PCM Parked Motorbike in Friends Bay Options

[Lukasz]

Hi all and thank you for helping out in here.

Parking Control Management

Here we go:




I believe I shouldn't be paying it.
In all I do respect peoples space and other aspects of Parking.

Is there a chance? Or will PCM just reject it?



This post has been edited by Lukasz: Mon, 29 Jul 2019 - 19:22

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[Lukasz]

Hi Guys Girls

I have gone so far with the Private Penalty Ticket that is has come to Court Claim.

I basically have tried to reason the case saying the vehicle (motorbike) was parked in a private bay with a car that belonged to an occupant/tenant of one of the flats there.
But nothing really worked.

I believe all I can do is to fill out the defense form.
Is the defense form going to court of to the claimer at this point?
And what chances do I have to win it if at all?

Could you help me out a bit here please?

Kind Regards

Edited: I'm trying to include picture of the claim but it's not working.

This post has been edited by Lukasz: Sun, 16 Feb 2020 - 14:44

[nosferatu1001]

Use another site to HOST the pictures, and link here.

Tell us
1) The date of issue
2) Whether you have gone ONLINE to acknowledge the claim. If NOT, then do so ON DAY FIVE counting from date of issue. THa gives you 33 days to send your DEFENCE (no S in defence) to the court.

You will not be reminded of this date
3) Go tot eh MSE Forum -> parking thread -> Newbies thread, second post.

[Lukasz]

Date of issue 7th Feb
I tried acknowledging but can't login so will have to sort it just now.


https://ibb.co/j8Vwm4f
https://ibb.co/Ky8n3Cf

Am heading to the thread

[Lukasz]

Should I do SAR?
by doing AOS I automatically apply for 28 days to prepare?

Thank you.

[nosferatu1001]

A SAR is advisable.

Have you completed the AOS now?
Once you have acknowledged the claim, following the PRECISE instructions given to you in th MSE forum -> Parking -> Newbies thread -> 2nd post, you will hgave 33 days from the DATE OF ISSUE to send your defence VIA EMAIL to the court.

[Lukasz]

I am a dyslexic but I think/hop that I have made some sense in this case here.
For sure I have learnt quite a bit.

I have 5 days left to respond .

Thank you

IN THE COUNTY COURT

CLAIM No: XXXXX

BETWEEN:

XXXXXXXX(Claimant)

-and-

XXXXXXX(Defendant)

________________________________________
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defense. The Defendant reserves the right to seek from the Court permission to serve an Amended Defense should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

3. The Defendant is the registered keeper of vehicle registration number XXXXX. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
4. The facts of the matter are that the Vehicle (XXXXXXX) was parked on the material date in a marked bay allocated to Apartment XXXXXXX and a Witness statement will follow if necessary to prove the statement.
5. Accordingly, there is no sufficiant markings shown in the pictures (evidence) that would imply it is outside of any marking and was not obstructing other vehicles from moving freely.
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [Flat XX], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given, if required.
7. Furthermore. The tenant’s contract makes no assertion that a permit must be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so (Item X, pages xyz). The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.

Authority to Park and Primacy of Contract
8. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

9. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

9. Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.7. 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

10. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage.
11. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

12. 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.

________________________________________


"I believe the facts contained in this Defense Statement are true."

XXXXXXXX 04/03/2020

[nosferatu1001]

Thats looking good as a start but it looks to be based on an old template - the first para 1 for a start ive not seen used in a while.

Have you found the defences linked in the MSE forum thread I pointed you at? You cannot use a defence older than late 2019.

I presume the Claimant has added additional sums over and above the parking charge, and NOT court costs, for debt recovery / legal? (Not the £50 max. for filing a claim, which is listed in its own box on the claim form) If they have done, then the ABUSE OF PROCESS must be raised, alongside adding the court transcripts showing that cliamants have had such claims *struck out* without a hearing due to these amounts having no lawful basis.

[Lukasz]

Hi. Thanks for responding.

Yes, unfortunately it is from 2017
https://forums.moneysavingexpert.com/discus...omment_72977032


ANd yes again, the amount I just copied, and I do have letters from debt collector and will now add it to the defense.

My case is based on Vehicle Being Partked in Private Bay and this defence was the closest I found.
I will go through more links from MSE second post for newbies.

[Lukasz]

Thats looking good as a start but it looks to be based on an old template - the first para 1 for a start ive not seen used in a while.

Have you found the defences linked in the MSE forum thread I pointed you at? You cannot use a defence older than late 2019.

I presume the Claimant has added additional sums over and above the parking charge, and NOT court costs, for debt recovery / legal? (Not the £50 max. for filing a claim, which is listed in its own box on the claim form) If they have done, then the ABUSE OF PROCESS must be raised, alongside adding the court transcripts showing that cliamants have had such claims *struck out* without a hearing due to these amounts having no lawful basis.

Hi, Thank you again for responding to my post.
I have added these paragraphs. And changed the amount to reflect my case.
I have also deleted the 1 and 2 paragraphs.
I had deleted par. 6 as it was copied twice.
Plus I've changed para 4 as it did not really apply to my case properly. Now changed accordingly.

I would also like to add this as the Claimant didn't really explain how exactly the Defendant breached the contract.

PARA; . The Particulars of Claim state that the Defendant !!!8220;was the registered keeper and/or the driver of the vehicle(s)!!!8221;. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

And this would follow after next PARA

7. The Claimant is 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.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.



.......
9.4. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £166.32 debt. The Protection of Freedoms Act 2012, in Schedule.

10. Defendant also points an ABUSE OF PROCESS that Claimant have had such claims *struck out* without a hearing due to these amounts having no lawful basis.


I hope it all makes sense here. And Thank You again.
And should I do a Claim against them too? I should probably look in the posts how to do it.


IN THE COUNTY COURT

CLAIM No: XXXX

BETWEEN:

XXXXXXXX (Claimant)

-and-

XXXXXXX (Defendant)

________________________________________

1. The Defendant is the registered keeper of vehicle registration number REGNUMBER. 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 Vehicle (Motorbike) was parked on the material date in a marked bay allocated to ADDRESS and a Witness statement will follow if necessary to prove the statement.
3. Accordingly, there is no sufficient markings shown in the pictures (evidence provided to Defendant by Claimant) that would imply it is outside of any marking. And was not obstructing other vehicles from moving freely.
4. Furthermore. Motorcycles are exempt from resident-only parking zones; therefore Defendant do not need a parking permit for the motorcycle. That said it is not Defendant's assertion that vehicles should be left at in allocated Parking Bays without permition of owner/lease holder as such permition had been granted.
5. The Claimant is 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.

6. The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

7. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Authority to Park and Primacy of Contract
8. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [ADRESS], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness statment that prior permission to park had been given, if required

9. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

10. Accordingly it is denied that:
10.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
10.2. there was any obligation (at all) to display a permit; and
10.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
10.4. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £166.32 debt. The Protection of Freedoms Act 2012, in Schedule.

11. Defendant also points an ABUSE OF PROCESS that claimants have had such claims *struck out* without a hearing due to these amounts having no lawful basis.

12. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage.
13. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

14. 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.

________________________________________


"I believe the facts contained in this Defense Statement are true."

xxxx 08/03/2020

[nosferatu1001]

I dont advise trying to adapt an old one
Start with a new defence template - there is a suggested one with the ABUSE OF PROCESS sectoin (what you have as 6)) being FAR longer and includes ATTACHMENTS showing these claims have been sturck out *and* set aside of strike out have been denied.

You MUST start with these new ones.

[Lukasz]

I dont advise trying to adapt an old one
Start with a new defence template - there is a suggested one with the ABUSE OF PROCESS sectoin (what you have as 6)) being FAR longer and includes ATTACHMENTS showing these claims have been sturck out *and* set aside of strike out have been denied.

You MUST start with these new ones.

Thanks. Headache but it is my job!

I'm going to use this post and comment by Coupon-Mad from 18/06/2019
https://forums.moneysavingexpert.com/discus...ells-bwlegal/p2

Can you please just tell me if that it so I don't waste more time please?

Thank you.

[Lukasz]

Ok.

I hope I am not being overwhelming at this point here.


I am going to use the template and PARAs from 6 to 14 on this template from Coupon-Mad https://forums.moneysavingexpert.com/discus...ells-bwlegal/p2
Plus I will add what I have already prepared 1 to 4 PARAs which explains what exactly happened in my case.

Could you please give me one more advice whether I can proceed with this?

Thank you.

1. The Defendant is the registered keeper of vehicle registration number XXXXX. 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 Vehicle (XXXXXXX) was parked on the material date in a marked bay allocated to Apartment XXXXXXX and a Witness statement will follow if necessary to prove the statement.
3. Accordingly, there is no sufficient markings shown in the pictures (evidence) that would imply it is outside of any marking and was not obstructing other vehicles from moving freely.
4. Furthermore. Motorcycles are exempt from resident-only parking zones; therefore Defendant do not need a parking permit for the motorcycle and strongly cannot display it on a Motorcycle. That said it is not Defendant's assertion that vehicles should be left in allocated Parking Bays without permition of owner/lease holder as such permition had been granted by lease holder of Apartment XXXXXX.


plus the post from Coupon-Mad

https://forums.moneysavingexpert.com/discus...ells-bwlegal/p2

6. 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.

7. 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.

7.1. 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
8. 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.

8.1. 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.''

8.2. 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.''

8.3. 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...''

8.4. 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
9. 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
10. 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.

10.1. 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.''

10.2. 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.

10.3. 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.

10.3.1. 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...''

10.3.2. 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.

10.3.3. 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.
© 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.

10.3.4. 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.

10.3.5. 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.''

10.4. 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.

10.5. 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.''

11. 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.

11.1. 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''.

12. 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.

13. 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.

14. 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.



Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature


Date

This post has been edited by Lukasz: Mon, 9 Mar 2020 - 21:49

[Lukasz]

The defense allows only 122 lines It's hard to adjust with so much info to be honest.
UPDATED. Ok, I'll try not to panic next time!

This post has been edited by Lukasz: Mon, 9 Mar 2020 - 23:07

[SchoolRunMum]

You don't put the defence in using MCOL. Clearly this is not something new...think about it. we do defences on here and on MSE all the time. I post as coupon-mad on MSE.


Here's a copy of what we normally say to people on the forums about the next stages before that which are just standard paperwork where you choose your local court:

When you are happy with the content, your Defence can be filed via email as suggested here:

Print your Defence.

Sign it and date it.

Scan the signed document back in and save it as a pdf

Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk

Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.

Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.

Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.

Wait for your DQ from the CCBC, or download one from the internet, with it.

[Lukasz]

Ahh, Yes I read that before. But once I logged in it was it. I just sent it a bit shorten.

Should I resend it? I might just try.

[nosferatu1001]

Email it.

[Lukasz]

Hi
I have just received DQ from Court.
The Claimant sent his, wanting to go to Small Claims Tack.
I was hoping to result in 'strike' without hearing on the bases of 'Abuse of Process'. I happened to think that after reading other cases. Is it possible?

I basically wanted to ask. What should I do now?
I have myself as a witness and my friend that's parking space I used under her permission.

[nosferatu1001]

It was possible, not likely. You can't make this happen. It CAN happen. You go unlikely
Complete the DQ as per the instructions and serve on claimant and court

MSE forum - parking - newbies thread