One Parking Solution - Visitors Space PCN

AOneVS

I've had a go at shoehorning the defence template into the WS. I know this may be a mess, but would appreciate some opinions on it.

I've kept in the points about signage and contract and annexed the rest into a supplementary WS.

1. My name is XXX. I live at XXX. I am the defendant in this matter and litigant in person. I make this statement from my own knowledge and personal experience.
2. Before I describe what happened on the day, I confirm that the essence of my defence of this claim is laid out in my submitted defence, with the addition of a supplementary witness statement outlining more recent precedents for “abuse of process” as part of this witness statement. This supplementary witness statement is attached: (Exhibit VS1)
3. My vehicle received a Notice to Driver on XX November 2018, PCN number OPSXXXXXX (Exhibit VS2). The vehicle was parked on a private estate, where I was visiting my Son. The reason stated for the PCN was ‘Failure to Display a Valid Permit’. I had visited my Son many times before without the need for a parking permit. The lease for the property I was visiting, dated XX April 2011 (Exhibit VS3) does not contain any terms that define the requirement for a parking permit, nor does it give any right for the freeholder to recover any set penalty if the leaseholder parking terms are breached. If the freeholder is not entitled to impose and recover a set penalty, then it cannot have granted this right to the Claimant and the Claimant cannot exercise it. According to the Managing Agent, parking control was introduced in 2013 and changed companies in 2018. There has been no variance to the terms of the lease.
4. The Claimant’s signs (Exhibit VS4) have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was entered into with the Claimant, whether express, implied, or by conduct.
5. The Beavis case is fully distinguished and a more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:
(i) Spurling v Bradshaw [1956] 1 WLR 461 and (ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and
(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.
6. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation to issue PCNs under these circumstances and to pursue keepers by means of civil litigation.
It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, other terms (or instructions to cancel charges due to a surge of complaints) and there is no evidence that the freeholder authorises this particular Claimant.  Any purported landowner 'contract' which fails to properly identify the two contracting parties and/or which is in any way redacted (including the signatories, which in some parking claims have been revealed not to be that of the landowner) should be disregarded, along with any undated and/or unsubstantiated records, documents, boundary maps or aerial views, or photos which are capable of manipulation.
7. In the matter of costs.  If the claim is not struck out, the Defendant seeks:
    (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and
    (b) the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, included in this court bundle, in anticipation of a typical late Notice of Discontinuance (‘NoD’) from this Claimant.

8.    At NoD stage, or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.
9.    In summary, the Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA,  The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

I believe that the facts stated in this witness statement are true.

Signed………………………….            Date………………………….
       [Defendant]

Exhibit VS1
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 £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

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 Act 2012 (‘the POFA’).  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.

4.    Claims pleaded on this basis by multiple parking firms have routinely been struck out ab 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 B ).

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 11th November 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.

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 mindset, 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.    In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

11.    The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, 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.’’

12.    Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way 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 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.

13.     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.

14.    Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

Please excuse the formatting, this is just a copy and paste issue.

Thanks in advance.

AOneVS

This is keeping me awake at night. I would like your collective knowledge to help me produce a bullet proof WS. I'm familiar with the rest of the process, but feel out of my depth with all the new information. 

This thread has nearly 4k views. I think others who are being pursued by the increasingly litigious OPS and those who have been ticketed for merely visiting friends and family, would also benefit greatly.

Le_Kirk

There is no such thing as a bullet-proof witness statement (WS) .  A WS is personal to you, only you know what happened on the day and subsequently.  The WS is only part of what you have to submit, the rest is evidence which backs up and supports your defence.  A WS is not a reworking or rewording of your defence, except and insofar as it supports what you said in the defence.  If (and this is an example) the claimant is stating you didn't purchase a ticket, your defence states the defendant did purchase a ticket (along with all the other usual defence points) and your WS states "I drove into the car park at XXX on DD/MM/YY and placed money into the PDT, took the issued ticket and placed it on dashboard.  Following receipt of a NTK and various debt collection harassment letters, I appealed and submitted a copy of the ticket (attached as Exhibit VS_001) to the PPC"

D_P_Dance

This is keeping me awake at night. 

Read Fruitcake's post here and write to the court and your MP

https://www.moneysavingexpert.com/mortgages/?_ga=2.83684500.302457670.1583931805-1512786774.1583931805

Le_Kirk

Oops, I think you picked up the wrong link DP, that is all about mortgages.  I doubt you would be in need on one of those!

AOneVS

Le_Kirk said:

There is no such thing as a bullet-proof witness statement (WS) .  A WS is personal to you, only you know what happened on the day and subsequently.  The WS is only part of what you have to submit, the rest is evidence which backs up and supports your defence.  A WS is not a reworking or rewording of your defence, except and insofar as it supports what you said in the defence.  If (and this is an example) the claimant is stating you didn't purchase a ticket, your defence states the defendant did purchase a ticket (along with all the other usual defence points) and your WS states "I drove into the car park at XXX on DD/MM/YY and placed money into the PDT, took the issued ticket and placed it on dashboard.  Following receipt of a NTK and various debt collection harassment letters, I appealed and submitted a copy of the ticket (attached as Exhibit VS_001) to the PPC"

Thanks Le_Kirk. I believe points 1- 4 in the WS above are inline with what is required. Would you agree?

I know I need to work on 6, as that is written like a defence rather than a takedown of their contact. 

Le_Kirk

Paragraph 6 should have been in your defence.  If it wasn't you cannot introduce it now.  I would expect, though, that it was, especially if you were using a forum generated template defence.

D_P_Dance

Read Fruitcake's excellent post and write to the court for a postponement sine die, copy to your MP.

https://forums.moneysavingexpert.com/discussion/6117584/come-on-you-lot-grow-a-pair#latest

AOneVS

D_P_Dance said:

Read Fruitcake's excellent post and write to the court for a postponement sine die, copy to your MP.

https://forums.moneysavingexpert.com/discussion/6117584/come-on-you-lot-grow-a-pair#latest

It's not even my ticket. I took it on for my mum, to shield her from the stress of it all. I'll be ok once I get the WS completed and the bundle delivered to the court. It's annoying that I have to drive to Worthing court to drop off the paperwork, even though the hearing is in Chichester. 

D_P_Dance

It's not even my ticket. I took it on for my mum, to shield her from the stress of it al

No doubt her stress levels have gone though the roof.  Even more reason to take to the streets.