Countrywide Parking Management ltd Appeal Denied

baart77

Hi,

so we are at DQ stage. Two questions there -

1. Bournemouth would be the nearest court for us but in this thread - https://forums.moneysavingexpert.com/discussion/comment/71763411#Comment_71763411 I read I do not want to go there. Southampton is another option but what kind of justification do I have to give for choosing the court location?

2. My father is not British and his english is not good enough to defend himself hence my involvement. I thought with my assistance he could get through this but seeing the question about the interpreter I am not sure if we need to get one or not. I feel confident I can assist him but will the court accept me as an interpreter ? Please advise.

Thx,

B.

Umkomaas

The concern about Bournemouth was mainly in relation to DeVere Parking cases where they seemed to have an extraordinary success rate, seemingly out of kilter with other cases we were seeing around the country. 

The vast majority of cases these days are undertaken via video/telephone, so the court could, in theory, be anywhere. Nominate Southampton if you wish, but if the CCBC allocate Bournemouth, so be it. I think you will need to put a reason for wanting your hearing at a court remote from your home area; putting 'I think I might have a better chance at Southampton County Court' is unlikely to work! 🤫

You can represent your father in court, acting as his Lay Representative, so getting an interpreter shouldn't be an issue. Do some Google searches on the role of a Lay Rep. 

BrownTrout

You best chance of southampton on allocation is to say " southampton - local court for work purposes " in the court selection box

baart77

Thank you for clarification. Another question thinking about the defence - I have looked again into his tenancy agreement and as much as there is nothing there that mentions permits, there is nothing there either about rules regarding parking. Not a single paragraph mentions parking spaces. Possibly an oversight on our part but does it complicate the matter here? It is a detached building with a fence around and several parking spaces for residents. Please advise. 

Jenni_D

If there is no mention whatsoever regarding parking rules then surely that works in your favour? (There's nothing for the MA to use to allow them to introduce parking restrictions).

baart77

Ok, that makes sense,  thank you

baart77

Hi,

got the papers from court and have to get the copy of my defence(EDIT - witness statement)  to court and to the claimant by 21.06. Recieved nothing from them yet other than an offer of reduced payment.

This is what I have come up with so far. Please comment if I need to add more or remove something. I am not attaching the photos but I have it all prepared. 

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1. I am Mr xxxxxx of xxxxxxxxxxx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

Sequence of events and signage

 

3. I have appended to the signage I photographed myself and will refer to them throughout.

 

4. The place of the alleged incident is a residential car park. The entrance to the car park is marked by a brick fence on both sides. The car park and the building are by main busy road. The are parking spaces in front of the building and behind (as seen in the attached photo). The only safe way to stop to view the car park terms and conditions is by entering and parking the car and taking deliberate effort to look for any signage. Considering I have been parking there since 2014 without any problems I can not be reasonably expected to check every time I arrive whether someone decided to put something on the wall.

 

5. At the point of entry there are no signs. Even if  one knows what to look for the terms and conditions sign is not visible or readable (photos attached). The only viewable signage is located on the building wall leading to the car park behind the house. It is a small sign that can be easily missed when parking the car at the front or behind the building especially at night. In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “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”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers

 

6. A few weeks before I received the PCN from the claimant, parking permits had been sent out to all the residents. It felt a welcomed move at the time as some of the tenants had 3 cars parked on site and sometimes finding a parking space was a struggle. After the introduction of permits that was no longer a problem. I have always kept the permit in my car. I believe on the day of the alleged incident I have parked the car in my usual space in front of the building and displayed the permit. I was not aware of any penalty charges or that there was a signage anywhere on the premises. After receiving the PCN I have entered into a lengthy letters exchange with the claimant or their representatives but all I got was a automated responses that would not acknowledge my arguments.

 

7. My tenancy agreement that I signed when I first moved in says nothing about permits or penalty charges. It does not even mention parking as such. (please see attached copy) My landlord has never amended the agreement and as far as I know uses the same agreement across all of their properties, (actually over thousand of them) therefore I question why the claimant as a third party should be entitled to issue PCN in this particular residential car park.

 

8. When asked for evidence, the claimant presented several photographs of a car taken in the dark. Only some of them show my car’s number plate and from others it can not be confirmed without a doubt whether it is a photo of my car or not. Neither of those photographs allows identifying the location where they were taken and none show the signs warning motorists of the charges.

 

9. Furthermore the claimant alleged that the car was observed without permit at 22.41 without stating how long it was there for. To this day I have not received a proof that the claimant applied the grace period they are required to apply by their organization’s code of conduct. (please see attached IPC code of conduct)

 

10. The claimant has failed to provide evidence of any contract with the landowner allowing them to charge for parking there, neither have they provided a proof that the primacy of contract can be disputed. Furthermore even if this was the case the signage on the site should be plentiful or no contract can be entered into knowingly by the driver. Clearly, as can be seen from the evidence I provide, one sign way past the entrance does not meet this criteria.

              a. In Link Parking v MR L (2016) it was found that the lack of entrance signage at  a residential site and poor visibility of other signs was cause for dismissal.

      The signage on the site in question was demonstrably unfit for purpose at the time in question in the formation of a contract with a motorist.

                                 i.   “At the time of the alleged infraction signage was deficient in number, distribution, wording and lighting to  reasonably convey a contractual obligation.”

             b. The operator’s signs cannot override the existing rights enjoyed by residents   and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: ‘JOPSON v           HOME GUARD SERVICES’.

                                   i. In the Jopson appeal it was also held that signs added later by a third-party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new                      ‘parking contract’.

                                  ii. In the Jopson appeal it was held that ‘PARKINGEYE LTD v BEAVIS’ (2015) UKSC 67 had no application to a situation involving drivers with a  right and expectation to be entitled to park under the grants flowing from a lease.

              

             c. ‘SAEED v PLUSTRADE LIMITED’ (2001) EWCA Civ 2011: On appeal it was  held that easements enjoyed under the lease could not be restricted retroactively.

             d. Pace Recovery and Storage v Mr N. (2016): it was found that the parking company could not override the tenant’s right to park by requiring a permit to do so.

           

                        i. District Judge Coonan concluded that Mr N.’s tenancy agreement granted the right to park without the requirement to display a permit.
           

                        ii. Mr N. also won a previous case, wherein the Judge ruled that his tenancy agreement gave him an unfettered right to use his allocated  parking space and that the terms could not be varied by PPC signage.

            e. Link Parking v Ms P. (2016): it was found that the PPC could not override the  tenant’s right to park by imposing the requirement to display a permit.
           

                        i. As land occupier, Ms P. was granted the power to manage the space,  which does not include the need to display a permit.

            f. The claimant is not a party to the tenant’s lease and cannot arbitrarily vary it.

11. I received a PCN and now am asked to pay an inflated charge of £….... This is not because I am not allowed to park there but for allegedly failing to display a permit for a period of one minute.  

 The Beavis case is against this claim

 12. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

 13. However, there is no such legitimate interest where I am a tenant there, have been given a permit by the landlord and only allegedly failed to display the permit for a period of one minute, with the claimant failing to provide sufficient evidence of contract with landowner or signage that would allow anyone to knowingly enter into a contract. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

 

 

Than I would like to add the points about abuse of process and further costs from this thread –

https://forums.moneysavingexpert.com/discussion/comment/77614685/#Comment_77614685

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth

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Please advise.

Umkomaas

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

Is this a Defence or a Witness Statement. It doesn't look much like a Defence to me. 

Are you not using the Template Defence provided in the Announcement near the top of the forum thread index?  That is what you should be basing your Defence on. 

baart77

I have already sent the defence this is witness statement, (sorry for the confusion in the previous post) and I based it on the statement from this thread - https://forums.moneysavingexpert.com/discussion/comment/77614685/#Comment_77614685 as suggested in newbies thread

Jenni_D

There are better WS examples now, but the NEWBIES can't be updated just yet. The one by @wobs2k is one of them I think.