Witness Statement due

rainday81

Thanks for the advice guys. I've read the case notes of Pace Vs Lengyel and it seems very relevant to my argument.

I've fleshed out my arguments, please see next post.

rainday81

Please find my complete skeleton argument. I feel all points are relevant to my case. Not sure if I have correctly countered the claimant's Beavis argument (point 25) in their WS

SKELETON ARGUMENT


PREAMBLE


1. This skeleton argument is to assist the Court in the above matter for the hearing dated 01/11/2018

2. The Claimant’s witness will not attend the hearing, presenting a significant disadvantage for the Defendant

3. The Defendant will highlight to the Court that the claim is not only fundamentally misconceived and flawed, but that the Claimant behaved unreasonably


THE ISSUES


4. The Defendant has identified the following areas of dispute:
(a) No contract
(b) No Grace Period
(c) No Locus Standi
(d) Prominence, illegible terms & confusing signage
(e) Penalty
(f) Conduct


NO CONTRACT

5. The sign is forbidding; it's impossible to comply with because unless you already have a permit you can't park anywhere. Even stopping to collect a permit is not allowed as their sign states;-"Retrospective evidence of authority to park will not be accepted".

6. The defendant refers the Court to the persuasive case of PACE Recovery and Storage v Lengyel. C7GF6E3R in which District Judge Iyer concluded as parking required a permit, and as the driver did not and could not have a permit, the contract in any case failed by the doctrine of impossibility. As many other judges have found with this type of signage, this would mean no contract could be in place and the driver would be a trespasser. As the claim did not argue trespass, it was therefore bound to fail.

“The consequence of this is that any contract between the Claimant and the Defendant required the Defendant to do something which he simply could not do, that is, display a permit. His inability to do this was not caused by any act or omission by the Defendant but by a state of affairs over which he had no control. Indeed, it must have been obvious to the Claimant that if it erected a sign that it was a term of the contract that the driver of any parked vehicle displays a permit, it must have known in advance that many drivers would simply be unable to do this. Therefore, insofar as there was any contract between the parties, it was invalid under the doctrine of impossibility of performance.”



NO GRACE PERIOD

7. The Claimant has submitted no evidence regarding a grace period


8. A contract to park by conduct cannot be formed unless there is a grace period to discover, read, understand and accept the contract. To do any of these is impossible if a motorist is not allowed to stop or wait, in direct conflict with the IPC Code of Conduct’s “Grace Periods”:

“15.1 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”

9. In the persuasive case of Excel v Mr Cutts [2011] 1SE02795, Deputy District Judge Lateef agrees with the principle argument:

“…it is, in my view, not enough for him to merely physically enter the site. Instead the Defendant has to see the offer so he can choose whether or not to accept it, and thereby enter a contractual relationship.”

10. Additionally, binding a motorist to a contractual agreement without a grace period would constitute a breach of Schedule 2(i), The Unfair Terms in Consumer Contracts Regulations 1999:

“(i) irrevocably binding the consumer to terms in which he had no real opportunity of becoming acquainted before the conclusion of the contract;”


11. The Defendant has demonstrated to the Court that no contract could have existed with any driver at the material time

12. The facts of this case are similar to those in the Appeal case of Jopson v Homeguard Services (B9GF0A9E, Oxford County Court, 2016), where a car had stopped temporarily near the entrance in order to unload some furniture. HHJ Harris QC held, in his Judgment at [18], that ''a right of access permitted short incidental stops for the purpose of access to her flat''. Specifically, it was stated that brief stops for delivering or unloading items, dropping off passengers, etc. were not 'parking'; a definition which was fully explored by this Senior Circuit Judge, who observed that life at a block of flats would be ''unworkable'' if every resident or visitor ran a risk of immediate ticketing, when the vehicle was not in fact parked, and before any contract could possibly have been agreed.

13. The Judgment in Jopson also makes it clear that the factual circumstances are quite different from those which applied in ParkingEye Ltd v Beavis [2015] UKSC 67, and that case is distinguished.


NO LOCUS STANDI


1. The Defendant refers the Court Page 8 of The Claimant’s witness statement which shows a contract between Kingshill Grange Management Company and Private Parking Management Ltd

2. This is materially different to the lawful occupier in the disclosed contract

3. The boundary plans for the lawful occupier of both pieces of land have not been disclosed. The contract has no authority for the land in the particulars of claim



PROMINENCE, ILLEGIBLE TERMS & CONFUSING SIGNAGE


4. The signage on and around the site in question was damaged, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. Evidence was supplied to the claimant of broken and obstructed signs. The Claimant is a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the claimant.

5. The Defendant highlighted in their witness statement that they were confronted with many broken and obscured signs

PENALTY


6. The charge is a penalty. This case can clearly be distinguished from ParkingEye v Beavis [2015] UKSC 67 by reason that the Supreme Court heard that ParkingEye had complied with the ATA Code of Practice, the signs were unusually large and prominent, created an offer to park and the Mr. Beavis submitted a contract for parking was in place


7. The judgement of ParkingEye v Beavis also makes clear that if a driver has not had ample opportunity to become acquainted with the contractual terms then the un-incurred costs of a private parking company is still considered a penalty or unfair consumer charge

8. The Defendant puts the Claimant to strict proof that all costs were actually incurred

9. The parking contract with the driver provides for a parking charge of £100 if the terms and conditions of parking are breached.

10. The Claimant’s solicitor added £50, which was deceitfully misrepresented as a contractual charge in the Letter Before Action. On the Claim Form , the Claimant seeks a further £50 for Solicitor’s costs. These are examples of an extravagant and unconscionable penalty, and consist of non-contractual elements, which make it unenforceable. The Claimant is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. I have a good faith belief that due to the sparse particulars in the Claim, and Gladstone’s automated robo-claims system, that the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim.

11. In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221, 255]) ‘when regard is had to the innocent party’s interest in the performance of the contract’, and an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable.’

12. Contrary to the assertion at paragraph 16 of the Claimant’s Witness Statement, the Supreme Court in ParkingEye Ltd v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield, paragraph 419). The alleged and inflated contractual charge of £150 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the alleged conduct. This is especially so in the knowledge that the proceeds of parking go to a public Trust for the maintenance of the working harbour.

13. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. Schedule 4, section 4(5) is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs: ‘The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’


CONDUCT


14. The Defendant’s conduct and defence was entirely with merit


15. Due to the ‘robot-issued’ nature of the claim particulars, the Defendant was unnecessarily disadvantaged in regards to the pertinent facts and information of the claim

16. The Defendant had no choice but to serve a fully comprehensive and inclusive defence in response to the claim and therefore should be used in determining the facts

17. The Claimant by conduct failed to mitigate their costs as by serving a non-compliant
Notice to Keeper.

18. The Claimant’s litigation in this instance is entirely without merit and could constitute a breach of the Data Protection Act 1998

19. It can be evidenced to the Court that the Claimant failed Civil Procedure Rules and Practice Directions:
(a) CPR Part 16, Rule 16.4(1)(a)
(b) PD Part 16, Para 7.5
(c) PD Part 22, Para 3.10
(d) CPR Part 26, Rule 26.3(6)(a)


20. The Defendant has demonstrated to the Court that the Claimant has been wholly unreasonable. It is also argued that the conduct of the Claimant cannot be overlooked and has therefore put forward a statement of costs in accordance with CPR 27.14(g) for consideration by the Court

KeithP

The Unfair Terms in Consumer Contracts Regulations 1999 were revoked in October 2015 and replaced by Schedule 2 of The Consumer Rights Act 2015.
Paragraph 10 therein says exactly the same though.

Your paragraph numbering seems to start again after Para 13, such that you have two sets numbered para 1 - 13.

In para 2, do you need to expand on exactly how the missing Claimant's witness makes things difficult?
E.g. perhaps include a list of awkward questions you would've liked to ask the missing witness.

Castle

Perhaps ask why there's no witness statement from the PPC's operative who took the photos that night; and why the operative's notes have not been included as part of the evidence.

rainday81

Thanks guys. I've fleshed out point 2 in the Preamble as shown below.

2. The Claimant’s witness will not attend the hearing, neither has a witness statement been provided from the operative and neither have the operative’s notes been included as part of the evidence. All presenting a significant disadvantage for the Defendant, any one of these could have confirmed the Defendant’s claim that insufficient grace period was given.

I've also added a couple of points RE; the signage and Claimant's WS photos;

19. The Claimant’s witness statement shows many pictures which are all in daylight and thus totally irrelevant to this situation which occurred at night

20. The one picture the Claimant has provided of the signs at night (Page 41 of Claimant’s Witness statement) shows the difficulty confronted by anyone trying to read the sign. More than half of the content of the signs are unreadable including any reference to £100 parking charge.

I feel I should add something about the entrance signs. I've noticed, driving past, that these have been since changed on the development (no longer as shown in their WS) to be much more prominent and I think they must have done that due to the outcome of some ruling. Is there a judgement that anyone can point me to which I can reference.

Thanks in advance.

rainday81

As well as my question above, may I confirm thatI need to send the skeleton argument to the claimant as well as the court a couple of days before the hearing date?

Coupon-mad

Is there a judgement that anyone can point me to which I can reference.

No. You can just say and show that the Claimant has since changed the signs. They will not have changed them due to a ruling that we know of, maybe they changed them because the landowner was getting complaints.

may I confirm that I need to send the skeleton argument to the claimant as well as the court a couple of days before the hearing date?

Yes that is correct, along with your costs schedule (see NEWBIES thread, never forget your costs in case you win!).

Loadsofchildren123

You need to argue grace periods in your skeleton - you couldn't see any signs nor could you see visitor spaces, but you guessed there might be parking restrictions, so you parked behind the resident's car and went immediately to ask them. They told you to go and get a permit. You immediately went to do that, you found the operative and they told you to stay where you were.


The grace period is supposed to be there to give you time to find out what the parking restrictions are and to comply with them. You were only there for 2 minutes before returning to your car having found out the terms and your intention was then to comply with them. However, the operative told you not stay where you were. This estops the Claimant from saying you have breached the terms, when you were told you could stay where you were.


2 days before the hearing write to the solicitors saying that you expect them to produce the witness in court for cross examination.


When they don't turn up with the witness, you press this point home with the judge saying that your estoppel argument turns on the witness's evidence and in the absence of that the court should find in your favour.


Skeleton should be served on the other side and filed at court 2 days prior. There's no rule about this though.

rainday81

To confirm, the operator had already affixed the penalty to the windscreen when I arrived. It was only after I protested at the predatory practice did he say "you can leave it parked here now". Does estoppel argument still apply?

Coupon-mad

No, promissory estoppel would be if you were told you could park there, and relied on that promise and did so.