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    • OK, let's get stuck into these damn fleecers.  Building on last night's version, new bits in red.   LFI, can you check I've understood the POFA bits properly that you suggested (4.  NO KEEPER LIABILITY)?  Thanks.     IN THE COUNTY COURT SHEFFIELD    CLAIM NO: XXXX   HX PARKING LTD  (CLAIMANT) VS XXX (DEFENDANT)   Date: 3rd May 2022   Witness Statement   1. I, Mr XXX, of xxx 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   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 (bank statement proof exhibit 1).   2.1. There were no clear signs at the entrance nor in the car park, it was night time and weather was not clear as well.   2.2.  In their Witness Statement opposing my set aside application the Claimant includes a site plan showing the position of their signs and a close up of a sign to make it look like it is featured in the Guinness Book of Records as the largest billboard in world history.   2.3.  The reality for the motorist is completely different.  I attach photos, some from Google Earth but most taken by myself, which show what a motorist sees when approaching the site in daylight (exhibit 2).  There is no sign at the entrance.  The car then drives past a gym and a cinema without encountering any signs.  When then parking in the car park outside McDonald's once again there is dearth of signage.  Admittedly a motorist who perhaps came out with binoculars might just about be able to make out signs in the far distance mounted on various buildings.   2.4.  The driver visited the site around midnight.  I further attach photos taken at night from the McDonald's area (exhibit 3) and defy whoever is representing HX Parking at the hearing to point out the signs the driver should have read.  There aren't any.  I have not doctored these photos in any way or deliberately not photographed visible signs.  There simply are no visible signs.   2.5.  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?   2.6. 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 is likely the car entered the car park before midnight allowing the driver to park the car there for five hours.   2.7.  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.   UNFAIR TERM   3.  In an interview with the local newspaper (exhibit 4) 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.   3.1.  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.   3.2.  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.    3.3.  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   4. 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.     4.1.  The Claimant's PCN does not comply with Section 4 of the Protection of Freedoms Act 2012.  POFA states that a parking period must be stated 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.   4.2.  To transfer liability of the alleged debt from the driver to the keeper, in their PCN the Claimant must include the wording at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)" but they have not. That in itself makes it non-compliant.   LOCUS STANDI   5.  Looking at the contract with the landowner which the Claimant included when opposing my set aside application, the names of the signatories and their positions in their respective  companies have been redacted.  The Claimant is put to strict proof of who actually signed.   5.1.  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 does not state if that includes legal pursuit as well and it does not appear to be signed.   ILLEGAL SIGNAGE   6.  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.   6.1.  The Claimant is supposed to comply with the law and the IPC Code of Conduct and they have done neither.  The new government Private Parking Code of Practice draws attention as well to s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."   ABUSE OF PROCESS   7. 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.    7.1.  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).    7.2.  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” (exhibit 5).   7.3.  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.    7.4.  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.’’   7.5.  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 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...''    7.6. 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    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.
    • Hi dx100uk. I didn't know about the above. Do I request a new CCA from Cabot? Are you  also suggesting that I stop payments to Cabot until this is sorted out?  I have since then built up a good credit rating from the reference agencies  and would not like to turn this sour again. It took some time to get straight. Allets.
    • ah! FCA their new name (well 15yrs ago) for the FSA.   interesting they helped here this must mean they have had a series of complaints then.   dx      
    • so YOU have already responded to the TfL letter NOT you mother? YOU need to respond by begging not her!!   have you still the original TfL letter please.?   p'haps if you have please scan it up to PDF read upload   and also do this with the summons you have  is this single justice procedure hearing with 3 options as that other thread you posted on above?   dx      
    • I didn't know about this until last week, when they issued a court date. The incident happened in January and I was unaware of this, but my mum responded to them. She emailed them saying how it wasn't my fault, she's the one who told me to take the pass and to please let it go.    I was only told last week, when we got a requisition to attend the magistrates court. I don't know where to go from here. I tried calling the solicitor named in the letter, but he told me to contact his team, as they are the ones dealing with it. He also told me that it would be unlikely to settle out of court as this is a criminal offence. But I don't really understand.    Should I send them another begging email?     
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Barclaycard PPI but account been in dispute for 4.5 years


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Hi Steampowered,

 

Attached - when i did these I was trying to keep things concise and to the point and obviously included all the documents such as the calculation sheet, how the averages were calculated etc and all copies of correspndance as per the post a few up with all the docs attached. Slightly worried now as I've not used any legal quotes or legal points within these and perhaps should have done at the time! really appreciate your assistance with this!!

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I attach a reworked witness statement. Please read carefully and make sure you agree. It is worded on the basis that PPI was added without your consent (which would put you in a much better position than merely alleging it was missold, I am assuming they have not provided any documents showing you consented to the PPI).

 

I am slightly concerned about the Limitation point. Have tried to deal with it in the witness statement to the maximum extent possible, and surprisingly there is limited law on this exact point, but please read and digest http://www.sghmartineau.com/publication_event/updates/DRG-Bulletin-The-Limits-of-the-Limitation-Act-December-2012.pdf. Not a binding or fully argued case but worth considering.

 

I am sure you know this already, but as you are claiming more than 10k this is not small claims track. This is significant because it means you will be ordered to pay Lloyds' legal costs if you lose. I do not want to discourage you (and any costs would probably be covered by the PPI payment even if you only get the 6k), it is probably a risk worth taking, but something to be aware of.

Edited by steampowered

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[ATTACH]43642[/ATTACH]

 

[ATTACH]43642[/ATTACH]

 

Sorry, had technical troubles with the attachment. Hopefully it is on this post.

Edited by steampowered

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go advanced/manage attachments

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Steampowered- you've done a lot of work on this! thank you so much, i seriously appreciate this! please PM your address details so I can send something to thank you (If Ok with you!). I will absolutely be donating should I be successful too!

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No worries - there is a wider significance here because this could be a very helpful precedent for other PPI claimants if you manage to get a positive judgment. Many people have been too scared to take PPI claims to court after the decision in Harrison v Black Horse, even though that case was decided on the very narrow issue of secret commissions paid by the insurer to the bank. Fingers crossed for you.

PLEASE HELP US TO KEEP THIS SITE RUNNING

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No worries - there is a wider significance here because this could be a very helpful precedent for other PPI claimants if you manage to get a positive judgment. Many people have been too scared to take PPI claims to court after the decision in Harrison v Black Horse, even though that case was decided on the very narrow issue of secret commissions paid by the insurer to the bank. Fingers crossed for you.

 

Thank you again, just feel bad as you've practically re written that and I appreciate how much that would have taken you to do!

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One last question - everything ready to go off now, should I include a covering letter to the court? and I assume I need to send copies of everything I am sending to the court inc witness statement to BC solicitors as well?

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  • 5 weeks later...

Update on things, with the court date now only 10 days away I've received the attached replay from BC solicitors.

 

completely disagree with most of it as normal.

 

Main issue from my point -

 

BC admitted they mis sold- their offer wasn't accepted by myself because they provided no calculations to how it was arrived at and it goes against the FOS redress.

My claim is exactly that, I don't know how I could make it more simple to these muppetts!

 

I've claimed for x - they've offered y with no explanation, I've asked for an explanation, they've failed, I've taken to court.

 

There is no mention at all in the offer letter it's a gesture of goodwill, clearly states they admit it was mis sold and they want to put me back in the position I would have been in without ever having it. That's all I'm asking for!

If they wanted to rely on any statute time barring - why did they not do this originally then! the fact they admit the mistake surely must mean that counts as an acknowledgement!??

 

I could really do with some help as to a reply - sounds like they're not particularly up for the court hearing - I don't think they're winning that anyway and I'm happy for it go the whole way now as I can counter everything said with valid and legal responses.

 

any help and advice gratefully received!!

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my draft reply attached - any guidance here? I presume this reply can't be included at the hearing? If so, I'll make it a little less sarcastic in certain areas!

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I don't think you need to provide a substantive reply to this. Court proceedings are conducted through formal documents: the Particulars of Claim, Defence, witness statements and evidence shown to the judge in the trial bundle. You do not litigate cases by writing letters; letter tennis is pointless. As the letter includes a settlement offer I suspect it is covered by without prejudice privilege and will not be shown to the judge at all (except on the issue of costs after the case has been decided).

 

In any event, the letter is just repeating points which have already been made. As I recall your position on these is set out in the witness statement. They are right to say that many of the points made in your WS should have really been in the Particulars of Claim, but as the POC is clear and as you are a litigant in person I doubt the judge will care.

 

I suggest something like the following:

 

"I do not propose to litigate this claim by correspondence. Nor do I intend to cause your client unnecessary legal costs by repeating arguments which have already been made. You have my witness statement and I look forward to vigorously contesting your allegations at the hearing of your strike-out application.

 

Your settlement offer is noted but not accepted. As has been explained on countless occasions, I would very much like to settle this dispute. All I am asking is to be refunded the payments I have made towards mis-sold payment protection insurance, as has already been acknowledged by your client.

 

This dispute can be settled without further costs if your client would simply make a proper calculation as to the correct level of repayment. I have requested details of the calculation countless times, long before starting litigation. This should not be difficult and would no doubt be far cheaper for your client than incurring further legal costs. You are asking me to consider a settlement offer made without any calculations or any explanations how this has been arrived at.

 

By failing to provide any calculations whatsoever your client has failed to make any serious attempt to solve this dispute. Without any details of how the figure has been arrived at, which I have requested countless times, from my perspective your client may as well have typed random numbers into a calculator.

 

Notwithstanding the above, and given your client's unreasonable failure to provide any explanation or calculations whatsoever, I am prepared to make the following settlement offer: [insert]

 

I confirm that I will be seeking costs as a Litigant in Person and will draw this letter to the court's attention on the issue of costs".

 

As you know - if you lose at the hearing you will be ordered to pay the other side's legal costs, since this is fast track. Bear that in mind. The point of this letter is not to argue about the case, but to position yourself if the worst comes to the worst - if your claim is struck-out you can say you should not have to pay costs because you tried to settle the dispute but they failed to engage.

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No worries, hope it goes well for you :)

 

If their application is rejected, remember to ask the judge to award you costs as a Litigant in Person at 18quid an hour. Come to the hearing armed with a Schedule of Costs listing the number of hours you spent working on responding to the strike-out application (mostly time preparing your witness statement) and any out-of-pocket expenses. I think there is a sticky providing further detail about this.

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Update time and that was a waste of a day!

 

Arrived at court and was told the judge had had to rush off for some sort of personal emergency. Can't be helped I guess but no one else to sit on the case available so back in the system for another date - could be up to 2 months before it's heard now. Not ideal - supposed to be off to the states for 5 months on contract early September so if it goes past this stage and then a hearing looking like I'll have to make a special trip back just for this one.

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  • 3 weeks later...

Hi,

 

Yes meant to update last week but had a date through (nice short notice) last Wednesday for tomorrow PM so off tomorrow PM again and will update tomorrow night on the outcome. Hopefully no judge emergencies this time around!

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Right,

 

Update time then.

 

BC solicitors went along the lines of their witness statements and previous communications that I don't have a legal case and that it's merely a complaint.

 

I defended actions based mainly on the fact BC have failed to provide any detailed calculations to date.

 

The judge completely agreed with this and the net result is that he's adjourned for 28 days and given BC until august 2nd to provide detailed calculations

and an adjournment date for the 6th August.

 

He warned me in summing up I was on very shaky legal grounds with the possibility of having to meet some large costs - they are almost up to £6k now.

 

I plan to defend all costs up until and including today if it carries on to August and the new date by stating that had they provided the calculations

without being directed to by a court then there's every chance I would never had to bring the claim.

 

I did feel out of my depth legally and really didn't know how to counter the arguments in a legal manner.

 

Just merely focused more on the fact BC had upheld the complaint and the calculations side as I could see at the time this side was a key fact.

 

I seriously think if it goes forward to another court date I'm going to need a solicitor in there with me who can argue the legal points which I just can't do.

 

Seeing as where my costs are potentially at already it's not going to make the world of difference by doing it

and I think I'll have a higher chance of success at least getting their costs up to and including today thrown out.

 

We'll we see what their calculations support, however I just see a long drawn out argument about to take place!

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