Brittania/BW Windscreen PCN Claimform - west Quay Retail Park Southampton SO15 1BA ***Claim Dismissed***

[commonsensehasdied]

I got it somewhere around the 18/19th?

[dx100uk]

no that is not their witness statement.

 

not even in the correct format for it to be a WS

 

dx

 

[FTMDave]

So you didn't tell us for 16 days including two weekends when people could have helped with your Witness Statement.

 

Your refusal to put work into your case has now come back to bite, and bite hard, a WS is an important legal document and can't just be thrown together in a few hours.

 

You mention personal issues but sadly the court won't give a monkey's.

 

Thursday is a Bank Holiday where I live and I can use some of that free time to help you, but that will mean you missing the court deadline.  Generally a short delay will be overlooked by the court for a Litigant in Person.  Your call.  

 

 

[commonsensehasdied]

@FTMDave - I can only apologise again. I'm also in the middle of a very bitter divorce and child custody struggles. There's only so much I can cope with mentally and financially, but I will gladly take any help offered. I appreciate the court won't give a hoot about my personal circumstances, I just don't want this going sideways because of my inabilities. 

I was told that all WS follow pretty much the same format, but I've really struggled to find more than one or two WS that are the same circumstances as mine to be able to compare them, and more importantly, I haven't really understood what's written within them.

 

@dx100uk - That's all I've received from them, with the addition of several of the photos included in the original correspondence I uploaded. Does this make any difference? 

Edited December 5, 2022 by commonsensehasdied

[FTMDave]

Two further things.  As dx says, the pathetic attempt at a threatening letter by BW Legal in post 40 is not a WS. 

 

Have a look at the WS in post 191 here to see what they look like  

 

Hx Parking/gladstones CCJ - Exceeded 1hrs Free - McDonald's Alma Leisure Park Chesterfield CCJ issued thanks to useless parking fines ltd ***Claim Dismissed*** - Page 8 - Private Land Parking Enforcement - Consumer Action Group

 

(sometimes the post count gores wonky, if it's not post 191 it'll be a couple of posts above or below).

If they haven't sent theirs yet, that's good news, it's likely to be late, which means they can hardly moan about yours being late.

Did you send a CPR request when you got the claim form?

I'm at work now but promise to post in detail this late this evening about your WS.

[commonsensehasdied]

@FTMDave what's a CPR request?

[FTMDave]

A CPR request is mentioned on every single private parking claim form thread.

 

It's a request to the fleecers for documentation connected to their Particulars of Claim.

 

They generally never respond so we use the lack of response to embarrass them in the WS, especially about planning permission and their contract with the landowner.

 

More later.

Edited December 5, 2022 by FTMDave
Typo

[Gick]

CPR = Court Procedure Rules.

CPR 31.14 is a request for information that appertains to a court claim; the recipient is not obliged to honour that request, but failure can be used in your witness statement. They will however need to provide the information in THEIR Witness Statement if they wish to rely on it in court.

[honeybee13]

Or Civil Procedure Rules, Gick?

 

HB

[dx100uk]

i will also guess you didn;t do this either?

 

get a CPR 31:14 request running to the solicitors

https://www.consumeractiongroup.co.uk/forum/showthread.php?486334-CPR-31.14-Request-to-use-on-receipt-of-a-PPC-(-Private-Land-Parking-Court-Claim

type your name ONLY

no need to sign anything

[commonsensehasdied]

@FTMDave and @dx100uk I'm assuming I'm way too late to send a CPR request?

[brassnecked]

send it anyway, might still be useful

 

[commonsensehasdied]

Can the CPR request be issued via MCOL - or do I need to send a hard copy to the claimant?

Asking as I'm conscious of needing to submit my WS by Wednesday at 1600hrs latest. 

[dx100uk]

has nothing to do with the court

 

its from you to the claimants solicitors.

but you'd have know all this if you'd bother to read up in the 6mts you've been here.

 

and no you do NOT give the fleecers an email address either.

 

post 1st class get free proof of posting from any PO counter

 

but you've already read to do that as you read all the posts in the link i sent you anyway?? or did you?

 

dx

 

[commonsensehasdied]

@dx100uk 

I'm still ploughing my way through the McDonalds parking thread and how that WS is structured.

I can't (or at least I think I can't) use any of that because in my case, the claimant hasn't filed or supplied a WS for me to be able to pick apart?

 

I was more asking if that was a quicker way to get the letter to the claimants rather than using hard copy via post. It'll be in at the post office 1st thing tomorrow. 

 

I appreciate you're frustrated at me and my apparent tardiness, but I'd really appreciate your help now and judgement of me later. Right now, I just need spoon-feeding and held by the hand, literally.

Thanks

[FTMDave]

22 minutes ago, commonsensehasdied said:

Can the CPR request be issued via MCOL - or do I need to send a hard copy to the claimant?

Asking as I'm conscious of needing to submit my WS by Wednesday at 1600hrs latest. 

After the loss of 16 days including two weekends I don't think you've got a hope in hell of getting a decent WS submitted by 4pm on Wednesday.

 

That's why I suggested 4pm on Thursday to take advantage of the time freed up by a Bank Holiday at this end.  You should be alright as (a) the courts give leeway to Litigants in Person and (b) the fleecers are likely to be late too.

 

But it's your call and you'd better decide straight away.

[FTMDave]

2 minutes ago, commonsensehasdied said:

Right now, I just need spoon-feeding and held by the hand, literally.

Thanks

Onto it in a few minutes, I've just knocked off work.

[commonsensehasdied]

@FTMDaveYes please - thought I'd already asked for your help in post 54. 24hrs late is better than the absolute zero I currently have.

[FTMDave]

OK, have a look at the attachment in post 110 here  https://www.consumeractiongroup.co.uk/topic/421775-vcs-spycar-pcn-paploc-now-claimform-no-stopping-east-midlands-airport/page/5/#comments

 

If it's not in post 110 it'll be a couple of posts above or below, sometimes the post count goes wonky.

 

This is a superb WS, the layout of which can be your base.  By that I do not, absolutely do not mean you should use the same legal arguments, as the case is very different from yours.  I mean the layout.  Look at how Alaska101 sets out the introduction and the conclusion.  And how the clear headings show the judge instantly which legal arguments are being used.  

 

More in a mo ...

[FTMDave]

Your sections need to be -

 

1.  Sequence of Events - explain briefly how you got the ticket and how you tried to reason with the Claimant.

 

2.  No locus standi - the Claimant is not the landowner and you do not believe they have the authority from the landowner to bring claims in their own name.  You requested to see their contract with the landowner via CPR request but they refused to answer.

 

3.  Illegal signage - you believe they do not have planning permission for their signs which is a criminal offence.  No contract can be made where criminality is involved.  You requested to see proof of planning permission via CPR request but they refused to answer.  You have checked with the planning portal of the ????? council and have found no indication of planning permission being granted.

 

4.  De minimis.  You paid.  The Claimant suffered no loss.  You have proof.  You have bent over backwards to communicate such proof to the Claimant.  You believe the proof of payment was displayed but even if it had fluttered off the windscreen it would still have been clearly visible in the vehicle and the fact it might not have been exactly on the windscreens is "de minimis".

 

5.  Double Recovery.  Here you can nick almost all of Alaska101's section as the fleecers always make up extra sums and in this regard at least Alaska101's case is identical to yours.

 

You can finish with Alaska 101's Statement of Truth on page 8 of their WS.  Head it "Statement of Truth", Alaska 101 forgot to do so.

 

Don't worry about not using legalese.  The court wants your own words, not legalese.  if you can knock something up for this time tomorrow then there are a number of Night Owls, like me, who are on CAG this time of night and we can tweak further while aiming for the Thursday 4pm deadline.

 

Comments will follow from me and others regarding details in the various sections.

[FTMDave]

Regarding (2) and (3) your argument is weakened by not giving them a chance to respond to the CPR request.  Your call.  Either cut out anything to do with CPR, or include the CPR mentions and hope the court doesn't pick up on the letter being sent too late.  Tough one.  Your call.

 

Regarding (3), if you haven't already done so get on to the planning permission portal of the appropriate council tomorrow.  You don't have to spend hours.  if you can't find PP in 10 minutes that'll be 'cos it isn't there.

 

Regarding (4), which is your ace, include what is stated in the first paragraph of 6.2 of the government's Code of Practice  https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice#payment-of-a-parking-tariff  which was set up following the Parking (Code of Practice) Act 2019.  Point out that although the Code is being legally challenged on (a) the amount of allowed parking charges and (b) the addition of debt collection charges, it is not being challenged on this point.

 

 

 

 

[FTMDave]

A couple of final things to close the evening.

 

When you have knocked up a draft WS, given time is of the essence, please post it direct to thread like in post 81 (more or less, might be a few posts above or below) at  https://www.consumeractiongroup.co.uk/topic/446738-hx-parkinggladstones-ccj-exceeded-1hrs-free-mcdonalds-alma-leisure-park-chesterfield-ccj-issued-thanks-to-useless-parking-fines-ltd-claim-dismissed/page/4/#comments

 

That way the regulars can tweak directly, without faffing around with attachments.

 

Also, in the ILLEGAL SIGNAGE section of that WS there is mention of the laws the PPCs break if they don't get PP, which you can use.

[commonsensehasdied]

ok - so 1st draft below - a few tweaks needed and the full picture pack to be referenced in Section 1 which is to be added, but how's this for starters?

 

xxx  & xxx Court

 

BETWEEN                                     xxx (Claimant)

                      

                                                                                                AND

 

                                                                                  xxx (Defendant)

                                      

 

Witness Statement of MR. xx

 

Introduction:

1.       I, Mr xxx, am the Defendant in this claim. I represent myself as a litigant-in-person, with no formal legal training. Everything in the following statement is true to the best of my knowledge and belief.

 

2.       In my statement, I shall refer to exhibits within the evidence section supplied in this bundle, referring to page and evidence numbers where appropriate.

 

3.       I am the registered keeper of the vehicle in question in this case which is xxx

 

4.       Sequence of events:

 

4.1. On the afternoon of xxx at appx. xxxhrs I entered the car park at West Quay Retail Park, Southampton, eventually finding a parking space outside of the xxx store.

 

4.2. As per the terms and conditions of parking, a parking ticket was collected from the parking ticket machine outside of the xxx store. There was a short delay in being able to get a ticket from the machine due to the numerous people waiting in front of me.  

 

4.3. The valid ticket was issued at xxxhrs and usable for xxmins

 

4.4. Terms and Conditions placed above the ticket machine instruct that ‘a valid ticket is to be displayed in the windscreen of the vehicle.’ (T+C’s signage picture reference number xxx)

 

4.5. The valid ticket could not be placed on the windscreen as directed, as the ticket had no adhesive backing to be able to comply with the posted Terms and Conditions of Parking.

 

4.6. The valid ticket was placed on the dashboard of my vehicle in plain sight as per the instruction written on the ticket itself ‘Display clearly on dashboard this side up.’ (valid ticket picture reference number xxx)

 

4.7. On return to my vehicle at appx xxxhrs, it was noticed that a Parking Charge Notice was affixed to the windscreen of my vehicle. (valid ticket picture reference number xxx)

 

4.8. A short attempt was made to locate the parking attendant who had issued the Parking Charge Notice in order to show the displayed ticket they had clearly missed, but no parking attendant could be located.

 

5.       An appeal was launched with the Claimant on the xxx where photographic evidence of the valid ticket was provided to the Claimant. The Claimant dismissed the appeal by letter dated xxx 2021 stating ‘The parking charge notice was issued to your vehicle because you failed to display a valid ticket. The signage in the car park clearly states that a valid ticket must be displayed on the dashboard of the vehicle. Although a ticket has been provided, it was not displayed as per the terms and conditions.’

 

6.       Multiple attempts have been made to reason with the Claimant via email – namely that a valid parking ticket was gathered, that the ticket was clearly displayed in accordance with the confusing signage. (email pics dated xxxx21-4 to xxx)

 

7.       Multiple requests have been put to the Claimant to provide photographic evidence of the vehicle dashboard – to date, none have been provided, only photographs of the vehicle windscreen. (email pics dated xxxx21-4 to xxx)

 

8.       Following several months of a number of intimidating letters and emails from the Claimant including mention of additional costs, debt collection, court proceedings, CCJs and effects on employment, I received an N1 Claim Form on the xxx 2021.

 

Locus Standi:

9.       The Particulars of Claim submitted by the Claimant state that claim is for “A breach of contract for failing to comply with the terms and conditions as displayed.”. It is contended that the Claimant is not the landowner and they do not have the authority from the landowner to bring claims in their own name.

 

10.      The Claimant has failed to show any contract with the landowner which authorises them to bring claims in their own name.

 

Illegal Signage:

10.    It is contended that the Claimant does not have planning permission for their signs which is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned. 

 

11.    Checks have been made with the planning portal of Southampton council (will be confirming this tomorrow morning) , and no indication has been found of planning permission being granted.

 

12.    The Claimant has failed to show any proof of planning permission.

 

De Minimus:

11.   A valid ticket was provided and displayed.  The Claimant suffered no loss. Multiple attempts have been made to communicate such proof to the Claimant. 

 

12.   The government’s private parking code of practice, set up following the Parking (Code of Practice) Act 2019,  states ‘6.2 Pay-and-display Where relevant obligations require the parking tariff receipt to be displayed in the parked vehicle, in addition to the information given in 6.1.2, the parking operator must ensure the information provided includes clear instructions on where the receipt is to be displayed. A thorough check through the windscreen and side windows of a parked vehicle must be conducted before a notice of parking charge is issued for non-display of a receipt by a parking attendant.’ 

 

Whilst the Code is being legally challenged on (a) the amount of allowed parking charges and (b) the addition of debt collection charges, it is not being challenged on this point.

 

13.   It is contended that the instructions provided on where the receipt was to be displayed were conflicting and confusing.

 

14.   It is contended that a thorough check through the windscreen and side windows took place and the ticket must have been seen.

 

Double Recovery:

16.   As well as £50 legal costs, The Claimant seeks recovery of the original £100 parking charge (need to check amount) plus an additional £60 described as “contractual costs and interest” or “Debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4. (page 33, Exhibit 06)

 

18.   Schedule 4 of the Protection of Freedoms Act 2012, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £XXX

 

19.   Unless the Claimant can clearly demonstrate how these alleged additional costs have been incurred this would appear to be an attempt at double recovery.

 

20.   Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking 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 on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 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 v 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.''

 

21.   In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, 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 ParkingEye v Beavis. 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...''

 

22.   The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

 

23.   It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4)

 

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

 

25.   I invite the Court to dismiss this Claim in its entirety.

 

26.   At the time of filing this Witness Statement, i.e. 3pm on 8 December, the Claimant, who is represented by professional solicitors, has not provided me with a Witness Statement.  Although I am a Litigant-in-Person I have done my best to respect the Court's orders.  The Claimant has not.  I would respectfully request the Court not to admit any late Witness Statement eventually filed by the Claimant.

 

Statement Of Truth:

26.   I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Edited December 6, 2022 by FTMDave
Extra info added

[FTMDave]

You don't mess around when you jump into gear, do you?  Great work.

 

Bits of tweaking can be done today by the regulars when we have time.

 

I take it no WS has turned up from the fleecers this morning?  If so good news re the timing.  There is no reason to rush to send yours if theirs hasn't arrived.

[FTMDave]

That really is superb work.

 

I've cut out the addresses at the start which aren't necessary.  I've also cut out your (15) and (17) which aren't applicable to your case.

 

Of course I've knackered the numbering but that can be dealt with later.

 

I see you've decided not to mention CPR.

 

I've put my tweaks in red so you can easily see them.

 

In (6) and (7) you refer to "multiple" attempts.  You do the same in (11).  It might be an idea to actually count the number of attempts you made to make the charlatans see sense and actually include that number in (11) rather than say "multiple" again, just to show how ludicrous the whole thing is and how you have bent over backwards to be reasonable.  

 

Good spot of the windscreen/dashboard conflicting instructions.

 

I've put in a provisional paragraph at the end attacking the fleecers for delivering their WS late, obviously that will have to go in the bin if their WS ever turns up.

 

Work calls now.  See what the other regulars have to say during the day.

Edited December 6, 2022 by FTMDave
Right balls-up by me