Parking Eye CCJ Challenge

AMP279

I have updated to the 1st person and made a few minor changes. Can anyone please check and let me know if it is good enough to send?


[FONT=&quot]WITNESS STATEMENT[/FONT]

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[FONT=&quot]1. I am XXXX XXXX, of XXXXXX, the Defendant in this matter.[/FONT]
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[FONT=&quot]2. I am the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from an alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.[/FONT]
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[FONT=&quot]3. On the XXXXX at approximately XXX I arrived at the Holiday Inn XXXXX to attend a pre-booked DriveTech speed awareness course, Exhibit XX1 confirms that I was a genuine patron of the hotel. I paid for a parking ticket using one of the Pay and Display Terminals (P&DT) and displayed the ticket clearly on the car dashboard (although I subsequently discovered to my detriment that the ticket should have been validated using a hidden keypad to claim exemption).[/FONT]
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[FONT=&quot]4. In fact, visitors including speed awareness course attendees are granted exemption from parking charges whilst using the hotel facilities. Exhibit XX2 is a confirmation email from the Hotel Cancellation Team which assures me that the PCN I received would be cancelled after I had shown proof of patronage and confirming support in the cancellation of this charge.[/FONT][FONT=&quot] As I have has proved patronage I can point out that it is the Claimant's own failure, caused by their deliberately obscure terms and procedures that catches out far too many victims and has given rise to a PCN that was not properly issued from the outset. [/FONT][FONT=&quot]Due to the Hotel's promise that visitors are exempt from charges it is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter remembering that it is at all times, an agent of the Hotel.[/FONT]

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[FONT=&quot]5. Upon receiving the claim, I researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by ParkingEye in its signs or paperwork, prior to commencing proceedings.[/FONT]
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[FONT=&quot]6. The only route offered was a supposed 'appeal' to ParkingEye, but I knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of the consumer.[/FONT]
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[FONT=&quot]7. I was unaware of the non-prominent system to input vehicle registration numbers (VRNs) into a hidden keypad in the hotel reception. The Claimant is put to strict proof that a keypad was in the reception and in working order, at the material time.[/FONT]
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[FONT=&quot]8. I would like to draw the court attention to the poor signage and also the use of mixed messages, please see Exhibit XX3. The signage upon entry with ANPR cameras mentions ‘visitors’ must enter a VRN to be entitled to FREE parking but the terms that includes the T&C's (alleged contract) on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle. The text is wordy, unclear and smaller than recommended by the DVLA for road signs.[/FONT]
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[FONT=&quot]9. There is also different signage at the hotel foyer entrance found on both P&DTs, see Exhibit XX4 which states that hotel ‘overnight guests’ (not visitors) are required to enter a VRN to be entitled to FREE ‘overnight’ parking. This vital message regarding using a hidden terminal is buried in a corner, discreetly out of the way and in very small lettering, [/FONT][FONT=&quot]thus being incapable of forming a contract[/FONT][FONT=&quot]. Exhibit XX5 shows there is an overly shiny plastic overlay on both the P&DTs instructions panel, this is highly reflective, making the signage difficult to read and further obscuring legibility and clarity[/FONT][FONT=&quot]. The Claimant’s Witness Statement does not show the P&DTs as part of their Sign Type Exhibits and is also not shown on its ‘Car Park Signage Layout Plan’ ([/FONT][FONT=&quot]Exhibit XX6)[/FONT][FONT=&quot]. [/FONT][FONT=&quot]It is therefore denied that the Claimant's signage is capable of creating a legally binding contract.[/FONT]
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[FONT=&quot]10. I am not an unobservant person and argue that the average person would not have seen or known about the unexpected VRN system within the hotel somewhere. It is contended that the Claimant failed to alert visitors to an onerous change and unexpected obligation to use a hidden keypad or iPad, or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''[/FONT] [FONT=&quot]Consequently, this fails the Consumer Rights Act 2015 schedule 2, paragraphs, 6, 10, 14 and 18. On this occasion the signs were less than sufficient and consequently [/FONT][FONT=&quot]void under consumer unfair contracts law.[/FONT]
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[FONT=&quot]11. The representation - in this case a 'parking charge' (penalty for a mere error, which could be the fault of the driver or could just as easily be the fault of the Hotel keypad) can only be binding where that charge was agreed/the bargain made, at the time the contract was formed. Denning LJ held that a clause where a consumer can only learn about after the contract was allegedly formed was too late to be incorporated into the contract: ''The first question is whether that notice formed part of the contract. ... The hotel company no doubt hope that the guest will be held bound by them, but...the ticket comes too late...''[/FONT]
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[FONT=&quot]12. I suggest the lack of prominence and transparency of a hidden keypad is either as a result of negligence or a deliberate action by this Claimant and they cannot blame the Hotel staff, when the Protection of Freedoms Act 2012 Schedule 4 ('the POFA' - see Exhibit XX7) burden for 'adequate notice', and a 'relevant obligation/contract' falls squarely with the parking firm trying to create a contract regarding a parking charge. Expecting a driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted car park for hotel patrons is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.[/FONT]
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[FONT=&quot]13. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.[/FONT][FONT=&quot] Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and inputting a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty. ParkingEye should be well aware that the circumstances of the Beavis case were entirely different. In this case, we have an authorised user using the car park appropriately where there has been no loss to the owner and no abuse of a parking space. While the courts might hold that a large charge might be appropriate in the case of a 'free stay' car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept that a £100 penalty is a conscionable amount to be charged for the simple problem of a lack of prominence to a hidden keypad or a simple VRN input error.[/FONT]

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[FONT=&quot]14. As well as failing to create adequate notice and a relevant obligation and/or contract, pre-requisites for parking on private land cases. The Claimant has fallen foul of the Consumer Protection from Unfair Trading Regulations (CPUTRs) in terms of a 'misleading omission' in allowing the keypad system to be so obscure as to be unknown. Concealed restrictions are misleading, excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions.[/FONT]
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[FONT=&quot]15. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. This transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, as such this claim must fail.[/FONT]
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[FONT=&quot]SCHEDULE 2
Consumer contract terms which may be regarded as unfair

PART 1
List of terms[/FONT]
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6A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.[/FONT]
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[FONT=&quot]10A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.[/FONT]
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[FONT=&quot]14A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.[/FONT]
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[FONT=&quot]18A term which has the object or effect of obliging the consumer to fulfil all of the consumer’s obligations where the trader does not perform the trader’s obligations.[/FONT]
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[FONT=&quot]16. Consumer Notices such as car park signs are never exempt from the CRA 2015 'test of fairness' and are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent)...''[/FONT]
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[FONT=&quot]17. The Claimant is put to strict photographic evidential proof of the prominence of the system that day (not an assumption as to where the keypad actually was) and to declare to the court in evidence, how many parking charges they have issued at this site due purely to drivers not being given adequate notice/not entering their VRNs into a vague, hidden keypad.[/FONT]
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[FONT=&quot]18. The allegation 'of entering and leaving the car park without a valid paid parking ticket’ appears to be based on images by their Automatic Number Plate Recognition (ANPR) camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is not evidence of the registered keeper not purchasing the appropriate parking time or not being an authorised patron of the facility (which I was).[/FONT][FONT=&quot][/FONT]
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[FONT=&quot]19. In Exhibit XX8, I have demonstrated that the P&DTs accept and register payment despite inputting a completely INCORRECT VRN. This suggests the machines are accepting a variation to the offered contract. The P&DT is fully capable of being programmed to disallow null or partial VRNs and does not, therefore ParkingEye is accepting by conduct this variation. The ticket machines should be linked to the ANPR cameras and only allow correct details, and must firstly accept a valid VRN before accepting the customer’s money and issuing a ticket.[/FONT]
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[FONT=&quot]20. At the time of parking I made a tariff payment but I had no recollection of entering a VRN (or incorrect VRN) although a ticket was issued and correctly displayed. ParkingEye states that Defendant has made a tariff payment ‘of up to 3 hours, but remained onsite for a duration of 4 hours 12 minutes’. Knowing that the P&DTaccepts a variation to the contract by accepting an incorrect VRN, the Claimant is put to strict proof regarding its checks that a valid ticket directly linked to my exact VRN was purchased. In the Claimant’s Witness Statement (Exhibit 12) this is shown as a list of partially blanked VRNs, times and payments. There is no link to which particular P&DT was accessed and no evidence of machine identity or certification, merely a printed list which anyone with a computer and a printer could generate whilst inputting a ‘linked’ VRN in hindsight for good measure, see Exhibit XX9.[/FONT]
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[FONT=&quot]21. The Particulars of Claim state that the claim is for the Defendant “parking without a valid paid parking ticket”. However, I purchased a ticket and made all reasonable efforts to make payment for parking using the approved payment channel and subsequently displaying the ticket. The fact I made reasonable endeavours and cannot be penalised under UK contract law is also a circumstance supported by trite law. Authority for this is the case of Jolley v Carmel Ltd [2000] 2 EGLR 154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.[/FONT]
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[FONT=&quot]22. I bought and paid this for this ticket in good faith. According to the Consumer Rights Act 2015 any goods purchased should be 'Fit for Purpose'. The ticket that was issued was not 'fit for purpose'. ParkingEye took money to issue an invalid ticket and now want to charge an additional penalty of £100 for having an invalid ticket, a double recovery situation.[/FONT]
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[FONT=&quot]23. The Claimant is put to strict proof to provide the Court with a copy of its policy and proof that those checks were made in this instance. Further, I request proof that ''purchasing a valid ticket without entering a correct VRN or partial VRN or no VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since this is highly unlikely, the retailer/landowner allows this unfair fining of genuine paying customers. If it is not in the contract it is not a contravention that can give rise to a penalty.[/FONT]
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[FONT=&quot]24. [/FONT][FONT=&quot]Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 and no more.[/FONT]
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[FONT=&quot]25. This claim inflates the total charges in a clear attempt at double recovery. I trust that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.[/FONT]
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[FONT=&quot]26. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. [/FONT][FONT=&quot]I deny this claim in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow my expenses as are permissible under Civil Procedure Rule 27.14.

I believe that the facts in this Witness Statement are true to the best of my knowledge.[/FONT]

Coupon-mad

''The first question is whether that notice formed part of the contract. ... The hotel company no doubt hope that the guest will be held bound by them, but...the ticket comes too late...''

You have quoted a case in #11 above, but not cited the authority it comes from:

Olley v Marlborough Court [1949] 1 KB 532

bargepole

You do not, and should not, include parts of the Claimant's WS and Exhibits in your bundle. They are already in the Claimant's bundle and the Judge, who will inevitably have a heavy caseload to get through, will not thank you for duplicating documents which are already in the court file.

If you wish to challenge the Claimant's evidence, you simply say something like '... as shown in the Claimant's bundle on page XX'.

You also don't need to print out statutory legislation as an exhibit, eg POFA 2012. You simply state which section number the Claimant has not complied with, and take a printed copy to the hearing with you, although you may not need it, as most Judges are capable of looking it up on the computer terminal which all Courts have on the Judge's desk.

AMP279

Many thanks CM and bargepole I will make your suggested changes. Is the rest of the content looking ok? What are my chances, do you think I have a decent case here??

bargepole

AMP279 wrote: »

Many thanks CM and bargepole I will make your suggested changes. Is the rest of the content looking ok? What are my chances, do you think I have a decent case here??

If you stayed up for the Superbowl last night, you would have seen the referee toss a coin and the captain of the SF 49ers call heads or tails.

Those are your chances right there.

DoaM

That sounds more scary than the reality ... yes, it's all subject to DJ-bingo but a well-presented defence/WS etc. can sway the odds in your favour.

nosferatu1001

OP - I am a little confused

You go on at length about a "hidden keypad", but state at 3:
" I paid for a parking ticket using one of the Pay and Display Terminals (P&DT) and displayed the ticket clearly on the car dashboard (although I subsequently discovered to my detriment that the ticket should have been validated using a hidden keypad to claim exemption)."

I do not understand this, at all.

- did you pay actual cash to park? If so, how did you then get a ticket? A keypad should not be needed if you had paid enough at this point?
- what does the "hidden keypad" allow for? Does it allow you to park., NOT pay and then get exemption for full day / half day / whatever of parking? Does it entitle you to a REFUND of monies already paid, and if so is that why you mention the "validation" at para 3?

That instantly stands out - you bang on and on andn ON about a "hidden keypad", but mentioned you had paid and nothing there suggests that you now needed a "hidden key pad" at all.

Go through this again, and work out why youre confusing me

AMP279

Maybe I need to explain this better but hotel visitors/guests can by-pass the PDTs and key in/validate their VRN at a (hidden/poorly signed) keypad in reception to gain exemption and free parking. I did not see the signage (even though I was technically exempt) and paid for a ticket. I thought I had paid the correct amount (£4) at the time but I did not keep my ticket. PE are saying that there was an insufficient ticket (£3) paid for.


Also if you buy a ticket by mistake, as a genuine patron you can go into reception and they can retrospectively refund, update the system and cancel any PCN.

AMP279

I shall update the WS and make things clearer. Any other suggestions, need to get this sent off soon.

AMP279

Just wondering about the Cost Schedule :
1. Should I submit this alongside the WS?
2. What is a reasonable amount to claim back (even though I have spent hours on this:mad:)? Is there a rule of thumb maybe?

3. What about loss of earnings and do I need to bring in proof of employment/payslips?
4. If so how does the court work this out or do they guesstimate?


Look forward to your response in advance :A