HX / Gladstones Hearing today!

abz1000

Le_Kirk said:

1) Not relevant
2) Have you kept everyone (DVLA ,claimant and court) up to date with your new address?

Yes the court everyone etc is all updated with my new address.

Redx

Now post your proposed witness statement , because that what happened doesn't cut it if you think it's a WS ?

A WS is numbered and references numbered exhibits etc , read other recent WS to see the layout and content , including the 2020 statement of truth

Here is an example of a good , structured WS with numbered exhibits that are referenced embedded in it 

https://forums.moneysavingexpert.com/discussion/6102255/preparation-of-defence-hx-gladstones/p6

Study the layout , the formatting , the numbered paragraphs , the statement of truth at the end , etc

abz1000

Redx said:

Now post your proposed witness statement , because that what happened doesn't cut it if you think it's a WS ?

A WS is numbered and references numbered exhibits etc , read other recent WS to see the layout and content , including the 2020 statement of truth

Here is an example of a good , structured WS with numbered exhibits that are referenced embedded in it 

https://forums.moneysavingexpert.com/discussion/6102255/preparation-of-defence-hx-gladstones/p6

Study the layout , the formatting , the numbered paragraphs , the statement of truth at the end , etc

Yes I understand thanks Red. I've already started on a template I found on another thread, just trying to find points relevant to my case. The above was to just keep everyone in loop. since the previous confusion.

abz1000

2. The defendant claims that this location is that of a trap. In exhibit 3 this clearly shows how one may mistake this unrestricted land besides the station for a place to pick up and drop off passengers.

2.1 Another way that this location is that of a trap is shown clearly by the lack of lighting at the location and unmarked bays. See exhibit 3 & 4 for the lack of lighting. Even the ANPR camera only just managed to make out the number plate and barely managed to make the shape of the car.

2.2 In exhibit 3 the photo was taken meters away from a sign and this clearly shows the lack of lighting since nothing can be seen besides the outline of the sign.

3. If there was adequate lighting on the signs it would have been made more clear for the driver.

4. In exhibit 2 we can clearly see how back in JUL 2018 there was a sign that clearly stated on the drivers side that it is a pay and display car park.  In the exhibit 1 which is from SEP 2019 there is no longer a sign which states that on the drivers side. Once again showing this location to be a trap.

5. The claim includes an additional £50 for ‘Legal representative’s costs’, such costs are not permissible under Civil Procedure Rules – Part 27.

6. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible. 

7. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

8. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows. 

9. The location also very much disguises as the train station car park because of the notice board and also accessible ramp to get to the tracks. 

10. The defendant believes this charge is excessive as the car was purely used to drop off a passenger in unmarked land.

11. In exhibit 6 we can see the claimant has labelled on the picture where an entry sign for the hotel would be, however in exhibit 5 there is no entry sign to be seen. This is a prime example of poor signage and clearly no knowledge of their own land.

I've taken some points from others and also added my own, yes i have the proper template but to keep things simple for now I'll post it like this.

abz1000

Here is an updated WS please let me know what you guys think. Obviously I'll edit and remove the bits needed.

In the County Court at (your town court name)

 

 

Claim No: xxxxxxxx

 

 

xx parking firm's name as on the claim form xx  Ltd (Claimant)

               v

xx your name as on the claim form xx  (Defendant)

 

WITNESS STATEMENT OF DEFENDANT

FOR  HEARING ON xx/xx/2020

 

1. I am xxxxxx xxxxxx of (postal address) and I am the defendant against whom this claim is made.   The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.  My defence is repeated and I will say as follows: 

 

6. Talk about the signs and refer to your photo evidence in your own words.  

Give each photo an exhibit number. 

When finished, do an Index page for the front and give every page a number as well (except for transcripts like Excel v Smith, they represent one page).

 

2. Firstly, it should be noted that the claimant has appended to their witness statement an inaccurate site plan which is nothing more than a birds eye view with coloured dots scattered over the highlighted area. I have appended the actual location of the sign upon entering the car park, photographed myself on 22nd November 2019.

3. The approach and entrance to the car park is on a small uphill road with double yellow lines. This is a road directly opposite the train station building where stopping is both impossible due to the double yellow lines and traffic not being able to pass. The only safe way to stop to view the car park terms and conditions is by entering.

4. As you approach the car park which is directly next to the wheelchair ramp/path to the train tracks and notice board.(Exhibit xxx) Due to the lack of lighting, signage, weather conditions and unmarked bays you can clearly see how a driver might mistake this unmarked land for a place to drop off or pick up a passenger. This is just a concealed pitfall or trap.

5. At the point of entry, the entrance terms and conditions sign is not visible or readable (Exhibit xxx). The only visible but not readable signage is the green entrance sign (exhibit xxx)  which is very small and is located near the ground on the left side which does not mention anything related to the risk of paying £100 or that tickets must be purchased within 10 minutes. 

6. When entering the car park from a vehicle because of the sizing, location and positioning of the signage it is very hard to see especially from the drivers point of view unless you were to leave the vehicle and enter on foot. Which was mentioned in section 2. Is not possible to stop safely without entering the car park.

7. After pulling into the car park my intentions were purely to drop off a passenger as mentioned in section 3 the entrance to get to the train tracks were directly in front of the car park (exhibit xxxx). Therefore being the easiest route for the passenger to enter the station and catch their train once it arrived thus my total stay being 21 minutes. 

8. Another point that should be noted is what we would define as parking. Parking requires that the vehicle is left however in this case the driver did not once leave the vehicle or specifically ‘park’ in a bay.

9. However, I received a PCN and now am asked to pay an inflated charge of £160 for a contract I had no knowledge on or agreed upon due to a location of which would be described as a trap. Poor signage, lighting and weather conditions.

10. 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 *** 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 mandatory Code says 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”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

 

Abuse of process - the quantum

11.  The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection 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 xxx - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision stands. 

 

12.   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. 

 

13.  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.''  

 

14.  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. 

 

15.  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, 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. 

 

16.  This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ, and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I was local and took the evidence photographs appended to this statement myself. I can state from my own knowledge that there are nothing like that many signs in this car park and nothing beside the Pay & Display machine about a risk of paying £100.  There is not even a tariff list in large lettering and nothing more at the machine where the keys are input.  

 

17.   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 vague sum not stated on the notices at all, 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.  On top of that, the fact that the payment machine is programmed to accept a VRM that the operator's ANPR data knows doesn't fully match the data collected at the entrance, is unfair in itself by placing an unfair burden on the consumer, causing an imbalance in the parties' rights that caused the driver to take a transactional step they would not have done.  That is another specific breach of Schedule 2 of the CRA.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

18.  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.

 

19.  My travel costs depend upon whether the hearing is in person but 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.''

 

CPR 44.11 - further costs

20.  I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).  Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.  This is compounded by the witness attaching stock images of signs instead of actual images and an inaccurate site plan.

 

Statement of truth:

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

SIGNATURE

 

DATE

Le_Kirk

 I have appended the actual location of the sign upon entering the car park, photographed myself on 22nd November 2019.

Better as: -

 I have appended the actual location of the sign upon entering the car park, photographed by me myself on 22nd November 2019.

Presumably you will take out your first point 6, which are the instructions!

stopping is both impossible due to the double yellow lines and traffic not being able to pass.

It is permitted to stop on double yellow lines for loading/unlading provided there are no "kerb blips"

4. As you approach the car park which is directly next to the wheelchair ramp/path to the train tracks and notice board.(Exhibit xxx) Due to the lack of lighting, signage, weather conditions and unmarked bays you can clearly see how a driver might mistake this unmarked land for a place to drop off or pick up a passenger. This is just a concealed pitfall or trap.

Your first sentence in this point just stops!  Maybe something like: -

4. As you The approach to the car park which is directly next to the wheelchair ramp/path to the train tracks and notice board and, due to the lack of lighting and signage, the weather conditions on the day and with the parking bays being unmarked you can it is clear to see how a driver might mistake this unmarked land area for a place to drop off or pick up a passenger. This is just a concealed pitfall or trap. (Exhibit xxx)

Your point 5 is confusing.  I would query the way you have written this as, if a sign is not visible, how do you know it is not readable?  Maybe rewrite it so it says what you want it to say and explains to anyone else reading it (a judge for example) what impression you are trying to create.

abz1000

Le_Kirk said:

 I have appended the actual location of the sign upon entering the car park, photographed myself on 22nd November 2019.

Better as: -

 I have appended the actual location of the sign upon entering the car park, photographed by me myself on 22nd November 2019.

Presumably you will take out your first point 6, which are the instructions!

stopping is both impossible due to the double yellow lines and traffic not being able to pass.

It is permitted to stop on double yellow lines for loading/unlading provided there are no "kerb blips"

4. As you approach the car park which is directly next to the wheelchair ramp/path to the train tracks and notice board.(Exhibit xxx) Due to the lack of lighting, signage, weather conditions and unmarked bays you can clearly see how a driver might mistake this unmarked land for a place to drop off or pick up a passenger. This is just a concealed pitfall or trap.

Your first sentence in this point just stops!  Maybe something like: -

4. As you The approach to the car park which is directly next to the wheelchair ramp/path to the train tracks and notice board and, due to the lack of lighting and signage, the weather conditions on the day and with the parking bays being unmarked you can it is clear to see how a driver might mistake this unmarked land area for a place to drop off or pick up a passenger. This is just a concealed pitfall or trap. (Exhibit xxx)

Your point 5 is confusing.  I would query the way you have written this as, if a sign is not visible, how do you know it is not readable?  Maybe rewrite it so it says what you want it to say and explains to anyone else reading it (a judge for example) what impression you are trying to create.

thank you i really appreciate you taking the time to look over it. in point 5 the visible sign is a green P sign which has text in small underneath. It is only visible if you were on foot. As a driver you wouldn't see it because of the angle you turn the corner to enter the car park. Should i completely remove point 6?

Were_Doomed

Was the photo taken from your vehicle? If yes then you may want to say:

 I have appended the actual location of the sign upon entering the car park, as photographed from a vehicle on 22nd November 2019, to show the driver's view.

That way you could retain your point 6.

abz1000

Were_Doomed said:

Was the photo taken from your vehicle? If yes then you may want to say:

 I have appended the actual location of the sign upon entering the car park, as photographed from a vehicle on 22nd November 2019, to show the driver's view.

That way you could retain your point 6.

Well I took 3 pictures
one from the car where you can't see it
one on foot where you can see it
one leaning over into the passenger to see it

Le_Kirk

You have two point 6.  The first one seems to be the instructions (to yourself); that is the one to remove, the other one is OK.  Your numbering goes 1, 6, 2, 3 ..........