CEL witness statement

Umkomaas

We really don't have much advice on what to offer. Our position is one of fighting these charges, and we have so many who need our help in doing that, so you just need to do what you have to do and see where that takes you.

I've gone as far as I can on this.

Not_for_real

hi all im back again for another case
scenario is the same - I've since read the forum newbie thread and noticed a new judgement that has been passed which @Coupon-mad has posted 2 days ago with the cases at Skipton

was looking to include that under point 28 as a follow on - is there anything else worth adding - just point me in that direction and ill do the rest

i have since seen thier WS from s wilson, mr cohen has left now lol, lo and behold they want to settle but i think this time round im going to the whole way

Le_Kirk

There is also a new template defence that Coupon-mad posted today; worth looking at that to see if it suits your circumstances or if you can adapt it.

1505grandad

As Above.

Suggested template defence to adapt for all parking charge cases where they add false admin costs

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs#

Not_for_real

thanks for the reply

Im at WS stage already - long wait for it to be allocated to the local courts
so thats why i was wondering whether to input in my witness statement further up in the thread at point 28 (can repost if required)
also, is it worth rebutting their WS or just sticking to the facts of the matters and fighting it that way

Coupon-mad

Adapt the one I wrote here:
https://forums.moneysavingexpert.com/discussion/6073442/pcn-escalated-to-court-proceedings/p5

Watch out because some of it is about the Equality Act and the Vento guidelines, so delete those first and then adapt the facts throughout, so it reads similarly but with your own details about the signs, etc.  and your own evidence exhibit numbering.

That one already includes at #31, the Skipton case latest update (did you see the new thread I started today, telling everyone that a Skipton Judge has done this morning, exactly what the Southampton Judge did in November, and refused a barrister's application to reinstate multiple claims?  Read the new thread!).

And the linked case above also shows you that now is the time to submit a SUMMARY COSTS ASSESSMENT (signed and dated) as shown there, breaking down your time spent on every letter and stage...making your costs total fairly high (in the hundreds).  The idea of putting a signed 'Summary Costs Assessment' (use that heading) in now, is in case the PPC discontinue before the hearing and run away, it might put a foot in the door for you to ask the Judge to consider your already filed Summary Costs Assessment...

Not_for_real

brilliant thank you - i will merge my WS and update and post later for review 

Not_for_real

here is my draft WS - ive used the new template c-m posted above

1.     I deny that the Claimant is entitled to relief in the sum claimed, or at all and my defence is repeated. 

 2.     It is my position that the conduct of the Claimant is specifically unlawful and far more serious than just a hopeless claim.  The Court's attention is drawn to this and the Claimant's other conduct, including but not limited to:

i)        multiple breaches of their Trade Body (the British Parking Association) Code of Practice ('the BPA CoP');          

ii)      breaches of the UTCCRs as applied at the time, distinguishing this case from ParkingEye Ltd v Beavis;

iii)    breaches of the Data Protection Act 1998, where the Claimants were/are data controllers acting unlawfully;

 3.     Further, the Particulars of Claim are incoherent and provided insufficient detail for me to be able to ascertain the nature of the case as pleaded, hence my fairly short, factual defence in response.  Although the cause of action appears to be breach of contract, the Claimant has: 

i)        failed to serve a Letter before Claim with a copy of the sign (the contract) as per the Protocol for Debt claims;

ii)      failed in their Particulars, to provide sufficient detail regarding in what manner the alleged contract was breached;

iii)    failed to state in what capacity the Claimant (a non-landowner) is entitled to recover any part of the sum;

iv)     included a false 'contractual charge' sum of £82, which the Claimants and their legal advisors (both) already know - from recent parking charge claims that have been struck out and which they failed to appeal - is an abuse of process;

 Unreasonable behaviour and risk of discontinuance - my Summary Costs Assessment is attached

4.     For the reasons set out in 2 and 3 above, and given the facts in my defence and witness statement below, it is my position that the test has been met in Dammerman v Lanyon Bowdler LLP [2017] EXCA Civ 269 (12 April 2017), the Court of Appeal (“CoA”) authority and guidance on how the courts should approach applications for costs under CPR 27.14 (2)(g). 

 The CoA in Dammerman concluded that the meaning of "unreasonable" cannot be different when applied to litigants-in-person in small claims cases.  The test is whether the conduct "permits of a reasonable explanation" which cannot be the case here.

 

5.     In view of the facts of this case, the Claimant’s cavalier attitude and their failure to properly consider their legal position thus far, I believe there is a likelihood that they will now issue a Notice of Discontinuance (“NoD”).  However, this means that I must raise the matter of my costs, as fairly assessed to the best of my ability at this stage (see my Summary Costs Assessment appended to this statement, which does not exceed the CPR ceiling of two thirds of the costs that may have applied if I had had the benefit of legal representation).   

 6.     I respectfully ask that the Judge grants my costs anyway, in the event of a NoD, and uses the court's discretion to dispense with any formal application in this case because I qualify for help with fees (exemption) on income grounds and I have surely been put through more than enough by this litigation, and because the court has a wide discretion on the issue of costs where a party has crossed the line into "unreasonable behaviour" in pre and/or post-action conduct in the small claims track. 

 7.     Litigation is not risk-free for a parking firm pursuing a person without justification (unlawfully in this case), and this Claimant must take his victim as he finds me.   The thin skull or 'egg-shell' rule is a well-established principle in both English law takes into account the physical, social and economic attributes of the other party, which might make them more susceptible to injury or distress, whether physical or mental injury is the result.  The principle requires the Claimant in this case to compensate me to the full extent of my distress and injury to feelings even though they may be more serious than expected because of my pre-existing conditions, predispositions, and vulnerabilities, and in this respect I ask that the Judge gives due consideration to a suitable percentage 'uplift' being applied to my Summary Costs Assessment, as the Judge sees fit, to send a message to this parking firm that they cannot breach consumer and disability laws.  This Claimant has indisputably caused serious distress to me, affecting my peace of mind and upsetting my husband and family for five years, finally dragging me to court, and (I fear, in some ways more than I dread the hearing) will now issue a NoD at this late stage and expect to walk away.

Background - the facts and unlawful conduct

8.     The facts are that it offered 1 hour of free parking, and that is the period I parked for. It is trite law that any uncertainty in a contract should be resolved against the person who offered it under the contra proferentem

 9.     Attached (Exhibit HJ004) is a google earth aerial photograph of the car park which shows there was no signage on the entrance as required by Paragraphs 18.2, 28.2 and Appendix B of the CoP at the time of said contravention. The Claimant's ANPR machine is, I believe, almost next to the junction to the exit road (Exhibit HJR002 & HJ004). Also, shown is the layout of car park and the narrow space with which one needs to manoeuvre and avoid a road traffic collision (Exhibit HJ005 & HJ006)

 10.  After driving in past the ANPR cameras at the entrance, it took me a few minutes to find a space and park in it as the car park was quite busy. Exhibit HJ007 is a letter received by the claimant and showing photo of the vehicle entering and exiting the car park. I remember waiting for a few other cars to manoeuvre in and out of spaces before parking myself. When I got out of the car, I walked over to the closest parking sign to read it. I estimate that this took 4-5 minutes, possibly a little more. The sign circle green and where I parked my car (marked re) are marked on the aerial photograph on Exhibit HJ003. The sign stated that there was a free 1 hour period of parking. I visited the Pepe’s Piri Piri restaurant with my family and due to the large number of customers, it had delays of its own. All effort was made to return to the car within the 1 hour with kids and ensuring they were in their car seats and seatbelts done

 

11.  It is my uuderstanding that there are three elements to a contract: offer, acceptance and consideration. I could not possibly have accepted any contract offered by the Claimant at the precise moment I drove through the ANPR cameras, at the start of minute 1 of the 1 hour and 14 minutes period, because at that point no offer had been made. An offer must be communicated to an offeree. As such, I refer to the case of NCP vs HMRC [2019] EWCA Civ 854 Case No: A3/2017/2435 (Exhibit HJ011) in which a person uses a pay machine to purchase a ticket in exchange for parking whereby judgment makes it clear that the offer and acceptance takes place when the paying motorist inserts the coins & hits the green button (Paragraphs 18 -20 highlighted on transcript), similarly in this case, offer and acceptance could not have accepted merely by driving by the APNR cameras and ‘formally’ starting the parking from that minute and being at a disadvantage in determining whether a vehicle wants to accept or not.

 

12.  There was no offer communicated at the entrance to the car park, but only once I was inside it - the Claimant’s signage setting out the terms and conditions were dotted around the site and could not be seen immediately on entry (Exhibit HJ002, HJ004 & HJ005), and I could not read them from my car. It took me about 5 or so minutes to drive in (past the point of the ANPR cameras), find a space, find a sign, read it and decide to avail myself of the parking. At that point I say an offer was made (insofar as the sign was capable of making an offer), and I accepted it.

 

13.  Since no contractual terms were offered until I had read the sign, that leaves the remaining 10 minutes of my alleged overstay.

14.  When I returned to my car, the car park was very busy. I know that I reached my car within the 1 hour limit, because I was mindful of the time and the need to return home with the children. I did not remain parked when I returned to the car, I got straight in it, fastened the children’s seatbelts in their car seats and drove off, and at that point I was no longer making use of the car parking facility, but was exiting the car park.

15.  It took me a long time to reach the exit road and then drive out onto the public highway (see Exhibit HJ001, 002 & 005), because I had to navigate a narrow space with cars parked in bays and along the kerbs, stopping along the way to allow other cars to get in / out of spaces and out of junctions within the car park, and when I reached the exit, there was a traffic jam leading to the highway. The car park entry and exit are at an intersection of Ninevah Road and on the day, it was heavily congested which meant the traffic was almost at a standstill leading up to the traffic lights at the crossroads. There were a lot of cars stuck inside the car park waiting to get out. I estimate that it took me around 10 -11 minutes to get to the exit road and out of the car park, past the ANPR cameras.

16.  I was not familiar with the car park layout or how busy the road outside it could be. The fact is that I returned to my car and drove it away from where it was parked within the 1 hour period and made every effort to exit the car park in a timely manner. I was delayed because of reasons beyond my control (the traffic jams both inside the carpark and on the public highway outside) and I could not have anticipated them. The entirety of the final 10 minutes spent in the car park were spent trying to exit it. The Claimant, a company which manages the car park, should be aware of these issues and should make reasonable allowances for the foreseeable delay’s users may experience in exiting the car park.

17.  Contractually, the Claimant’s signage (Exhibit HJ009) did not specify that the 1 hour of free parking included time spent finding a space and then leaving the car park via the ANPR cameras. Had this been clear to me, I would have returned to the car earlier. Of the 14 minute alleged overstay, 4-5 minutes (possibly more) were spent in the car park prior to any contract being formed. The 10 - 11 minute delay in leaving at the end of the 1 hour was beyond my control and unforeseeable. I made all reasonable endeavours to leave the car park and to remain parked for only 1 hour.

 18.  The signage (Exhibit HJ009) are deemed to misleading to the public in such that upon revisiting the site for the purposes of this case, the small print states that:

‘If you do not pay within 10 minutes of arrival, or if you agree to park longer than the period paid for, you agree to pay £100 to Civil Enforcement Limited…’

 

It is my argument that this could not be applied if I am to take the incentive of parking for free for 1 hour, thus no requirement for me to provide my payment details for what is effectively £0 charge, therefore it is my point that such instructions must be clearly written and displayed

19.  Further, I would also like to state that the signs did not comply with the BPA CoP, with regards to letter sizing (see exhibit MW4 from BPA CoP applicable in late 2014 - Appendix B 'Mandatory Entrance Signs' and MW5, a photo taken with a tape measure for comparison) as the road it is entered from has a 30 mph speed limit.  The font size should be a minimum of 60mm.  The photograph shows that the font size on the sign is 25mm.  Therefore, the signage has failed to meet the 'mandatory' requirements of the British Parking Association - basic stuff for an AOS member that 'permits of no reasonable explanation'. 

 

20.  Where they existed, the few signs were sparsely placed and unremarkable in a retail park, a requirement as set out in the BPA CoP, see section 18.10 (exhibit MW6).  It also states that they must be 'conspicuous' in section 18.3, please see original photos (exhibits MW xx, xx and xx) taken on April 2019. (See also exhibit MW8 for the Aerial view of the car park with regards to sign positioning). 

Not_for_real

21.  In section 12 of the BPA CoP, it states that grace periods should be given when arriving and leaving the car park.  This was on busy Saturday weekend with a variety shops detailing the high street and as mentioned, the restaurant was incredibly busy and had limited parking spaces available, so we did not immediately get parked.  I recall (due to the subsequent nasty surprise of the PCN in the post, this event has played on my mind) that we had to wait for someone to load their car and leave the space we were waiting for.  This added to our time within the car park where we had not even got out of the vehicle, let alone had a chance to find any signs.  In fact, we saw none because this had been an unrestricted car park before, and nothing alerted us to any change in terms.  This is a further breach of the 2014 BPA CoP at 18.11 (exhibit MW6) 

 

''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

 

22.  In addition to considering the contractual element of the claim, I have considered the CoP of BPA, of which the Claimant is an accredited member. A copy of paragraph 13 of the CoP (Exhibit 009), which relates to grace periods. In order to be an accredited member of the BPA, compliance with the CoP is compulsory, and a copy of paragraphs 4.1 and 6 of the CoP is at Exhibit 010. The significance of being a member of the BPA and subscribing to its CoP is that the Claimant is only entitled to ask the DVLA for the details of a car’s registered keeper if it is a member (so without membership a private parking company would not be able to function without the ability to trace drivers/registered keepers).

23.  Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the carpark once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking (paragraphs 13.2 and 13.4). It is worthy of note that the recommendation is a minimum of 10 minutes, not a maximum.

 

24.  The above is also applicable when using ANPR cameras under paragraph 30.2 of the CoP

 

25.  Furthermore, I must add that the grace period was agreed to be changed to exceed 10 minutes and be set to a minimum 11 minutes at the Professional Development & Standard Board meeting by the BPA.

 

The minutes (Exhibit HJ013) of the above meeting on the 30th July 2015 state the following:

Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.

26.  There is no explanation for why the Claimant has declined to apply any grace period at all in my case, which is a clear breach of the CoP.

27.  In the well-known parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:

96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.''

 

28.  In this case, the data produced and relied upon by the Claimant shows that the period passing between my car entering and leaving via the ANPR cameras was 14 minutes. Applying the "minimum" 10 minutes or 11 minutes agreed at the Professional Standards and Development meeting by the BPA either side of the parking, the minimum total grace period I should have been allowed by the Claimant under its own compulsory CoP was 20 or 22 minutes. I was therefore well within the grace period. Whilst I accept that following the parking, I was on site for around 10 minutes, this was because of the heavy traffic both inside and outside the carpark, a matter which was outside of my control. The Claimant should have taken a reasonable and proportionate approach, complied with its own obligations under the CoP (not to mention exercised common sense) and should have applied the grace period, particularly in light of the potential bottleneck at the junction between the exit of the car park and the main road (Insert named road here). Furthermore, the issue the court is being asked to deal with is de minimis and the court's valuable time should not have been taken up with this matter.

29.  The Claimant has refused to see reason, by applying an appropriate grace period of "a minimum of 10 minutes" before and after parking, which it is actually obliged to do by its compulsory CoP.

 

30.  So this Claimant obtained my DVLA data against the strict rules of their own Trade Body and also acted against the DVLA 'KADOE' rules and Data Protection Act 1998, in that it had no 'reasonable cause' and should never have obtained my data in the first place, and this too 'permits of no reasonable explanation'. 

 

31.  By processing my personal data that it was never entitled to have, to demand monies it was never entitled to seek, for an unconscionable five years after receiving and ignoring my appeals, the Claimant stands in breach of their statutory duty under the Data Protection Act 1998 ('the 1998 Act') now repealed, and the Data Protection Act 2018.  The Claimants were thereby under a statutory duty to process my data only in strict accordance with a) the Data Protection Principles as set out in the 1998 Act Schedule 1, in particular Data Protection Principles 1, 2 and 5; and b) the GDPR Articles 5 (1)(a) and (b) and 6 (1)(f)).   

 

32.  Under the 1998 Act, Schedule 1, which was in force at the time that my data was illegally harvested from the DVLA, the data protection Principles provide that:- 

 

''Principle 1: personal data shall be processed fairly and lawfully; 
Principle 2: personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or purposes;
Principle 5: personal data processed for any purpose shall not be kept for longer than is necessary for that purpose...'' 

The Claimants’ use of the Defendant’s data breaches all three of those quoted principles and this again, 'permits of no reasonable explanation'. 

 

 

33.   A course of conduct of unreasonableness is already established before I even come onto the UTCCRs (now encompassed into the Consumer Rights Act 2015 - 'the CRA') regarding the duplicitous and false 'costs', and the Equality Act 2010 breaches in my case.

Breach of the UTCCRs (now part of the CRA 2015) and false added costs - an abuse of process

34.  The UTCCRs were repealed by the Consumer Rights Act 2015 ('the CRA') with effect from 1 October 2015. The CRA applies to terms in contracts entered into from that date (with the UTCCRs continuing to apply to terms in consumer contracts entered into before then - e.g. this one).   Whilst in ParkingEye Ltd v Beavis [2015] UKSC67, it was held that the £85 charge in that case - involving a non-disabled driver and very prominent signage - did not breach the UTCCRs due to the facts unique to that Chelmsford location, the relevant regulations and test of fairness must still be considered in every case.

 

35.  Whilst the fairness of the charge was not raised in my defence, this is not an issue because s71(2) of the CRA provides for a duty upon the court to consider the fairness of all consumer terms (e.g. the policy to impose an inflexible time limit and then fail to identify disabled service users or provide instructions or a mechanism to exempt them) and the fairness of consumer notices (i.e. the sparse car park signs with tiny font), whether a consumer raises the issue, or not at all.  The CRA is in similar terms to the UTCCRs, with the same fairness test and a ‘grey list’ (repeated in Schedule 2, Part 1 of the new Act) and the added £60 is a disingenuous attempt at double recovery and certainly disallowed by the applicable consumer legislation (now and in 2014) with reference to paras 6, 10, 14 and 18 of the grey list of terms that are likely to be unfair.

 

36.  Both this Claimant and their legal representatives have no excuse for filing a claim where £60 has been added.  Both have received adverse Orders from the courts in recent months and failed to appeal even when a judgment went against BW Legal when they applied to set aside a series of parking claims that were summarily struck out for abuse of process; specifically, adding a false sum of £60 to a parking charge - as in my case:

i)        MWxx - Premier Park claim struck out by Warwick County Court - same Claimant as this case (no appeal).

ii)      MWxx - multiple parking charge cases struck out by Southampton County Court - same legal representative as in this case.  BW Legal tried and failed in an application in late 2019 to set aside the 'strike-out' Orders and this exhibit shows the Approved Judgment and reasoning of District Judge Grand.  

 

37.  BW Legal chose not to appeal, and given that their first duty is to the Court, continuing with more parking claims in other court areas and still adding £60 to every one of them, is an abuse of process and surely a matter for the courts to raise as a concern for the Solicitors' Regulation Authority to investigate, if the court has that power and inclination.  If this Claim proceeds to trial, the representative sent by BW Legal for Premier Park will be questioned about this duplicity in view of both companies already knowing that their claims are exaggerated and unrecoverable.

 

38.  Further, at Skipton County court on 27.2.2020 - an area where Judges are also summarily striking out every parking charge case where £60 has been falsely added - Excel Parking Services failed to overturn six strike-out orders, in a mirror image application hearing just like the one BW Legal lost in Southampton.  They were refused leave to appeal, the application to set aside was dismissed and the Claimant was found to have behaved unreasonably . Costs of £331.10 were awarded to a lead Defendant in claim no F3QZ38JK (one of the six) because the District Judge Fay Wright held that the Dammerman test was met by the conduct of the parking firm.  

 

39.  The private parking industry continues to demonstrate significant irregularities in their affairs and AOS member parking firms invariably trade in a way that fails to show integrity or a social conscience and disregards consumer law and the public interest, and the Court and my MP will be encouraged to report the conduct of this particular Claimant in my case, to the Secretary of State.

My costs  - to be Summarily Assessed even in the event of a Discontinuance

 

40.  I request the Court to dismiss this claim in its entirety, and to award my fully assessed costs - not just for the attendance at the hearing - such as are allowable pursuant to CPR 27.14.  As stated above, I ask that my Summary Costs Assessment (attached) be granted and that a discretionary percentage or other sum is added, as the Judge sees fit for compensation for injury to feelings in my case, considering my physical and economic vulnerability as explained above and applying the doctrine that the Claimant takes their victim as they find me, as set out in paragraph 8 above.   

 

Not_for_real

tl;dr free parking for 1 hour - 14min alleged overstay - main point of case is grace periods should be in this situation plus abuse of process and additional costs