Incorrect info on ticket

SergeiK

I think with things like that it's always a case of hope for the best but expect the worst, I'm seeing some courts are now wanting to use over phone hearings. I certainly hope this is not the case with mine as I shall fight it, an oral hearing has to be beneficial and more practical for me. I'm also hoping to get my WS into some sort of legible draught this weekend 

D_P_Dance

I certainly hope this is not the case with mine as I shall fight it,

It is very easy to sabotage a phone hearing.  Keep saying hello, asking the speaker to repeat themselves, rustling kitchen foil by the mouthpiece  and if you have two handsets on the same line sometimes if you bring them into proximity with each other it can create a very loud whine.  

SergeiK

In all honesty I don't get good phone reception in my house, I'd have to go out into the street!

SergeiK

Well this is where i am so far.....

Claim No: *******

 

IN THE COUNTY COURT

 

BETWEEN

NAPIER PARKING LIMITED (CLAIMANT)

 

AND

 

FRED FLINTSTONE (DEFENDANT)

 

DATED ***

 

                                                Witness Statement

 

1.    I, ******of*********, will say as follows:

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked ** to ** to which I will refer.

 

2.     As I believe there is a possibility the Clamant may discontinue the case I have also included a summary of costs of which I will refer should this happen. I respectfully ask that the Judge grants my costs anyway, in the event of a NoD

 

3.     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

 

4.     The claimed amount differs from letter of claim stage to the county court claim ‘contractual costs’ which set out in the Claimants letter of claim were originally £60 but however are now claimed at £54 (See ** and **) making seem more likely these costs are artificially invented by the Clamant. I have included a supplementary witness statement regarding these added costs. 

 

5.     The Claimant is aware that I was a genuine patron of the car park, correctly parked in a parking bay

6.     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.

 

7.    Before I describe what happened on the day I parked in *****, I confirm that the essence of my defence to this claim is that:

a. I did not breach the terms and conditions of parking

b. The Claimant's signage is not capable of creating a legally binding contract

 

c. The Claimant has not fulfilled its obligations to comply with the IPCs Code of practice

 

                                         

             Background of the facts

 

8.     On the ******** 2018 my wife and I visited ***** town centre and parked at the ******. This was not the first time we had used the car park. We chose to use the Claimants pay by phone app RingGo as we had 2 small children with us and a pushchair to negotiate through the car park. This made it easier as well as not having to find change for the machine. Payment was made through the cashless mobile app by merely scrolling menus and tapping a few buttons, as the app stores previous VRN’s (including both my wife’s and mine) there was no need to physically enter one. (See * and *) Once the transaction was completed other than the confirmation on the screen no email or text was received by way of means that made no tangible way check the information was correct and assuming everything was ok we proceeded into the town centre. (See receipt for the session which I later downloaded and screenshot of transaction see ** and **)

 

9.     On returning we had no idea of any issue with the parking and proceeded to leave the car park.

 

10.  It was not until the ‘FCN’ arrived in the post that we were aware of the alleged breach. An appeal to the Clamant showing that we had made every attempt to comply was swiftly turned down

 

11.  The fact I made reasonable endeavours and cannot be penalised under UK contract law is also a circumstance supported by trite law. Authority for this is the case of 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 when unable to fully comply with the terms.

 

12.  The fact the app stores old VRN and sessions (See BK*) and allows them to be carried forward or ‘repeat’ without any input or keying in the VRN makes for an easy pitfall for a consumer to fall into and is inevitably going the happen which I’m sure the claimant is aware, to repeat a quote from beavis:-

 

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 omperate disadvantageously to the customer.''

13.  Even if the Court believes a contract potentially existed, the Law Reform (Frustrated Contracts) Act 1943 applies. It states at 1.(1) ''money due but not paid before frustration ceases to be payable'' and !!!8221;a contract may be discharged on the ground of frustration. The unforeseeable frustration brings a contract to an end forthwith and automatically!!!8221;.

 

14.  Due to frustration of contract, (the Claimant has adduced no evidence of fault on my part) the contract was never properly or fairly made.

 

15.  Further I have considered the Code of Practice ("CoP") of the International Parking Community ("IPC"), of which the Claimant is an accredited member, In order to be an accredited member of the IPC, compliance with the CoP is compulsory, and I do not believe that the Clamant has fully complied.

 

16.  The Claimants signage makes no mention in the terms and conditions that a VRN needs to be entered when using its cashless system for a valid ‘virtual permit’ nor does it mention of VRN needing to be entered at all. In fact the terms and conditions make no mention of how of any other terms and condition might or should apply to anyone who should choose to use their cashless system. (see **)

 

17.  The claimants signage does not make any attempt to Identify themselves as or use the word ‘creditor’ to make it clear to consumers as per IPC code of conduct part B. 1 (See **)

 

18.  Information regarding ANPR or manual camera being used for enforcement purposes is on a separate small sign underneath and in smaller wiring as to not make it obvious to the person reading it (See **)

 

19.  The signage used to let anyone know they are entering private land of is poorly positioned on one of the car park entrances. Its positioned makes it not obvious as to what land its referring to its also partially obscured (See **) as per part E schedule 1 IPC Code of practice (See **)

 

 

20.  The IPC CoP  part B.11 states that “You must not state or imply you have any government or regulatory powers if this is not the case” the term “Fixed Charge” impersonates the police term and therefore implies power that the claimant does not have. (See ***)

 

 

21.  Further more The Claimant has provided no evidence that that there was not a valid ‘virtual permit’ in place and only that no ‘paper ticket’ was shown in the windscreen.

 

 

22.  Landowner authority - either absent or inapplicable
I have seen nothing that tells me that this Claimant had the written consent of the landowner at the material time and even if they did, it would undoubtedly have required them to comply with all applicable laws and the IPC CoP, and they have failed.  It is more than likely that a responsible landowner would set out exemptions and it is not accepted that the Claimant has met the requirements of the IPC CoP  'written authority of the landowner' nor that they had/have any standing to litigate in my case.  

 

SergeiK

Supplementary witness statement re abuse of process

 

1.       In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme. However, this Claimant is claiming a global sum of £144. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beaviscase.

 

2.       The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract. The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair.

 

3.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs-which is denied-they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act2012 (‘thePOFA’). It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.5.

 

4.       Claims pleaded on this basis by multiple parking firms have routinely been struck outab initio in various County Court areas in England and Wales since 2019. Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court(Appendix A)and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court(Appendix .

 

5.       Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11thNovember 2019.The court refused to set aside the Orders and, tellingly, no appeal was made.

 

 

6.       The Judge found that the claims-both trying to claim £160, with some ten or more similar cases stayed-represented an abuse of process that ‘tainted’ each claim. It was held to be not in the public interest for a court to let such claims proceed and merely  disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage. That Judgment is appended (Appendix C).

 

7.       The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity. The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided. The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.9.

 

8.       Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages. The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018:''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''

 

 

9.       The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long. They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019. Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute. In stark contrast to the BPA Board member’s mind set, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for: ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''

 

10.   The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by Parking Eye, and the penalty rule applies to charges that are penal or unconscionable in their construction. The Supreme Court held at [14]‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty. ’’And at[99]‘‘the penalty rule is plainly engaged.’’

 

 

11.   Unlike in this case, Parking Eye demonstrated a commercial justification for their £85parking charge which included all operational costs and was constructed in such away and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach. Unusually for this industry, it is worth noting that Parking Eye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

 

12.   This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

 

 

I Believe the Facts in this witness statement to be true

 

Signed

Coupon-mad

12.  The fact the app stores old VRN and sessions (See BK*) and allows them to be carried forward or ‘repeat’ without any input or keying in the VRN makes for an easy pitfall or trap for a consumer to fall into and is inevitably going to happen which I’m sure the claimant is aware.  To repeat a quote from Beavis

Couple of typos above.

Don't forget a signed and dated Summary Costs Assessment, as seen in 2020 court threads.

re the supplementary WS, add this somewhere and don't call the evidence 'appendices' at this stage, call them exhibits and give them a number that follows on sequentially after the other exhibits that are appended to your main WS.  This first bit goes under the stuff about Southampton:

(para number).  On 27th February 2020, DJ Wright at Skipton followed suit, refusing to set aside the Court's multiple summary strike-out orders at an application hearing by Excel Parking Services Ltd, whose barrister failed in his arguments, just as the barrister for BW Legal did at Southampton three months earlier.  The learned Judge's reasoning was the same (as can be seen by exhibit xx which shows an example of her concisely but clearly worded continuing Orders affecting all parking firms who attempt to abuse the court process in this way).  DJ Wright had sight of the Southampton transcript and dismissed Excel's witness statement as entirely without merit, although she stopped short of allowing the Defendants (six, of whom two appeared in person for this application hearing) to describe the conduct as fraudulent.  

And this bit helps add more weight about £60 being a penalty according to the Court of Appeal:

(para number). In the pre-Beavis case in ParkingEye v Somerfield at [419], the High Court held: ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''  

Bailii link as an exhibit (needs a number): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html#para419

 (para number).  This Claimant's Particulars disclose no legal basis for the sum claimed, a cynical attempt to go behind the Beavis case paragraphs 98 193 and 198, all of which confirm that their Lordships held that the construction of a parking charge that is not unconscionable 'must' already include the operational costs of the regime. Unusually for this industry, it is worth noting that following their High Court case in Somerfield, and as was seen in Beavis, ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

Redx

I thought a new WS now had to use a different statement of truth , than the old one shown above ? (from april 2020)

Coupon-mad

Yes, well spotted.  It's easy to Google for the longer version now stated in the CPRs.

SergeiK

was struggling to find exactly what i needed for this part

Is this roughly what i require?

In the County Court at  

Claim No.:**********
Between

Napier Parking Limited
(Claimant)

-v-

Kermit The Frog
(Defendant)

SUMMARY COSTS ASSESSMENT

Ordinary Costs

Return mileage from home to addresses for photo’s, court, car park etc to get evidence, advice etc.  @ aprox 10 miles - £0.45 per mile £4.50

Parking near Court £4.00

Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, reading paperwork, preparation, mediation and drafting of documents since November 2018 (aprox 20 hours at Litigant in Person rate of £19 per hour) £380

Stationery, printing, photocopying and postage since November 2018: £45.00  (estimated)

Sub-total £433.50

Wages cost of days pay @ £100.00

£ 533.50 TOTAL COSTS CLAIMED

These costs have been worked out by:
- appealing in 2018 - trip to car park to take photos & return journey 5.6miles aprox 1hr.
then loading them onto my computer & writing a letter aprox 2hrs
- reading any pre-action letters in the years from 2018 - maybe 10 min for each letter but then re reading many times.

- reading 2x Letter before Claim and in 2019 and responding to both - reading the Claim form & documents and researching what I need to put in a defence - Aprox 2 hrs reading a researching what it meant and 4 hrs writing a defence.

Researching and writing a witness statement printing downloading, compiling evidence and posting aprox 10hrs

Coupon-mad

As long as you show that full breakdown, then yes.

Sign and date the Summary Costs Assessement as well, and make sure the current (longer) statement of truth is replaced in all the documents you sign.