CPMS - LETTER OF CLAIM RECEIVED UPDATE 2021 - FINAL WITNESS STATEMENT HELP

Fruitcake

You have the old name of the IPC. Is that correct for the date of the alleged event? The claimant is not a signatory of the IPC, it is a member of an Approved Operator Scheme. (AoS)

The signs are the contract. They don't actually need to say they are a contract. 

greengeko

Fruitcake said:

You have the old name of the IPC. Is that correct fort the date of the alleged event? The claimant is not a signatory of the IPC, it is a member of an Approved Operator Scheme. (AoS)

The signs are the contract. They don't actually need to say they are a contract. 

Thanks fruitcake. I had adapted it from a previous defence on the forum and just read it as IPC! I'll also remove the signatory part. 

Would it not be worthwhile keeping the contract wording bit in that in as it refers to a judgement in 2017 @ Manchester county court (where I'll be having the case heard)? 

Coupon-mad

I am uncomfortable with this and if it were me I'd remove it and let them prove their case (don't assist them!):

It is accepted by the Defendant that on the date and time in question an entrance sign was visible but did not convey any contractual terms and simply stated that “PARKING RESTRICTIONS APPLY” and to “READ SIGNAGE WITHIN”. No signage displaying terms and conditions was reasonably visible to the Defendant at the entrance gate. 

Le_Kirk

Independent Parking Committee

Should be International Parking Community

twhitehousescat

Le_Kirk said:

Independent Parking Committee

Should be International Parking Community

speel chucker will not allow the typeing of  garbage 

greengeko

Thanks for the input everyone. 

Unfortunately @coupon I submitted the defence last night so will have to deal with the ramifications of what ever happens. 

Thanks again all - will keep you all updated re: progress

nosferatu1001

Nope, you will read ther newbies again, so you stay on top of what docs you KNOW you will recieve and when, so you know if something goes missin g
You can also compile your WS and exhibits,. so you are better prepared

greengeko

nosferatu1001 said:

Nope, you will read ther newbies again, so you stay on top of what docs you KNOW you will recieve and when, so you know if something goes missin g
You can also compile your WS and exhibits,. so you are better prepared

Thanks Nosferatu. I have indeed re read the newbies thread and have already got a draft WS etc. prior to submitting my defence. 

Thank you again everyone for your input - really appreciated.   

greengeko

Hi everyone - I have now received my hearing date (30th April).
I was hoping I could have some feedback on my WS (which as per the sticky I have adapted from the recommended WS).
Feedback would be really (hugely!) appreciated.
Let me know if you want more info on my exhibits etc.
Thanks

1.     I, XXXXXXXXXX of XXXXXXXXXX am the defendant against whom this claim is made. The facts in this statement come from my own personal knowledge and are true to the best of my belief.

 

2.     In this statement I will refer to exhibits within the evidence section supplied with this statement, referring to page and reference numbers where appropriate.

 

3.     On the day in question, I was attending a flat viewing at the XXXXXXX and email confirmation of this can be seen in exhibit #01.

 

4.     I had driven along the road ‘XXXXXX’ and approached from the south-west direction. If you approach the car park from this direction, there was only a single sign visible to me at the entrance to the car park (exhibit #02 and #03). It states only that ‘PARKING RESTRICTIONS APPLY’ and to ‘READ SIGNAGE WITHIN’ (exhibit #04). No further signage can be seen.

 

5.     I was met by the property agent at the entrance to the car park (which is secured by gate access – exhibit #03). I was then given access to the car park by the agent who subsequently instructed me to park the vehicle in the area in which it was left.

 

6.     On exiting my car, I viewed the surrounding area in which no signs related to parking were visible to me (exhibit #05). I was again informed by the authorised agent that I should leave my car where it was parked and that it would be fine to do so. I completed the flat viewing and was given access out of the car park via the secured gate.

 

7.     I believe that in this case the principle of promissory estoppel applies. I was clearly instructed by the authorised property agent to park outside a marked parking bay.

 

8.     A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and ‘bound to be seen’. I have included a copy of this sign in exhibit #06 for comparison. 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 code of practice states that signs displaying terms and conditions must ‘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’ (exhibit #07). It is also stated that these signs should be adequately displayed if they are ‘display any signs intended to form the basis of contract between the creditor and the driver’. At no point was I able to see such signs, nor are there any to be clearly visible around where the vehicle was parked (exhibit #05).

 

9.     The IPC code of practice also states that the Claimant must in any signs displaying terms and conditions ‘identify yourself as ‘the Creditor’’. The claimant and their representation have supplied me with a stock image of a terms and conditions sign (exhibit #08), but no evidence of this sign in situ at the location in question. Nowhere in this is the Claimant identified as ‘the Creditor’.

 

10.  The Claimant has stated in the particulars of this claim that it is a ‘contractual charge’ due for a ‘contractual breech’. I do not believe that a contract was formed between myself and the Claimant. Nowhere within the generic terms and conditions sign that I have been supplied with (which I assume the Claimant ascertains was there during the event) does it inform the reader that by parking in the car park, they are entering into a contract with the Claimant. Furthermore, the words “contract” or “agreement” do not appear in the Claimants sign, which only talks about “accepting liability”. Manchester County Court District Judge Iyer in PACE Recovery and Storage Ltd v Lengyel [2017] C7GF6E3R (exhibit #09) noted in his judgement that the “words “contract” or “agreement” do not appear at all within the sign, which merely refers to the driver “accepting liability for a charge”” and that “the phrase “terms and conditions” are not synonymous with a contract” (para 13). DJ Iyer rightly dismissed the case against the Defendant stating that a contract had not been formed between the two parties.

 

11.  If it is decided by the court that a contract was indeed formed between myself and the Claimant, then the doctrine of impossibility of performance applies. The generic terms and conditions sign (if this was in place at the time) talks about ‘ALLOCATED PARKING ONLY’ and that you must park on your own allocated bay. Despite being an authorised visitor, I do not possess an allocated bay. This was not an act of omission by myself nor was it foreseeable as I had no way of knowing the terms and conditions before or after entering the car park. Therefore, parking in an allocated bay was something I simply could not do.

 

12.  A physical parking charge notice nor a notice to keeper was ever received by myself. I became aware of this issue in July 2020 when I received a letter from ‘Debt Recovery Plus Ltd’ demanding £160 for an unpaid parking charge. I contacted the Claimant at this time but despite receiving acknowledgement of my email I did not receive a response. Following a further letter from ‘Debt Recovery Plus Ltd’ in August 2020 I again contact the Claimant who again did not respond despite email acknowledgement. As such I was denied any initial appeals process. Furthermore, in light of this it is my belief that the Claimant had no interest in resolving this matter and is only interested in the addition of further underhanded charges. I had no further contact from BW Legal or the Claimant from the 10th October 2019 until the 30th April 2020. When, during a global viral pandemic, the Claimants legal team again decided again to pursue me with regard to this matter. During this time, I have been working as a busy NHS doctor in the emergency department and more recently the critical care unit. The additional stress this dishonest claim has added during this time has been substantial.

 

13.  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.

 

14.  However, there is no such legitimate interest in this instance as no other cars or allocated space holders were prevented from parking. 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.

 

15.  The Claimant has added a sum disingenuously described as 'recovery costs'. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit #10 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

 

16.  Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

17.  The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.”

 

18.  This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

 

19.  This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit #11), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

 

20.  This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. The Claimant has so far supplied no evidence of signs as they appear in situ. As stated previously there are no visible terms and conditions signs visible from where the vehicle was parked. There is an entrance sign which only informs the reader that “parking restrictions apply” and to “read the signage within”.

 

21.  Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added sum only vaguely alluded to on the notices but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

 

22.  As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 

23.  The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings) ... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

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

KeithP

For the time being, just the obvious comment... your Statement of Truth is out of date.
Google those bold words together April 2020 for a current version.

Or look at the sample Witness Statement currently linked from the second post of the NEWBIES thread.