PCM invoice at High Point Village

whaqqer

Good evening,


So this is finally now drawing to a conclusion, nearly three years after it started we finally go to court in just over two weeks.


I have attached my proposed witness statement and would be grateful if once again, this board could look over it and offer me any insight?


Thanks to all in advance


WITNESS STATEMENT


I, XXXXXXXXX, of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, will say as follows:

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked XX1 to which I will refer.

1. The Claimant asserts that I entered into a contract with it, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. It claims that I was parked in an unallowable area.

2. Before I describe what happened on the day I stopped in Station Approach, Hayes, I confirm that the essence of my defence to this claim is that:
a. I did not breach the terms and conditions of parking
b. The Claimant's signage did not make it clear that stopping and alighting were not permissible. It is trite law that any uncertainty in a contract should be resolved against the person who offered it under the contra preferentem rule;
c. In the case of Jopson v Homeguard Services Limited, Judge Harris stated the following:
The purported prohibition was upon parking, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time. The Shorter Oxford Dictionary has the following: ‘To leave a vehicle in a carpark or other reserved space’ and ‘To leave in a suitable place until required’. The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Therefore no ‘parking’ event occurred.
d. Even if I did breach the terms, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association to allow a grace periods to allow time for drivers to find and read the terms and conditions offered.

3. So to the alleged incident, on xxxxxxx I was in Hayes to drop off a colleague at Hayes and Harlington station. Not being completely aware of Hayes and Harlington stations layout having never lived around this area I searched Google maps which recommended Station Approach. It was my first visit to this area and I was not previously familiar with it, or the road layouts.


4. After driving past the entrance to Station Approach I noticed ‘Private Road’ painted on the road itself. At the time of the incident, there were no markings on the road at the entrance to denote that parking restrictions applied to the private land as shown in XX2. This has since been update to state ‘No drop off or collection’ so even the claimant must have accepted that the prior markings were not clear to cause them to make the subsequent change.


5. After entering the road I proceeded to complete a three point turn to depart the area and as no other cars were entering ahead of me or behind me, my passenger alighted. As my passenger alighted I noticed a sign (XX3) above a row of parking spaces but the text was too small to read (as can be seen from the photo taken from where my car had paused (XX4)).
6. XX4 shows a vehicle parked in a space on Station Approach and is the view from the drivers seated position of where my car had stopped at the time of the alleged incident. Whilst driving my vehicle, my eye line is at 1.15m above the ground. The signage that can be seen in the photo is at a height of 3.2m which cannot be read from a seated position and without exiting the vehicle which I did not and therefore could not have entered into a contract with Parking Control Management. The text on the sign is extremely small and difficult to read from a standing position let alone from a seated position from the road.

The claimant is a member of the Independent Parking Community (IPC). This is against The Independent Parking Community - ACCREDITED OPERATOR SCHEME CODE OF PRACTICE – PART E which states – “The size of text on a sign will be determined by a number of factors such as the position of it, to whom it is aimed and the information that it needs to convey. Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

The signs do not conform to this and therefore are not valid.

7. After noticing the sign, I looked around for a closer one and noticed one to my right at drivers level (XX5) but this was even smaller with the sign being no more than 10 inches high so I was still unable to read the terms offered.

8. Figure XX3 also shows that amount of text on the sign. The number of words on the sign are in excess of 407 words some of which are illegible even with the use of a digital zoom of a camera. Further to this there are 2 signs on the entrance to Station Approach that contain 50 words and 126 words.

9. It is my understanding that there are three elements to a contract: offer, acceptance and consideration. I could not possibly have accepted any contract offered by the Claimant at the precise moment I drove onto Station Approach, because at that point no offer had been made. An offer must be communicated to an offeree. There was no offer communicated at the entrance to Station Approach, but only inside it - the Claimant’s signage setting out the terms and conditions were dotted around the site and could not be seen immediately on entry, and as previously stated I could not read them from my car.

10. In addition to considering the contractual element of the claim, I have considered the Code of Practice ("CoP") of the Independent Parking Committee ("IPC"), of which the Claimant is a member with regards to whether a reasonable “grace period” was allowed as stated in IPC Code of Practice 15.1. This states “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”. The visible signage on site did not state that no grace period was allowed as shown in XX3.
11. There has been a breach of the IPC Code of Practice relating to entrapment: it will be shown that the means to prevent the alleged “parking violation” existed both before, during and after the alleged contravention. It will also be demonstrated that the opportunity to instruct the driver of the parking “restrictions” in place was available
12. In the now infamous parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:
96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
111. “''And, 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.''

13. In this case, no grace period was given to read the terms of the offer, let alone accept them. The Claimant should have taken a reasonable and proportionate approach, complied with its own obligations under the CoP (not to mention exercised common sense) and should have applied the grace period. Furthermore, the issue the court is being asked to deal with is de minimis and the court's valuable time should not have been taken up with this matter.



Costs on the claim - disproportionate and disingenuous

14. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

15. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

16. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

17. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

18. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

19. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

20. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

21. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

22. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

23. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.


Signature of Defendant:


Name: XXXXXXX
Date: 02/09/2019

1505grandad

IPC = International Parking Community (see post #40 above)

whaqqer

Thanks 1505, I'll make the change

Umkomaas

A bit puzzled as to why you were submitting your defence in July last year, then taking around 14 months to come to court now?

Seems unusual.

whaqqer

Trust me, I was just as shocked when they gave me the date! I phoned the court last week and ghey have confirmed the payment has been made and the case will be going ahead hence why I'm now back to finish the witness statement.


It's being heard on the 18th so need to get my statement in the post tomorrow.

Redx

whaqqer wrote: »

hence why I'm now back to finish the witness statement.

It's being heard on the 18th so need to get my statement in the post tomorrow.

its not just your Witness statement

prepare the following

1) your WS

2) your Exhibits (evidence)

3) your COSTS SCHEDULE

those 3 items constitute your "bundle" to be served upon the claimant and the court, by that due date

your exhibits should be a part of your WS and also a menu of them with brief headings too, usually something like JBS001 , JBS002 etc if your name was John Barry Smith for example


hand delivering to the county court , plus emailing to the claimant is the preferred option

whaqqer

Thanks RedX, I have used XX1, XX2, etc in my witness statement on here so as not to give my identity away on here but will change them to my initials for the final document. I have all the photos copied and labeled with the correct initials ready to go with the WS.


The documents from the court don't state it but on the forum everyone says the WS pack must be submitted no later than 14 days prior to the case, is this correct? And if so, if my case is on wednesday 18th, do I have to have them submitted by close of business on Tuesday 3rd or Wednesday 4th?


Thanks

Redx

your court documents have the date on them for this bundle (pack)

nobody on here has seen your court order document so nobody can comment on any "14 day rule" , because it can vary

you should not be asking us when that date is, seeing as its on your court order (the one that gave your hearing date)


you would be amazed at the number of people who say its not on the court order, only to find it there , eventually

1505grandad

Para 4 - updateD

I am no expert but I believe the forum experts would state:-

Para 12 - In the well known (not "now infamous") parking case

Para 20 - put "The judge stated" before ''IT IS ORDERED THAT

Also seem to be a surplus of "is a member of the (IPC)

No doubt the experts will be along in due course.

Redx

well spotted