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  • FIRST POST
    • spacegup
    • By spacegup 9th Aug 19, 5:27 PM
    • 18Posts
    • 6Thanks
    spacegup
    UKCPM County Court Claim
    • #1
    • 9th Aug 19, 5:27 PM
    UKCPM County Court Claim 9th Aug 19 at 5:27 PM
    Hi,

    I've been arguing with UKCPM for the best part of 18 months now about a parking charge in April 2018. I've been reading the advice on this forum at each step and am grateful for all the time people have put in to provide so much help to people like me .

    I'm now at the county court stage and looking for more specific advice for my defence.

    A short history:

    I was a student at a college in Bristol during the 2018-19 academic year. Around Christmas time UKCPM started managing the car park and in April 2018 I found a yellow sticky on my windscreen containing a £60 (£100 after 14 days) charge with the reason "not parked within a marked bay". The markings had washed away pretty soon after they were painted, and there were no other signs to indicate permitted and not permitted parking areas.
    To use the car park, students had to register online for a free permit. Other users could pay and display.

    I appealed after biding my time for the first few weeks (following advice on this forum) which worked as the formal demand arrived after the 57 days stated in POFA .
    I ignored many letters from debt collection and Gladstone's after this until receiving 3 letters before claim last month (all different claim references but regarding the same incident!). I replied to these letters asking for a compliant letter before claim but instead have received a claim form this week.

    Draft defence below.

    Question:
    1. I missed the advice regarding sending an SAR- should I still do this, or will it not help me now?

    Thanks in advance for any help- gratefully received!!


    In The County Court
    Claim No: XXXXX
    Between
    UKCPM Ltd (Claimant)

    -and-

    XXXX(Defendant)

    ____________
    DEFENCE
    ____________

    1. The Defendant was the registered keeper and driver of vehicle registration number XXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

    2. The facts of the matter are that the Defendant was a student at XXXX College and held a valid parking permit. The ‘land’ which forms the basis of the current claim consists of an area of pebbled parking spaces in 4 rows plus marked bays on the remaining tarmac areas. UKCPM had recently been awarded responsibility for managing this car park and new markings had been drawn out but were quickly washed away (as images provided by the Claimant show). As the markings were no longer visible, the defendant cannot be held responsible for parking “wholly within a marked bay”.

    3. Accordingly, it is denied that the Defendant breached any of the Claimant’s purported contractual terms, whether express, implied or by conduct.

    4. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.

    5. The Defendant has the reasonable belief that the Claimant has not complied with the Protection of Freedoms Act 2012. The Notice to Keeper issued by the Claimant dated 15th June 2018 was not sent or received within the timeframe permitted under Schedule 4, Para 8(5) of the Protection of Freedoms Act 2012.

    6. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

    Statement of Truth:

    I believe that the facts stated in this Defence are true.
Page 2
    • Le_Kirk
    • By Le_Kirk 3rd Sep 19, 5:36 PM
    • 8,027 Posts
    • 9,121 Thanks
    Le_Kirk
    Even if you don't know who the landowner is, you "put the claimant to strict proof that they have the authority of the landowner ......" The rest of the wording you will find in any of the 17 pre-written defences in the NEWBIE sticky post # 2.
    • spacegup
    • By spacegup 4th Sep 19, 11:28 AM
    • 18 Posts
    • 6 Thanks
    spacegup
    Even if you don't know who the landowner is, you "put the claimant to strict proof that they have the authority of the landowner ......" The rest of the wording you will find in any of the 17 pre-written defences in the NEWBIE sticky post # 2.
    Originally posted by Le_Kirk
    Thank you- I think I've included that in para 7
    If there's nothing else glaringly missing, I will submit this week before deadline on Tuesday 10th.
    Thanks to everyone for all the help!
    • Le_Kirk
    • By Le_Kirk 4th Sep 19, 4:11 PM
    • 8,027 Posts
    • 9,121 Thanks
    Le_Kirk
    Yes, it is there now. Good luck.
    • spacegup
    • By spacegup 13th Jan 20, 1:45 PM
    • 18 Posts
    • 6 Thanks
    spacegup
    Hi all,
    I now have my court date and today had confirmation that UKCPM have paid the necessary fee and the case is going ahead (hoped I might get lucky there).

    1. I haven't received anything from Gladstones to tell me what exactly they will argue in court. I understand from other threads this is a problem for many people. Do I have any power to request this at this stage or should I complete my witness statement solely on my own defence?

    2. Since I sent my defence, I have contacted the DVLA and found out that my personal details were not requested, even though UKCPM are insisting that they were (they have refused to fulfil my SAR because I will not provide photo ID, but state on their website and on the back of the windscreen ticket that they will always ask the DVLA for details).
    Is this a good argument to include in my witness statement?
    • Coupon-mad
    • By Coupon-mad 13th Jan 20, 2:08 PM
    • 80,775 Posts
    • 95,442 Thanks
    Coupon-mad
    should I complete my witness statement solely on my own defence?
    No. There is LOADS you have missed by being away from the forum (a mistake!). Read this advice to someone now playing catch up like you are:

    https://forums.moneysavingexpert.com/showthread.php?p=76681460#post76681460

    You need to get up to speed so you file & serve the stuff about the Consumer Rights Act as well, and when you get your Jack Chapman facsimile signed WS from Gs you will be reporting Gladstones to the SRA to join the crowd.

    they have refused to fulfil my SAR because I will not provide photo ID,
    Report them to the ICO right now by email - 'report a concern'. The ICO can force them to send you a SAR.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • nosferatu1001
    • By nosferatu1001 13th Jan 20, 2:43 PM
    • 6,299 Posts
    • 8,355 Thanks
    nosferatu1001
    When is your deadline? Its on the hearing date letter.
    • spacegup
    • By spacegup 13th Jan 20, 7:11 PM
    • 18 Posts
    • 6 Thanks
    spacegup
    No. There is LOADS you have missed by being away from the forum (a mistake!). Read this advice to someone now playing catch up like you are:

    https://forums.moneysavingexpert.com/showthread.php?p=76681460#post76681460

    You need to get up to speed so you file & serve the stuff about the Consumer Rights Act as well, and when you get your Jack Chapman facsimile signed WS from Gs you will be reporting Gladstones to the SRA to join the crowd.


    Report them to the ICO right now by email - 'report a concern'. The ICO can force them to send you a SAR.
    Originally posted by Coupon-mad
    Thanks CouponMad for the summary- I've been trying (and failing) to keep up with developments! The Jack Chapman thing is especially interesting, will await mine and compare.
    Will add my witness statement in draft when finished.

    I reported UKCPM to the ICO but they disagreed with it being excessive, which I wasn't expecting:
    "You have provided a copy of your bank statement but have refused to provide photographic ID as you believe this to be excessive.
    (...)it would appear reasonable to ask for both photographic ID and also ID that confirms an address such as a utility bill. As a result, you will need to provide UKCPM with the ID that they have asked for in order to proceed with your request. If you do not provide them with the ID that they have asked for we are unable to consider this complaint any further. "

    In my long drawn out 'discussion' with their information officer they repeatedly stated I could find the information I'm looking for on their website and on the windscreen ticket/NTK- which both state they request data from DVLA. Is this sufficient to argue they are committing perjury?

    My deadline is in the week of 27th- I don't want to use specific dates as someone said they do read these threads! The trouble is I also have a massive uni deadline the same week so need to get it done ASAP so I can concentrate on that instead...!

    Which brings me to my next question- I have done a few rudimentary searches but has anyone ever heard of a student successfully winning costs for missing university time One could argue that at £9,250 per year, missing 7 hours of contact time is worth a lot- especially as most of these hours are practical so priceless!

    ps, am I right in thinking the CAB advisors will not add anything to my case? The court advised me today to use them but I didn't mention I had used this site for everything so far!

    Again thanks for all help.
    • Coupon-mad
    • By Coupon-mad 14th Jan 20, 3:32 AM
    • 80,775 Posts
    • 95,442 Thanks
    Coupon-mad
    CAB is useless re these cases.

    Never heard of a student trying to reclaim Uni time, but you can try in your costs schedule.

    I would DROP the ICO issue and get the WS and evidence done, and please try to fit in the SRA complaint when you get the Jack Chapman drivel - email the SRA the WS as we want them to see how 'templatey' they all are, as well as the facsimile signature.

    A solicitor's template statement is not a witness statement from their client.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • spacegup
    • By spacegup 14th Jan 20, 3:15 PM
    • 18 Posts
    • 6 Thanks
    spacegup
    1st draft witness statement
    In the county court at xxxxx
    Claim No.

    XXXXXX

    Between

    UK CAR PARK MANAGEMENT LIMITED

    And

    XXXX XXXXX
    I, XXXXX of XXXXXX, will say as follows:

    I am the defendant in this matter. Attached to this statement is a bundle of documents marked xxx to which I will refer.

    The facts of this case are as set out in my original defence, and I rely on that document as a true account.

    Before I describe what happened on the day I parked at xxxxxx, I confirm that the essence of my defence to this claim is that:
    a. I did not breach the terms and conditions of parking
    b. Some of the markings in the car park were worn away, so it is unreasonable for the Claimant to expect users to park in a marked bay
    c. The added costs to this claim are disproportionate and an attempt at double recovery by the Claimant
    d. The Claimant has acted unlawfully in its handling of data in this case.

    Signage and markings of the car park
    1. I was a student at the above college between September 2017-July 2018 including the time of the alleged incident in April 2018. Around January 2018 the college informed the students that the car parks would now be managed by UK Car Park Management Ltd (UKCPM), and the car park was updated with extra signage and new markings. These markings were no longer visible after a few weeks and therefore not clear where users were permitted to park, considering up to this point students were allowed to park anywhere as long as they were not obstructing others.

    2. On 12th April 2018 I parked in a space at the front of a single line of 3 cars (image included as item EV1). There were two cars parked behind me when I arrived. When I returned to my car, it had a windscreen ticket claiming I had not parked within a marked bay and was liable to pay £100 (reduced to £60 if paid within 2 weeks). The cars behind me did not have tickets despite also being parked where the markings had worn away. (Images included as items EV2 and EV3).

    3. On this basis I appealed to UKCPM, pointing out that the markings were worn and therefore I could not be expected to know what they considered to be a “marked bay”. This was rejected, stating their photographic evidence proved that I did not park in a marked bay. The images included were extremely small, grainy photographs of the car which do not show any markings or indicate where they are in relation to the position the car is in. The other photograph, showing the sign setting out conditions for parking in the car park, is completely illegible (even when blown up) so does not prove any conditions of the parking whatsoever. The rejection letter did not address the content of my appeal, which indicates that rather than read and consider the appeals they receive, UKCPM simply reject all appeals so people believe they have no choice but to pay.

    4. In the months following my windscreen ticket, the car park was repainted with markings and yellow lines, which indicates the claimant acknowledged the markings were insufficient. The area I parked in, however, was left completely ambiguous, with two marked bays and one without any yellow lines or signage. There are examples of private parking companies creating spaces which act as ‘traps’, ensuring the company is able to profit from the car park.

    The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

    5. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

    5.1 The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
    (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
    (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

    5.2. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

    The Beavis case is against this Claim
    6. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

    6.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

    6.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

    6.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

    6.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and 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.''

    The POFA 2012 and the ATA Code of Practice are against this Claim
    7. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

    7.1 The POFA also states in paras 8(4) and 8(5) that any Notice to Keeper must be delivered to the keeper within “the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.” This equates to a total of 57 days after the notice to driver. The windscreen notice was received on 12th April 2018, and the Notice to Keeper is dated 15th June 2018 and was received the day after. This is a total of 64 days after the windscreen notice so does not comply with POFA.

    7.2 The POFA also states in paras 11(1), 11(2) and 11(3) that the keeper’s details must be requested from, and provided by, the Secretary of State. The notice to keeper received from the Claimant also states that my details have been provided by the DVLA for the purpose of enforcing the charge, however, on requesting details of any applications made to the DVLA, it has confirmed that no such applications were made by the Claimant. This again proves the Claimant to be uncompliant with POFA and are using my data unlawfully.

    The Consumer Rights Act 2015 ('the CRA') is against this claim
    8. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

    8.1. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

    8.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

    8.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

    8.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

    8.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

    8.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
    (a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
    (b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
    (c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

    8.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

    8.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

    8.4. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

    8.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

    9. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

    9.1. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

    10. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

    11. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

    12. In the Defence statement the claimant was put to strict proof that they that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. I am yet to see evidence of this.

    13. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

    Statement of Truth:
    I believe that the facts stated in this witness statement are true.

    Name

    Signature

    Date
    • Coupon-mad
    • By Coupon-mad 14th Jan 20, 4:16 PM
    • 80,775 Posts
    • 95,442 Thanks
    Coupon-mad
    Very good, nice to read a well researched WS from a Uni student!

    I would get rid of this which won't affect the case and detracts from it:
    d. The Claimant has acted unlawfully in its handling of data in this case.
    And maybe dumb down the 'extra signs' like this:
    Signage and markings of the car park
    1. I was a student at the above college between September 2017-July 2018 including the time of the alleged incident in April 2018. Around January 2018 the college informed the students that the car parks would now be managed by UK Car Park Management Ltd (UKCPM) put in some signs and lines but at no point were students asked to sign and agree to any new terms. The students were entitled to rely upon their contracts with the college that had begun at the start of the academic year, and up to this point, as the site is often busy, students were allowed to park anywhere in the parking area as long as they were not obstructing others. There was no reason to think that these easements and reasonable expectations had changed. and the car park was updated with extra signage and new markings. These markings were no longer visible after a few weeks and therefore not clear where users were permitted to park.
    Now you need to list your planned evidence and exhibits, so we can check you know what to append to this statement. CRA 2015, POFA, Beavis paragraphs x 3 included.

    And you need a costs schedule to be filed too, even if it is just the travel costs plus ten or more hours at £19 per hour (standard) LiP rate, given that this has distracted from your studies at a vital time.

    And a contents page, once it's all done and all pages are numbered.

    Last edited by Coupon-mad; 14-01-2020 at 4:19 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • spacegup
    • By spacegup 14th Jan 20, 6:54 PM
    • 18 Posts
    • 6 Thanks
    spacegup
    Very good, nice to read a well researched WS from a Uni student!
    Originally posted by Coupon-mad
    Thank you! This process isn't actually all that different from academic writing- read the evidence, synthesise an argument, reference!

    I would get rid of this which won't affect the case and detracts from it:
    will do!


    And maybe dumb down the 'extra signs' like this:
    I agree, needs to be simpler. We did have to go to the UKCPM website and fill in some details (I believe just student number and VRN but I have no record of this) in order to have an electronic permit to allow us to park. I suspect now that this would probably have included some agreement to terms and conditions. But the issue raised still stands, the college or UKCPM did not warn us which areas were no longer parking spaces.

    How about:
    "1. I was a student at the above college between September 2017-July 2018 including the time of the alleged incident in April 2018. Around January 2018 UK Car Park Management Ltd (UKCPM) put in some signs and lines and students were asked to register online to be permitted to continue parking (I believe the information required was student number and VRN). Up to this point, as the site is often busy, students were allowed to park anywhere in the parking area as long as they were not obstructing others. These markings were no longer visible after a few weeks and therefore not clear where users were permitted to park."

    Now you need to list your planned evidence and exhibits, so we can check you know what to append to this statement. CRA 2015, POFA, Beavis paragraphs x 3 included.
    Thank you! here is my list:

    1. CRA 2015
    2. POFA 2012
    3. Beavis paragraphs x3 (had trouble searching for these- have included below what I hope is right!)
    4. 2x transcripts for abuse of process court orders
    5. map of car park
    6. 7x photos (4 from claimant's rejection letter, 3 taken by me)
    7. Beavis sign for comparison (is this still recommended? I haven't actually referenced it
    8. contents page
    9. costs schedule (I live within walking distance to court so no travel expense- but definitely going to try for the LiP hours)
    10. do I need to include the NTK and the NTD as attachments if I've referenced it in my WS?

    Are these the Beavis paragraphs:

    At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:''When the court is
    considering an ordinary financial or commercial contract, then it is understandable that the law,
    which lays down its own rules as to the compensation due from a contract breaker to the innocent
    party, should prohibit terms which require the payment of compensation goingfar beyond that
    which the law allows in the absence of any contract provision governing this outcome. The classic
    and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6Bing. 141 at 148: But
    that a very large sum should become immediately payable, in consequence of the non-payment of a
    very small sum, and that the former should not be considered a penalty, appears tobe a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.''

    And at the Supreme Court it was held at 14. ''…
    where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;''

    At 22, the Supreme Court explored Lord Dunedins speech in Dunlop and separated complex cases
    (Beavis) from ordinary contracts with a transaction and tariff:
    ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

    Thanks again for all help
    • Coupon-mad
    • By Coupon-mad 16th Jan 20, 2:34 AM
    • 80,775 Posts
    • 95,442 Thanks
    Coupon-mad
    You don't need the NTD or NTK to be served but take them in your own hearing file.

    7. Beavis sign for comparison (is this still recommended? I haven't actually referenced it
    I would include it, a good tactic is to screenshot it NEXT TO the scammers' own sign, showing theirs is MUCH smaller and tiny print, like in this OPS example prepared by ParkingMad:

    https://www.dropbox.com/s/8osabssqvcru0z4/Beavis%20and%20OPS%20signs%20side%20by%20side%20-%20text%20size%20and%20signage%20size%20difference .odt?dl=0

    BUT you have the wrong Beavis quotes!

    You simply need the sentences I quoted from #98, #193 and #198 of the Supreme Court Judgment, that I have put into post #14 of the Abuse of Process thread. The three times that the Judges said (effectively) that a private parking charge MUST incorporate the costs of the operation.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • spacegup
    • By spacegup 19th Jan 20, 3:28 PM
    • 18 Posts
    • 6 Thanks
    spacegup
    Thanks Coupon-Mad, have found the right quotes now.

    I've received their witness statement and bundle of documents (pretty early too as the deadline isn't until next week!). No surprises that the witness statement is signed by Jack Chapman, so I'll get the complaint to SRA done.
    However 'Jack' has realised his address mistake and now hails from 19 New Road, BN1 1UF.

    They've provided an unsigned contract/removed the signatures due to data protection (hard to tell which), will this fly in court?

    They've also provided a quote from the IPC code of practice: "where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60". From a quick google this was removed from the IPC's Code in 2017!!

    If I want to address their witness statement can I do that under a sub-heading in my own?
    Last edited by spacegup; 19-01-2020 at 3:48 PM. Reason: add address used in WS
    • KeithP
    • By KeithP 19th Jan 20, 4:00 PM
    • 19,626 Posts
    • 25,050 Thanks
    KeithP
    If I want to address their witness statement can I do that under a sub-heading in my own?
    Originally posted by spacegup
    Yes you can.
    .
    • spacegup
    • By spacegup 21st Jan 20, 11:23 AM
    • 18 Posts
    • 6 Thanks
    spacegup
    Last additions to witness statement!
    Here's what I've added since reading UKCPM's Witness Statement:

    12. The Claimant has provided an Agreement authorising them to manage parking on the land relevant to this claim, however, the agreement appears unsigned. In the Defence statement the Claimant was put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    13. In section 7, the Claimant states in their Witness Statement that the area of the car park in question, namely a section adjacent to the gravel bays, was not “outlined for parking”. The pictures provided in my appeal clearly show worn-out markings in this area, proving this area was in fact ‘outlined for parking’.

    13.1. Further to this, it appears that the author of the witness statement has no knowledge of the layout of the car park. They state in section 20 that the area in question “did not format in line with the remaining car park”, referring to photographs where gravel areas can be seen. In fact, the car park has multiple gravel areas plus three paved parking areas of different sizes. The cars parked behind mine and in the other paved areas did not receive windscreen notices on the day I received mine, so the Claimant cannot plausibly argue these areas were not valid for parking.

    14. In section 22, the Claimant refers to the International Parking Community (IPC) Code of Practice (for which they are an Accredited Operator) quoting a section permitting a reasonable sum not exceeding £60 to be added to an overdue parking charge. This section of the Code, however, was removed in 2017. One would assume an Accredited Operator to be up to date with the Code of Practice, indicating that the quote has either been included by the Claimant knowing it to be incorrect, or that the Claimant does not keep itself updated with the changes to a Code of Practice it apparently relies on.

    15. In section 17, the Claimant argues “the Defendant has lodged a template defence that is heavily circulated on the internet and not specific to the fact of her case or the charge at hand”. This is completely untrue. Firstly, the Claimant has referred to sections of my defence, proving it is specific to the case (“The defendant avers she was a student at XXX, holding a ‘valid parking permit’. The defendant argues that the markings were ‘no longer visible’). Secondly, as I am not a lawyer and have no experience in such matters, in order to properly represent myself in this claim I have undertaken many hours of research and sought advice from others who have won similar cases as Defendants. The Claimant’s above statement and the opinion that my Defence is “generically copied and pasted” is entirely unfair and unnecessary to their Witness Statement.

    16. The Witness Statement has been signed by a Jack Chapman of Ground Floor, 19 New Road, BN1 1UF using a facsimile signature identical to other witness statements of cases Gladstones is representing for on the internet. A comparison of signatures is included with this witness statements. A complaint has been made to the Solicitor’s Regulation Authority (SRA) who are currently investigating Gladstones Solicitors for allegedly using template witness statements rather than statements from their clients. The SRA have also been shown a job advert where Gladstones is advertising for ‘freelance statement writers’, indicating they submit template witness statements on behalf of claimants with little input from any actual witnesses.

    Documents to be included:
    1. Defendant’s Schedule of Costs
    2. Images taken by Defendant in support of defence
    3. Images provided by Claimant in appeal rejection (size increased by Defendant)
    4. Comparison of sign in this case compared to sign in Beavis v Parkingeye Ltd [2015]
    5. Paragraphs 98, 193 and 198 of Supreme Court Judgment in Beavis v Parkingeye Ltd [2015]
    6. Map of car park annotated by Defendant to show parking and sign location
    7. Transcript of Order in ‘Vehicle Control Services v Mr Jonathon Davies’
    8. Transcript of Order in ‘UK Car Park Management Ltd v Esplanade Ltd’
    9. Consumer Rights Act 2015 Schedule 2
    10. Protection of Freedoms Act 2012 Schedule 4
    11. International Parking Committee Code of Practice Part E Schedule 5
    12. Comparison of ‘Jack Chapman’ signatures from other witness statements

    Any final feedback much appreciated, hoping to get everything sent off today/tomorrow.
    • KeithP
    • By KeithP 21st Jan 20, 1:07 PM
    • 19,626 Posts
    • 25,050 Thanks
    KeithP
    11. International Parking Committee Code of Practice Part E Schedule 5
    That's wrong. You have the correct name in para 14 above.
    .
    • spacegup
    • By spacegup 22nd Jan 20, 10:19 AM
    • 18 Posts
    • 6 Thanks
    spacegup
    Thanks KeithP.

    If there’s no other comments, going to send everything off today!
    • didgeridoooo
    • By didgeridoooo 22nd Jan 20, 10:51 AM
    • 273 Posts
    • 224 Thanks
    didgeridoooo
    Excellent WS and preparation here. I wouldn't be surprised if they crawl back under their rock before the hearing, but either way good luck with this, I will be reading for updates with interest.

    PS I received this same ad-hominum crap (they researched this on the internet). I am sure a Judge will see through this devious attempt to devalue the D for their lack of professional training, something most Judge's would see for what it is, bullying and irrelevant (and clutching at straws perhaps). If what you "pasted" (even IF you had) WORKS as a defence in your specific case, then it flies just fine in court!

    They are just scared that you researched here, hahahah. Go MSE, go MSE, where are my pom-poms?

    More great input from the Legend that is... Coupon-Sane!
    • nosferatu1001
    • By nosferatu1001 22nd Jan 20, 11:10 AM
    • 6,299 Posts
    • 8,355 Thanks
    nosferatu1001
    12 - give the ref to their exhibit, thats what its there for. Note that as hte document is unsigned, there is no proof the landowner has authorised them to do anything, and this puts them in breach of the code of practice of the IPC. I wouldnt bother reminding the court that you told the C to prove they had a contract, thats already in your defence.

    13.1 - no, use simple numbering. No 13.1.2.3.4.5. Just 13, 14, 15 etc. For both 13 and 13.1, is it really section 7 and section 20, or is it paragraphs 7 and 20? If they HAVE used sections, then you of course refer to the specific numbered para, NOT the whole section.

    I have no real idea what is meant by this whole para, i find it VERY confusing as you are not explicit enough in your writing. Was yor car on paved or gravel? Dont make the reader x-ref to ANYTHING if you can avoid it by being explicit - my car was parked on paved | gravel, one or 3 such areas within the car park, and the claimants claim that the area my vehicle was parked on "“did not format in line with the remaining car park” (BTW I have no idea what "did not format..." actually means, its a horrible sentence fragment) is nonsense because....
    Think again of how you structure a para to make it easy to understand. This is a skill, not something that happens immediately!

    14) Lose the first parens, not needed. I would suggest you draw the courts attention firmly to the fact he claimant ha ssigne d aWS under a statementn of truth when it contains a material factual error, one that canot be excused as it is 3 years old, and so their intent is to mislead the court and the defendant.

    15) I would summarise it more succinctly - that the C has cast aspersions in, ironically, a generic non-specific way, while in their own document proving that the defence is indeed specific to this claim. You ask that the court regards this obviously templated sentence - as it has appeared in the same Claimants bundle in multiple court claims - as a mere opinion, one that is undermined by the claimants own witness statement, and ask that the claimant explains why this statement has been included

    I would go to *town* on these errors. They signed this under a statement of truth. That is SERIOUS and you need to get across that they are trying to mislead you and the court at worst, and AT BEST they are "just" incompetent and their WS is therefore highly suspect!

    16) I love that they still keep using this....
    • didgeridoooo
    • By didgeridoooo 22nd Jan 20, 11:36 AM
    • 273 Posts
    • 224 Thanks
    didgeridoooo
    15) I would summarise it more succinctly - that the C has cast aspersions in, ironically, a generic non-specific way, while in their own document proving that the defence is indeed specific to this claim. You ask that the court regards this obviously templated sentence - as it has appeared in the same Claimants bundle in multiple court claims - as a mere opinion, one that is undermined by the claimants own witness statement, and ask that the claimant explains why this statement has been included
    Originally posted by nosferatu1001
    Brilliant! I will be 'borrowing' that, suck on that 'template' BWL
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