Court claim form - what now?

chyvan

Any suggestions very gratefully received! I'm just going through trying to fit in specific links to case law, as suggested in other posts!

chyvan

So, think I'm about done (in!). I've added this to the above WS. Hope it's enough... Need to submit it to court now ASAP! Advice very gratefully accepted as getting rather panicky!

35. There were no signs or notices up in the fish and chip shop nor nearby to alert customers about the need to register vehicle details to enable the free parking
36. I note from the Claimant’s pack on page 7, the ‘Contract for the provision of ANPR parking enforcement service’, at paragraph 8 of the Company’s Obligations it is stated that UKCPM will “Provide A4 desktop fliers for customers and guest [sic], informing and advertising the new car park requirements”
36.1. There was clearly a need identified by the Claimant to inform customers that there had been a recent change in the terms of using the car park, beyond what was stated on the confusing car park signage
36.2. Clearly fliers should have been in existence and displayed to inform customers how to redeem their free parking, and the process required now for registering their vehicle details.
37. I was surprised, alarmed and somewhat distressed when I received the first demand for payment from UKCPM, but having just been made redundant I did not have the money to pay this extortionate charge. I knew I had used the car park in good faith as a customer and I hoped if I ignored the demand for payment the letters would stop.
38. I was in a state of fragility and low mental health at the time, so unable to proactively deal with appealing this parking charge issue on top of my desperation to find employment.
39. I received no further communication from UKCPM after the demand for payment letter dated 13th June, until the sudden appearance of the letter from Gladstones a full two years later.
40. Having now had the opportunity to review the signage at the XXXXXX car park, it was clearly not fit for purpose, and the evidence in the Claimant’s bundle relating to signage is insufficient, undated and inaccurate
41. The image in the Claimant’s bundle labelled page ‘9’ apparently shows an example of signage present at this site, however the Claimant does not indicate where this particular sign would be located, nor is this a photograph of an actual sign from the car park, rather it appears to be a proof printed from file of a sign which was intended for display
42. I have attached photographs of actual signage present in the car park. It will be noted that these differ in several aspects from the image provided by the Claimant, as such this is another example of the Claimant’s misleading and inaccurate evidence.
43. Although, for reasons detailed above, the sparsely located signage which had only recently been erected in the car park was not seen at the time, it is clear on both the example provided by the Claimant and my own evidence that the small font used and the reference to a “Parking Charge of £100” buried amidst a confusing section of overly complicated text would be impossible to read and process as the driver of a passing vehicle, especially whilst manoeuvring, even if signs had been located in such a way as to be visible.
43.1. It is especially difficult for disabled drivers to read and process small fonts and overly-complicated text when they are likely to be concentrating more on safe manoeuvring
44. I have provided an image of the sign from the entirely different Parking Eye vs Beavis [2015] case for comparison, where the difference in font size and clarity of signage completely contrasts with the UKCPM sign (see image TB10).
44.1. In the Beavis case, a key factor was the prominent and clear signage, with the parking charge visible in high contrast and a huge font. This was found by the judge to be transparent and obvious to motorists, with no doubt regarding the £85 charge
44.2. With the signage being so obvious, the driver was in a position to make their decision to park and risk the penalty charge
44.3. This clear signage can be contrasted with the Claimant’s signage, both from their own evidence and in my images TB7 and TB9
44.4. Here are a few of the references to signage from the judgment:
Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”
44.5. The Claimant’s signage is neither in “large letters”, nor “prominently displayed”, nor “at frequent intervals within” the car park, and as such drivers are unable to make the decision as to whether the penalty charge is “an acceptable price for the convenience of parking there.”
44.6. Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”
44.7. 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 operate disadvantageously to the customer.”
45. The Claimant makes reference to the Beavis case (WS Para 21) so understands the importance of clear and prominent signage. The sign referred to in the Beavis case is enclosed, as image TB10. When compared to the UKCPM car park signage – Exhibits TB7 and TB9 – I submit that no reasonable person would agree that the Claimant’s terms are brief, simple, clear and “prominently proclaimed”.
46. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear. This is obviously not the case based on the evidence I have provided, so I invite the court to reject this claim as the proposed terms of the alleged ‘contract’ were too unclear to be entered into by the Defendant.
47. In paragraph 25 of their witness statement, the Claimant submits that the signs around the carpark are clearly visible and meet the requirements set by the International Parking Community (IPC). They further claim that their signs have been audited and approved by the IPC and are therefore deemed reasonable.
47.1. The IPC states that signs should be simple and easy to read, and there should be strong colour contrast between text and background.
47.2. The various signs are a mass of confusing and contradictory words. The mention of the penalty charge of £100 is hidden in a body of too small print in the middle of the sign. It is not prominent or obvious, and not easy to see by a motorist driving, even very slowly, past the sign. It is not presented in huge, distinct font or a separate icon as in the Beavis signage.
48. Both the inaccurate signage example provided by the Claimant and my own accurate evidence of the signage present, though not seen at the time, state that parking is free for customers. This continues the previously existing terms under which we had used the car park as customers, confirming it was reasonable for us to assume parking would still be free for us as customers on this occasion. Since we had not seen the sparsely located, ineffectual and unclear signage, we were unaware that the terms of using the car park had now changed slightly, and we were expected to make staff aware of our vehicle details. Staff did not inform us of this either.
49. The Claimant seems unaware in their point at paragraph 27 of their witness statement that customers are entitled to free use of the car park
50. It will be noted also that the actual signage present in the car park (as opposed to the inaccurate example offered by the Claimant) instructs customers NOT to purchase a ticket from the pay and display machine, as this could not be refunded by the pub.
50.1. This reference to free parking for customers is phrased in several different ways, and although the signage was not seen at the time of parking, the inconsistency confuses customers as to how to proceed. The clearest messages are that parking is free for customers (the same condition as prior to UKCPM taking over the management of the car park) and that customers using the car park do not need to buy a ticket.
51. In my bundle of evidence, exhibit TB7 shows a photograph of signage placed elsewhere in the car park, near the pay and display machine, not facing the car park but the pedestrian exit.
51.1. Terms and conditions are buried in minute font, hard to read up close when solely focusing on this sign, let alone from any distance, where it would not stand out from other signage advertising, for example, the ‘Sausage and Ale Festival’, cost of B&B rooms in the hotel and the availability of the location for weddings.
51.2. Exhibit TB1 is an image of the entrance to the car park. On the left side can be seen a sign that appears similar to TB7 (and different to that exhibited by the Claimant in their bundle – note the amount of red text present in the middle of the sign). It is immediately apparent that this text is written in such a small font as to be impossible to read at all, certainly from a moving car, even if driven slowly with no other distractions vying for attention, e.g. other vehicles, pedestrians, children, dogs
51.3. The sign is placed in such a way as to not only be difficult to see at all when entering the car park from the right (as the majority of vehicles do) but also to be hard to read and understand the terms presented – the ‘contract’ according to the Claimant.
52. My image TB9 shows a photograph of signage high on a pole in the car park corner, the other side of the car park from the entrance.
52.1. There is a confusing amount of small text, not easily visible or understandable, with key information – including the parking charge, private property information, and conditions for free parking for customers – all buried in overly complicated terms and detail. Had such a sign even been present near the entrance or parking area on the other side of the car park, and therefore the sign itself been seen, this is certainly not sufficient to pass the requirement of being clearly legible from a vehicle, especially whilst driving. It would not be possible to make a decision to enter the contract as proposed by the Claimant based on this signage.
53. None of the examples of signage at this site have any reference to disabled drivers and occupants, whether they should pay the same price for their parking as other users; whether they can park for free, as is the case in many local car parks; whether they are permitted longer stays for the same price (e.g. 2 hours for the price of one hour) as again is the case in many car parks. There certainly seems no mention even in the miniscule and difficult to read small print on the signage to clarify this ambiguity.
54. I contend that the initial sum of £100 charged by the Claimant was unreasonable, and that the Claimant has suffered no actual or genuine pre-estimate of loss as a result of the vehicle being in the car park for 17 minutes
54.1. Despite having been requested several times, the Claimant has provided no detail of how this charge of £100 has been reached
54.2. Nor the costs that justify the increase to £160
54.3. The current sum requested of £269.57 is entirely unjustifiable and excessive
54.4. I refer to the judgement reached in the case of ParkingEye vs Cargius (2014), where Deputy District Judge C. Mahy distinguishes that case as different from the Parking Eye vs Beavis and Wardley and the Somerfield Stores vs Parking Eye cases, as “both of those dealt with free car parks… Thus it was argued that the parking charge of £75.00 or £85.00 levied on overstays was commercially justifiable” and goes on to assert that “ParkingEye accept that there is no real loss to them by motorists overstaying”, concluding that “the charge in this case of £100.00 is likely on the balance of probabilities to far exceed the actual loss to the Claimant.”
54.5. The penalty is seen as “totally disproportionate” in that case, where the Judge found against the Claimant
54.6. I contend that similarly in this case, UKCPM would have been quite satisfied with the tariff of £1.00 having been paid at the time, had the driver realised this was required.
54.7. The Claimant states that an initial charge of £100 has been made, then a subsequent charge of £60 added, with no explanation as to how these costs have arisen save the fact these are the maximum sums allowed for under the IPC Code of Practice
54.8. The Claimant asserts that their Company has “spent time and material in facilitating the recovery of this debt”, however communication from them has been generic and template based, and certainly does not reflect £160 worth of chargeable work, let alone £270
54.9. This is an attempt at double recovery and should be disallowed
55. The Beavis case signs are not similar to the signs in this case at all, as has already been covered above. I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently being found that they were NOT bound by them.
55.1. This judgment is binding case law from the Court of Appeal.
55.2. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established
55.3. Conclusion – given the woefully inadequate signage present in this car park at the time of the incident, and the lack of effective and trustworthy evidence provided by the claimant, there is no evidence of contravention and the Particulars lack any basis for a claim
56. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.
57. I believe the facts in this Defence Statement are true.

KeithP

Para 57 mentions the wrong document.

chyvan

Thanks Keith! Noted and changed!

chyvan

Disaster!
Just checked the letter from court again and I completely misread it previously!
I had requested court date in October as I would be unavailable due to work until then...
Court date given was 20 Sept, which I was able to just about rearrange things to attend.
BUT I read that my witness statement and evidence had to be submitted by 11 Sept, so though I was OK with time
Just discovered it was 11 JULY!!!
Such an idiot!
Is there anything I can do?? Will court still accept my evidence bundle and statement? Or do I just give up and resign myself to paying the £270?
Feel so stupid.

Coupon-mad

Nothing is new here. Seen all this before.

Search the forum for never too late witness statement and get on with it!

chyvan

Thanks so much Coupon, will do that now!

The_Deep

gone up to £269.57

This very much sounds like an abuse of process to me. Have you read this thread?

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

chyvan

Really sorry, I've been trying all kinds of different ways of searching but still can't find anything about late submission of my WS and evidence bundle. I assume I just take it into the court, apologise and hope they accept it?

KeithP

No, do not leave it to take on the day of the hearing.

Send it to the Court and a copy to the Claimant now - today - or tomorrow at the latest.