Britannia PCN for a full carpark - car was never parked!

KeithP

theduchess2018 wrote: »

Issue date is 16/5 and then it says on the form that the Date of Service is 5 days after that (21/5/) and I have until 28 days after the date of service to get my defence in.

Yes, you are correct with your target date, but only if you did the Acknowledgement of Service before Tuesday 4th June. Did you do the AoS before last Tuesday?


With a Claim Issue Date of 16th May, and if you have done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 18th June 2019 to file your Defence.

That's just over a week away. Not long.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

theduchess2018

Yes, I did the Acknowledgement of Service straight away, good to know I have got that right! The whole thing seems like a minefield and it is only thanks to this site and a few other places online that I have any idea what to do.


Any comments about the defence above would be very gratefully received. Someone above mentioned getting witness statements about the queue in the carpark but that is hard as it's such a long time ago and I live three hours away from the city where the 'contravention' happened. There were no adults with me at the time - I don't suppose a statement from my now 12 year old would be ethical/valid?! I feel like Britannia must have some as they surely have CCTV but they obviously aren't going to produce them!

Le_Kirk

Have a look at the defences in the NEWBIE thread post # 2, where you will find a few written by Bargepole (amongst 17 defences) where he uses a standard clause: -

7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

Coupon-mad

Britannia don't have CCTV.

theduchess2018

Well, my court date is fast approaching. BW sent a generous offer on Christmas Eve for me to pay £160 within 3 days. Tempting as it was I ignored it so will be in court next month.

If possible, I would be really grateful for any comments on my witness statement below. I've had a good look at the links on the NEWBIE thread but not sure whether I shouldn't break it into WS and a skeleton argument. Lots of the paragraphs seem a bit chunky, but not sure what i should take out. If you do both, should the WS not refer to laws/BPA/other cases at all?

Britannia Parking Group Limited T/A Britannia Parking - Claimant
XXX- Defendant

Witness Statement

I, XXX am the defendant in this claim. The facts stated in this statement are of my own personal knowledge, unless stated otherwise.

1. I entered the carpark, Plymouth- Harbour MSCP Plymouth, on the date in question and at the time shown on the photographs provided by the claimant, but was unable to find a space. The time spent in the carpark was the time taken to circle the premises twice in an extremely slow moving, often stationary, queue.

2. I confirm that, on entering the carpark, I was fully aware that I would need to pay on parking the car. It is a multi-storey facility with a familiar blue and white P sign at the entrance, along with a large ‘Harbour Car Park’ sign across the top of the entrance.

3. However, I had not realised that Britannia was using cameras to record cars entering the carpark and, therefore, having entered, it was imperative that I leave within their 10 minute grace period in order to avoid incurring a charge.

4. There is a sign, located on the right side wall just inside the entrance of the carpark, and this sign states: 'Camera Controlled Pay on Arrival' and advises below, in small writing, that 'further details' are on 'notices in the carpark'. A picture is included (exhibit 1). There are several reasons why I believe this sign does not comply with the BPA’s code of practice and screenshots of the relevant paragraphs of this document are included in exhibit 2.

5. Firstly, the code of practice states that the ‘driver should be able to read the sign without ‘their needing to look away from the road ahead.’ This as not the case; I would have needed to turn my head sharply to the right to see the sign. In fact, the photograph provided by Britannia along with my PCN, shows clearly that the road into the carpark curves to the left just at the point where the sign mentioned in point 4 is placed on the right, thus making it even more likely that anyone driving carefully into this carpark, which has a narrow entrance way, would miss it. Thus, I knew I was entering a carpark and would have assumed I would be paying for parking, but I did not know that cameras were in operation, nor what impact that fact needed to have on my behaviour once inside the carpark.

6. Furthermore, the BPA requirement that ‘signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for,’ has not been adhered to by Britannia. The sign, even if noticed, states ‘Camera Controlled Pay on Arrival’ but does not state what the data will be used for. In fact, the term ‘ANPR’ is not used on signs within the carpark, or not any that I saw, and not on any of the photographs that Britannia has since sent to me. ‘Camera Controlled’ is a vague term, and could reasonably be understood to mean that cameras such as CCTV are in operation to prevent crime, such as car theft or vandalism. It does not specify that number plates are being recorded, nor that a contract is being entered into simply by virtue of entering the carpark. This cannot be considered ‘transparent’: it does not state that timing will be from the points of entry and exit to the carpark, and not the time parked.


7. Furthermore, I do not believe I entered into a contract with Britannia, since, although terms and conditions are mentioned on their entrance signs and then made more fully available on their payment machines, in accordance with BPA’s code, as it was never possible to exit the vehicle to see these notices, there was no contract agreed as it was never possible to read the notices and thereby agree to the terms and conditions.

8. I would also add that even had I been aware that I needed to pay having been inside the building for longer than 10 minutes, I would have been unable to do so due to the congestion inside the carpark. Britannia had not provided the service advertised: no spaces were available and, as the premises has ten floors, it took a long time to circulate it twice. Unfamiliar with Plymouth, I chose to go around twice because I had struggled to find a carpark beforehand and was anxious to park and have lunch with my children.

9. The PCN I originally received states that I ‘failed to make a valid payment’, but Britannia have never provided any proof that I parked, only that I entered and left at the times on their photographs. I have never contested that, but I did not commit the contravention because I did not park, and would suggest that Britannia to put to strict proof that I in fact did so.

10. When I originally appealed the PCN with Britannia they refused my appeal, stating that ‘[my] vehicle was parked in breach of the Terms and Conditions’ of the Car Park. Yet, no proof has been provided that I ever parked, and Britannia appeared not to have read my appeal at all, since no reference was made to the fact that I had stated I had not parked. They also stated that ‘By leaving [my] vehicle in the car park have broken the terms and conditions,’ but, again, I contest that I did not leave the car and never had the opportunity to view terms and conditions as it was never safe, or even possible, to leave the car while in a queue.

11. On exiting the carpark, I found a space nearby – one of a limited number available by the waterside at Plymouth Harbour and also owned by Britannia. I paid by phone, and a record of the payment is to be found in item 4. I would ask why I would park my car without paying for 50 minutes, and then move it a very short distance but this time make a payment. I also mentioned this in my appeal, but Britannia pointed out the code for the payment referred to a different carpark from the one the PCN was issued for. I am aware of that but here Britannia has had payment from me, legitimately from the carpark I did use, and are now attempting to extract more money, despite knowing that the fact that moments later I parked somewhere very close by supports fully my claim that I was simply looking for a parking space.

12. It is also notable that Britannia has an appalling reputation locally, and someone else encountered the exact same problem that I did: being unable to park due to congestion and then receiving a PCN. If this is becoming a common problem maybe Britannia should limit entry to the premises when it is full, as multi-storey carparks here in Nottingham do.

13. I would also like to respectfully refer the judge to the case Parking Eye v Mrs X of March 17th 2014 in which the Judge found in favour of the Defendant who had claimed to have been unable to find a parking space at Fistral Beach and had spent 31 minutes on the premises looking for one. The Judge ruled that the ‘Claimant cannot prove whether this car was parked or not.’ Likewise, the Claimant in the case currently in question has also provided no evidence that the vehicle was parked. The Judge also stated that, with a lack of evidence on either side as to whether the vehicle was parked, the ‘balance of probabilities’ was important, and further noted that the location of the carpark and the time of year of the incident, Whit half-term, meant it likely that the carpark would have been busy. In the case currently in question the carpark is also located at a tourist venue. It is very near both Plymouth Harbour and Plymouth Aquarium and the alleged contravention took place during the summer holidays, factors which support my claim that the carpark was full. Moreover, the carpark contains ten floors and it is therefore not surprising that it took fifty minutes to traverse it twice in very slow moving, often stationary, traffic. The judge also commented that ‘driving around a carpark [does not form] a genuine pre-estimate of loss as opposed to actually parking.’

14. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £85. The claim includes an additional £60, described as ‘Initial Legal Costs.’ As ‘Solicitors’ Costs’ is also listed as a separate item, this £60 appears to be an attempt at double recovery.


I believe the facts in this witness statement are true.

Urgh - seems ridiculously long.... Thank you if anyone reads it!

Le_Kirk

If the claimant has added the spurious "contractual" (or other meaningless terms) costs, then you could read the abuse of process thread by beamerguy with comment at post # 14 on that thread by Coupon-mad and the threads by CEC16 and basher52 for more useful ammunition to add to your WS.

Redx

Read the recent wins this week regarding Britannia and them using the wrong company name , abuse of process , the CRA 2015 and several other factors as well like fake £60 add-ons etc , see what they wrote and what coupon mad said yesterday, don't just stay on your own thread

Chuck the kitchen sink at them , including adding your costs schedule plus all other exhibits

You are now at the WS plus Exhibits plus costs schedule stage , so 3 parts to your court bundle

Coupon-mad

I agree, you need to read more.

You may have missed a trick due to your absence, hope I am wrong.

You've not been here for SIX MONTHS so unless you've been keeping up with the forum (I hope you have) you maybe missed what happened at Southampton court (re BRITANNIA!), that you can use in your own case (read the thread by CEC16) and you may have also missed that we always now tell people to file & serve their costs schedule in advance, too.

You need to copy what the CURRENT advice is and learn from CEC16's thread.

Also, read the thread by Icicle Boy from yesterday, and see if BW Legal witness has covered up a company number difference like in that case.

theduchess2018

This is just a quick update to say I won my case today! There is absolutely no way that would have happened without the advice and information on this forum and I am hugely grateful.  
Britannia sent a solicitor who said she was not employed by BW Legal and I must say she was quite pleasant - helpful beforehand and congratulated me on the documents (all thanks to people here) and composure afterwards!  That wasn't what I expected at all - was prepared for some sort of greasy/sharky type person, but she wasn't.
I felt the judge was in my favour from the start and almost questioning her presence. We did go through the whole saga though and there were times I felt I'd messed up, but all the details I'd got from here kept me going.
In the end, it rested on there being no contract because the judge accepted my claim that I had not had any opportunity to view the t&c as the signs would not have been visible to me when queuing in the car. Britannia's cited cases seemed to make it worse - one was a judgement where a judge had stated it was reasonable to get out of a car before entering a car park to ascertain t &c - the judge mentioned 'back in the real world' with regards to that one, and pointed out it referred to a business park not a multi-storey, which I had missed tbf, but he helped me out there. 
He also agreed about the CRA paragraphs stating that the legal costs were disproportionate, and I had also referred to para 18 of that document which states that the consumer shouldn't have to meet all their obligations if the trader hasn't met theirs - which they hadn't due to the car-park having no spaces.
I had not asked for costs as I didn't really have any (I wish you could claim for worry) but the judge ensured I got my tram fare back. 
Thank you all again for the vital service you are providing. I wish anyone else going through this luck. 

Coupon-mad

Fantastic!  WELL DONE.  Not so bad in court, is it?  Another one bites the dust !

So glad you came back in time to include the CRA 2015 stuff, especially para 18 of schedule 2 about the trader failing in their obligations.  That works as an argument for a lot of cases.
I am LOVING the way your Judge knocked back what I know to be VCS v Crutchley or VCS v Ward:

a judgement where a judge had stated it was reasonable to get out of a car before entering a car park to ascertain t &c - the judge mentioned 'back in the real world' with regards to that one, and pointed out it referred to a business park not a multi-storey,

Which Judge/Court was this, who sussed that VCS v Ward* is UTTER PANTS (quoting from The Merchant of Venice at the end beggars belief, from a Judge who was led up the garden path and right around the corner by VCS' rep).


*https://www.dropbox.com/s/1n2ctci7euodmwl/vcsvward.pdf?dl=0
Does that link work?  VCS v Ward is not to be read if eating, because I can guarantee you will choke!