Motorbike County Court Claim - Charge Notice

LenaWoods

Hi Everyone

Here's my first draft WS, I've tried to use legal documents to back up my points, but would greatly appreciate any feedback you can offer!

Thanks

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Witness Statement

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1.0 I am xxx, of [xxx], [xxx], the Defendant in this matter. I will say as follows:

2.0 Overview of Circumstances

2.1 On the issue date of both the Charge Notices by VCS Ltd, I was a tenant residing in xxxx and was entitled to park in the roadway belonging to xxx Road and xxx Street. I attach evidence of parking permits and a previous driving licence, stating my address at the time to prove this in Exhibit B.1 and B.2.

2.2 The situation occurred as follows: On the 4th of August 2018, I returned from visiting family during the early hours of the morning, in the dark, and parked my vehicle, registration no: xxxx along an unmarked area of road, forming part of xxx xxx Drive. I didn’t return to the vehicle until the evening of 5th of August 2018. I found two Charge Notices stuck to the fuel tank of my motorbike, in the same colour red, making them extremely hard to notice both up close and from a distance. However, there are several pieces of evidence I list below that prove the Claimant’s Charge Notices and supposed contract with myself to be completely invalid.
3.0 Lack of entrance definition to private land

3.1 In the following statements I refer to Schedule 1 of the IPC’s Code of Conduct, of which I have included a copy of in Exhibit C as separate items C.1, C.2 and C.3 per page.

3.2 In Schedule 1 of the IPC’s terms and conditions, it is stated that ‘Signage within the site must be such as to be obvious to the motorist. Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign’ and that ‘entrance signs should make it clear that the motorist is entering onto private land’. However, at the time I returned home to park, it was dark and the Claimant’s sign faced the opposite direction of any person entering xxxx xxxx Drive and the private land in a motor vehicle.

xxx xxx Drive only has one point of vehicular entry from xxx Road, so drivers were always travelling East and facing the blank, reverse of the sign whilst approaching the carpark. VCS Ltd, therefore, fail to comply with the IPC’s code of practice. I attach evidence of the sign facing the opposite way to the driver upon entry to xxx xxx Drive and the Claimant’s private land in Exhibit D.1, I also attach a map showing the entry site for vehicles from xxx Road in Exhibit D.2.

3.3 Schedule 1 of the IPC’s terms and conditions also states the following: ‘If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.’ At the time I returned home to park along xxx xxx Drive, it was dark and no sign featured external illumination. As well as this, due to the positioning of the sign, the vehicle’s headlights did not shine onto the text of the Claimant’s entrance sign. According to VCS Ltd’s terms and conditions, this carpark is enforced 24 hours per day, 7 days per weeks, however, VCS Ltd do not adhere to the conditions set out by the IPC code of practice. Please see Exhibit D.1 again, which confirms that there is no additional lighting present above the entrance sign and no lampposts in the nearby area. For the reasons stated in paragraphs 3.2 and 3.3, the Claimant fails to comply with the POFA 2012 Paragraph 7.2. In summary, as no terms and conditions or offer was in clear sight, no contract could have been formed between myself and the Claimant.

3.4 There were no boundary markings in place on the road surface, or gates present to mark or define the entrance to the private land, or to separate it from the land I was entitled to park on, along xxx xxx Drive. I attach evidence of this in Exhibit E.

3.5 At the time specified, I was a resident of xxx xxx Road and had been granted permission to park along the road surrounding the car park at the time I received the Charge Notices, see Exhibit B.2. Due to the backwards facing signage and lack of boundary markings on the road surface, as previously demonstrated, it was impossible for me to distinguish that I was not parking on land I was entitled to be leaving my vehicle on.

4.0 No legally binding contract can be established by the specific terms and conditions printed on the Claimant’s signage.

4.1 In this case, even if the terms and conditions were clear to drivers entering xxx xxx Drive and were legible during the night time, VCS Ltd’s terms and conditions and instructions stated on the sign are being used unfairly, in breach of the POFA 2012 (Paragraph 7), as they cannot be applied to my vehicle, which was a motorcycle. Therefore, no legally binding contract could have been formed between myself and the Claimant.

4.2 The Claimant’s sign features a contractual term that specifically instructs the driver to ‘Display a valid permit inside the front windscreen of your vehicle at all times’. In VCS Ltd’s reply to my defence in point 17. Yasmeen Couser explains that the terms and conditions of the sign are ‘unambiguous’, so therefore should be followed strictly. This, however, was impossible to achieve as my vehicle was a motorcycle, without an enclosed windscreen.

4.3 In paragraph 18. of the Claimant’s Reply to my Defence Ms xxx states that could have used a motorcycle disk holder to insert the permit behind the wind guard of my motorcycle to meet the terms and conditions, but this is also impossible to achieve. To be precise, motorcycle disk holders are attached to the vehicle via screws, lower down, along the side of the motorcycle’s frame where tax disks were previously required to be displayed. In this case, the front of the motorcycle wind guard had no available screw insertion sites present. I provide evidence in Exhibit F to confirm this.

4.4 Paragraphs 4.2 and 4.3 once again prove that the Claimant is failing to comply with POFA 2012 Paragraph 7, by applying unfair terms and conditions, which were impossible for me to follow unambiguously. For these reasons, no contract between myself and VCS Ltd could have been formed.

5.0 Claimant fails to follow conditions set by signage.

5.1 In the evidence provided by VCS Ltd, there is a photograph showing another motorbike parked in a designated bay, with a full cover placed over the entire vehicle. This obviously means that the customer’s permit cannot be clearly visible at all times. However, said vehicle continued to park in the private car park regulated by VCS Ltd regularly, and in the same manner, since I received my Charge Notices, without receiving any itself, despite not applying to the sign’s specific terms and conditions. VCS Ltd therefore do not apply their terms and conditions fairly, ethically or in the ‘unambiguous’ manner that is stated in paragraph 17. of their reply to my defence. See Exhibit G as evidence of this. This evidence also shows that VCS Ltd are breaching the rules set by the POFA Act 2012 stated in section 7.

6.0 Inadequate placement and illumination of alternative signs.

6.1 The other signs VCS Ltd mention in their reply to my defence were placed a great distance away from the car parks’ entrance where my vehicle was parked, and were blocked from sight by large, leafy trees surrounding the area, as well as by other vehicles and were not illuminated when I parked during the night time. I have included evidence of this in Exhibit H and the placement of signs can also be visualised in the land owners boundary map included in the Claimant’s reply to my defence.

7.0 Unclear and inadequate entrance sign layout.

7.1 Whilst I approached the private land in the dark, the Claimant’s sign was not even noticeable, let alone clear enough to read whilst driving or parking from a distance. At the time I entered xxx xxx Drive, I was wearing a full-face helmet, which partially obstructs vision the driver’s vision, and exited my vehicle directly to the left, facing away from the entrance sign.

7.2 I have included a copy of the sufficiently presented Beavis [2015] UKSC 67 case sign in Exhibit I to demonstrate the confusing layout of VCS Ltd’s sign in regards to this case. Not only does the Claimant’s only entrance sign face the opposite direction of any vehicle about to enter the private land, but its surface area is also tiny, barely larger than an A4 piece of paper. As well as this, the font is also extremely small, especially where the cost of the ‘Parking Charge’ is mentioned, and there is a complete lack spacing or paragraphing between alternate points made. The Claimant has also used a confusing contrast of red as a background colour, with a white font across the majority of the sign. The latter combined makes the font illegible, during out of daylight hours. The Claimant therefore fails to comply with the POFA act 2012 Schedule 4, which states the following in Paragraph (2): The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land). Adequate notice is then defined as notice given by the display of one or more notices which are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Please see Exhibit ? to confirm this. For the above reasons, the Claimant also fails to meet the IPC signage conditions stated in Exhibits C1,2 and 3, and therefore did not establish a contract with myself.

7.3 In schedule 1 of the IPC’s regulations it is made clear that private parking enforcement companies should consider the wording and aesthetic of their sign exceptionally carefully in every case, as ‘the sign forms the only legally binding aspect of the contract’ in regards to a Charge Notice. In this case, VCS Ltd has failed to achieve this and ignored the importance of using total clarity when describing and highlighting their terms and conditions, despite it being stressed by the IPC in their Code of Conduct. See Exhibits C.1,2 and 3.

8.0 Defendant did not disrupt customers from parking in the car park area

8.1 In their reply to my defence, VCS LTD state in paragraph 28. that the predominant purpose of issuing a parking charge is to deter motorists from misusing the car park, so that customers have access to bay spaces. However, at no point did my motorcycle prevent a resident from parking. My vehicle was neither parked in the actual car park area, or in a specific bay, but at the absolute furthest point of the road leading away from the carpark area. I did this in in order to be considerate of others and to take up as little space as possible. This is clear in the photos featuring my motorcycle provided by VCS Ltd and can also be distinguished in more detail by looking at the Site’s Boundary Plan provided by the Claimant.

8.2 The Site Boundary Plan and Site Boundary Instruction document provided by the Claimant also includes special instructions to VCS Ltd stating that ‘Permit Holders park in Designated Bays’. I make this point to further exaggerate the fact that I was not parked in any bay within the actual carpark area, so did not disrupt any person from parking in their designated space.
9.0 VCS Ltd are aware of their breaches to POFA Act 2012 and Schedule 1 of the ICP's Conditions.

9.1 Since returning to the property in March 2019, and after receiving the two Charge Notices, VCS Ltd have removed the previous, poorly presented entrance sign and set a new version in place. The new sign faces West, pointing in the direction of any driver about to enter the private land, unlike the entrance sign that was used to try to form a contract between the Claimant and myself, which faced the opposite direction, East away from the driver. The Claimant has also made the font considerably larger to express a simpler set of instructions. Please see Exhibit ? and note that the contract does not involve having to display a permit in the vehicle’s windscreen, which in my case was impossible. The new sign’s font is also much larger and completely black, against a plain white background, with plenty of spacing between main points.

9.2 I believe that VCS Ltd have removed the previous sign used in the claim against myself because they are aware that the single, disorganised, backwards facing sign, with impossible terminology, completely failed at carrying out its legally binding purpose effectively, and that the Claimant has therefore, made changes to combat their mistake.

10.0 I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

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

Signature

Date

LenaWoods

Hey All,

Thought you'd like to know, I won the court case..

VCS Ltd's legal rep was terrible, hadn't actually seen the site where my tickets were given. didn't have the correct documents with him etc.

Overall i won because the site entrance had no clear definition in terms of signage and road markings, but also because the term and contions on the sign couldn't be applied to motorbikes!

I claimed £50 for childcare costs, which seems like nothing compared to the effort i've put in to this case! The most annoying thing was i spent ages printing out three copies of all the legal docs i needed and the judge and claimant didn't even need them!

I didn't find the experience itself too scary, although i was a little nervous however, i felt the judge was on my side most of the time, so it wasn't too bad!

Le_Kirk

Well done!

LenaWoods

Forgot to mention an interesting point....The judge actually said at the end of the discussion, that to get around this issue in future, motorcyclists should print off their permit, then attach it to a disk holder, so that if it gets stolen no cost will have to be made by the driver to buy a new one....

I still think there are issues with this, as it isn't the original document isn't on display, and someone could still technically unscrew the holder and nick the permit! But mehh, I guess she was just trying to come to some kind of conclusion..