Britannia Parking POPLA appeal

KeithP

Whatever you do, do not let it distract you from filing and serving your Witness Statement, evidence and Costs Schedule.

You have told us that is due on 28th November. That's only four days away.

crazydoglady91

Right, here's a first draft of my witness statement. The first part is "mine", with the post #14 on Abuse of Process as the second half. I wanted to paste that in here too for some feedback as to whether it flows on from my writing, or whether I should change something.

Let me know what you think! I think I could "go in" a little more, but I'm a bit of a novice at these things, so guidance is very welcome! :rotfl:

*Quick question, should I reorder my evidence pack so each item appears in the order in which I've referred to them in the text? As in, so it reads "exhibit A, B, C" in the text? At the moment the references are all over the place.

IN THE COUNTY COURT

Claim No.:

Between

BRITANNIA PARKING GROUP LTD (Claimant)

-and-

(Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, XXXX am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. At the time of the alleged contravention, 4 drivers in total were on the insurance documents. I therefore put Britannia Parking Limited to strict proof that any contract can exist between the Claimant and myself as defendant.

4. As I was not the driver, any knowledge I have of the alleged event is not first-hand. I am also under no obligation to name the driver.

4.1. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and the Claimant was under that Trade Body at the time of the alleged contravention. I adduce as evidence (Exhibit D) Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies.

5. Due to this lack of first-hand knowledge, I thought it prudent to visit the site myself to investigate the signage referred to by the Claimant when they allege to have entered into a contract with the Driver. I have taken photographic evidence of the signage at this site under similar lighting conditions as to when the alleged contravention took place (Exhibit .

4. The Claimants signage is unfit for purpose and incapable of forming a contract under Consumer Rights Act 2015. As laid out in my Defence, the signage in place at the location of the alleged contravention is distinguished from the ParkingEye vs Beavis [2015] case (“the Beavis case”, Exhibit A). Not only are the terms of parking stated in such small, indistinguishable font as to make them unreadable from any distance but less than 1 ft away, but I assert the location of the pertinent signage is also inadequate given the likeliness of the signage to be obstructed by parked cars. All signage is positioned behind parking bays, either at chest height or above head height. This means that if a car is parked in the bay directly in front of the sign, the sign is almost completely blocked from view, as seen in Exhibit B Image 1. Even when small cars are parked in front of the signs, as seen in Image 2, the pertinent parts of the signs (such as the sum of the parking fine and the terms of the contract) are still blocked from view.

5. I am aware that the car park was very busy at the time of the alleged contravention, which I believe is a credible claim considering that the alleged event took place on a Saturday evening in the summer at a seafront location in very close vicinity to dozens of pubs and restaurants. It is therefore reasonable to assume that all signage at this site was obstructed or unapproachable (Image 3) in this manner at the time of the alleged contravention. I therefore assert that the signage at this site are far too inconspicuous to be capable of creating a legally binding contract.


The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

6. The arbitrary addition of a fixed sum purporting to cover 'administration/recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

7. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

6. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, case law and two statute laws hold that, when it comes to parking charges on private land, the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

9. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case', Exhibit F.4) is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

10. Unlike this greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

http://www.bailii.org/uk/cases/UKSC/2015/67.html

at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.'

11. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA', Exhibit C) at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

12. Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies, Exhibit F.1) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

13. That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

14. In Claim numbers F0DP806M and F0DP201T (Exhibit F.3)- less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit. These included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

15. At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the POFA para 9.

16. Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair, Exhibit E) paragraphs 6, 10 and 14 and due to the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.

17. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).''

18. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance. pdf

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

20. The Defendant is of the view that this Claimant knew or should have known that to claim £160 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.

21. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety (due to the similarities with the Southampton case where the entire claim was deemed 'tainted') and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.


Statement of Truth:

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

Coupon-mad

I know that's not the latest version from post #14 of the Abuse of Process thread, as I got rid of the stuff about 'this greedy claimant' and I quoted DJ Grand from the hearing this month, and none of that is in your draft. So replace that whole stuff.

should I reorder my evidence pack so each item appears in the order in which I've referred to them in the text? As in, so it reads "exhibit A, B, C" in the text?

Definitely. You also need a contents page, and a costs schedule (like all the others you can search for and copy).

You need the CMA Guidance as an exhibit (a few pages from it, printed out) not a link, a Judge is not going to follow a URL link and it is not good service not to provide tangible exhibits for such matters. And think about everything you are saying and exhibit it:

At the time of the alleged contravention, 4 drivers in total were on the insurance documents

And a sheet with the relevant Beavis quotes copied out, and the POFA schedule 4 with the sections about 'adequate notice of the parking charge' highlighted, and para 8 or 9 highlighted, depending upon if this was a windscreen or postal PCN.

crazydoglady91

You’re right, I started working on it last week, so I’ll make sure it’s the latest version.

I’ll get a contents page and CMA guidance done, thank you. I’m pretty sure I have everything else you suggested, but I’ll triple check it all.

A few more quick questions; I haven’t included anything about relevant land etc. in the witness statement. I assumed I wouldn’t need to as it isn’t necessarily a “point of view” sort of thing, and it’s already in the defence. Am I correct in that assumption?

Lastly, BW Legal tried to call me today! I didn’t answer, but they left a message. I assume it’s about the email I sent yesterday. I’m not sure how they got my number to be honest, I must have let it slip in some correspondence at some point. I don’t want them calling me, should I send another quick email telling them to put it in writing, or should I just let them stew a bit?

crazydoglady91

And think about everything you are saying and exhibit it:

Oh, one last thing. Do you mean produce my insurance documents as evidence? I’ll have to hope I still have them, otherwise I’ll have to take that bit out

nosferatu1001

Or you go get a copy from the insurance company of course. They will be able to provide copies.

If you dont include the proof it is not relevant land, and you get told to prove it, how precisely were you planning on doing that? Your defence is merely an arguemnt, your WS is your place to prove your arguments!

Tell them to only contact you in writing, and you do not give them consent to call you. They can easily find numbers, of course. Anyone can. Its not tricky, I dont knwo why people think it is!

crazydoglady91

If you dont include the proof it is not relevant land, and you get told to prove it, how precisely were you planning on doing that?

It was my understanding that I was "putting them to strict proof" on this? That's essentially what I've said so far in my defence.

KeithP

OK, so they assert it is relevant land. You need to challenge that. How will you do that?

They will say it is relevant land, but will be unable to prove it.
You say it isn't relevant land but offer no proof of your assertion.

That leaves the judge to decide on the balance of probabilities - could go either way.

Get your proof and force a decision in your favour.

crazydoglady91

I’ll give it my best shot

I can’t find anything as definitive as a map with boundary lines, but I’ve found some evidence to suggest that Poole Harbour Commissioners have control of vehicles parking at the harbour, though it’s unspecific about the locations that applies to.

I got the insurance documents, so thank you all for the nudge. It’s all starting to come together, I’ll be ready to file tomorrow!

crazydoglady91

Sorry, just one more question! About my skeleton argument, it’s my impression that I can file this separately, can someone confirm?

I haven’t received any documents from BW Legal despite the deadline fast approaching, so I don’t really have anything more to add right now since there are no points I need to counter etc. yet.