Excel & Elms Legal Claim Form - Abuse of Process

[Jackobi]

Hello, I would really appreciate your wisdom and help here with a County Court Claim my mum has just received for a parking fine from Excel Parking back in 2017.

I don’t dispute the fine now, the Iceland car park operated by Excel is next to a council owed one and after replying to the initial penalty letter back in 2017, we realised my mum who is 75 and a disabled blue badge holder parked in the wrong area and didn’t see the Excel signs. Reading bad advice online we chose to ignore Excel and basically forgot about it until we received an LBC from Elms Legal last month demanding £160. I decided to pay the £100 fine but not their extra £60 collection costs as I read about Abuse of Process and this £60 not being legally enforceable but yesterday I received a County Claims form taking me to court to recover that £60, now with other court and legal fees on top totalling £135.

I’m not sure what to do now or how to proceed with the Claim form, naively I thought they wouldn’t bother chasing for that £60.

Do I dispute the claim saying I’ve already paid it?

[MIKE770]

ostell

[ostell]

What do they put the extra £60 down to? There have been cases where that £60 has been determined to be an abuse of process and got the claim thrown out.

Let's see the particulars of claim that is on the form.

Acknowledge the claim on day 5 after the issue date, or shortly thereafter, using the details and password on the form. Put nothing in the defence. This gives you 30 days to prepare your defence and send it to the court.

I don't suppose that you have the original PCN from Excel that you can post up?

Have a read of this case and prepare to put arguments from it in your defence.


Get on to ICEland and complain that one of their customers, disabled and 75, is being taken to court after paying the fine but not the additional costs that have been adjudged abuse of process. Lay it on a bit thick, even the local paper.

[Jackobi]

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Thank you so much for replying to me!

I’ve attached the Particulars of claim and also the Elms Legal LBC explaining the £60 was a debt collection charge on top of the PCN?

I acknowledged the claim online yesterday as she only got the letter on the 7th April for some reason and I will try and find the original PCN but it was 2017 and mums memory is no more .

As for Iceland I will contact them as you say and let you know. Not sure if they really care though. Let me know if you can’t read the attachments, still trying to work out the site *♀️

[ostell]

In the beavis case which went to appeal it was ajudged that the cost of debt recovery was included with the original charge, originally £85, and therefore any additional charges were not allowed. Have a read of that case I linked to, it has that argument in there.

Your defence will also include that their particulars of claim is nonsense in that the Parking Charges had been paid.

[Jackobi]

Thank you so much, I need to do some homework and get back to you. Also contacted Iceland like you said and did some shaming on Twitter!

[Jackobi]

Im having a panic attack. I’ve just realised I chose the ‘I am a litigation friend’ option on the AOS and signed my name. However I will be acting on her behalf so do I need to fill in the Certificate of Suitability etc?

[Jackobi]

I should add that she’s 75, disabled as she can’t walk and is partially deaf. Her English is limited as I act as a translator and now her vision is going. I was recently going to do the power of attorney thing but have siblings that need consulting so hasn’t been done yet.

[Jackobi]

Sorry I don’t know how to edit my other posts.

I will amend the AOS so that she acknowledged it and signs it.
Will complete the Certificate of Suitability and the Certificate of Service and get that back to the courts.

Does that sound right?

Also I never got a confirmation or reply they received the £100 I paid so am I right to think that this £60 claim is double recovery and they are just hoping to win by default? There’s no point checking with them right?

[Jackobi]

Hello! I've done lots of complaining to Iceland and even reported Elms to the SRA. Will target the local MP next!
After reading lots of threads and templates, here is my attempt at a defence and I would really appreciate your help in looking it over. Much appreciated.


IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between
XXXX
(Claimant)
- and -
XXXX
(Defendant)
____________________
DEFENCE
____________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2.The Claimant is attempting to mislead the courts as the parking charge notice has been paid meaning the particulars of claim are materially in error.

3. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date.

4. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in XXXX at XXXX. The Defendant parked in a disabled space and therefore thought she did not have to pay to park as users with blue disabled badges did not previously have to pay. The Defendant did not see the signage and resulted in a PCN being issued followed by a Letter Before Claim from solicitors Elms Legal. The defendant paid the £100 PCN.

5. The Claim form Particulars of Claim is unclear as to what legal basis the claim is brought. As the PCN has been paid at the sum of £100, the claim is therefore an addition to the 'parking charge' and are stated as 'Debt Recovery Costs' on the Letter Before Claim. The Claimant has artificially inflated the value of the Claim by adding costs which have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery.

6. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue a £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100 which has been paid. That sum cannot have exceeded the BPA CoP ceiling of £100 and the Claimant cannot recover additional charges. Not only is this abuse of process against the POFA 2012 but also abuse of process in relation to double recovery.

7.The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

8. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

9. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.

10. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

11. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

12.Unlike this Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. 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 upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

13.Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) 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 in 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.''

14.That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

15.This Claimant is a sister company to VCS, both being owned by Simon Renshaw-Smith. Therefore, given the VCS failed application to be allowed to pursue £160 for £100 parking charge, it cannot be true to say that Excel Parking Services Ltd has the honest belief that they can do the same, and nor is this news to them, because the industry has had seven years to adjust to the POFA 2012 Schedule 4, and four years to pay regard to both the Beavis case and the Consumer Rights Act 2015, all of which (separately or when taken together) completely obliterate any possibility of recovering more than £100

16. The Defendant is of the view that this Claimant knew or should have known that to claim an additional £60 for a already paid parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.

17. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

Statement of Truth:
I believe that the facts stated in this defence 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.

Defendant’s signature:
Date: