Highview/DCBL PCN PAPLOC now Claimform - Bradfield Rd, Hillsborough, Sheffield S6 2BW ***Claim Discontinued***

[FTMDave]

You have until 16 September to object to a case heard only on the papers, so that bit is fine.

[FTMDave]

Why did you SAR Highview yesterday rather than on 18 May when it was suggested?  That is more than three months wasted.  They will likely take a month to reply.  Your WS has to be in by 30 September.

[Buggy1234]

I understand your frustration, I’m frustrated with me too. The truth is on the following Monday when I returned to work to print off the SAR something happened at work that put me out of action for a while. Once back on my feet, this wasn’t at the top of list so I do apologise. But a lot has happened between then and now.

I won’t be dropping the ball again I can assure you.

[Buggy1234]

So I am close to when the WS needs to be in and I still have not had any response from highview or DCB in regards to their WS or my SAR.

 

I know there's a Royal Mail Strike Friday which is when my WS needs to be in for so I have worked on the WS below and will send tomorrow. I am slightly stuck as I have no other details to rely on as I hadn't received anything prior to the Claim form sent to me in February. From what I understand, they have to send me their WS and I will get a chance to respond to their evidence, where I am hoping they shoot themselves in the foot and their PCN won't be compliant etc. 

 

Would you mind reading through my WS please and offering any advice?

 

1.        Background

 

1.1       Defendant has not received the original Parking Charge Notice (PCN) referred to in the original Claim Form issued 16^th Feb 2022. Claim no: xxx. The claim form relates to parking at Bradfield Road car park on xxx. The PCN no is xxx. The car registration is xxx. The claim form states no details other than this.

 

1.2       Between the alleged PCN in 2017 and now, the defendant has moved house and changed cars. Changed cars November 2018 and moved house December 2017.  Presumably correspondence from the Claimant arrived at the Defendant's old address after the move.

 

2.        Contract

 

2.1      No Locus Standi, I do not believe a contract exists with the landowner that gives Highview a right to bring claims in their own name, no contract has been produced either after my CPR request (exhibit 1).

Definition of “Relevant contract” From PoFA (Protection of Freedoms Act) 2 [1] means a contract Including a contract arising only when the vehicle was parked on the relevant land between the driver and a person who is- 

(a) the owner or occupier of the land; or 

(b) Authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land. According to https://www.legislation.gov.uk/ukpga/2006/46/section/44

  

2.2      For a contract to be valid, it requires a director from each company to sign and then two independent witnesses must confirm those signatures. 

The fact that no contract has been produced with the witness signatures present means the contract has not been validly executed. Therefore, there can be no contract established between Highview Parking and the motorist.

 

3.        Illegal Conduct – No Contract Formed

 

3.1      At the time of writing, the Claimant has failed to provide the following, either in response to the CPR (Exhibit 1) or SAR (Exhibit 2) request from myself), or in their Witness Statement which I have not received to date. The CPR request was sent 02/03/22 and the SAR request was sent 23/08/22.

 

3.2      The legal contract between the Claimant and the landowner to provide evidence that there is an agreement in place with landowner with the necessary authority to issue parking charge notices and to pursue payment by means of litigation. 

The Claimant has failed to send any documentation through, despite my requests.

 

3.3      Proof of planning permission granted for signage etc under the Town and country Planning Act 1990. Lack of planning permission is a criminal offence under this Act and no contract can be formed where criminality is involved.

 

3.4      I also do not believe the claimant possesses these documents.

 

4.        Unfair PCN

 

4.1      The PCN referred to in the claim for was previously not known about, and when the claimant has been asked for evidence, they have failed to provide it therefore the defendant doesn’t know what they are being charged for. This de facto removes any chance for the defendant to appeal as there is no explanation for the charge.  

 

4.2     The Claimant did not respect PAPLOC and never sent a Letter Before Claim.  

 

4.3      It is also unfair to delay litigation for so long and claim nearly five years' interest.

 

4.4.    Essentially the Claimant is stating that the driver did "something" wrong in the car park five years ago, has not stated what in their Particulars of Claim and has refused to reply to a CPR request and a SAR (the latter putting the Claimant in breach of their statutory duty).  It makes it very difficult to defend the Kafkaesque claim when the Defendant does not know what the claim is for.

 

4.5  The Defendant has sent the Claimant a Letter Before Claim for distress caused by failure to respect their statutory duty regarding the SAR.  This is a particularly serious breach as the Defendant needs the information for a court hearing.

 

4.6  At the time of writing - Friday 30 September - the Defendant, despite being a Litigant-in-Person, has respected the Court's deadline for filing a Witness Statement but the Claimant has not.  The Defendant would respectfully request the Court to disallow as evidence any late Witness Statement from the Claimant.

 

5.        No Keeper Liability

 

5.1      The defendant was not the driver on the date mentioned in the claim form. In this matter, the defendant puts it to the claimant to produce strict proof as to who was driving at the time.

 

5.2      The claimant has NOT received the PCN to date despite numerous requests.

 

5.3      The Claimant is put to strict proof that the PCN complies with Schedule 4 of the Protection of Freedoms Act.  It is impossible for the Defendant to know one way or the other as the Claimant hides this information.

 

 6.       Double Recovery

 

6.1      The original PCN parking charge is unknown, but the sum being claimed is £155 for the parking charge and £50 allowed court/legal costs, the Claimant seeks recovery of an additional £86.33.

 

6.2      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 was not received but I understand is generally £100.

 

6.3      The Parking (Code of Practice) Act 2019 is also quite clear that the maximum amount recoverable is £100.  Government ministers and government web pages explaining the Act refer to extra charges as "a rip off".

 

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

 

6.5      Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery i.e. Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since the 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 all 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 practise 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.”

 

6.6      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 Judgement 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 judgement in Parking Eye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additonal 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.

 

6.7      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.

 

6.8      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).

 

6.9      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.

 

7.        In Conclusion

 

7.1      I believe the Claimant has got used to intimidation tactics and has got greedy. I believe the truth of the matter is the Claimant has used bullying tactics successfully for too long and is therefore assured that innocent drivers will fall into the trap of paying rather than going through the hours it takes to defend themselves. In the process, wasting the time of the Court, the time of the Defendant and everyone else who has advised the Defendant, out of sheer decency to help have a fair hearing and see justice delivered.

 

7.2      I am in disbelief that I’m being heard in this court, defending myself nearly 5 years after an alleged PCN that I only found out about in February 2022. I have had to spend weeks’ worth of my life studying the letter of the law in order to defend myself from this ridiculous attempt at a swindle.

 

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 September 28, 2022 by FTMDave
WS changes suggested

[FTMDave]

I'm at work now and knock off very late but promise to look at the WS later on this evening.

 

Remember you can e-mail the court their copy, so Friday is fine as a deadline.

 

The fleecers' copy is more problematic but if their WS is late they can hardly moan about yours being late too!

 

 

[FTMDave]

OK, rather than copying and pasting everything again I've made some suggested additions above in red.

A question: "Even if “1 Hour Free Parking” could form a contract (which it cannot), it is immaterial. There is no valid contract".  Is this bit relevant to the car park you were in?  Or have you copied it from another WS?  I suspect the latter.

I've removed the numbering from the Statement of Truth at the end.

What you've prepared is excellent, you couldn't have done better with no information.

The fleecers should have replied to your SAR by 22 September.  You could sue them for not doing so.  In fact we have a couple of motorists doing so at present.  I'm thinking that if you send the fleecers a Letter of Claim and quote that in your WS, it will show the judge they are deliberately and unlawfully hiding information and making it impossible to defend yourself.

If you agree and have time tomorrow simply lift the LoC in post 25 here  https://www.consumeractiongroup.co.uk/topic/452147-loc-to-ncp-for-failure-to-supply-sar/#comments  No need to run it past us first, there isn't time.  Stick their PCN no. and the claim form no. in as sub-headings.  Get a free Certifictae of Posting from the post office.
 

 

[FTMDave]

Regarding the deadline - which is 4pm on Friday.

 

So e-mail the court their copy at lunch-time on Friday on whenever is convenient for you.

 

Post the fleecers' theirs on Saturday by 1st class post and get the usual free CoP.  Yes, that would be late, but theirs would be later.   Unless ...

 

... the fleecers' WS drops through your letter-box on Friday or Saturday, in this case e-mail the fleecers their copy too.  That way both WSs arrive the same day.  Yes, we advise not to use e-mail but this is an emergency and in any case this is the last exchange of documents.

 

Obviously this is a work in progress and your WS will need it be fine-tuned day-by-day till Friday.

 

Ideally the fleecers send nowt and you can ask the court to refuse to allow any late WS from them as evidence.  But we'll see.

[Buggy1234]

I just wanted to post a quick thank you! You are incredible and I’m really grateful for all the support here. I’ll let you know what happens if/when I receive anything from the fleecers.

[FTMDave]

14 hours ago, FTMDave said:

A question: "Even if “1 Hour Free Parking” could form a contract (which it cannot), it is immaterial. There is no valid contract".  Is this bit relevant to the car park you were in?  Or have you copied it from another WS?  I suspect the latter.

When you have time could you please answer this question?

 

Also did you decide to send the Letter of Claim or not?

 

I'm asking just for last-minute tweaks to your WS before Friday.

[Buggy1234]

Apologies for not answering your question. I saw it on someone else’s and decided to go with it. Should I take it out? I have Googled the car park in question and found a street view image saying 90minutes, should I change it to that?

Not sent a letter of claim … yet. Nothing has come in the post today so if nothing appears by Friday, I’ll send the letter of claim along with my WS to them on Saturday. I’ll also quote it in my WS that I’ve sent a letter of claim.

Edited September 28, 2022 by Buggy1234

[FTMDave]

I don't think the phrase is relevant to your case so I've cut it from the draft above.

 

I've also added points 4.5 and 4.6.  See what you think.  The idea is to show the judge that Highview are hiding information and making it impossible fro you to defend.

 

Of course this may all need to be changed if the fleecers' WS pops onto your doormat tomorrow or on Friday!

 

 

[Buggy1234]

Thank you again. Really! You’ve made a stressful situation bearable with your help. 
 

The bits you’ve added in are great and I hope I don’t receive their response so I can keep it in and send to the judge.

 

I shall update the post on Friday (or tomorrow if anything comes in the post).

 

I’m at university on Friday morning but should be home before 1pm so will email the court then. Is it worth adding in that as part of what I’m studying, I have to abide by professional standards in terms of honesty and integrity? 

[FTMDave]

A problem - albeit easily solvable - has struck me.

 

If you e-mail the court the WS on Friday, stating you've sent a Letter Before Claim, and then you post the LBC on Saturday, you're stating in a Statement of Truth something which isn't true.  I know it sounds silly and pernickety - what difference does 24 hours make? - but if the fleecers get wind of something like that they will put the boot in.

 

I suggest e-mail for everything.  We usually advise against the use of e-mail, but hey, this is an emergency.

 

Your 1pm UK time on Friday idea is great.  I'm off work then too.  So any last-minute tweaking can be done.  Then you can e-mail the fleecers the LBC, and five minutes later e-mail both the court and the fleecers the WS.  Everything done in the right order.

 

I don't see why you can't add the paragraph you suggest.  Can't do any harm.

 

The reason I keep harping on about the SAR is this. Your not getting the original paperwork is your fault for not updating the V5C, we can't blame the fleecers.  The CPR request is simply a request, they are under no obligation to respond.  But the SAR trips them up.  They are under a statutory duty to answer yet have not done so and you're forced to threaten them with legal action to try to get an answer.  This will not look good to the judge.  in fact, along with their lack of a WS, it will suggest they are deliberately hiding evidence from you.

 

But then again their WS might turn up tomorrow!

 

[FTMDave]

Anything from the fleecers today?

[Buggy1234]

Nope, nothing so far. I’m home all day too. I very much doubt anything will arrive tomorrow or Saturday either with the Royal Mail strike unless they’ve sent anything special delivery, and even then it’s not guaranteed to arrive.

[FTMDave]

Yes, you're right - I forgot all about the strike.

 

Would you be able to go to the post office this afternoon and send the fleecers the LoC and their WS?

[Buggy1234]

I could but would need to find somewhere to print my letters to send. They wouldn’t receive my letters till Monday at the earliest if I posted them today.

[FTMDave]

OK, let's go for the 1pm meet tomorrow if that's OK with you.

 

 

[Buggy1234]

No worries, I look forward to chatting tomorrow!

Thank you again.

[FTMDave]

I have had a thoroughly-enjoyable hour's swim followed by lunch, and have two hours free now before work.

 

So I'm up for Fleecer Fighting when you want.

[Buggy1234]

I've just got home so give me 15 mins to get sorted  Thank you!

[FTMDave]

No worries, I have an hour and a half free

[Buggy1234]

Right, I think I have everything I need.

 

I have:

- WS with covering letter to the judge (same as your edited version above).

- Exhibits 1 and 2 (CPR to DCB and SAR to Highview).

- Letter before claim addressed to Highview.

 

Just so I get this right, is this the order I send things in?

 

1. Send the letter before claim to Highview via email (with a clause at the bottom saying not to contact me via email).

2. Send the Court my copy of the WS and exhibits via email.

3. Send DCBLegal a copy of my WS and exhibits via email (with a clause at the bottom saying not to contact me via email).

[FTMDave]

Firstly the Letter of Claim, so the communications are in the right order.

You can use the example on @MoaningCrusader 's thread, at the bottom of the page here  https://www.consumeractiongroup.co.uk/topic/452147-loc-to-ncp-for-failure-to-supply-sar/#comments  Your cases are identical.  Simply change the date from 3 August to 23 August or whenever you sent your SAR.

The heading should be LETTER OF CLAIM or LETTER BEFORE CLAIM.  Same difference.

Put a sub-header: Re: PCN no.XXX, Claim form no.XXX, VRM XXX

That way they have no excuses for not finding the documentation.

This needs to be e-mailed to Highview, not the solicitors.

Please come back when that's done and we can move on to the WS.

 

Don't worry about the clause saying not to use e-mail, we're at the end of the correspondence phase now.

[FTMDave]

Nothing from the fleecers today, right?

 

Your list and preparation are spot on.