

So Beavis remains the authority that it *can* be a penalty if the sum is unconscionable/excessive. Here the penalty would appear to be 63x the contractual sum merely for a data error, with the claimant having been able to check their system and affirm that a correct payment was made.

I'm also of the view that Chapelair doesn't help them as the £70 costs fall to summary assessment under CPR 44.5 and will need to be proven. The defendant did not agree to a notional £70 being added as a liquidated damage.

Scrutney2

Johnersh said:

You can add to the list, unless I'm missing something, that the claimant has:

1. failed to disclose the entitlement to operate at the site, notwithstanding the challenge in the defence
2. The exhibit is incomplete and in any event not verified with a statement of truth 
3. The exhibit provides no evidence that C is paid to operate the site as is suggested in the WS.
4. The WS is essentially a computer print out. It is evidence of nothing. The maker of the statement may never have visited the site and has not given evidence of fact. The photographs relied upon pre-date the PCN by 10 months. They have no direct knowledge or give evidence that the signs remain in situ at all or that they are readable at night.


IMHO, This is still a penalty case under Beavis. The primary obligation is to pay, the secondary obligation is to pay the PPC if in default of performance (parking, paying, leaving on time). Unlike Mr Beavis, the defendant did all that. There is no commercial loss at all, since there was payment and no other customers were restricted from visiting and paying.

So Beavis remains the authority that it *can* be a penalty if the sum is unconscionable/excessive. Here the penalty would appear to be 63x the contractual sum merely for a data error, with the claimant having been able to check their system and affirm that a correct payment was made.

I'm also of the view that Chapelair doesn't help them as the £70 costs fall to summary assessment under CPR 44.5 and will need to be proven. The defendant did not agree to a notional £70 being added as a liquidated damage.

Thanks - is their Exhibit 1 not evidence of authorisation to operate at the site, though?

And yes, my main arguments are that this is a penalty under Beavis (I paid the parking fee in full), and their signage is unclear/inadequate, particularly in light of the signage in the Beavis case.

Coupon-mad

Use @Johnersh's words. He's a solicitor who writes concisely and in point.

Johnersh

@Scrutney2 Exhibit1 appears to start from bullet point #5, so what do bullets 1-4 say? Do they even relate to the same site at all? Is the signatory authorised? Why isn't the claimant producing the contract if it exists and can be properly relied upon?

Exhibit 1 appears to be just a memorandum of what the contract says NOT the contract itself. The incomplete statement of truth would not be found in a commercial contract. Best guess is that this is a page which has been recycled from some previous piece of litigation. If so, that would be an abuse.

Why should you rely upon the assurance which is in any event incomplete?

Scrutney2

Johnersh said:

@Scrutney2 Exhibit1 appears to start from bullet point #5, so what do bullets 1-4 say? Do they even relate to the same site at all? Is the signatory authorised? Why isn't the claimant producing the contract if it exists and can be properly relied upon?

Exhibit 1 appears to be just a memorandum of what the contract says NOT the contract itself. The incomplete statement of truth would not be found in a commercial contract. Best guess is that this is a page which has been recycled from some previous piece of litigation. If so, that would be an abuse.

Why should you rely upon the assurance which is in any event incomplete?

Ah, I see what you mean now! Apologies - that page didn't convert properly to the image in my original post for some reason. Here it is in full:
 

Johnersh

Ok, so what we have is:

1. A witness statement on behalf of the PPC that states "I attach the contract entitling us to operate as exhibit 1"
2. Exhibit 1 which is:
a) NOT the contract at all
b) if it is the only contract, uncertain & defective, referring as it does to other side agreements
c) a document that is c. 10 years old
d) in fact a witness statement prepared for some other purpose and, it appears, being "recycled" for this claim
e) the maker of the statement may be unaware that his former statement is being used in this way and, accordingly it may not reflect his current knowledge or belief at all

One might think that the signs or tariff have changed in the last decade. Certainly that document cannot support the current terms.

Oddly, given that a PPC can be levied for a breach of any term, the o/p could, in theory, also be issued a PCN for not retaining his ticket for 90 days. What a nonsense.