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  • FIRST POST
    • MadHatter752
    • By MadHatter752 3rd Dec 16, 4:10 PM
    • 183Posts
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    MadHatter752
    VCS/BW Legal - Court tomorrow!!
    • #1
    • 3rd Dec 16, 4:10 PM
    VCS/BW Legal - Court tomorrow!! 3rd Dec 16 at 4:10 PM
    Hello

    After a week of reading through threads on this forum (including the newbie sticky) to find an answer to my predicament I am finally at my wits end and having to start my own thread... sorry to anyone annoyed by this but the wealth of information is baffling and I cannot waste anymore time reading things I don't understand and getting more confused! So THANK YOU to everyone who reads and helps.

    So... in October 2014 a ticket was put on the car i am the registered keeper of in a free train station car park, informing the driver that they were "parked beyond the bay markings". The PCN was issued by Vehicle Control Services Ltd.

    Debt Recovery Plus Ltd appear to have become involved and I have received numerous letters from them. Upon receipts of letters from DRP I read lots of threads on this forum which I thought advised me to ignore. I have therefore not appealed or had any contact with VCS or DRP.

    On 21st November, I received a letter from bw Legal entitled a "Letter of Claim" which I understand is another name for Letter before Action, asking me to pay the payment or detail grounds for dispute by 7th December, hence why I am getting a bit panicky... my time is running out to reply to this.

    They mention what I gather is all the usual stuff re County Court Proceedings could be issued, Parking Eye vs Beavis, CCJs.

    I know I have to reply to this letter as it is from the Solicitors and I have drafted the below. Is this sufficient for now? Is there anything else I can use to get them to stop hassling me. Also, some are saying send registered post, others saying email... what is the recommendation please?

    Thank you!!!







    Ref: VCS/******************



    Dear BWLegal,



    Further to your letter dated 21 November, I am writing to confirm that I amthe registered keeper of the vehicle in question, however I deny any debt toVCS Ltd.

    Your letter dated 21 November, refers to a letter dated 21 November whichyou have not received a response from. Pleasenote, this is the first letter I have received from yourselves.

    In order to respond fully to yourclaims, I should be grateful if you could issue a letter that fully meets therequirements of the Practice Direction for pre-action conduct andprotocols.

    I am disappointed in your breaches of the Solicitors Code of Conduct inrelation to your attempt to use a third party’s lack of legal knowledge to yourown advantage.

    I also note your misrepresentation of the consequences of an adversejudgement. You are in breach of Chapter 11 of the Solicitors Code of Conduct,specifically (Indicative Behaviours) IB 11.7 and 11.8.

    I shall be making contact with the Solicitors Regulatory Authority inrelation to your threats of court proceeding, CCJs and your mention of ParkingEye Limited vs Beavis (2015) UKSC. I findyour letter very intimidating and unprofessional.


    Furthermore, as a member of the Credit Services Association and thereforesignatory to their codes of practice, BWLegal is inbreach of several of these codes. As the debt is disputed continuedcorrespondence from yourselves will be seen as a further breach of that COP.


    Yours Faithfully"





    Cc: SRA
    Last edited by MadHatter752; 03-07-2017 at 7:22 PM.
Page 9
    • MadHatter752
    • By MadHatter752 14th Jun 17, 6:46 PM
    • 183 Posts
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    MadHatter752
    Hi, yes I saw your email with bpa and WS attached... thanks
    I meant my first email I sent this morning but you must have seen it. Thanks again.
    • Loadsofchildren123
    • By Loadsofchildren123 14th Jun 17, 9:16 PM
    • 1,247 Posts
    • 2,128 Thanks
    Loadsofchildren123
    I had sent another email this morning. Will re-send tomorrow.
    • MadHatter752
    • By MadHatter752 16th Jun 17, 1:05 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    Just doing some labels to stick on my pages of my Exhibit... Is it best to write "Page 1 of R*1", "Page 2 of R*1" etc. I might be obsessing but just want to get it right and get it done while I am waiting for comments on the final parts of my WS
    • Loadsofchildren123
    • By Loadsofchildren123 16th Jun 17, 2:14 PM
    • 1,247 Posts
    • 2,128 Thanks
    Loadsofchildren123
    Normally I'd just write a number.
    however, your WS will eventually be in a bundle for the final hearing which will contain everything - so each page of the exhibit will have 2 numbers, your number and the page number of the bundle (eg page 2 of RH1 might become page 73 of the big composite bundle).
    So in one sense your suggestion, whilst a royal pain, might actually be helpful.
    the problem is of course overcome by you numbering in the middle of the page at the bottom and the C can number in the bottom right corner when they come to make a trial bundle.


    Don't overthink it!
    • MadHatter752
    • By MadHatter752 16th Jun 17, 2:29 PM
    • 183 Posts
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    MadHatter752
    thanks LoC. I am happy with going for the Page 2 of RH1 in the middle... it shouldnt be too much of a pain if i use the dymo ;-)

    C numbers and bundles will be something new for me to learn soon!

    thanks as ever.
    • MadHatter752
    • By MadHatter752 16th Jun 17, 3:39 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    Signage - breach of IPC CoP
    Hi All

    Still on WS..... Writing up breaches of IPC CoP (the 2014 CoP is the relevant one).

    Here is IPC Cop 2014 http://conkaisecurity.co.uk/codeofpractice.pdf

    This is what I have so far, with help from LoC123. Should I add further comment, any suggestions on said comments?

    24.6.1. In relation to signage in general:
    “Where the basis of your parking charges is based in the law of contract that will usually be by way of the driver of a vehicle agreeing to contractual terms which are identified by signage in and around a controlled zone. It is therefore of fundamental importance that the
    signage meets the minimum standards under this Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.

    Signs must conform to the requirements as set out in a schedule 1 to this code.”

    24.6.2. In relation to entrance signage:
    “You should include a minimum of one phrase from Group A (but no more than 3). Group A text should be before and more prominent than the Group B text. The signs must direct motorists to the more detailed
    signs which display the full terms and conditions. This is important as it is these terms and conditions that will provide the legal foundation to any charge.

    Group A
    Pay and display [free for blue badge holders]
    [x minutes/hours] free parking [for customers only]
    Pay on exit
    Pay [on foot/at machine] when leaving
    Parking for [business name] customers only
    Permit Holders Only

    Group B
    Charges apply [after this]
    Private land
    Terms and Conditions Apply
    See the notice[s] [in car park] for conditions”

    “Text size
    The height of the capital letters in the text from Group A will be dependent on the anticipated approach speed of traffic. You should have reference to the table below in calculating the text size.
    Group B text should be at least 50% of the size of Group A text. All other text should be smaller than 50% of the text from Group A. The name of the site and a welcome message can also be displayed on the sign but should not detract from the prevalence of the Group A and Group B text.”

    (For those who can't see this image (i cant!!) it is this https://www.dropbox.com/s/23kb1nvy76s505d/text%20size.png?dl=0)

    “The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead. Any text on the sign which is not intended to be read from a moving vehicle can be of a much smaller size.”

    The Claimant failed to make the entrance sign readable from a moving car entering the car park from a 30mph road.

    24.6.3. In relation to interior signage/signage in general:
    “Such signs must
    4) Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site.

    6) Contain text that is appropriate to the position of the sign and the relative position of the person who it is aimed at. So, if a sign is at an entrance of a site and the vehicle is likely to be moving, it must be sufficiently large so as to be clear from within the vehicle having regard to the likely speed that the vehicle will be travelling at that point.

    7) Be of a colour scheme that provides good contrast between the background of the sign and the text upon it.”

    “Contrast and illumination
    The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired such as blue and yellow.”

    “You need to ensure that all signs are readable during the hours of enforcement as they form the legal basis of any charge. If signs cannot be read then resulting charges that depend upon their content will not be enforceable.”


    The signs within the carpark do not comply with these paragraphs.




    The signs we are talking about there are
    Interior signs https://www.dropbox.com/s/j03bpextfdrioyf/VCS%20sign%20wording.JPG?dl=0

    Entrance sign https://www.dropbox.com/s/jm5516c4gzywruj/IMG_7399.JPG?dl=0
    Last edited by MadHatter752; 16-06-2017 at 3:44 PM.
    • MadHatter752
    • By MadHatter752 16th Jun 17, 3:58 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    Question of forbidding signage
    On another point in my WS... LoC123 has helped me extensively but neither of us are convinced that the signage is forbidding. LoC123 thought my signage was quite similar to Beavis

    Below is what is included in the WS currently but we both would like to put these paragraphs our to you, along with the signs to see whether you think they are forbidding and whether the paragraphs below in the WS need amending or removing.

    Signage links again for assistance

    Interior signs https://www.dropbox.com/s/j03bpextfdrioyf/VCS%20sign%20wording.JPG?dl=0

    Entrance sign https://www.dropbox.com/s/jm5516c4gzywruj/IMG_7399.JPG?dl=0

    and Beavis sign... i know most of you know this like the back of your hand but just in case https://www.dropbox.com/s/63s6hol6isvvbpd/Beavis%20case%20Parking%20sign_001.jpg?dl=0

    2. Acceptance:
    It must follow that for any offer to be capable of acceptance, and to have been accepted, all of its terms must be clear and they must actually be adequately communicated to the offeree. So even if it is held that the wording on the signs was capable of making an offer, such offer was not communicated, adequately or at all, because it was impossible for a driver to have seen and read the terms being offered – particularly the term concerning the £100 charge for any contravention of the previous terms, which was hidden in illegible small print in white on a blue background, displayed high off the ground and inadequately lit. Therefore any terms offered cannot have been accepted. I repeat the matters set out in paragraph [23] above.

    3. As an example of signage which has been held capable of offering a contract, I refer to page x of RH1, which is a copy of a sign in the Beavis case, which the Claimant’s solicitors themselves brought to my attention - the difference between this sign and the Claimant’s signs in this case can clearly be seen.

    4. As an example of signage which has been held incapable of offering a contract because its wording is ‘forbidding’ I refer to pages x and x of RH1 which is a copy of the signs in the case of PCMUK vs Bull et al and UKPC vs Masterson (Ex. **) where it was ruled such signs offer no contract a driver can accept.
    • Timothea
    • By Timothea 16th Jun 17, 4:45 PM
    • 146 Posts
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    Timothea
    The (current) entrance sign doesn't mention VCS or any private parking company. It appears that the car park is managed by Birmingham City Council or WMCA (West Midlands Combined Authority). The terms and conditions mentioned on the entrance sign must therefore be BCC's or WMCA's terms and conditions. On this basis, VCS clearly fails on the requirement (in the CoP and in Beavis) to have entrance signage.

    The (current) internal VCS signage states that any parking charge is payable by the driver (only). It goes on to say that the registered keeper's details may be obtained from DVLA to trace the responsible driver. This is the only purpose given, so any other use of the registered keeper's details (such as pursuing payment from the registered keeper) would be a breach of the Data Protection Act.

    Neither sign makes a clear contractual offer, but this is also the case with the Beavis sign. The Supreme Court judges took the Beavis sign to be an offer of a licence to park free of charge on condition that the driver would pay £85 for breaching any of the terms.
    • Loadsofchildren123
    • By Loadsofchildren123 16th Jun 17, 5:18 PM
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    Loadsofchildren123
    Good point by Timothea - after the section where you say no contract offered, say that, in the alternative, if a contract is offered then by the wording it is offered only to the driver. The terms of an offer must be clear and according to the contra preferentum rule (as quoted today in the Pace v Lengyel) any ambiguity or uncertainty must be resolved in the Defendant's favour.


    The entrance signs go against the CoP, this point is already made in the WS. The Lengyel judgment also says something useful and succinct about the fairness of a contract - the principle of fairness requires the PPC to comply with its CoP, as referred to in Beavis.


    On that issue with the planning (I posted about this on the planning thread here http://forums.moneysavingexpert.com/showthread.php?t=5631029&page=2) I think that you should include reference to this email, but in the paragraph where you say the signage is forbidding. Perhaps say this:




    "In my defence, I argued that I believed the signage was unlawful because no advertisement consent had been given and therefore the Claimant was committing a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 (as amended). I have contacted the local council, and a copy of their email to me is at page x of RH1. The court will note that the council has determined that the signs have deemed planning consent because they amount to “a means of information, warning or direction”. Sweet and Maxwell on Planning states that “These can include the number or name of a dwelling house, a sign on a field gate, for example, “Please Shut the Gate” or signs or warnings such as “Beware of the Dog”, “Trespassers will be Prosecuted” or “Police Notice, No Parking”......”


    This decision by the Local Planning Authority is effectively a determination by it that the signage is forbidding and makes no offer - otherwise it would not come under the exception. This is wholly incompatible with the Claimant’s assertion that the signage makes an offer of a contract. Put simply, the Claimant cannot have it both ways - either its position must be that the signage is lawful because as an information/warning/direction it is forbidding, or it must be that it offers a contract, in which case it is not exempt from advertisement consent and the Claimant is committing a criminal offence (upon which it should not be allowed to bring a pursuant to the doctrine ex dolo malo non oritur actio"


    I agree that you have other points to make, but I actually quite like this point. A weak judge looking for reasons to find in your favour will like it. Other judges will think it irrelevant.


    See what others think. I'll be going dark next week as off on holiday!
    • Timothea
    • By Timothea 16th Jun 17, 7:35 PM
    • 146 Posts
    • 282 Thanks
    Timothea
    Good point by Timothea - after the section where you say no contract offered, say that, in the alternative, if a contract is offered then by the wording it is offered only to the driver. The terms of an offer must be clear and according to the contra preferentum rule (as quoted today in the Pace v Lengyel) any ambiguity or uncertainty must be resolved in the Defendant's favour.
    Originally posted by Loadsofchildren123
    This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: any ambiguity or uncertainty must be resolved in the consumer's favour.

    The entrance signs go against the CoP, this point is already made in the WS. The Lengyel judgment also says something useful and succinct about the fairness of a contract - the principle of fairness requires the PPC to comply with its CoP, as referred to in Beavis.
    Originally posted by Loadsofchildren123
    This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: consumer contract terms must be fair and transparent; traders cannot enforce unfair or unclear terms.

    On that issue with the planning (I posted about this on the planning thread here http://forums.moneysavingexpert.com/showthread.php?t=5631029&page=2) I think that you should include reference to this email, but in the paragraph where you say the signage is forbidding. Perhaps say this:

    "In my defence, I argued that I believed the signage was unlawful because no advertisement consent had been given and therefore the Claimant was committing a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 (as amended). I have contacted the local council, and a copy of their email to me is at page x of RH1. The court will note that the council has determined that the signs have deemed planning consent because they amount to “a means of information, warning or direction”. Sweet and Maxwell on Planning states that “These can include the number or name of a dwelling house, a sign on a field gate, for example, “Please Shut the Gate” or signs or warnings such as “Beware of the Dog”, “Trespassers will be Prosecuted” or “Police Notice, No Parking”......”

    This decision by the Local Planning Authority is effectively a determination by it that the signage is forbidding and makes no offer - otherwise it would not come under the exception. This is wholly incompatible with the Claimant’s assertion that the signage makes an offer of a contract. Put simply, the Claimant cannot have it both ways - either its position must be that the signage is lawful because as an information/warning/direction it is forbidding, or it must be that it offers a contract, in which case it is not exempt from advertisement consent and the Claimant is committing a criminal offence (upon which it should not be allowed to bring a pursuant to the doctrine ex dolo malo non oritur actio."

    I agree that you have other points to make, but I actually quite like this point. A weak judge looking for reasons to find in your favour will like it. Other judges will think it irrelevant.
    Originally posted by Loadsofchildren123
    I like this argument too. You could add that breaching the Data Protection Act 1999 is also a crime (s.55).

    Going back to the entrance sign, you could argue that VCS is just an agent of BCC/WMCA who has been engaged to issue PCNs and does not have a right to pursue drivers in its own name.
    Last edited by Timothea; 16-06-2017 at 7:39 PM.
    • MadHatter752
    • By MadHatter752 16th Jun 17, 8:51 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    I will have a little play around with the wording but, as LoC123 knows, writing is not my strong point and I will be lost without her expertise!!

    the other point i meant to mention was to double check we are on the right tack regarding the byelaws....

    here are the current byelaw related paragraphs from my WS.... are we on the right lines?



    4.1. Paragraphs 2(a), 5, 6 and 7: The car park is covered by the Railway Byelaws 2015 (“the Byelaws”) which, inter alia, concern the parking of vehicles. That being the case, any parking contravention was a matter only for the Railways/Train Operating Company (in this case Transport for West Midlands/ Centro) to bring before Magistrates Court within 6 months of the event (Byelaw 14). There is no provision for the byelaws to be overridden or circumvented with a civil claim for breach of contract. This aspect of my defence “absolute” - the mere fact that the land is covered by the Byelaws means that this claim has no basis and it should be struck out.

    The remainder of my defences apply only if 4.1 is rejected. Whilst I am confident that the Byelaws apply and that this claim is ill-conceived, for completeness I deal with my other defences (although the court may wish to disregard them if it dismisses the claim on the basis that the Byelaws apply).



    The Byelaws

    5. Exhibited at pages x to x of RH1 are the following documents:
    5.1. Centro Report dated 28 April 2014 – Car Park Management (pages x to x)
    5.2. Centro Report dated 5 June 2014 – Car Park Enforcement (pages x to x)
    5.3. The result of a Freedom of Information Act request addressed to West Midlands Passenger Transport Executive dated 29 September 2016 (page x to x)

    6. Transport for West Midlands (previously CENTRO) state in the document at page [clause 10.5- put in page no.] of RH1 (which I have highlighted for convenience) that they are aware that charges issued in car parks which fall under the Byelaws cannot be enforced by a private parking firm like the Claimant, and can only be a matter for CENTRO to enforce within 6 months, and only by way of proceedings in the Magistrates court.

    7. Transport for West Midlands also state in the document at page [] of RH1 (relevant section highlighted for convenience): 'With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations” .

    8. Transport for West Midlands further state in the document at page [] of RH1 (relevant section highlighted for convenience – I have added bold to the text below in order to emphasise the relevant wording):

    “Centro’s legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed. Centro’s use of Byelaw 14 is something fully supported by Network Rail and London Midland. In relation to non-railway Park and Ride sites, whilst Centro as a private landowner has no power to immobilise or remove vehicles, it does have the ability to enforce inappropriate parking by way of issuing parking notices subject to member approval.”

    The car park in question is clearly a railway (as opposed to non-railway) park and ride site, as identified in the signage present at the entrance to the site and within the site (I refer to the signage further below).

    9. At page x of RH1 from is the published result of a Freedom of Information Act request regarding Railway Byelaws at Sandwell and Dudley Railway station, operated also by West Midlands Combined Authority/Transport for West Midlands. (Source www.whatdotheyknow.com). I refer to point 2 from the West Midlands Passenger Transport Executive:

    “2. There are no car parks at this location to which WMCA believe the byelaws do not apply.”

    10. It is clear therefore that the Byelaws apply to the car park and that this claim has been improperly brought. The Byelaws apply throughout the West Midlands Combined Authority/Transport for West Midlands network as indicated in the tender that was issued when outsourcing the parking contract.

    11. From extensive research I have carried out since being served with these proceedings, into the issuing of parking charge notices on land to which the Byelaws apply, it appears that the Claimant is not an experienced operator at rail station car parks – it is only contracted by Centro/West Midlands. Other private parking companies, such as NCP, Indigo and APCOA, are employed widely by other train operating companies, and are not in the habit of issuing civil claims because they are well aware that they are unable to do so because the Byelaws apply.

    12. It is not open to the Claimant to attempt to morph a Byelaws matter into a 'breach of contract' claim. The Claimant has no prospects of success in bringing to the small claims court a statute-barred claim in respect of a station car park which is under statutory control and is governed by the Byelaws, more than two years after the event. The claim should be struck out on this basis.

    13. In case the Claimant asserts that the Byelaws no longer apply to the car park, I will dispute this. In the same way that the Byelaws (like all other byelaws) can only be enacted by way of formal legislation, neither can they be removed or amended other than by way of such formal legislation (by way of Statutory Instrument, as was the case with the 2005 amendments to the Byelaws), and such removal/amendments can be made only by those with the power to do so (ie the Secretary of State, not private parking companies such as the Claimant, or train operating companies). The train operating company in this case has in any event confirmed that the Byelaws are a) still in operation and b) haven't been removed by the Secretary of State.

    is this good to go or does anything need adding/amending?

    thanks

    Once I have made the above adjustments I will attach the entire WS for eager/eagle eyes.

    It has to be in Court Tuesday morning so I am running out of time!
    • MadHatter752
    • By MadHatter752 16th Jun 17, 9:04 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: any ambiguity or uncertainty must be resolved in the consumer's favour.


    This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: consumer contract terms must be fair and transparent; traders cannot enforce unfair or unclear terms.


    I l
    Originally posted by Timothea
    Is it enough just to say this? Or do I need to reference the schedule it came from?
    • Coupon-mad
    • By Coupon-mad 16th Jun 17, 9:10 PM
    • 50,604 Posts
    • 63,991 Thanks
    Coupon-mad
    Some suggestions (unless you already have this stated clearly in the defence):

    12. (i) It is not open to the Claimant to attempt to morph a Byelaws matter into a 'breach of contract' claim. The Claimant has no prospects of success in bringing to the small claims court a statute-barred claim in respect of a station car park which is under statutory control and is governed by the Byelaws, more than two years after the event.

    12. (ii) The remedy for any breach of these byelaws can only be pursued by the landowner, as a criminal prosecution through the Magistrates’ Court.

    12 (iii) Not only does this Claimant have no claim possible in law (whether they are acting as agents on behalf of the Train Operator or attempting to paint themselves as the principal) but further, the County Court has no jurisdiction in the matter in any event. The claim should be struck out on this basis.
    And strictly speaking none of this legal argument should be in a WS. Should be in a separate skeleton argument.

    Is it enough just to say this? Or do I need to reference the schedule it came from?
    Originally posted by MadHatter752
    The UTCCRs were repealed and incorporated into the Consumer Rights Act 2015, in the section about 'Transparency'.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • MadHatter752
    • By MadHatter752 16th Jun 17, 9:14 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    Some suggestions (unless you already have this stated clearly in the defence):



    And strictly speaking none of this legal argument should be in a WS. Should be in a separate skeleton argument.



    The UTCCRs were repealed and incorporated into the Consumer Rights Act 2015, in the section about 'Transparency'.
    Originally posted by Coupon-mad
    thanks... is it worth posting my whole WS up now... even though I am still working on it? I am out most of the weekend and all Monday leaving me only a couple of hours Monday evening. And a lot of my WS is legal arguement by the looks of it!
    • Coupon-mad
    • By Coupon-mad 16th Jun 17, 9:17 PM
    • 50,604 Posts
    • 63,991 Thanks
    Coupon-mad
    Yes, post it up to keep us all busy over the weekend!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • MadHatter752
    • By MadHatter752 16th Jun 17, 9:18 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    it's kept me busy for months now!! One way to stay out of more mischief.

    What is the best way to post... dropbox or cut and paste job directly onto forum?
    • Coupon-mad
    • By Coupon-mad 16th Jun 17, 9:46 PM
    • 50,604 Posts
    • 63,991 Thanks
    Coupon-mad
    Cut and paste gets seen by more people, I'd say.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • MadHatter752
    • By MadHatter752 16th Jun 17, 10:06 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    O.k. here goes

    In some places I have written notes where I need to remind myself to do something or I still need help.

    1. I am the Defendant in this matter. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise. Exhibited hereto is a bundle of documents to which I refer during this Statement, marked RH1.

    2. I deny any liability to the Claimant for the sum claimed, or any sum at all. I set out below my various defences to the claim, and the relevant facts and evidence in relation to each aspect of my defence. Before I do so, I wish to draw attention to the Claimant’s refusal to particularise its claim in any meaningful way, and its contempt of the Order of DJ Caun made on 4 May 2017. In my Defence, I made it clear that because the Claimant had provided no cogent explanation of its claim, and because it had failed to comply with its pre-action obligations and CPR Rule 16 to provide such an explanation, together with core documentation evidencing the claim, I was in severe difficulties in filing a proper defence. DJ Caun therefore ordered the Claimant to file a Reply to my Defence, dealing with the matters raised therein. Such Reply was to be served by 18 May 2017 (well before the deadline for service of this Statement). The Claimant has ignored this aspect of the Order. I have received no Reply, and none has been filed at court, although I am aware that the Claimant has managed to comply with the deadline for payment of the hearing fee for the final hearing (listed to be heard on 4 July).

    3. It is clearly against the rules of natural justice that I be denied the right to defend this claim to the best of my ability. In the absence of a Reply to the Defence I am left having to draft and file evidence in defence of a claim which I still do not fully understand, while the Claimant remains in contempt of court. There are core documents and information which it clearly should have produced by now which would have enabled me to understand and meet the claim – for instance, a copy of any contract giving it authority to operate on the land and to pursue these proceedings, copies of photographs taken by its operative which will show in what manner it is alleged that the vehicle was incorrectly parked, a copy of its signage displayed in the carpark at the relevant time which it asserts is the contract which forms the basis of this claim (such contract should in any event have been produced with the Claim Form, in accordance with paragraph 7 of Practice Direction 16). Presumably, the Court’s intention in ordering a Reply was also that the Claimant should respond to the absolute defence set out in paragraphs 2(a), 5, 6 and 7 of my Defence that the Railway Byelaws 2015 apply to the car park and that this claim must fail on that basis alone. All of this means that my defence and this statement are far lengthier than they need to be, because I have had to make assumptions and deal with all eventualities.

    4. My various defences to the claim can be summarised as follows (paragraph numbers refer to the Defence):

    4.1. Paragraphs 2(a), 5, 6 and 7: The car park is covered by the Railway Byelaws 2015 (“the Byelaws”) which, inter alia, concern the parking of vehicles. That being the case, any parking contravention was a matter only for the Railways/Train Operating Company (in this case Transport for West Midlands/ Centro) to bring before Magistrates Court within 6 months of the event (Byelaw 14). There is no provision for the byelaws to be overridden or circumvented with a civil claim for breach of contract. This aspect of my defence “absolute” - the mere fact that the land is covered by the Byelaws means that this claim has no basis and it should be struck out.

    The remainder of my defences apply only if 4.1 is rejected. Whilst I am confident that the Byelaws apply and that this claim is ill-conceived, for completeness I deal with my other defences (although the court may wish to disregard them if it dismisses the claim on the basis that the Byelaws apply).

    4.2. Paragraphs 9-10: There is no evidence that I was driving the vehicle at the relevant time and the Claimant has produced none. The burden of proof is of course the Claimant’s and without such evidence I cannot therefore be held liable as driver.

    4.3. Paragraph 7: absent any evidence that I was driving, the only way in which I can be held liable for any parking charge is as the registered keeper of the vehicle, under the Protection of Freedoms Act 2012 (“POFA”). However, because the Byelaws apply to the carpark, POFA does not apply and liability cannot be transferred to me.

    4.4. Paragraph 11: the Claimant is neither the lawful occupier of the land, nor its owner, and it has not shown that it has any authority to operate on the land, to issue parking charge notices or to issue and pursue proceedings to enforce such notices in its own right.

    4.5. Paragraphs 12 and 14: No contract was offered to the driver by the Claimant, the signage which is in the car park now (I have no evidence of what signage was there 2 ½ years ago at the time of the parking event and the Claimant has not produced any evidence) is such that it cannot have offered any contractual terms capable of acceptance by a driver

    4.6. Paragraph 13: even if there was a contract, there is no evidence that it was breached.

    4.7. Paragraph 16: even if there was a contract (which of course is denied), it is unfair (pursuant to S62 of the Consumer Rights Act), and the concept of fairness requires the Claimant to have complied strictly with its ATA Code of Practice. The charge is a disproportionate penalty which is also an unfair contractual term.

    The Byelaws

    5. Exhibited at pages x to x of RH1 are the following documents:
    5.1. Centro Report dated 28 April 2014 – Car Park Management (pages x to x)
    5.2. Centro Report dated 5 June 2014 – Car Park Enforcement (pages x to x)
    5.3. The result of a Freedom of Information Act request addressed to West Midlands Passenger Transport Executive dated 29 September 2016 (page x to x)

    6. Transport for West Midlands (previously CENTRO) state in the document at page [clause 10.5- put in page no.] of RH1 (which I have highlighted for convenience) that they are aware that charges issued in car parks which fall under the Byelaws cannot be enforced by a private parking firm like the Claimant, and can only be a matter for CENTRO to enforce within 6 months, and only by way of proceedings in the Magistrates court.

    7. Transport for West Midlands also state in the document at page [] of RH1 (relevant section highlighted for convenience): 'With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations” .

    8. Transport for West Midlands further state in the document at page [] of RH1 (relevant section highlighted for convenience – I have added bold to the text below in order to emphasise the relevant wording):

    “Centro’s legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed. Centro’s use of Byelaw 14 is something fully supported by Network Rail and London Midland. In relation to non-railway Park and Ride sites, whilst Centro as a private landowner has no power to immobilise or remove vehicles, it does have the ability to enforce inappropriate parking by way of issuing parking notices subject to member approval.”

    The car park in question is clearly a railway (as opposed to non-railway) park and ride site, as identified in the signage present at the entrance to the site and within the site (I refer to the signage further below).

    9. At page x of RH1 from is the published result of a Freedom of Information Act request regarding Railway Byelaws at Sandwell and Dudley Railway station, operated also by West Midlands Combined Authority/Transport for West Midlands. (Source www.whatdotheyknow.com). I refer to point 2 from the West Midlands Passenger Transport Executive:

    “2. There are no car parks at this location to which WMCA believe the byelaws do not apply.”

    10. It is clear therefore that the Byelaws apply to the car park and that this claim has been improperly brought. The Byelaws apply throughout the West Midlands Combined Authority/Transport for West Midlands network as indicated in the tender that was issued when outsourcing the parking contract [do you have this, if so exhibit the relevant extract – trying to find it].

    11. From extensive research I have carried out since being served with these proceedings, into the issuing of parking charge notices on land to which the Byelaws apply, it appears that the Claimant is not an experienced operator at rail station car parks – it is only contracted by Centro/West Midlands. Other private parking companies, such as NCP, Indigo and APCOA, are employed widely by other train operating companies, and are not in the habit of issuing civil claims because they are well aware that they are unable to do so because the Byelaws apply.

    12. It is not open to the Claimant to attempt to morph a Byelaws matter into a 'breach of contract' claim. The Claimant has no prospects of success in bringing to the small claims court a statute-barred claim in respect of a station car park which is under statutory control and is governed by the Byelaws, more than two years after the event. The claim should be struck out on this basis.

    13. The remedy for any breach of these byelaws can only be pursued by the landowner, as a criminal prosecution through the Magistrates’ Court.

    14. Not only does this Claimant have no claim possible in law (whether they are acting as agents on behalf of the Train Operator or attempting to paint themselves as the principal) but further, the County Court has no jurisdiction in the matter in any event. The claim should be struck out on this basis.

    15. In case the Claimant asserts that the Byelaws no longer apply to the car park, I will dispute this. In the same way that the Byelaws (like all other byelaws) can only be enacted by way of formal legislation, neither can they be removed or amended other than by way of such formal legislation (by way of Statutory Instrument, as was the case with the 2005 amendments to the Byelaws), and such removal/amendments can be made only by those with the power to do so (ie the Secretary of State, not private parking companies such as the Claimant, or train operating companies). The train operating company in this case has in any event confirmed that the Byelaws are a) still in operation and b) haven't been removed by the Secretary of State.

    The driver at the relevant time has not been identified and the registered keeper cannot be held liable

    16. The Claimant has produced no evidence of who was driving the car at the relevant time. As this event occurred two and a half years ago, it is impossible to expect me, as its registered keeper, to recall who might have been driving. Whilst the Claimant has been unable to provide any evidence to show that I was the driver, it has seen fit, even after I have drawn this to its attention, to send me a multitude of aggressive chasing letters which amount to unwarranted harassment and now baseless litigation, which has resulted in significant alarm and distress to myself. It is of course for the Claimant to prove its claim, and this includes showing that I was the driver.

    17. I did not reply to this correspondence, and no adverse inference can be drawn from this - there was no requirement upon me as keeper to respond to the harassing correspondence from the Claimant and its agents, all of which in any event appeared to me at the time to be junk mail.

    18. Exhibited at page x of RH1 is a copy of the insurance policy for the vehicle, showing that two named drivers were included in the policy for the period in question. I confirm that both of the named drivers did regularly use the vehicle. Other individuals were of course able to drive the car if the terms of their own insurance allowed it.

    19. I am not obliged to name the driver and it is incorrect to assert otherwise or that if I fail to do so then I become liable as if I were driving. There is no statutory provision or case law providing that a keeper must name a driver, nor that a presumption should be made that they were the driver:

    19.1. POPLA’s Lead Adjudicator Henry Gleenslade, experienced Counsel, states in its 2015 Annual Report (under the heading 'Understanding Keeper Liability') that there is no presumption in law that a keeper of a vehicle is its driver, and keepers have no legal obligation whatsoever to disclose the identity of the driver to a private parking company. A copy of the relevant extract of the report is at page x of RH1 (in which I have highlighted the relevant extract).

    19.2. Schedule 4 of POFA, enacted in October 2012 in order to introduce keeper liability if certain strict conditions are met, notably contains no obligation on a keeper to identify the driver of his/her vehicle on a given date. A copy of Schedule 4 of POFA is exhibited hereto at pages x to x of RH1.

    19.3. I believe that the Claimant will rely on the case of Elliott v Loake, which it will assert is authority for the proposition that a registered keeper should be assumed to have been driving his/her vehicle, unless they can rebut that presumption. I am aware that the Claimant habitually relies on this case in similar claims against registered keepers where it cannot show who was driving. This is a feeble attempt to circumvent the Claimant’s evidential difficulties in proving who was driving. The Claimant (and its solicitors) must know Elliott is precedent for nothing of the sort, because this argument has been rejected countless times in other cases in other courts, most recently:

    19.3.1. in case number C9DP7T5D between the Claimant and a Mr Smith, heard in Blackwood County Court on 12 June; and
    19.3.2. in an appeal number M17X062 in Stockport County Court heard by HHJ Smith on 8 June between the Claimant’s sister company Excel Parking Services Limited, Excel and another Mr Smith (both companies being owned by the same individual and both instructing the same solicitors as are acting in this claim).

    Elliott v Loake is in fact a criminal case in which there was overwhelming forensic and witness evidence which proved that the registered keeper was driving the vehicle. There was no “presumption”, and there was no onus on the Defendant to rebut any presumption, about who was driving. This claim is no different from any other – the burden of proof rests with the Claimant, not with the Defendant.

    20. As there was no evidence that I was the driver, I cannot be held liable as driver. Turning to my liability as the vehicle’s registered keeper, this is not a matter where I can be held liable in such capacity. The only provision by which liability can be transferred from driver to keeper in respect of a private parking charge is under Section 56 and Schedule 4 of POFA. However, these provisions apply only to “relevant land” (paragraph 1(1)(a) of Schedule 4), and the car park in question is not relevant land because it is land to which the Byelaws apply. POFA defines relevant land as follows -the relevant paragraph is 3(1)(c), which I have highlighted in bold type:
    “3(1) In this Schedule “relevant land” means any land (including land above or below ground level) other than—
    (a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
    (b) a parking place which is provided or controlled by a traffic authority;
    (c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

    The Claimant was not the lawful occupier or owner of the land, has not shown authority to operate on the land, to issue parking charge notices or to issue and pursue proceedings to enforce such notices
    21. The Claimant has not provided any documentation (eg a contract with the landowner/occupier at the date of the parking event) showing what authority it had in relation to the land (eg to issue parking charge notices or to enforce those by issuing claims on its own or upon the landowner’s behalf). I put the Claimant to full proof of its authority. This is the sort of documentation which the Claimant should have produced at the pre-action stage of the claim, because it is core information which proves that it has standing to bring a claim. Even if the Claimant has authority, the terms of that authority are crucial, a matter held recently in the case of Pace Recovery and Storage Limited v Zoltan Lengyel, case number C7GF6E3R heard by DJ Iyer in Manchester County Court on 24 May 2017. Without such evidence I can only assume that it does not have the required authority to have issued a PCN to the vehicle and brought this claim.
    No contract was formed between Claimant and driver
    22. In making this Statement, I have had to assume (although this is not entirely clear) that the Claimant will assert that the wording on its signage at the car park sets out the terms of the contract it claims was entered into between it and the driver, and which it is claimed the driver breached. However, the Claimant has produced no evidence of what signage was displayed the car park on the relevant date. I have therefore myself visited the car park in order to take a video on 20 January 2017 and to take photographs on 20 January 2017 and 10 June 2017, at different times of day and in different lighting. A disc containing the video and copy of the photographs is at pages x to x of RH1.

    23. The Claimant has produced no documents to me at all, or any information about the claim, and so I must also assume for the purpose of this statement that the signage now displayed at the site (save for the entrance sign) is the same as that which was displayed on the date of the parking event – of course I should not be expected to second guess these matters and, particularly since 2 ½ years have passed, I put the Claimant to full proof as to the size and positioning of such signs and their precise wording (the Claimant is required by its ATA Code of Practice to keep meticulous records of these matters and so providing such evidence should put it to no trouble whatsoever).

    24. The signage at the car park is incapable of forming a contract. To be capable of doing so, it must be capable of making, and it must have made, an offer, and that offer must be capable of being (and must have been) accepted. Dealing with each of these:

    25. Offer:
    For an offer to be made its terms must be clear and unambiguous. They must also be adequately communicated to the offeree (in this case the driver). Assuming that the Claimant will assert that the wording on the signage was the offer (although this is not clear), my case is that the signage did not make any offer because:

    25.1. The signage was inadequately displayed and at least parts of it were illegible. Exhibited at pages x to x are a series of photographs/a video taken on the dates set out in paragraph 20 above, which show the signage at different times of day/in different lighting. It is important to understand the nature of the car park. At page x of RH1 is an aerial image of it which I have taken from Google Earth. It shows that the car park covers a large area, and I have marked on it the vehicle entrance/exit point, various pedestrian exit/entry points, and the station itself (reminder to mark these). In total there are 14 signs in the car park. (what about the double sided signs, should I count them as two or one? One. Whilst at first blush this is not an insignificant number of signs, they are not displayed in suitable positions so that they can be noticed, and read, by drivers:
    25.1.1. There are 7 signs within the interior of the car park which can be seen (as opposed to the obscured ones on the perimeter which I deal with at paragraph 23.1X below). However, these are positioned so high up that they are impossible to read. The height at which they are displayed is 2.6 to 2.8 metres (I took these measurements myself, measuring from the ground to the bottom of each sign – in particular I refer to the photographs at pages x and x which show a man of 6 ft 2 and a woman of 5 ft 5 standing underneath the signs).
    25.1.2. There are a further 2 signs which are at a lower height – however they are immediately next to the entry/exit points of the car park, which are positioned facing away from the entrance, so that they could only be noticed by drivers of cars exiting the car park, not those entering and parking in it (a driver using the station car park would walk from their vehicle to the station without walking past the entry/exit point signs) – see pages x and x of RH1. [Even these signs are high up and it would be difficult for a person to read the small print on them. Take out last sentence if untrue]
    25.1.3. Apart from these signs in the car park interior, there are a total of 5 signs situated along the perimeter of the car park – these are at car height or standing height of 1.2meters (as measured by me from the ground to the bottom of the sign), but all are positioned in such a manner that they are obscured from sight (I deal with this at paragraph 23.1.4 below).
    25.1.4. Although in theory these signs are at a height at which they can be read, they are all incredibly badly positioned being either at the very far corner of the carpark from the entrance or obscured/shadowed by the trees/undergrowth or hidden behind parked cars (this car park is usually full). A driver would be unable to see them (unless he/she parked directly by one of the signs or walked the entire perimeter of the carpark searching them out – and even then they might not see them). I emphasise that the car park is large, usually full and is used by commuters and travellers, who will generally have a train to catch and could not reasonably be expected to walk the entire perimeter of the car park searching for legible signs. In addition, as I have referred to, there are different pedestrian exit/entry points at the car park, meaning that a person parking and leaving their vehicle may well not pass near to any of these signs. It is of course the Claimant’s obligation to display signs that can be seen and easily read.
    25.1.5. The extent to which the signs are obscured from view by parked cars can be seen in the photograph at page X of RH1. Signs at a height of 1.2metres would be totally obscured by larger vehicles (by which I mean service vehicles or 4x4 type cars) - even a small car partially obscures the sign in the picture. As can be seen from the aerial image at page X of RH1 (the birdseye view) this is a busy carpark, with rarely a free space (in fact, as a local resident I am aware that there is commonly an overspill, with rail users parking extensively along the street next to the car park because no spaces can be found inside the car park (see page x of RH1). This is also on birdeye view… can I use this too? yes
    25.1.6. The extent to which the signs are also obscured from view in varying degrees by dense undergrowth and shadow can be seen from the photographs at pages x and x of RH1. The photographs show overgrown overhanging trees and undergrowth, including Japanese Knotweed, which result in the signs being hidden either behind plants or in shadow (or a mixture of both). This is a notoriously fast growing plant (according to the website www.japaneseknotweedspecialists.com it grows at a rate of 10-20cms a day and can reach 3-4 metres within just 10 weeks – see page x of RH1 - and the Environment Agency has described it as “indisputably the UK’s most aggressive, destructive and invasive plant”. The photograph at page X shows a sign which is almost completely obscured, so much so that I have had to draw a circle round it because it is almost impossible to spot in the picture.
    • MadHatter752
    • By MadHatter752 16th Jun 17, 10:07 PM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    25.2. None of the signs are adequately lit. Those at the lower height (including those hidden in dense foliage/shadow) have no lighting at all. Those positioned higher up are inadequately lit or not lit at all (but in any event they are illegible because of the height at which they are displayed, with which I have dealt with above, and the size of the font, with which I deal below). An example of the lighting of one sign is shown on page x of RH1 – the light is so far above the sign as to render it useless. Notably, the parking charge notice to which this claim relates was issued in October when the mornings and evenings, when most commuters would have been using the car park, would have been dark.

    26. Some of the wording on the signs is too small to read. The signs themselves are small, and the ones which motorists can see (referred to at 23.1.1 and 2) are small in size and so high up that even in broad daylight the wording on them is illegible – both to a motorist sitting in a car (signs are required by the Claimant’s ATA Code of Practice to be noticeable and legible to a motorist from his car - I refer to this further at paragraph [23.9 - check] below), and to a motorist who takes the trouble to get out of his car and stand directly beneath a sign to try to read it. Parts of them are in font which is extremely small and the yellow/blue on white and the white on blue design makes them even more difficult to read (particularly if the lighting is gloomy, as it would be in poor weather or at dawn/dusk, or in the hours of darkness) – another significant breach of the Claimant’s ATA Code of Practice. It is only that membership which allows the Claimant to access and obtain keepers’ details from the DVLA and without such membership it would not be in a position to bring this claim).

    26.1. The signs are cluttered and parts of them are not legible. The most important wording for the purpose of this claim (the right to charge £100 and the warning that proceedings such as this claim may be issued) is hidden in very small white on blue print at the bottom of the sign, which is impossible to read. The case of Parking Eye Limited vs Beavis [2015] UKSC 67 (“the Beavis case”) confirmed that terms must be displayed on prominent signage so that it is “bound” to be seen, particularly the right to levy a charge.

    26.2. As for the wording on the signs, even if it were legible, it is forbidding and therefore makes no contractual offer.

    26.3. In my defence, I argued that I believed the signage was unlawful because no advertisement consent had been given and therefore the Claimant was committing a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 (as amended). I have contacted the local council, and a copy of their email to me is at page x of RH1. The court will note that the council has determined that the signs have deemed planning consent because they amount to “a means of information, warning or direction”. Sweet and Maxwell on Planning states that “These can include the number or name of a dwelling house, a sign on a field gate, for example, “Please Shut the Gate” or signs or warnings such as “Beware of the Dog”, “Trespassers will be Prosecuted” or “Police Notice, No Parking”......”

    This decision by the Local Planning Authority is effectively a determination by it that the signage is forbidding and makes no offer - otherwise it would not come under the exception. This is wholly incompatible with the Claimant’s assertion that the signage makes an offer of a contract. Put simply, the Claimant cannot have it both ways - either its position must be that the signage is lawful because as an information/warning/direction it is forbidding, or it must be that it offers a contract, in which case it is not exempt from advertisement consent and the Claimant is committing a criminal offence (upon which it should not be allowed to bring a pursuant to the doctrine ex dolo malo non oritur actio".

    26.4. The entrance sign conflicts with the signage inside the carpark – at page x of RH1 is a copy of the current entrance signage, but one can see that new wording has been stuck over previous wording (underneath “This free car park….only”). At page x of RH1 is a similar sign from another railway car park under the control of the same train operating company and I believe that this shows the wording which has been covered over and was previously on the sign. The old wording referred to the Byelaws, the new wording to “terms and conditions”. I put the Claimant to full proof of when this sign was changed.

    26.5. This part of entrance sign contains wording in a font which is too small to be read from a vehicle entering the car park – the sign is displayed 2.15m from the ground (I measured this myself on 10 June 2017 and it is the distance between the ground and the bottom of the sign) – a driver would struggle to read the wording on it as they entered the car park - and the only parts of it that can be read from a car entering is the larger wording (from “Marston Green Station” down to “This free car park is provided for rail users and park visitors only”). The part referring to terms and conditions (if indeed this was part of the sign on the relevant date) is not legible from a car. The sign is also unlit and it is situated directly beneath an overhanging tree and above dense undergrowth – whilst on the date of my visit to take photographs the sign was not obscured by the plants, one can see from page x of RH1 that immediately underneath the sign Japanese Knotweed is growing (and I repeat my comments about how fast this weed grows, in paragraph 23.1.6 above). I put the Claimant to full proof that the entrance sign was not obscured on the date of the parking event.

    26.6. The entrance sign also fails to identify the Claimant but only names the train operating company, and it states that free car parking is available to “rail users and park visitors” whereas the Claimant’s internal signage states that the car park is “strictly for Park & Ride customers whilst using the Rail and/or Metro”.

    26.7. Extracts of the Claimant’s ATA Code of Practice relating to signage, is exhibited at pages x and x of RH1. I reiterate that compliance with the requirements of the Code is a mandatory condition of the Claimant’s membership (without which it could not effectively operate as a private parking company) – this requirement is in the introduction to the Code, it is contained in condition 2.1 on page x of RH1 and the IPC is entitled to monitor compliance (condition 4), which I have highlighted for convenience. In relation to signage, I refer to sections xxxxx on pages x, x and x…., which state:

    26.7.1. In relation to signage in general:
    “Where the basis of your parking charges is based in the law of contract that will usually be by way of the driver of a vehicle agreeing to contractual terms which are identified by signage in and around a controlled zone. It is therefore of fundamental importance that the
    signage meets the minimum standards under this Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.

    Signs must conform to the requirements as set out in a schedule 1 to this code.”

    26.7.2. In relation to entrance signage:
    “You should include a minimum of one phrase from Group A (but no more than 3). Group A text should be before and more prominent than the Group B text. The signs must direct motorists to the more detailed
    signs which display the full terms and conditions. This is important as it is these terms and conditions that will provide the legal foundation to any charge.

    Group A
    Pay and display [free for blue badge holders]
    [x minutes/hours] free parking [for customers only]
    Pay on exit
    Pay [on foot/at machine] when leaving
    Parking for [business name] customers only
    Permit Holders Only

    Group B
    Charges apply [after this]
    Private land
    Terms and Conditions Apply
    See the notice[s] [in car park] for conditions”

    “Text size
    The height of the capital letters in the text from Group A will be dependent on the anticipated approach speed of traffic. You should have reference to the table below in calculating the text size.
    Group B text should be at least 50% of the size of Group A text. All other text should be smaller than 50% of the text from Group A. The name of the site and a welcome message can also be displayed on the sign but should not detract from the prevalence of the Group A and Group B text.”

    A table is inserted here.... https://www.dropbox.com/s/23kb1nvy76s505d/text%20size.png?dl=0

    “The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead. Any text on the sign which is not intended to be read from a moving vehicle can be of a much smaller size.”

    The Claimant failed to make the entrance sign readable from a moving car entering the car park from a 30mph road.

    26.7.3. In relation to interior signage/signage in general:
    “Such signs must
    4) Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site.

    6) Contain text that is appropriate to the position of the sign and the relative position of the person who it is aimed at. So, if a sign is at an entrance of a site and the vehicle is likely to be moving, it must be sufficiently large so as to be clear from within the vehicle having regard to the likely speed that the vehicle will be travelling at that point.

    7) Be of a colour scheme that provides good contrast between the background of the sign and the text upon it.”

    “Contrast and illumination
    The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired such as blue and yellow.”

    “You need to ensure that all signs are readable during the hours of enforcement as they form the legal basis of any charge. If signs cannot be read then resulting charges that depend upon their content will not be enforceable.”

    The signs within the carpark do not comply with these paragraphs.

    27. Ironically, even the Claimant, on its own website, states that “Signage is the most effective deterrent against parking abuse and many clients find that problems are dramatically reduced immediately following its erection. We have thus designed our signage to be as visually arresting as possible and ensure that all terms and conditions are visible at the entry to and from all points within a parking area.” (page x of RH1).

    28. In the alternative, if a contract is offered then by the wording it is offered only to the driver. The terms of an offer must be clear and according to the contra preferentum rule (as quoted today in the Pace v Lengyel) any ambiguity or uncertainty must be resolved in the Defendant's favour. This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: consumer contract terms must be fair and transparent; traders cannot enforce unfair or unclear terms. The UTCCRs were repealed and incorporated into the Consumer Rights Act 2015, in the section about 'Transparency'.


    29. Acceptance:
    It must follow that for any offer to be capable of acceptance, and to have been accepted, all of its terms must be clear and they must actually be adequately communicated to the offeree. So even if it is held that the wording on the signs was capable of making an offer, such offer was not communicated, adequately or at all, because it was impossible for a driver to have seen and read the terms being offered – particularly the term concerning the £100 charge for any contravention of the previous terms, which was hidden in illegible small print in white on a blue background, displayed high off the ground and inadequately lit. Therefore any terms offered cannot have been accepted. I repeat the matters set out in paragraph [23] above.

    30. As an example of signage which has been held capable of offering a contract, I refer to page x of RH1, which is a copy of a sign in the Beavis case, which the Claimant’s solicitors themselves brought to my attention - the difference between this sign and the Claimant’s signs in this case can clearly be seen. [not sure these 2 paras are helpful as your sign is actually quite similar to the Beavis on – the big difference is that the charge is hidden in small print but that is a different point – can you look at the Beavis sign and compare it to yours and tell me what you think? Your sign is so much more like Beavis than others I’ve seen – I’ll email you 2 other examples, and look at the Masterson/Bull signage as well – you’ll see yours is much more like the Beavis one] [Yes do that, but I think take these 2 paras out]

    31. As an example of signage which has been held incapable of offering a contract because its wording is ‘forbidding’ I refer to pages x and x of RH1 which is a copy of the signs in the case of PCMUK vs Bull et al and UKPC vs Masterson (Ex. **) where it was ruled such signs offer no contract a driver can accept.

    Breach of contract
    32. It is claimed that the driver breached the alleged contract because he/she parked “outside of a marked bay”. This is the only information provided by the Claimant provided and it is impossible for me to deal with the allegation. The Claimant must have evidence in its possession of where/how the vehicle was parked. I put the Claimant to full proof of its claim and reserve my position to comment on the evidence, once produced.

    33. Of course, had the Claimant complied with its pre-action obligations pursuant to paragraphs 6(a) and (c) of the Practice Direction -Pre-Action Conduct, and complied with paragraph 1 of the Order of DJ Caun of 4 May 2017, further information and documents such as photographs taken by the Claimant’s operative would have been produced before now. This sort of scenario is exactly what the Practice Direction seeks to avoid - Defendants having to "fight blind". The Claimant is a professional parking company which has in the first 5 months of this year pursued 252 cases against motorists (this number does NOT include claims which were issued but later withdrawn or settled, or in which judgment was obtained by default, and nor does it include claims issued and pursued by its sister company Excel Parking Services Ltd which is owned by the same person and which also instructs the same solicitors who are dealing with this claim - I obtained this figure from the BMPA website, an organisation which campaigns for improvements to standards in the private parking industry, supports motorists who have received private parking tickets and which monitors the numbers of claims being heard). Furthermore the Claimant is professionally represented by solicitors who claim to be experienced in this area of the law (they are certainly prolific litigators, acting for several nationwide parking companies similar to the Claimant). This conduct is reprehensible and it is immoral, unlawful and contemptuous of this honourable court and should not go unpunished.

    Disproportionate Penalty
    34. In the event the court finds that a contract was formed, it is my case that the charge is a penalty disproportionate to any loss the Claimant may have suffered. The Claimant will no doubt assert that the penalty rule is disengaged and will rely on the Beavis case, where that was held. However, I deny that the principles of Beavis apply to this case, and it is my case that the penalty rule applies and the Claimant should not be allowed to recover such an out of proportion charge in respect of a breach from which it has suffered no loss.

    35. The Beavis case can be distinguished from this claim because its factual matrix was very different, in several important respects:

    35.1. The Defendant in Beavis was the driver and accepted that there was a contract formed by the signage, which was exceptionally clear and prominently displayed. The case was therefore concerned only with the issue of damages and not liability for breach of contract. Neither admissions have been made in this case.
    35.2. The car park was at a retail park, where a free period of parking was offered, and where there was a commercial justification in deterring visitors from overstaying so as to ensure a turnover of visitors to the commercial units. This justified a departure from the penalty rule. This case concerns a free station car park with no such commercial justification/interest where such a departure is NOT justified
    35.3. In Beavis the Claimant paid the landowner to operate the parking (rather than the other way round), and so the Claimant had to generate an income from issuing penalty charges in order to cover its costs and make a profit. The same scenario is unlikely to apply here (and I put the Claimant to full proof of the terms of its contract with the landowner).
    35.4. In Beavis it was significant that the Claimant had complied with the Code of Practice of its ATA (which in that case was the BPA). In this case there are multiple breaches of the Code, and I have set out those relating to signage at paragraph xxxxx above. In Beavis the court held that compliance with the Code of Practice was paramount (paragraphs 96 and 111 of the judgment stated, inter alia, “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.''
    35.5. The concept of the “fairness” of a contract was recently considered by the court in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017 and the court held that “the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice” – one of the reasons the Claim was unsuccessful in that case was because it had breached its Code of Practice and this made the contract unfair.
    Data Protection Act breach

    36. I believe that my rights under the Data Protection Act have been breached. I reserve my position in respect of any claim or counterclaim, and intend to report the Claimant to the Information Commissioner for misuse of my data, obtained from the DVLA in 2014. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for a period of some 2 ½ years and then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £254, including the legal insult of over two years' interest, for an original (and unproven) £60 charge. The Claimant knew or ought to have known that the Byelaws applied to the car park and that only the train operating company was entitled to pursue recompense from the driver, and that it had only 6 months within which to do so. Its breach is aggravated by its conduct in passing my details to various debt collection agencies who have bombarded me with aggressive and threatening chaser letters, referring to county court judgments which would result in bad credit and so on, all of which I have found incredibly stressful and upsetting.

    Claimant’s disregard of the court rules

    37. The court is already aware of the Claimant’s disregard of its pre-action obligations set out in the Practice Direction – Pre-Action Conduct (specifically paragraphs 6(a) and (c)), namely its failure to explain its claim in any detail and to provide core supporting documents/information. It is also aware of its failure properly to particularise its claim (a serious breach of CPR Rule 16) and to produce the contract it asserts was formed between it and the driver (a breach of Practice Direction 16). The court is also aware of the Claimant’s contempt of the order of 4 May 2017 in failing to provide a Reply to my Defence (that order having been designed to remedy its breaches and to allow me to defend this claim to the best of my ability, as is my fundamental right).

    38. I have already explained in my Defence, and now in this Statement, about how difficult this absence of cogent information makes my position in understanding and defending this claim.

    39. The CPR and the Practice Direction – Pre-Action Conduct do not exempt parties to a small claim from compliance. They bind all parties, whoever they are and regardless of the subject matter or size of the claim. I am aware that the court will not require a slavish approach and it will not disapprove of or punish minor breaches. However, the Claimant and its solicitors seem to consider themselves immune from the court rules and believe that the court will ignore or forgive their contempt of due process, although their behaviour seriously disadvantages Defendants such as me. I have put the Claimant on notice of my intention to seek a costs order pursuant both to Rule 27.14(2)(g) and paragraph 16 of the Practice Direction – Pre-Action Conduct.
    • Umkomaas
    • By Umkomaas 16th Jun 17, 11:06 PM
    • 14,898 Posts
    • 23,368 Thanks
    Umkomaas
    That's over 8,000 words. Do you really think a judge will be overly enthusiastic to read all this? You need him/her, as best as you can, on your side. Some degree of proportionality, surely. And you haven't finished yet?

    You'd be well on your way to a degree with a thesis containing that volume of words.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
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