Claim form issued - Gladstones / HX Car Park Management LTD PCN

Skyboss

Unfortunately I have suffered a serious illness which hospitalised me for a couple of months and I am recuperating at the moment.
I have my WS ready to file, which has to be submitted before the 19/03 (14 days prior to court case on 3rd April).

Skyboss

Copy WS below. I have not entered page numbers yet where I refer to them (page????). The documents will include photographs of signage, T&Cs and correspondence.

Please let me know what you think.

Thanks.


Witness Statement


Claim Number XXXXXXX

XXXXXXX (Claimant) v XXXXXXX (Defendant)

XXXXXXX
XXXXXXXX
Postcode

Dated 05/03/18


I am the registered keeper of the vehicle XXXXX

I was not the driver of the vehicle on 16/05/18.

I request that XXXXXXX attend and act as my lay representative.

On 16/05/17 the vehicle XXXXXXXX was parked in the XXXXXXX Car Park whilst visiting XXXXXX Restaurant. Patrons of XXXXX were allowed free parking after 18:00hrs.

I received a letter before claim from Gladstones solicitors dated 26/07/17 on 28/07/17. Copy enclosed, page ? I had received no correspondence prior to this.

I responded to this letter 07/08/17 requesting full details of the parking charge to which they were referring. Gladstones responded with their letter dated 30/08/17 and failed to address questions such as how the parking charge had been calculated, explanation of the !!!8216;letter before claim!!!8217; and also misunderstood other elements of my letter. Copy of my letter and Gladstones!!!8217; response are enclosed (page ? & ? respectively!!!8230;.)

In my opinion it looks like a standard template letter response, roughly covering some of the points raised but not actually addressing them. It is apparent from online reports that this is common practice and cases are treated in a conveyer like / production line fashion.

I responded to their letter of 30/08/17 and I addressed their points raised in my letter 14/09/17 and also asked that Gladstones address my original points and questions. Copy letter attached, page? !!!8230;.

I received no response to my letter 14/09/17 and the next thing I received was a claim form on 24/09/17 with an issue date of 22/09/17. Copy enclosed, page?

I received a further letter from Gladstones dated 31/10/17 advising that they had notified the court of their client!!!8217;s intention to proceed with the claim. They stated that they had enclosed a completed Directions Questionnaire, however, the Directions Questionnaire had not been completed, it was completely blank in all sections (page???). They also stated that their client had elected not to mediate. A request for special direction pursuant to PD27(2.4) was also enclosed. Copies enclosed, pages ???? This letter also looks like a standard template letter and that clients are routinely advised not to mediate.

However, the Claimant is not able to bring this claim as they have no authority on the following grounds, any one of which fully negates the Claimant!!!8217;s case:

The Protection of Freedom Act (PoFA) 2012, Schedule 4 has not been complied with:
A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver, the keeper can only be held liable if the Claimant has fully complied with all requirements.
Pre-empting Gladstones Solicitors and that they will quote the Elliot v Loake (EvL) case, it should be noted that EvL was a criminal case and forensic evidence was used to prove the keeper was the driver. Nothing like or similar to this case.
The Claimant has not proven their case, they have shown no evidence that the registered keeper was the driver. This is because they cannot, because the registered keeper was not the driver.



1. Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver. Contrary to PoFA 2012, Schedule 4, paragraph 9,2,f. (see page ?? for ref.)
The Notice to Keeper only states !!!8220;Should the kegistered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver!!!8221;. (page???)

2. The Notice to Keeper (page???) does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j). (page??)




3. Notification Letter to Keeper (page????) does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3. (page??)

4. XXXXX Car Park XX LTD are not the lawful occupiers of the land. Absent a contract with the lawful occupier of the land being produced by the Claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have reason to believe that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this matter.


4.(i) No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper!!!8217;s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.


4.(ii) It is the Defendant's case that there was no contravention of any term authorised by the landowner, regarding parking after 18:00hrs on the material date, because parking was free from that time. The Claimant is put to strict proof of their case.

5.(i) The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not contain full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, !!!8216;Entrance Signs!!!8217;. Page????

5.(ii)I am not ware of any signage being present drawing the recent change of restrictions to the attention of drivers relying upon the !!!8216;free after 18:00hrs!!!8217; on the 16/05/17, contrary to IPC Code of Practice, part E, Schedule 1 - Signage, !!!8216;Changes in Operator!!!8217;s Terms and Conditions (page ????).

5.(iii) The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, !!!8216;Text size!!!8217;. See page ??? for reference.

5.(iv) The signage at XXXXX Car Park is in coloured pale red font on a gold background which offers a very poor contrast and therefore cannot easily be read. My son is registered partially sighted and he struggles to read the signage due to the colours used and resultant poor contrast (IPC Code of Practice, Part E, Schedule 1 - Signage, !!!8216;Contrast and Illumination!!!8217; states that [...] !!!8220;Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired!!!8221;).


5.(v) The car park operates 24/7 and has no illumination for any signage except for the sign near to the ticket machine which has inadequate, indirect illumination contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, !!!8216;Contrast and Illumination!!!8217; which states that [...] !!!8220;If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated!!!8221;. (Page ??? for reference.

5.(vi) There is no warning on any signage that if a charge remains unpaid for a period of 28 days after issue then an application will be made to DVLA for the keeper!!!8217;s details, contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, !!!8216;Other signs!!!8217;, condition 3.

5.(vii) Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, !!!8216;Other Signs!!!8217;, condition 4. Example of signage where the vehicle was parked, page???? This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from floor to bottom of the sign). It is in my opinion far beyond the capability of a normally sighted person to read this sign from their vehicle when entering and parking their vehicle. Even stood close to the sign it is not fully legible due to the size of some of the text. page????

5.(viii) Signage does not contain text appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. Page ???? contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, condition 6.

5.(ix) There is reference to full terms and conditions on the entrance sign, at the pay machine and on repeater signs but these all show a different combination of terms & conditions. It is not apparent which terms & conditions apply. It is very confusing and not possible to determine what the full terms and conditions are. It cannot be expected that persons would understand what the full terms & conditions are and it is questionable whether they would have entered into a contract if it is not clear exactly what the full terms & conditions are.





6. The vehicle registration XXXXX was parked in XXXX Car Park 16/05/17 on the understanding that free parking was allowed after 18:00hrs for patrons of XXXXX restaurant.
There was no signage or notice to the contrary, it was not immediately apparent to the defendant that there had been a change in pre-existing contract / terms & conditions. The vehicle was parked in good faith under these terms & conditions as known to the defendant (that free parking would be afforded to patrons of XXXXX restaurant).
Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of XXXXX no longer apply and that charges now apply after 18:00hrs. I do not believe that this signage was in place 16/05/17.
As there was no notification of the change in parking terms & conditions, a parking charge notice cannot be enforced.

7. Sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs rate (80p per hour) would cover 1 hour of parking during that time period. However, the rates change at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
There was no underpayment or overstay. The ticket machine does not operate properly in this instance.

8. The Claimant makes reference to Parking Eye v Beavis. The Claimant has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable unfair contract term and this case can easily be distinguished from Parking Eye v Beavis.

The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and unfair contract term .

a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

!!!8220;97
a. The need to provide parking spaces for their commercial tenants!!!8217; prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent !!!8216;misuse!!!8217; of the parking for purposes unconnected with the tenants!!!8217; business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.!!!8221;-

In this case the vehicle would have been fully entitled to park as it did had payment been made (provided the requirement to do so had been clearly brought to the motorist's attention). The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise.The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made, i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pence. The charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the two hour limit. That is afforded by the
parking charge of £85. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. [...]: When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that
which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
!!!8220;But that a very large sum should become immediately payable, in consequence
of the non-payment of a very small sum, and that the former should not be
considered a penalty, appears to be a contradiction in terms, the case being
precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to
assess the real damages sustained by the breach of the agreement.!!!8221;



This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist.There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner, not the Operator, may be entitled. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pence that the Operator believes should have been paid.



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

Signed



XXXXX

Coupon-mad

I have my WS ready to file, which has to be submitted before the 19/03 (14 days prior to court case on 3rd April).

Good! I was worried you had missed your deadline.

So sorry to hear about your illness and hospitalisation, hope you are on the mend.

Bumping your WS for others to comment on, if you get no replies please re=post but turn OFF your 'Smart Punctuation' which is causing the !!!8221; glitch that ruins your sentences in the above post.

Please do re-post without that glitch, as it will help us see it. I didn't have time tonight to unpick it.

Skyboss

WS re-posted below without glitch. Thanks.

Witness Statement


Claim Number xxx

xxx (Claimant) v xxx (Defendant)

xxxxxx
Postcode

Dated 05/03/18


I am the registered keeper of the vehicle xxx

I was not the driver of the vehicle on 16/05/18.

I request that xxx attend and act as my lay representative.

On 16/05/17 the vehicle xxx was parked in the xxx Car Park xxx whilst visiting xxx Restaurant. Patrons of xxx were allowed free parking after 18:00hrs.

I received a letter before claim from Gladstones solicitors dated 26/07/17 on 28/07/17. Copy enclosed for reference, page 9. I had received no correspondence prior to this.

I responded to this letter 07/08/17 requesting full details of the parking charge to which they were referring. Gladstones responded with their letter dated 30/08/17 and failed to address questions such as how the parking charge had been calculated, explanation of the letter before claim and also misunderstood other elements of my letter. Copy of my letter and Gladstones’ response are enclosed, page 10 & page 11/12 respectively.

In my opinion it looks like a standard template letter response, roughly covering some of the points raised but not actually addressing them. It is apparent from online reports that this is common practice and cases are treated in a conveyer like / production line fashion.

I responded to their letter of 30/08/17 and I addressed their points in my letter to them 14/09/17 and also asked that Gladstones address my original points and questions. Copy letter attached, page 18/19.

I received no response to my letter 14/09/17 and the next thing I received was a claim form on 24/09/17 with an issue date of 22/09/17. Copy enclosed, page 17.

I received a further letter from Gladstones dated 31/10/17 advising that they had notified the court of their client’s intention to proceed with the claim. They stated that they had enclosed a completed Directions Questionnaire, however, the Directions Questionnaire had not been completed, it was completely blank in all sections. They also stated that their client had elected not to mediate. A request for special direction pursuant to PD27(2.4) was also enclosed. Copies enclosed, pages 20-24.

However, the Claimant is not able to bring this claim as they have no authority on the following grounds, any one of which fully negates the Claimant’s case:

The Protection of Freedom Act (PoFA) 2012, Schedule 4 has not been complied with:
A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver, the keeper can only be held liable if the Claimant has fully complied with all requirements.
Pre-empting Gladstones Solicitors and that they will quote the Elliot v Loake (EvL) case as they are not able to prove the registered keeper as the driver, it should be noted that EvL was a criminal case and forensic evidence was used to prove the keeper was the driver. Nothing like or similar to this case.
The Claimant has not proven their case, they have shown no evidence that the registered keeper was the driver. This is because they cannot, because the registered keeper was not the driver.



1. Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver. Contrary to PoFA 2012, Schedule 4, paragraph 9,2,f. (page 25/26 for ref.)
The Notice to Keeper only states, Should the registered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the drive. Copy enclosed, page14.

2. The Notice to Keeper (page 14) does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j). (page 27)




3. Notification Letter to Keeper (page 15) does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3. (page 28)

4. I believe xxx Car Park xxx LTD may not be the lawful occupiers of the land. Absent a contract with the lawful occupier of the land being produced by the Claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have reason to believe that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this matter.


4.(i) No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.


4.(ii) It is the Defendant's case that there was no contravention of any term authorised by the landowner, regarding parking after 18:00hrs on the material date, because parking was free from that time. The Claimant is put to strict proof of their case.

5.(i) The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not contain full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, Entrance Signs. Copy enclosed, page 29/30.

5.(ii)I do not believe that signs drawing the recent change of restrictions to the attention of drivers relying upon the free after 18:00hrs condition were in place on the 16/05/17, contrary to IPC Code of Practice, part E, Schedule 1 - Signage, Changes in Operator’s Terms and Conditions. Copy enclosed, page 31.



5.(iii) The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, Text size. Copy enclosed, page 30. Photograph, page 32.

5.(iv) The signage at xxxCar Park is in coloured pale red font on a gold background which offers a very poor contrast and therefore cannot easily be read, photographic examples, page 32/33. IPC Code of Practice, Part E, Schedule 1 - Signage, Contrast and Illumination (page 30) states 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. The photographs (page 32/33) are of the entrance sign and are aimed at drivers in a moving vehicle entering the car park. This signage is not, in my opinion, fit for purpose.
Furthermore, my son is registered partially sighted and he struggles to read the signage due to the colours used and resultant poor contrast (IPC Code of Practice, Part E, Schedule 1 - Signage, Contrast and Illumination (page 30) states that [...] Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired).

5.(v) The car park operates 24/7 and has no illumination for any signage except for the sign near to the ticket machine which has inadequate, indirect illumination, contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, Contrast and Illumination (page 30), which states that [...] If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated.

5.(vi) I do not believe that there is any warning on any signage that if a charge remains unpaid for a period of 28 days after issue then an application will be made to DVLA for the keeper’s details, contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, Other signs, condition 3. Copy enclosed, page 31. Photographs of signage, pages 33,35,36,38.

5.(vii) Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, Other Signs, condition 4. Example of signage where the vehicle was parked, page 37. This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from pavement to bottom of the sign). It is in my opinion far beyond the capability of a normally sighted person to read this sign from their vehicle when entering and parking their vehicle. Even stood close to the sign it is not fully legible due to the size of some of the text. Page 38.

5.(viii) Signage does not contain text appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. Pages 32,37,38, contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, Other Signs, condition 6. Copy enclosed, page 31.

5.(ix) There is reference to full terms and conditions on the entrance sign, at the pay machine and on repeater signs but these all show a different combination of terms & conditions. It is not apparent which terms & conditions apply. It is very confusing and not possible to determine what the full terms and conditions are. It cannot be expected that persons would understand what the full terms & conditions are and it is questionable whether they would have entered into a contract if it is not clear exactly what the full terms & conditions are.


6. The vehicle registration xxx was parked in xxx Car Park 16/05/17 on the understanding that free parking was allowed after 18:00hrs for patrons of xxx restaurant.
I do not believe that there was any signage or notice to the contrary, it was not immediately apparent to the Defendant that there had been a change in pre-existing contract / terms & conditions. The vehicle was parked in good faith under these terms & conditions as known to the Defendant (that free parking would be afforded to patrons of xxx restaurant).
Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of xxx no longer apply and that charges now apply after 18:00hrs. I do not believe this was in place 16/05/17.
As there was no notification of the change in parking terms & conditions, a parking charge notice cannot be enforced.

7. Sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs rate (80p per hour) would cover 1 hour of parking during that time period. However, the rates change at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
There was no underpayment or overstay. The ticket machine does not operate properly in this instance.

8. The Claimant makes reference to Parking Eye v Beavis. The Claimant has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable unfair contract term and this case can easily be distinguished from Parking Eye v Beavis.

The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and unfair contract term .

a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent misuse of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.-

In this case the vehicle would have been fully entitled to park as it did had payment been made (provided the requirement to do so had been clearly brought to the motorist's attention). The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise.The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made, i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pence. The charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the two hour limit. That is afforded by the
parking charge of £85. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. [...]: When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that
which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
But that a very large sum should become immediately payable, in consequence
of the non-payment of a very small sum, and that the former should not be
considered a penalty, appears to be a contradiction in terms, the case being
precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to
assess the real damages sustained by the breach of the agreement.

This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist.There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner, not the Operator, may be entitled. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pence that the Operator believes should have been paid.

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

nosferatu1001

That does not read as a witness statement, as it includes arguments.

A witness statement should only really include facts that you, the witness, know. Dates, times, copies of documents recieved, etc.

Skyboss

Amended WS below. I've included PoFA and IPC stuff. Can I include these as facts or should I leave them out at this stage?

Witness Statement


Claim Number xxx

xxx (Claimant) v xxx (Defendant)

xxx
xxx
Post Code

Dated xxx


1. I am the registered keeper of the vehicle xxx

2. I was not the driver of the vehicle on 16/05/18.

3. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my knowledge.

4. I request that xxx attend and act as my lay representative.

5. 16/05/17, the vehicle xxx was parked in the xxx Car Park whilst visiting xxx Restaurant. Patrons of xxx were allowed free parking after 18:00hrs.

6. 28/07/17, I received a letter before claim from Gladstones solicitors. Copy enclosed for reference, page 9. I had received no correspondence prior to this.

7. 07/08/17, I responded in writing to Gladstones requesting full details of the parking charge to which they were referring.

8. 30/08/18 Gladstones responded to my letter 07/08/18 but failed to address questions such as how the parking charge had been calculated, explanation of the letter before claim and also misunderstood other elements of my letter. Copy of my letter and Gladstones!!!8217; response are enclosed, page 10 & page 11/12 respectively. Gladstones enclosed a copy of the Notice to Keeper dated 30/05/18, a Notification Letter to Keeper dated 28/06/18 and a final demand notice dated 13/07/18. Pages 14,15,16.

9. 14/09/18, I responded to their letter of 30/08/17 and addressed their points and also asked that Gladstones address my original points and questions. Copy letter attached, page 18/19.
I received no response to my letter.

10. 24/09/18, I received a claim form. Copy enclosed, page 17.

11. 31/10/17, I received a further letter from Gladstones advising that they had notified the court of their client!!!8217;s intention to proceed with the claim. They stated that they had enclosed a completed Directions Questionnaire, however, the Directions Questionnaire had not been completed, it was completely blank in all sections. They also stated that their client had elected not to mediate. A request for special direction pursuant to PD27(2.4) was also enclosed. Copies enclosed, pages 20-24.

12. The Protection of Freedom Act (PoFA) 2012, Schedule 4 has not been complied with:
A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver.
The Claimant has not proven their case, they have shown no evidence that the registered keeper was the driver. This is because they cannot, because the registered keeper was not the driver.
Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver. Contrary to PoFA 2012, Schedule 4, paragraph 9,2,f. (page 25/26 for ref.)

13. There are several contraventions of the International Parking Community (IPC) Code of Practice. Xxx Car Park xxx is a registered member of the IPC.
Notice to Keeper (page 14) does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j). (page 27). Notice to Keeper only states Should the registered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver. Copy enclosed, page14.
Notification Letter to Keeper (page 15) does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3. (page 28)
The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not contain full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, Entrance Signs. Copy enclosed, page 29/30.
I do not believe that signs drawing the recent change of restrictions to the attention of drivers relying upon the free after 18:00hrs condition were in place on the 16/05/17, contrary to IPC Code of Practice, part E, Schedule 1 - Signage, Changes in Operator!!!8217;s Terms and Conditions. Copy enclosed, page 31.
The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, Text size. Copy enclosed, page 30. Photograph, page 32.
Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, Other Signs, condition 4. Example of signage where the vehicle was parked, page 37/38. This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from pavement to bottom of the sign).
Signage does not contain text appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. Pages 32,37,38, contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, Other Signs, condition 6. Copy enclosed, page 31.


14. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper!!!8217;s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.

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

Skyboss

WS with better formatting...

Witness Statement


Claim Number xxx

xxx (Claimant) v xxx (Defendant)

xxx
xxx
Post Code

Dated xxx


1. I am the registered keeper of the vehicle xxx


2. I was not the driver of the vehicle on 16/05/18.


3. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my knowledge.


4. I request that xxx attend and act as my lay representative.


5. 16/05/17, the vehicle xxx was parked in the xxx Car Park whilst visiting xxx Restaurant. Patrons of xxx were allowed free parking after 18:00hrs.


6. 28/07/17, I received a letter before claim from Gladstones solicitors. Copy enclosed for reference, page 9. I had received no correspondence prior to this.


7. 07/08/17, I responded in writing to Gladstones requesting full details of the parking charge to which they were referring.

8. 30/08/18 Gladstones responded to my letter 07/08/18 but failed to address questions such as how the parking charge had been calculated, explanation of the letter before claim and also misunderstood other elements of my letter. Copy of my letter and Gladstones response are enclosed, page 10 & page 11/12 respectively. Gladstones enclosed a copy of the Notice to Keeper dated 30/05/18, a Notification Letter to Keeper dated 28/06/18 and a final demand notice dated 13/07/18. Pages 14,15,16.


9. 14/09/18, I responded to their letter of 30/08/17 and addressed their points and also asked that Gladstones address my original points and questions. Copy letter attached, page 18/19.
I received no response to my letter.


10. 24/09/18, I received a claim form. Copy enclosed, page 17.


11. 31/10/17, I received a further letter from Gladstones advising that they had notified the court of their clients intention to proceed with the claim. They stated that they had enclosed a completed Directions Questionnaire, however, the Directions Questionnaire had not been completed, it was completely blank in all sections. They also stated that their client had elected not to mediate. A request for special direction pursuant to PD27(2.4) was also enclosed. Copies enclosed, pages 20-24.


12. The Protection of Freedom Act (PoFA) 2012, Schedule 4 has not been complied with:
A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver.

a) The Claimant has not proven their case, they have shown no evidence that the registered keeper was the driver. This is because they cannot, because the registered keeper was not the driver.

b) Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver. Contrary to PoFA 2012, Schedule 4, paragraph 9,2,f. (page 25/26 for ref.)

13. There are several contraventions of the International Parking Community (IPC) Code of Practice. Xxx Car Park xxx is a registered member of the IPC.
a) Notice to Keeper (page 14) does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j). (page 27).
Notice to Keeper only states Should the registered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver. Copy enclosed, page14.

b) Notification Letter to Keeper (page 15) does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3. (page 28)

c) The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not contain full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, Entrance Signs. Copy enclosed, page 29/30.

d) I do not believe that signs drawing the recent change of restrictions to the attention of drivers relying upon the free after 18:00hrs condition were in place on the 16/05/17, contrary to IPC Code of Practice, part E, Schedule 1 - Signage, Changes in Operators Terms and Conditions. Copy enclosed, page 31.
The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, Text size. Copy enclosed, page 30. Photograph, page 32.

e) Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, Other Signs, condition 4. Example of signage where the vehicle was parked, page 37/38. This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from pavement to bottom of the sign).

f) Signage does not contain text appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. Pages 32,37,38, contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, Other Signs, condition 6. Copy enclosed, page 31.


14. No evidence has been provided that a valid ticket was not purchased. Photographs of the keepers vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.

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

Fruitcake

Unless you have a TARDIS, the date at 2 is wrong.

At 8, the NTK is dated the 30th of May. It cannot possibly have arrived by day 14, beginning with the day after the event, so is another POFA 2012 failure.

Coupon-mad

I've included PoFA and IPC stuff. Can I include these as facts or should I leave them out at this stage?

I think they are OK as facts in a WS, and the POFA is a very important issue to include, if the NTK was served too late for 'keeper liability'.

Skyboss

Thank you for the feedback both, I had a number of dates wrong, /18 instead of /17. I've corrected these and added the points about NTK not delivered within 14 days, contrary to PoFA and IPC.