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Useful Court Decision against Britannia/BW Legal re the added £60
SchoolRunMum
post Tue, 12 Nov 2019 - 14:11
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Sorry not to have posted here for a few months, I will be back to post sometimes, when I have time.

We will be getting the transcript for the following case which I hope will be a useful one - whilst not being persuasive - not least due to the finding of fact about the £60 tainting the whole claim and the finding about the 'TEST OF FAIRNESS' in the Consumer Rights Act 2015.

This thread on MSE covers the background:

https://forums.moneysavingexpert.com/showth...6850&page=3


I hear that Mr Burgess of VCS was wanting to know about this outcome...so here you go:


COURT REPORT:

F0DP806M/F0DP201T BRITANNIA PARKING -v- Mr C and another
- APPLICATION TO SET ASIDE STRIKE OUT ORDER - AT SOUTHAMPTON COURT BEFORE DISTRICT JUDGE GRAND - 10.30am 11/11/2019


CEC16 picked myself and ParkingMad (also from MSE - the 'Brighton ladies') from Southampton station and when we arrived, we explained to the Usher about me wanting to lay rep. Britannia's barrister was already there:

https://www.clerksroom.com/profile?type=113...fl=&pid=834

He eyed me suspiciously and asked for a word in a side room, and I had already decided I would try to narrow the issues. He asked me if we had got their skeleton and he offered what came across as a hollow apology for serving it so late on a Sunday (he emailed it at 10.40pm on Sunday night, which spoke volumes for what we guessed had been panic over the weekend it seems our skeleton had caused, turning victim Defendants into those who needed to be taken seriously).

I asked him to confirm he'd got our skeleton and costs schedule. He had. I told him that their WS that had been filed with their N244 objection to the strike out, had not been served and we'd still not seen how they were pleading the case. He then tried to persuade me that he would 'agree to an adjournment'.

I said no, we don't want an adjournment and want this dealt with today. He looked surprised and said 'I feel you should check with Mr CEC16', and I answered breezily: 'No need! We've already discussed this and he doesn't want the case adjourned'.

He said 'Really? but I only just offered it now?!' to which I replied ''I knew you would try for an adjournment, I do lots of these cases''.

His face fell then he recovered himself. My parting shot was to ask if he would be objecting to my Rights of Audience and he said, ''No; if I was I would tell you, and I won't be''. Fair enough.

Once inside the courtroom, DJ Grand didn't bat an eyelid about me lay repping and he let the barrister kick the case off. As an aside, DJ Grand mispronounced the name Mainwaring throughout - having been misadvised by the Usher - and the beleaguered barrister had said nothing until the end of the case, which kind of summed up that it wasn't his day!

Firstly, as a preliminary salvo, the barrister actually tried to object to the spectators (MSE's ParkingMad and CEC16's wife) and wanted to know who they were!

Wow that did not go down well with DJ Grand who told him 'this is a County Court, it is open to the public and we do not collect their names and addresses. The public are free to watch cases as is perfectly normal at such hearings'. Barrister: 'so it's not in Chambers?' NO, glowered DJ Grand, then he glowered even more when it became apparent that the Claimant had failed to serve their June WS and evidence for the application to either of the Defendants, and then failed to serve the October supplementary WS, where they'd sent a zoomed in picture of the small print on the sign, showing that not only was that minuscule wording illegible but if you did squint at it, there was no sum specified for debt collection, as it simply said:

''Where parking charges remain unpaid beyond 28 days, recovery charges in respect of further action may apply.''

DJ Grand was concerned that none of us had seen all the documents, and he himself had neither of the Skeletons either (despite them being emailed to court in good time) so he sent us all out for 20 mins to read the documents, and gave me his court copy of the June 2019 Witness statement signed by BW Legal (that we'd never seen but was the usual standard copy & paste, plus a bit added objecting to the strike out). It even accused CEC16 of 'not denying who was driving' in order to try to suggest that the POFA was not in play - yet what was the first phrase in his defence? ''I was not the driver'' (the barrister fessed up to that immediately when I later raised it - and IMHO he was far too quick to admit it - so he knew it and must have hoped CEC16 and I hadn't noticed!).

Oh dear, so it was 1 - 0 at half time (to CEC16, with the other Defendant just a watcher in the crowd).

It was not going well for Mr Mainwaring, who we guessed, had perhaps been on the phone to BW Legal in the short hiatus, given how it was already panning out. Luckily the other Defendant (who had a worse than useless outspoken FOTL 'defence' - LOL - but could VERY easily have ruined the case) had declared he wasn't interested in anything except his ''wet ink invoice'' and gave the Judge his copy of BW Legal's June 2019 WS, so at last we all had a copy of everything.

First, it was the barrister's turn to put the Claimant's case for the N244 application to remove the strike out order, and DJ Grand told us that:

- we would each be expected to keep our verbal submissions to 5 minutes, given this was meant to be a half hour hearing (but luckily his 11am one had been vacated)

- as both sides had filed and exchanged ''full'' (= wordy) skeletons already, we were all strongly advised to keep our submissions to addressing the other side's arguments.


The barrister proceeded to waffle in true BW Legal stylee about rubbish like Chaplair v Kumari and the 'stages of work that a PCN goes through' for ten minutes, and he didn't even pick up CEC16's skeleton argument to address anything in it. DJ Grand had to interrupt him and said ''you have already taken 10 minutes and unless you are using that wisely to do what I suggested and deal with addressing the Defendant's objection to your application - which specifically cites certain paragraph numbers from the Beavis case and the POFA, I see - then it seems to me you are wasting the time you have''.

CEC16 and I sat quietly watching.

The barrister was brave enough to assert that he felt there was 'institutional bias' in the courts against parking firms who are 'unpopular' and then tore into how 'brief and vague' DJ Taylor's June strike out Order had been, and that it was unfair as it had given the poor Claimant no information as to what was meant as regards 'going behind' the POFA and the Beavis case...

DJ Grand almost lost his rag at that point (clearly BW Legal were unaware that DJ Grand uses exactly the same strike out wording himself!). The Judge said the strike out Order was perfectly clear, and 'contained more words than the Claimant's vague/brief POC' and that surely Mr Mainwaring wasn't suggesting that a parking firm member of the BPA had not had ample opportunity to study the POFA and the Beavis case in detail, and that somehow this was all a surprise to them?!

Anyway my turn:

I missed a beat a little in trying to directly ask the other side what exactly the £60 was for, and how the whole £160 was constructed? DJ Grand corrected me to address the court/him, and not Mr Mainwaring, so I had to change it to observing that the Claimant's skeleton had one single line buried in the middle, that suggested that the £60 was being argued as this:

''40. It is thus submitted that there is nothing in principle abusive about the £60 which the Claimant seeks to recover in respect of the additional administrative costs which were incurred before each matter was handed over to the Claimant’s solicitors.''

So I observed that, if the £60 was being argued to represent the 'admin costs of the operation', then to coin a phrase, surely the Claimant was throwing the core parking charge of £100 under a bus? Because that argument would expose the actual £100 as a penalty - neither constructed in the same way as the Beavis charge (ref paras 98, 193 and 198 which clearly say the sum had to be set that high to cover the costs of the operation) - nor a genuine pre-estimate of loss either (yep I uttered that phrase).

Either that, or this was an attempt at double recovery. I left that thought hanging.

Then I rattled through my planned 3 verbal submissions I'd written down, the first two trying to echo/add to the strike out reasoning:

1. The Claimant knew or should have known, that £160 charge against a registered keeper who was not driving, was in breach of POFA, due to paras 4(5) and 4(6).
2. The Claimant knew or should have known, that £160 charge was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
3. The Claimant knew or should have known, that £160 charge where the signs did not specify a sum for this 'debt collection' vague add-on, is void for uncertainty, in breach of the POFA para 9 (due to not 'specifying' the parking charges payable)...

...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.

I quickly added that the Court has a duty to consider the test of fairness for consumer notices and terms (Part 2 para 71) whether or not a party has raised it before. Cue a sharp intake of breath from the barrister and DJ Grand said with interest 'yes, but you are raising it anyway' and reached for his thick book of statute law while the barrister said that he did not have a copy of the CRA 2015 'grey list'.

I did, and a spare to hand to him. We were shoulder to shoulder throughout anyway!

I just read out paras 6, 10 and 14 from the grey list and I think I mentioned as well, that for the first time in such legislation, the CRA covers consumer notices (the UTCCRs did not) but that the official CRA 2015 guidance tells us that consumer notices are not exempt from the test of fairness.

In fact, Judges should be using that statute of their own volition and applying paras 6, 10 and 14 (and all the others on the grey list Schedule 2, if applicable) whether a Defendant mentions it or not. I was expecting Mr Mainwaring to object, saying that a 'price term' is one of the 'core exemptions' in the CRA 2015 that cannot have the test of fairness applied.

The answer to that was going to be, consumer notices are not subject to the 'core exemption'! The CMA Official Government Guidance 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.

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)''

https://assets.publishing.service.gov.uk/go...in_Guidance.pdf

I didn't throw in that actual guidance but I didn't need it. OP's here should start using it.

The FMOTL Defendant was offered his 5 minutes but just said ''I am here for my invoice and blah blah'' (something about the Bill of Rights delusion about common law) and the barrister was allowed to reply to at least slap that down, then DJ Grand summed up.

We knew we'd won but it was a while until he confirmed that the issues with the £60 'tainted the entire claim' and that the court was right to strike the claim out. He went into a lot of detail:

- he had a swipe at the BPA and said the Supreme Court paid surprisingly high regard for a CoP that was written by the PPCs, for the PPCs, and so he was not persuaded by the Claimant's submissions that the BPA CoP allows that up to £70 can be added for debt collection;

- he observed how wrong it was that so many undefended cases go to default judgments, allowing parking firm claimants the full claim amount and that was excessive;

- he found the Defendant's case correct on the POFA paragraphs cited and the Beavis case paragraphs cited, and that even if he was wrong about that;

- he was persuaded that all 3 of the CRA 2015 paragraphs cited had been clearly breached;

- so the whole claim was tainted and remained struck out. It follows that the same applies to Mr the second Defendant's case (he stayed quiet as he was not following our arguments at all).

The barrister asked for leave to appeal, which was refused and DJ Grand warned him he should be telling the Claimant not to try as there are no grounds, but they could of course apply if they wished, as is their right, to the Senior Circuit Judge.

CEC16 and the second Defendant were each granted the top ceiling of £95 ordinary costs, plus CEC16 claimed his parking and travel.

Costs on the indemnity basis were not allowed, despite trying for it.

So it was 2 - 0 to the Defendants at full time, and no penalties allowed.

ParkingMad and I went for lunch to celebrate with a lemonade and an apple juice! Transcript to follow when we get it.

This post has been edited by SchoolRunMum: Tue, 12 Nov 2019 - 14:16
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post Tue, 12 Nov 2019 - 14:11
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Sheffield Dave
post Tue, 12 Nov 2019 - 21:06
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Well done!!!!
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