Minster Baywatch Roboclaim: Pay and Display overstay

This is a template claim from Minster Baywatch which spookily looks like all the other Gladstone's claims. They even use the same references [GSL1] to spurious cases and misquotes. What we do learn is that they attempt to mislead the courts with spurious accuracy of their system. It's not accurate.

Roboclaim

 

IN THE [Insert Name] County Court And Family Court

Minster Baywatch Ltd
(Claimant)

-and-

[Insert Name]
(Defendant)

WITNESS STATEMENT OF [INSERT NAME]


I, [INSERT NAME], OF , P.0 Box 731, York, Yo31 7WP, WILL SAY AS FOLLOWS:

1. I am the [insert title] of the Claimant Company ('my Company') and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the Source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

2. Exhibited to this Witness Statement at 'GSL1' are following documents which my Company wishes to rely upon;

i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as 'the Relevant Land')
ii) The Sign (i.e. the Contract)
iii) The Site Plan
iv) Notices
v) Photographs of the incident
vi) Letter Before Claim

3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charge;

PCN NUMBER DATE OF CHARGE LOCATION DESCRIPTION
[Details here]

The Defence

4. The Defendant alleges that the charge was issued because of a [] minute overstay. The length of time the Defendant overstayed is irrelevant. By entering the Defendant accepted the terms as stated on the signs. The signs clearly state that all users must pay the appropriate fee for duration of their visit and it is evident the Defendant failed to do so.

5. The photographs of the signs which are exhibited to this Witness Statement evidence that the signs did state that ANPR was in operation on the Relevant Land.

6. The Defendant's opinion on the fairness of the parking charge cannot impact their liability to pay. Quite simply, in parking in the manner they did, they understood a charge would apply. My Company's charges are issued in accordance with the guidelines set out by its trade association and are industry standard.

7. Paragraph 108 of the Judgment in the recent Supreme Court case of Parking Eye and Beavis (2015) said ”the concept of a negotiated agreement to enter a car park is somewhat artificial but it is perfectly workable provided one bears in mind it is objective..." ”In our view a reasonable motorist would have agreed to the term." I submit that the term in my Company’s contract was no more, or no less unreasonable than that in the ParkingEye case.

8. As the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Relevant Land on behalf of the Landowner.

9. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186

1. "The Upper Tribunal's reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this reasoning.

2. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. on the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right. Thus in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held to have validly granted a tenancy of the land to a residential occupier. The tenancy would not have been binding on the landowner, but bound the two contracting parties in precisely the same way as it would have done if the grantor had had an interest in the land. Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract. Having the power to enter into a contract does not, of course, mean that VCS necessarily did enter into a contract with the motorist to permit parking"

[Editor Note: A misquoting of the VCS case doesn't give them the right to issue tickets where there is no consideration or potential to complete a bargain. Like Elliott and Loake above, misdirection]

10. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company's legitimate interest. In the case of ParkingEye v Beavis 2015 it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company's charges are within this level. The charge is not, therefore, excessive.

[Editor Note: Another classic misquote. It is their client's legitimate interest they are protecting and their interest doesn't come into it. See para 198 in Beavis]

The Current Debt

11. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.

12. In view of the Defendant not paying the charge the matter was passed to my Company’s legal representatives, Gladstones Solicitors Ltd. The debt has, as a result of this referral risen as my Company's staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company's business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant's breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (Le. the contract).

[Editor Note: The main challenge is to the £50 they have added on for "costs" already. Get them to prove that the £50 has been incurred and not just double charging for "legal" service i.e. sending out a template Roboclaim. See ParkingEye v Somerfield at para #419]

STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.

Signed:
Dated:

 

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