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    • Hi allets, CCA to whoever is the debt owner today, let us know their response, or lack there of, for further guidance   Or you could read up other like threads and the advice will be the same, so you'll know what to expect   BT
    • 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      
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Battle with Abbey


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HELP!!! I have had no bundle nor the courts and want to apply to the court to have it struck out on the basis that in the last order that these should have been supplied to all parties no less than 14 days before hearingwhich is next wednesday. I have the N244, can someone knowledgable help me fill it in as soon as poss. I kniw there is a cost, but as I am benifits it is waivered for me, so nothing to loose. This would of worked normally wouldnt it? so lets do it YES, NO ????????? Spoke to the ombudsman today for assistance on how they deal with a "HARDSHIPCASE" they said that Abbey must know I am putting forward as hardship case, I have called and told them and I will provide evidence at court. Any comments?

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Forget the application - by all means send a letter to the court informing them that the defendant hasn't complied (I'll find one in a minute), but breaching small claims track directions is not grounds for a formal application, unfortunately. Even if it was your application would have to be listed for a hearing which would more than likely be at the same time as the existing hearing.

 

You mean you have called Abbey? It would also be an idea to write to them I think.

 

Collect the evidence which you'll put forward to establish yours is a hardship case along with anything from the FOS or FSA website which says they should be exempt from the waiver.

 

Have you got your stay objections template sorted? Get everything uptogether and I'll talk to you sometime over the weekend to see where we're at.

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Here you go -

 

[you]

 

District Judge ******

C/O The Court Manager

****** County Court

Court Address

Postcode

 

[date]

 

Dear Sir/Madam,

 

[You] -v- Lloyds TSB Bank Plc

Claim No:********

 

I, the Claimant, refer to the claim as detailed above and specifically the order made by district judge ***** dated [date]

 

The defendant has not complied with the order in that it has not served upon me the evidence, or any such documents, upon which it intends to rely at the forthcoming hearing.

 

I wrote to the defendant's solicitor on [date] to request that it serve the Defendent's documents at its earliest convenience. I have received no response to this correspondence.

 

I can confirm that my documents were filed on [date] and served to the Defendant on [date]

 

It is submitted that the Defendants non-compliance creates a significant imbalance between the parties in light of the forthcoming hearing, which I believe to be contrary to the overriding objective. This imbalance is particularly exacerbated by the fact that the Defendant is represented by specialist solicitors, whereas I am a litigant in person.

 

Accordingly, it is respectfully suggested that the court may be minded to make an order pursuant to Rule 3.4 of the Civil Procedure Rules, or other order as the court deems just.

 

Yours faithfully

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Is the hearing next Wednesday? What time is it?

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Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Just above paragraph 3 , shall I delete that part as I have not written,as suggested. I get what you mean now ,but will send this letter. I have not done my stay objections yet will do tonight, have you got any links to oft and fos sites? Would be good to catch up , do you know if anyone can possibly come with me yet? I did speak to Clare Fletcher briefly, I told her it would be put forward as a hardship case and to remind her that I had explained this before in writing . She really had nothing to say, except that they would be sending a Barrister! Nothing we dont know.

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Yes, leave it out.

Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Please remember to DONATE! Help CAG keep up the fight!

 

 

Any advice or opinion is offered informally & without liability. Use your own judgment and if in doubt seek advice of a qualified and insured professional.

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Well, back from court, was in ther for a hour an half! Abbey did not get granted their stay today!:) The Judge wants time to reflect on today and discuss with his felow judge. The Harry Potter lookalike requested ther stay along with all the jargon, which I appossed to for a number of reasons. He did not have my bundle so obviously i mentioned breach of the order, why didnt they apply for a stay weeks ago and that if the judge was not to give the stay , how would he defend the case. he had no instruction to defend the case. At this stage I passed on the stay statements, Thanks to GARY. It was explained to me it was in our best intersts in veiw of the OFT. I said I realised this however my case has been dragging its feet and then mentioned the cpr 18 and that I requested that back in June wey before the OFT and I had no responce from Abbey. I then mentioned about my Hardship case and that I had looked at various websites of the social security act 1992 and that benifits should be inalienable , I passed a load of printed stuff showing this, the barrister was asked about it , he said he new nothing about this, so could not comment. The judge said he would take it on board and have it looked at, we spoke about how much of the charges taken was benifit money etc.I took income and expenditure which I did with the CAB and proof etc. going to eat tea finish in a bit............

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I took along an extract of psm:s for the judge , I asked first if it was o.k and gave him the bit about their judges descion to stay the aspect of the case relating to unfair terms whowever the Abbey in its defence had stated at para 6...... and so on and that this part of the case was ajourned. We then went through Abbeys defence cross refrenceing, he seemed interested and will consider. so basically several isseues. So in summing up the judge reserved judgement on the application of a stay , to discuss with his brother judge , he said " they wanted a consistant approach to case managing" and would conider all infomation given and give an answer in writing within 3-4 weeks, with consequential directuions, and if a stay is ordered with supplimentry orders.Hopefully granting the points bought up in the "in the alternative" part of the stay statement. If he turns down the stay it will come with a new court hearing date. The judge was understanding and I am so fed up with the banks fobbing off, again will just have to wait and see, but in the mean time food for thought on our part, but also for Abbey, not to be so compacent. Before we went in the barrister said , dont worry it shouldnt take more than 5 10 mins ,he shook my hand when we got out after an hour and half and said well done, he wasnt expecting that!!! Thank you to everyone especially Gary, who without you I would never of done this ,I mean it from the bottom of my haert, no other way heart.... good old vino. :D

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when I asked about "why abbey didnt apply for astay sooner,rather than using today, the hearing, the answer given was that they had sent out a letter about the stays being applied for and showed me a copy, I said I had a copy buy personally felt that the letter could be miss leading to some people in that a stay was already the case and that you can bet your bottom dollar that if I hadnt kept to my part of the order they would be applying to have my case struck out today! the judge mentioned about me claiming as alitigation in person, basicaaaly claiming charges against Abbey for being ther today. I hope all this helps everyone.

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well done BB great job. It feels good when a judge takes you seriously eh. Whatever the outcome, it is more food for thought for the Abbey. Sounds like the Abbey were a complacent as ever. Any film makers out there, read this site there is a wealth of material for another "carry on" film.....

"Carry on Soliciting"

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  • 4 months later...

Good morning all, woken up at 6.45 this a.m. to a phone call from southern counties radio, they have quastion and answers on bank charges, they have been following my story, so will be on the radio, as always will mention cag. Back soon!

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