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    • Good thinking! I only requested the telephone hearing (in the body of the email) and will send the further note tomorrow to cover all bases!
    • @FTMDave i am attaching the photographs of the Alama park please have a look. Checking your previous post where you corrected some line and suggest some but i could not understand. Is it possible if you edit and delete irrelevant lines.    I have edited little bit but not sure what to add and what to look for   Mr XXX, of xxx and I am the Defendant against whom this claim is made. 1.1. I was the registered keeper of the vehicle XXX. 1.2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.   INSUFFICIENT & CONFUSING SIGNAGE  This is likely to be one of your aces so will need a lot of work once you get photos.  The fleecers have also shown a plan where they claim there are signs (their WS post 12, PDF page 15 which you need to confront).   2. I confirm that i was the registered Keeper of the vehicle which is in question in this case and the vehicle was parked in Alma leisure centre Chesterfield. The vehicle was parked there because the driver went to McDonald’s for eat in (the bank statement proof exhibit 1).   3. There were no clear signs at the entrance nor in the car park, it was night time and weather was not clear as well.   3.  Even if the driver had seen the signs, they would have been extremely confusing.  A car is normally allowed to be parked for five hours, yet after midnight this is changed to one hour.  This begs the question for how long a motorist entering at 10pm for example is allowed to stay.  Is it for five hours until 3am or until 1am?   3.1. The PCN/NTK states "period of parking 00:02:05".  It is common sense that a couple of minutes was needed to enter the complex, find McDonald's and find a parking space, before the period of parking began, so it was likely the car entered the car park before midnight allowing the driver to park the car there for five hours.   4.  Even if the driver had seen the signage - they did not - the mention of a £100 charge is literally the last word on the last line of a long board of text.   4. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.     UNFAIR TERM   4.  In an interview with the local newspaper (exhibit XXX) Ms Ellie Berkeley, HX PCN administration team leader, said: “The five-hour maximum stay prevents workers from close by abusing the land and parking there for free, without using the shops on site" which makes sense.   5.  This therefore begs the question of why this limit is cut by a massive 80% after midnight when the cinema and eateries are still open.  The driver indeed ate at McDonald's.   6.  Ms Berkeley continued: "Five hours is sufficient time to visit the cinema and also eat at a restaurant".  Certainly five hours are sufficient.  One hour is not.    7.  I would maintain this is an unfair term under the Consumer Rights Act 2015 part 2 section 62 (6) ""A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer".  Such a term has absolutely nothing to do with efficient management of a car park and everything to do with trying to catch diners or cinema-goers out and thus have an excuse to issue PCNs.   NO KEEPER LIABILITY   5. The Particulars of Claim do not clarify in what capacity they believe I am liable but state that the Defendant is “liable as the driver or keeper” of the vehicle. This appears to be “fishing” for liability.  Is this really in the PoCs? - you need to look and find out. Where to look on PCN letter?   The rest of your section is about the use of POFA at airports which is completely irrelevant.    Adapt LFI's suggestions re POFA and keeper liability -   First is the fact that they must have a parking period and it is quite clear that entering and leaving the car park does not constitute a parking period since some of the time the motorist is either driving around looking for a parking spot then leaving the spot and driving to the exit. All that takes time so that is one fail.   The other fail is in their wording when they are trying to transfer the liability of the alleged debt from the driver to the keeper. They are supposed to include at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)". That in itself makes it non compliant but the fact that they haven't got a parking period means they haven't met the applicable conditions.   PROHIBITION  This deals with no stopping cases.  Yours in not no stopping so it is completely irrelevant.   LOCUS STANDI   You have quoted a different contract in a different place with a different PPC.  You need to read and try to find holes in the contract they produced (post 12, page 15 of the PDF for anyone looking in). What shall i add here   Adapt LFI's suggestions -   Looking at their contract, the names of the signatories and their positions in their respective  companies have been redacted. You do need strict proof of who actually signed. There is no specific authorisation from the Client to allow Court action in pursuit of non payers. In section 11 which is like an addendum it states" the Company shall provide parking control" but doesn't state if that includes legal pursuit as well and it does not appear to be signed.   ILLEGAL SIGNAGE   8. After checking, I have found out that there in NO planning permission granted for said signs, therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.   LFI's suggestion -   They are supposed to comply with the Law and the IPC code of Conduct and they have done neither. The new Private Parking Code of Practice  draws attention to it as well  s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."   ABUSE OF PROCESS  I've cut some bits out as the CoP hadn't been published when the fleecers went after you.  Are you sure the Unicorn Food Tax in the PoCs is £60? ( I couldn't understand this)   9. The Claimant seeks recovery of the original £100 parking charge 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.    9.1. As part of the provisions of the Parking (Code of Practice) Act 2019, on 07/02/2022 a new Code of Practice was published by the government, designed to prevent these “rogue” traders from "ripping people off" (the minister's words) with extra charges, which have been deemed unfair (https://www.gov.uk/government/publications/privateparking-code-of-practice/private-parking-code-of-practice).    9.3. Section 9 of the new Code of Practice, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued.”   9.2. Even before publication of the government’s Code of Practice, Parliament intended that private parking companies could not invent extra charges. PoFA Schedule 4, 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 £100.    9.4. 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.’’    9.5. 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 HamiltonDouglas 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...''    9.6. 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.     Statement of Truth    Alma Leisure.pdf Alma leisure centre.pdf
    • One thing I forgot to mention is I'm in Scotland, does the process change or is it then same? 
    • A copy of that to transunion should get it fixed in 24 hrs imho.    
    • I haven't got time to read through everything you sent - but it looks superb.   I presume you didn't send the covering letter we prepared but rather a request for a telephone hearing?   What worries me is that you are cutting it ultra-fine with this not attending court stuff.  Remember if you don't attend without informing the court properly the judge is entitled to just chuck your application in the bin.  Court staff are overworked and may read your mail days late.  I would very strongly suggest sending this tomorrow before 12:30 should you hear nothing tomorrow morning:   Due to being abroad I will not be able to attend the hearing and am therefore informing the Court more than seven days prior to the hearing Pursuant to CPR 27.9 No disrespect is meant towards the Court.  I have requested a telephone hearing with the consent of the Claimant but at the time of writing have not yet received a reply.  Should the telephone hearing request not be granted I would ask that the Court decide regarding set aside based on the papers I have submitted.  
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legal advice needed


benny1970
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Hello

 

Not sure if in right section. I am suing a company. They posted back the defence and a part 18 request. The defence makes my case very weak but the part 18 is really horrible.

 

As the claimant how can i end my claim causing min problems to me. Can I take out a court order to end the claim? If yes how do I word it etc? Will this end the part 18 on the defence part? It is a small claim.

 

thanks

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Dear benny1970,

 

Thank you for your post.

 

Could you please provide more background information to your case.

 

I am sure that you know that CPR Part 18 is a request for further information, which means that the Defendant feels that you have provided insufficient information about the nature of the Claim.

 

The easiest way to end the Claim is write a letter to the Small Claims Court stating that you would like to withdraw your Claim. You will not be liable to pay costs to the other side, as this is a Small Claims Court Claim.

 

If you withdraw your Claim, you will not need comply with Part 18 request.

 

Finally, if you withdraw a Claim you will not be entitled to have Court fees refunded back to you.

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Hello

 

Not sure if in right section. I am suing a company. They posted back the defence and a part 18 request. The defence makes my case very weak but the part 18 is really horrible.

 

As the claimant how can i end my claim causing min problems to me. Can I take out a court order to end the claim? If yes how do I word it etc? Will this end the part 18 on the defence part? It is a small claim.

 

thanks

 

Good evening Benny

 

If you wish to discontinue the claim then you will need to file a notice of discontinuance (form N279) and serve a copy of the same upon the defendant.

 

Please be advised, you may be liable for the defendant's cost (you say he has filed and served a defence) - see CPR Part 38 and note that the defendant may apply to have your notice of discontinuance set aside. A court may set aside a notice of discontinuance as an abuse of the process of the court.

 

Kind regards

 

The Mould

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It is not necessary to make an application for Notice of Discontinuance via Form N279, since a letter of withdrawing the Claim to Small Claims Court would suffice.

 

I can not remember for certain, however under CPR 38.6, liability for costs will not apply if its a Small Claims Court Claim.

 

Notice of discontinuance will mean that benny1970 will be liable for costs, which is something I presume benny1970 wants to avoid.

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It is not necessary to make an application for Notice of Discontinuance via Form N279, since a letter of withdrawing the Claim to Small Claims Court would suffice.

 

I can not remember for certain, however under CPR 38.6, liability for costs will not apply if its a Small Claims Court Claim.

 

Notice of discontinuance will mean that benny1970 will be liable for costs, which is something I presume benny1970 wants to avoid.

 

 

 

38.6

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

 

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

 

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

 

 

(3) This rule does not apply to claims allocated to the small claims track.

 

(Rule 44.12 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)

 

Regards

 

Andy

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A part 18 is not applicable once the claim is tracked IE SCT in your claim so you need not respond.

A simple letter to the court to advise no continuence without admittance of liability will suffice.

 

Regards

 

Andy

Edited by Andyorch

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Sorry for poking my nose in but I am reading a lot of threads as a personal learning process. - If the defence has only just been submitted, surely the claim will have not been allocated to any track yet....I tought that happened later (after allocation Q) and until then one can't assume it would be SCT, or can one?

CAG has helped me so much since I joined. Based on what I have learnt from others on here and my own experiences, I try to chip in and help others from time to time. I am not an expert and give my opinion only. Always check with the more experienced CAG members before making important decisions.

:-)

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Sorry for poking my nose in but I am reading a lot of threads as a personal learning process. - If the defence has only just been submitted, surely the claim will have not been allocated to any track yet....I tought that happened later (after allocation Q) and until then one can't assume it would be SCT, or can one?

 

 

As the defendant as filed a defence we can only assume that AQs would be in process unless the Claimant as not responded to their defence which in that case yes Mr H it is technically trackless.Unless otherwise ordered by the Court it would be presumed to be a SCT claim and treated as such until allocated.

 

Andy

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You are liable for costs now if you discontinue as it has not been allocated to a track:

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/practice_directions/pd_parts43-48.htm#IDAWGB2

 

The best time to discontinue would be after you file the AQ and it has been allocated to the small claims but that incurs a charge (to file the AQ) and does not stop the other side from seeking their costs under CPR 27.14(2)(g):

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part27.htm#IDAOBHCC

 

So you have to check whether you complied with pre-action protocols and whether you have acted unreasonably in litigating without following process:

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/practice_directions/pd_pre-action_conduct.htm

 

If you need legal advice, may I suggest you seek professional legal advice as to the cost implications of discontinuing the claim and whether a consent order might be useful here to mitigate that.

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Hello all,

 

Just had advice from a solicitor saying that because it has not been allocated a track and the value i am claiming is less than £5000 it will be considered as small claim until I complete and send AQ to the court. I was told I can withdraw my case at this stage by writing a letter to the court. The otherside will not be able to claim costs as still considered small claim.

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I don't necessarily agree with your solicitor as the white book and CPR on costs state otherwise but if the other side try anything as regards costs, you can blame the solicitor for negligence so they should cover your costs. ;)

 

Wish you well. :)

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