Help with new claim please!!

Dizzie1988

Hi all,

I hope you are all keeping safe/well during these difficult times. We will get through this and hopefully soon be over.

my original schedule hearing date was 20th April. I spoke to them on 1st April and they advised it would be cancelled, and to awaiting further instructions. Nevertheless I have started preparing the WS. A few days later, I received a letter from Gladstone’s a copy of their witness statement. Nothing was attached to letter.  Then they mention a notice to pursuant CPR 27.9. It is not clear what they are trying to say, that they may or may not attend? I thought they had to give clear notice of non-attendance? a copy of the letter attached.

Please see 1st draft of WS- I was planning to attach some photos/short video of the signage at night time and attach it.

In the County Court

Claim No: XXX

Between

UK CAR PARK MANAGEMENT LIMITED (Claimant)

 

-and-

 

Mr XXX XXX (Defendant)

 

__________________

Witness Statement

__________________

 

1.     Sequence Of Events

 

1.1 I am XXX XXXX, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

 

1.2 As the defendant, I deny that the Claimant is entitled to the relief of the sum. The facts of the matter are that the actual driver was disabled with a valid parking disability certificate.

 

1.3 The Claimant has been extremely unclear as to what the ‘parking charge’ in question refers to, referring to it on separate occasions as a charge for ‘unauthorised parking’, a ‘consideration for parking’ and a charge for ‘breach of terms’ - all very different things. This makes is very difficult to focus my defence and I apologise if, as a result, this statement seems rather long-winded. 

 

1.4. This claim refers to a parking incident on a single yellow road at The Atlip Centre situated in Alperton, Wembley. On the 24th March 2018 my disabled father parked my vehicle on a single yellow line around 21:00 with a visible and valid disability badge. A copy of this is attached in exhibit 1.

 

1.5. After this, I received a PCN (exhibit 2) that is the subject of this claim dated 3rd May 2018. The PCN states that the charge is for ‘unauthorised parking’ and that I ‘parked on access roads/ roadways in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site’. This itself is contradictory as I cannot have entered into an agreement to do something that I was not ‘authorised’ to do, parking is either ‘authorised’ or it isn’t.

 

1.6. In or around the 20th May 2018 I made an appeal to the Claimant against the parking charge on the grounds that the signage at the site was inadequate, particularly given the recent change in parking restrictions. I received a response to this on 12th June 2018 saying my appeal was been unsuccessful as a breach of the terms and conditions of parking occurred.  (see exhibit 3)

 

1.7. Until the 19th October 2018, I received nothing further, then a series of harassing letters from DRP (Debt Recovery Plus Ltd) demanding payment for an inflated figure of ‘£160’. All three letters came within the space of  a month and a half. 

 

1.8. I heard nothing further from the Claimant until 20th December 2018 when I received a letter from their agents, Gladstones Solicitors (a well-known serial litigant and ‘roboclaimer’), demanding money and threatening court action (exhibit 6). 

 

1.9. On 4th June 2019 I received a letter from the Claimant saying that they had instructed Gladstones Solicitors had been instructed by the Claimant to commence legal action and sent out a letter before claim.I received three copies of this harassment letter. (Exhibit 7)

 

1.10. On 19th July 2019 I received a Claim Form from the County Court Business Centre instructing me that Gladstones Solictors were issuing proceedings against me on behalf of the Claimant. 

 

2. No Contract Exists

2.1 I understand from correspondence with the Claimant that the Claimant’s case relies upon the signage at the site constituting a ‘contract’ between myself and the Claimant as per ParkingEye vs Beavis. The ‘breach of terms’ on the Particulars Of Claim presumably refers to the supposed ‘contract’ formed by this signage.

 

2.2 In ‘ParkingEye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. The ‘ParkingEye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.

 2.3 There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of free parking‘ and no conceivable way I could have benefitted from this alleged ‘contract’ without breaching its terms.

 2.4 The parking contract in ‘ParkingEye vs Beavis’ case was judged to be ‘objectively reasonable’ partly because ‘motorists generally’ did accept it (108). The landowner wanted as many people as possible to use the car park in question so the contractual arrangements were designed to be attractive to the average motorist. This is the complete antithesis of the supposed ‘contract’ in this case which is designed to actively discourage motorists from parking at the site. The terms of this ‘contract‘are not ‘objectively reasonable’, but deliberately designed to be so heinous that no one in their right mind would agree to them. It follows that this is not a ‘contract’ but a prohibitory notice masquerading as such.

 2.5 In J Spurling Ltd v Bradshaw in the Court of Appeal, Lord Denning states that ‘the more unreasonable a clause is, the greater the notice which must be given of it’. This is commonly referred to the ‘Red Hand Rule’. As the terms of this ‘contract’ (specifically the clause relating to a £100 parking charge) are designed to discourage motorists from accepting them it follows that they must be ‘unreasonable’ and that therefore Lord Denning’s rule should apply.

 2.6 The Claimant has not applied Lord Denning’s ‘Red Hand Rule’ to the terms and conditions in this case. The sentence that refers to a ‘parking charge’ is in an extremely small font (one of the smallest on the sign) which, given that this sign is supposed to be read from a vehicle, is woefully inadequate - particularly when compared to the signage in the ‘ParkingEye vs Beavis’ case.

 2.7 The very act of entering into this alleged ‘contract’ (parking) constitutes a breach of its terms, therefore making it impossible to perform.

 2.8 The PCN I was issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. I cannot be seen to have entered into a contract for something I was not ‘authorised’ to do. 

 2.9 The signage and its wording at this site is almost exactly the same as the signage in the case of ‘Parking Control Management v Bull’ (exhibit 11) in which the Judge found that it was ‘impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway.’ and that therefore any charges made on the basis of said signage would be damages for trespass and must constitute reparations for actual loss.

 2.10 The signage at the site is also very similar to the signage in the cases of ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ in which it was ruled that, if any contractual arrangement could be implied by such signage, then it only applied to vehicles which were ‘authorised’ to park and therefore charges could not be made on a contractual basis for vehicles that were not ‘authorised’ to park. 

 3. Inadequate Signage

 3.1 A key factor in ‘ParkingEye vs Beavis’ was that the relevant signs were ‘large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature’ and ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here. 

 3.2 In‘Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case there was no sign adjacent to my vehicle, I had not passed any signs to park, and no signs in the vicinity could possibly be read from my vehicle. 

 3.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

 3.4 In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International Parking Community (IPC).

 3.4.1 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that I would not have passed any signage indicating I was entering private land.

 3.4.2 The IPC guidelines state that signage should include a very large ‘P’ to alert the motorist to the fact that said signage relates to parking restrictions. There is no large ‘P’, or even a small ‘P’ on the signage in this case.

 3.4.3 The IPC guidelines state 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.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read and impossible to read from a vehicle.

 3.4.4 The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving as it is mounted on a pole at least 7ft high. 

 3.4.5 The IPC guidelines state that ‘Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.’ The parking terms had recently changed here and yet there was not, nor had there ever been, additional signage informing visitors that a change of restrictions was in place.

 3.4.6 The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’. Given the timings involved, the balance of probability strongly suggests that the Claimant’s representative watched me park and leave my vehicle. There is anecdotal evidence of them doing exactly this. Not to warn me that leaving my vehicle would potentially incur a parking charge, particularly when the parking restrictions had recently changed, in my opinion constitutes ‘predatory tactics’.

 3.4.7 The Claimant and their representative also have a duty to mitigate loss. In the case of ‘Vehicle Control Services vs Ibbotson’ (which was won by the motorist) the judge severely castigates the Claimant for not making the Defendant aware of the terms of parking at the site when they could have easily done so. The Claimant’s representative could simply have made me aware of the terms of parking and, in the unlikely event that I agreed to them, collected payment from me directly. This would have saved all the costs involved with DVLA lookup, solicitor’s letters and court fees and better fulfilled their (presumed) obligation to keep the area free from parked vehicles. 

 4. Consumer Rights

4.1 If a contract were deemed to exist between myself and the Claimant it would, under the terms of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), be defined as a ‘distance contract’. As ‘distance contract’ is defined as ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.

 4.2 As a ‘distance contract’, the signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

 4.3 As the signage does not carry the information required as specified in 4.2 (above) I have the right to cancel the contract as specified by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13) clause 31 ‘Cancellation period extended for breach of information requirement’.

 4.4 Even if a contract were deemed to exist between myself and the Claimant, the fact that I explained to the Claimant’s operative in no uncertain terms that I was unaware of any change in parking restrictions and my offer to remove my vehicle immediately to avoid any kind of ‘charge’ should be taken as a ‘clear statement setting out the decision to cancel the contract.’ as defined by the act in Part 3, 32, (3)a.

 5. Landowner Authority

 5.1 The Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have they authority to do this, and that the terms and conditions of parking they impose at the site are in line with what they have been authorised to do.

 6. Additional Costs

 6.1 The Particulars of Claim include £60 over and above the original ‘parking charge’. I have no idea what these charges refer to as there appears to be no contractual basis for them, even if one were to take the Claimants somewhat far-fetched view as to what constitutes a ‘contract’ into account. The Claimant is put to strict proof that these additional charges are justified.

 6.2 The Particulars of Claim include £50 for ‘solicitors costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.

 

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

 

Mr XXX XXX

nosferatu1001

It states the client might not attend, or may do. It's a get out clause. They don't have to state it one way or the other.  As long as there is a legal rep there the client is free to stay clear. 

nosferatu1001

When you say "nothing was attached" do you mean you don't have a copy of the WS? Your phrasing is utterly ambiguous 

D_P_Dance

Is a layman expected to know what CPR27.9?

nosferatu1001

It's not hard to look it up. 

Le_Kirk

1.4. This claim refers to a parking incident on a single yellow road at The Atlip Centre situated in Alperton, Wembley.

Maybe need to rewrite this to explain what you mean.

Le_Kirk

D_P_Dance said:

Is a layman expected to know what CPR27.9?

No, but he/she could ask Auntie Google, she knows everything!

Dizzie1988

nosferatu1001 said:

When you say "nothing was attached" do you mean you don't have a copy of the WS? Your phrasing is utterly ambiguous 

Apologies- there was no copy of the WS attached, just the single piece paper I uploaded. 

Dizzie1988

nosferatu1001 said:

It's not hard to look it up. 

That’s really useful information- so glad you decide to post today! 

Dizzie1988

Le_Kirk said:

1.4. This claim refers to a parking incident on a single yellow road at The Atlip Centre situated in Alperton, Wembley.

Maybe need to rewrite this to explain what you mean.

Just edited this thanks and makes more sense now.