Is this a letter before court?

Dudleydave

Yes tried google and all other avenues I can think of, no old pics I’m afraid!.

Ok thanks for the advice on the out of proportion charges.

I am trying hard to find angles of arguments to help my case.

Coupon-mad

At post #113 now, the thread is huge and none of the rest of us can recall anything about your case! Most of us regulars do not use the forum screenview that shows the first post at the top of later pages (I don't, so have no idea what your case is about now but will answer queries).

I suggest a summary of the alleged contravention, car park, and where you are at would be good. If they've submitted further particulars in accordance with a Judge's Order, does that Order also tell the Defendant (you) when to submit your WS and evidence? Or does the letter that advised you of the January hearing date tell you when ''all parties must...'' etc.?

Dudleydave

Brief outline, Summer 2017 With family, was in car park for some 12 mins or so before was able to pay for ticket. Paid for 5hrs parking (highest tariff listed) and still have ticket. Arrived back at car park and did not leave the site until approx 15 mins after ticket expired.

As far as the judges instructions go, hearing Jan 2nd , evidence by both parties to be submitted 14 days prior to hearing.

Coupon-mad

You need to get it filed & served a couple of days earlier than that I'd say, as your local court might even be closed the week before Christmas.

Dudleydave

Draft WS for comments and advice please:

In the County Court at XXXX

Claim No. XXXXXXX

Between

NATIONAL CAR PARKS LTD (Claimant)

and

XXXXXXXXXXXXXXX

---

Witness Statement

---

1. I XXXX XXXXXXXXXX XXX of ADDRESS, the Defendant in this matter. I will say as follows:

2. On xx XX 2017, I visited the xxxx Car park, xxxxxxx, and parked my vehicle, registration no xxxxxxxxx in the NCP car park.

3. It was xxxxxxxxxxx) Also it was my wife’s birthday which happened to be the reason that we, along with my two children, xxxages visited xxxxxxx

4. It took me a few minutes to find a space and park in it, it was, as stated a Bank Holiday and the carpark was quite busy. When I eventually found a space and parked, I got out of the car and I went to the ticket machine to pay.

5. I can recall that at the time the maximum time displayed was for 4 hours at £5.50, I also recall trying to pay by card at the machine but that failed for what seemed to be a machine fault, so I used cash and paid for the ticket Exhibit XX1 in good faith.

6. Then we had a few hours in XXXXXX Town Centre and returned to the car at the time on the above ticket, then with loading the shopping that we had bought, the children and the busy Bank Holiday Monday activity on the car park we were innocently delayed slightly in reaching the exit road.

7. Around a week later I received a Parking Charge Notice of a £100 (£60.00 if paid within 14 Days) for what was stated ‘Parking longer than the time paid for’.

8. I strongly felt I did not overstay intentionally and if I did it was for only a few minutes and that the subsequent financial penalty being requested was totally disproportionate to the original cost of parking and that they were not fully appreciating the spirit of the recognised grace period.

9. In the British Parking Association – (BPA - to which the Claimant is a member) Code of Practice (CoP) XX2 in particular paragraphs 13.2 & 13.4 states a Grace Period when entering and leaving a car park of a minimum of 10 minutes.

10. This is confirmed by Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) XX3

11. In order to be an accredited member of the BPA, compliance with the CoP is compulsory, as in paragraphs 4.1 and 6 of the CoP. XX4

12. Evidence relied on by the claimant states the times of my car entering and leaving the car park but not of my car actually parked in a parking bay. I believe it does not take into account the time it takes to find a space and how busy the car park was on the day.

13. Whilst I accept that following the parking I was on site for more than 10 minutes, this was because of the busy naturally busy Bank Holiday both inside and outside the carpark, a matter which was outside of my control. It is worthy of note that the recommended grace period is a minimum of 10 minutes, and the Claimant should have exercised common sense and applied a greater grace period than the minimum to take into account the prevailing circumstances at the time. 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.

14. Since then I have received numerous intimidating robo letters from the Claimant, Debt Recovery Firm (Trace) acting on their behalf and subsequently the Claimants Solicitors (Gladstones).

15. I emailed Gladstones XX5 on the XXth March 2018 requesting details of several points which I believed I was legally entitled to.

16. When I still hadn’t received detailed response to my raised requests, I only received robo letters in reply, I emailed Gladstones again XX6 on the XXXX 2018 and on the XXXX 2018 XX7 reiterating my concerns at the absence of an acknowledgement of my emails and the total lack of any information or documents I had requested.

17. It was only when instructed in the Notice of Allocation dated Oct XX 2018 that the claimant produced a document showing photographs of the signage at the car park in question.

18. I must state that I do not believe that the signs in the claimants photographs are the signs that were erected at the time/date of the alleged incident, although I cannot prove this as I do not live near XXXX, these signs look very new in the photographs and are not the ones I recall at the time and actually show a discrepancy XX8 which I believe partially backs up my suspicion.

19. 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


Date 5 DECEMBER 2018

Dudleydave

Hi, I will be posted the above tomorrow.

Any last minute advice would be very much appreciated

Coupon-mad

Remove the word ''intentionally''.

Add to the point about grace periods that there are TWO separate periods of time, before and after parking, and in a PDT machine car park, the contract only begins when the money is paid into the machine. Adduce Thornton v Shoe Lane Parking (read it first) to understand how that supports your case.

I found this in someone's defence and it relates to your case too and you need to fully understand what the Beavis case Judges said at the CoA and Supreme Court, albeit this is all legal argument and so you may well be best to set this out within a separate skeleton argument (see the NEWBIES thread about those):

The Defendant avers that there was no such relevant contract or relevant obligation or burden that could fairly and squarely fall at the feet of the Defendant that day. Springing a completely different timing than the data/expiry time shown on the PDT ticket that the driver relied upon, in an unsolicited demand sent by way of ambush some two weeks after the event, causes an imbalance in consumer rights and interests. It is averred that this falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

g) The Defendant avers the assertion that this charge is unconscionable, given the fact that the conduct of the Defendant caused no issues to other drivers, took up no valuable parking space that the driver was not entitled to use, and the sum for parking was in fact, paid in full.

h) There was no disincentive or deterrent value in penalising paying patrons, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases. To quote from the decisions during the course of the court process in Beavis:

- At the Court of Appeal (these findings were not overturned):
Para 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...''

Para 47: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] 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.” ''

- At the Supreme Court:
At para #22, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

Para 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

Authorities other than Beavis, better apply to the instant case. It is the Defendant's case that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of unrecoverable penalty, as well as:

(i) Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

(ii) Jolley v Carmel Ltd [2000] 2 –EGLR -154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach, and

(iii) Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.

Dudleydave

Thank you once more CM

I have made the changes and I will read up as suggested.

It is all a legal minefield to the uninitiated like myself.

Dudleydave

Hi All,

Just reporting back on the outcome of my hearing. I won!

A brief story of what occurred (and what I can recall).

I turned up, as suggested on here, about 30 mins prior to the scheduled hearing.

As I as sat next to the Ushers desk I overheard the Solicitor who was representing NCP/Gladstones make his presence known.

Once informed that I was the Defendant he made his way to me and introduced himself and suggested that we have a private word in one of the adjacent rooms.

Out of interest I went, he said he is not working for either party (yeah right) and that we can avoid the court if I made an offer to settle, I answered that there was no offer going to come from me. He then enquired (fished more like) what was my main argument in the case. I then abruptly cut short this chat and got up and went back to the waiting room.

We were not called in until about an hour after the stated start time.

Once in with the Judge (very sorry I did not catch his name) he enquired was it my first time in a court, I replied that it was,

He then turned to their solicitor and immediately asked about the validity of the signage photographs forwarded as evidence by the Claimant.

If you can recall I seriously doubted in my witness statement that the photographs of the signage at the car park were the signs that I could remember, they looked new to me.

Their solicitor stated that the dates at the bottom of the pages with the photographs on pre-dated the incident but could not confirm for sure that they were actually taken prior to the time I was there.

The Judge then asked if I had anything to say about this but that I did not have to, I obviously didn't not have to, it was a question they could not answer with clarity so they had really answered for me.

The Judge then briefly summed up, he said the photographs needed to be date stamped, praised my defence, then found against the claimant.

That was it, 16 months of grief all over in no more than 10 minutes. I know at this point I should have mentioned expenses, but I did not and to be honest I do not care, the win was all I wanted.

I cannot thank enough all the people that helped me in my defence on here, especially if I may, Coupon-Mad, I will be forever in your debt,

Many thanks.

Dudleydave

Thank you again for all your help, I sincerely hope the reasons for my win helps others on here!