WS Help needed for pending CCJ

Dontbelievethehype

Good Evening. I have what I think is a almost ready to submit WS. Where appropriate I have stated as Exhibit X which refers to relevant supporting documents. I would be grateful for any input if anything else is needed or to be taken out.

Thanks

In the County Court XXX,

Claim No.

Between

NCP (Claimant)

and

MR XXXXXX (Defendant)


WITNESS STATEMENT

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked Exhibit XX1 to Exhibit XX17 to which I will refer.

1. I XXX XXX am the registered keeper of vehicle in question, and although in the particulars of claim it is unclear as to who the claim is specifically aimed at, for the avoidance of doubt on said date Xth XXXX 20XX I was the driver of the vehicle, and I deny any liability to the claimant.
2. I entered the car park on XXX, in good faith and honest intentions and adhered to terms on display as best as they could be deciphered.
3. I was in XXX that day for a 10k running event which started approximately 10 mins walk from the XXX car park. This event started at XXX, Allowing for my estimated running time of 45-50mins, bag collection after the event and 10 mins walk back to my vehicle, the £4 I paid for two hours parking I felt was enough time to get back to my vehicle and exit the car park in under two hours. Exhibit XX 1-2
4. However upon walking back to my vehicle I started to fell my right calf becoming tight, I hurried back and as I got to the car park and my vehicle my right calf cramped up and at that point it was not safe for me to drive out of the car park until this had cleared. I have experienced this before and know it will clear after several minutes of gentle self massage to the calf. Which indeed it did so and I was safe to drive my vehicle out of the car park.
5. The Claimant asserts that I entered into a contract with them, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. It claims that I was in the relevant car park for a total of 2 hours and 15 minutes, when 2 hours had been paid for. It is these 15 minutes with which the Claim is concerned.
6. It is my understanding 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 One, of the 2 hours and 15 minute period, because at that point no offer had been made. An offer must be communicated to an offeree. There was no offer communicated at the entrance to the car park, but only 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, and I could not read them from my car. It took me 3-4 minutes to drive in, 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.


7. Contractually, the Claimant’s signage did not specify that the paid for period 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 endeavoured to returned to the car earlier. Or paid for a longer period of time.
8. In addition to considering the contractual element of the claim, I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member. A copy of paragraph 13 of the CoP, Exhibit 3, 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, Exhibit 4. 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). 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.
9. Kelvin Reynolds, BPA Director of corporate affairs says there is a differance between 'grace' periods and 'observation' periods and that good practice allows for this. Exhibit 5.
10. 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.
11. In the 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:
12. 96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.'' Exhibit 6.
13. 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.'' (emphasis added). Exhibit 7.
14. 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 15 minutes. Applying the "minimum" 10 minutes 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 minutes. I was therefore well within the grace period. Whilst I accept that following the paid for parking time I was on site for around 15 minutes, this was because of the cramp in my calf, 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. 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.
15. The claimant and their legal representatives have acted unreasonable at every turn, even after I opted to defend this claim. I have received continuous attempts to bully me into paying them the unconscionable sum they seek to extract from me, which is in excess of the maximum allowed by POFA schedule 4 (5) “the maximum sum which may be recovered from the keeper by virtue of the conferred by this paragraph is the amount specified in the notice to keeper”.
16. The claimant and their legal representatives have sent correspondence to my address totally dismissing my defence casting judgment themselves before any hearing, with more bully tactics demanding I pay unconscionable sum, which are unrecoverable by statute within 14 days. Exhibit 8.

17.The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.
The arbitrary addition of a fixed sum purporting to cover 'administration/recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party. Exhibit 9.

18. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.
19. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, case law and two statute laws hold that, when it comes to parking charges on private land, the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

20.Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

21. Unlike this greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

22. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery. Exhibit 10.

23. Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision ofthe Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.'' Exhibit 11. Another struck out claim on 18th November 2018 due to abuse of process see Exhibit 12.

24. That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

25. In Claim numbers F0DP806M and F0DP201T - less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit. These included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

26. At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287. Exhibit 13.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the POFA para 9.

* Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Exhibit 14. Due to the statutory duty upon the Courts to consider the test offairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches oftwo statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.

27. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance 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) – see part 3 of the guidance.'' Exhibit 15, and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy ofthe price, provided they are transparent and prominent. Exhibit 16. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).''

28.The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.'' Exhibit 17.

29.In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

30. The Defendant is of the view that this Claimant knew or should have known that to claim £160 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.

31. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety (due to the similarities with the Southampton case where the entire claim was deemed 'tainted') and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.


Statement of Truth:

Le_Kirk

started to fell my right calf

Did you mean: -

started to [strike]fell[/strike] feel my right calf

Dontbelievethehype

Le_Kirk wrote: »

Did you mean: -

Yes thanks, I will do a complete spell check before sending as personal info is still to be added. Just making sure the content is spot on.

1505grandad

Just checking - how is the claimant's name stated on the Court docs.


Para 1 - "..... for the element of doubt...." - do you mean "for the avoidance of doubt"?

Coupon-mad

abuse of power.

Abuse of Process! But you have to understand that term covers lots of different behaviours and doesn't automatically 'mean' what we use it to mean here. Just so you know, you can't just say 'abuse of process' and have the Judge know why those cases were struck out - you have to explain it was because of trying to claim £160 instead of the £100 parking charge.

You need the Court of Appeal transcript in NCP v HMRC, linked in the NCP 0 Taxman 1 thread and I couldn't see you had referred to it? I wrote some wording in that thread that people are encouraged to use in WS of similar facts - especially when your opponent is NCP!

Dontbelievethehype

1505grandad wrote: »

Just checking - how is the claimant's name stated on the Court docs.


Para 1 - "..... for the element of doubt...." - do you mean "for the avoidance of doubt"?

Name on original court docs is "National car parks limited"

and thank you yes 'avoidance' is right. :rotfl:

Dontbelievethehype

Coupon-mad wrote: »

Abuse of Process! but you have to understand that term covers lots of different behaviours and doesn't automatically 'mean' what we use it to mean here. Just so you know, you can't just say 'abuse of process' and have the Judge know why those cases were struck out - you have to explain it was because of trying to claim £160 instead of the £100 parking charge.

You need the Court of Appeal transcript in NCP v HMRC, linked in the NCP 0 Taxman 1 thread and I couldn't see you had referred to it? I wrote some wording in that thread that people are encouraged to use in WS of similar facts - especially when your opponent is NCP!

Thank you coupon-mad. Yes I have supporting evidence as to the 'abuse of process' and totally understand it relates to the extra £60 and feel I can explain this to the judge if he is unaware.

Regarding the NCP v HMRC I have printed off the court of appeal document, but not quite sure how I use this or the wording?

Coupon-mad

I wrote the wording to use, in the NCP 0 Taxman 1 thread.

Dontbelievethehype

Coupon-mad wrote: »

I wrote the wording to use, in the NCP 0 Taxman 1 thread.

Thank you, Just not sure if the context is going to be relevant to my case or not? Where would you suggest I add the 3 different paragraphs into my order of numbered points?

Also with the beavis case points, for instance 98 does the whole paragraph need to be pointed out for the judge to read or just a sentence within it?

Apologies if this is obvious to some, but Im just a bit unsure on these couple of points. Think I just about have my head around the rest. Although it isn't in my nature to give into bullies, I can see why some people cave in and pay these Scammers! for the simple man such as myself this can be a mental minefield which does ones nut in.

Coupon-mad

In the County Court at XXXXXX,

Claim No.

Between

National Car Parks Ltd (Claimant)

and

XXXXXX (Defendant)


WITNESS STATEMENT

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked Exhibit XX1 to Exhibit XX17 to which I will refer.

Background and facts of the parking event
1. I am the registered keeper of vehicle in question, and for the avoidance of doubt I was the driver of the vehicle, and I deny any liability to the claimant.

2. I entered the car park with honest intentions and adhered to terms on display as best as they could be deciphered. As would be expected, it took me a few minutes after crossing the threshold of the site, to drive around, find a space, safely park, gather my belongings, lock the car and walk to the machine, where I then read the signs and paid for my parking in good faith.

3. I was in XXX that day for a 10k running event which started approximately 10 mins walk from the XXX car park. This event started at XXX, Allowing for my estimated running time of 45-50mins, bag collection after the event and 10 mins walk back to my vehicle, the £4 I paid at the Pay & Display Ticket ('PDT') machine for two hours parking I felt was enough time to get back to my vehicle and exit the car park in under two hours. Exhibit XX 1-2

4. However upon walking back to my vehicle I started to [STRIKE]fell[/STRIKE] feel my right calf becoming tight, I hurried back and as I got to the car park and my vehicle my right calf cramped up and at that point it was not safe for me to drive out of the car park until this had cleared. I have experienced this before and know it will clear after several minutes of gentle self massage to the calf. Which indeed it did so and I was safe to drive my vehicle out of the car park.

5. The Claimant asserts that I was in the relevant car park for a total of 2 hours and 15 minutes, when 2 hours had been paid for. It is these 15 minutes with which the Claim is concerned.

6. It is my understanding 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 past the ANPR cameras. An offer must be communicated to an offeree. There was no offer communicated at the entrance to the car park, but only 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, and I could not read them from my car.

Binding case law against this Claimant
7. In the Court of Appeal case involving this Claimant: NATIONAL CAR PARKS LIMITED - and - THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS [2019] EWCA Civ 854, Paragraph 18, 19 and 20 of that judgment make interesting reading in regards to the formation of a contract in a pay & display car park. I would suggest NCP need to take heed of this binding case law against them and cease misleading consumers regarding the start of a pay & display parking contract, which is completely different from the free car park scenario in ParkingEye Ltd v Beavis [2015] UKSC 67.

8. Paragraphs 18, 19 and 20 from that judgment make it clear that the offer and acceptance takes place when the paying motorist inserts the coins and hits the button and this would be the point when the bargain is actually made and accepted.

8.1. Whilst the case focused upon whether VAT applied to overpayments at the machine, it was held as a matter of fact at the Court of Appeal that the contract with a paying visitor, in this type of car park, starts when payment is made: [18] ''English law, of course, generally adopts an objective approach when deciding what has been agreed in a contractual context. Here, it seems to me that [...] NCP was willing to grant an hour's parking in exchange for coins worth at least £1.40. In the hypothetical example, the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed. On that basis, the pressing of the green button would represent acceptance by the customer of an offer by NCP to provide an hour's parking in return for the coins that the customer had by then paid into the machine...''

8.2. The CoA continued at [19]: ''This is the contractual analysis [...] If the customer nevertheless chooses to insert £1.50 and presses the green button, it remains the case that she has accepted the offer to provide an hour's parking at that price.'' Then at [20]: ''This analysis may be slightly different from that of the UT, which referred to an offer by NCP to grant the right to park for up to one hour in return for paying an amount between £1.40 and £2.09. In fact the offer made by NCP is more specific, to grant the right to park for an hour in return for the coins shown by the machine as having been inserted when the green light flashes. That is the offer which the customer accepts.''

9. This confirms the trite law position, dating from as far back as Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2, a classic example of the rule that a clause cannot be incorporated after a contract has been concluded without reasonable notice before, and that the contract began when Mr Thornton paid and pressed a button. Given that NCP use PDT machines alongside ANPR, this is a binding decision about the commencement of a contract in this type of car park, which (unlike in the Beavis case) cannot possibly begin upon driving in, not least because at that point the driver has no idea whether the tariff is 50p or £50 until they stand in front of the machine & signs.

10. Contractually, the Claimant's signage did not specify that the paid for period 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 endeavoured to returned to the car earlier, or paid for a longer period of time. In fact the opposite was communicated by NCP because the PDT produced by the machine calculated an expiry time which began at the point that payment was made, and the ordinary 'man in the street' would expect that this machine receipt constituted the parking licence and timings.

The BPA Code of Practice is against this Claim
11. In addition to considering the contractual element of the claim, I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member. A copy of paragraph 13 of the CoP, Exhibit 3, 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, Exhibit 4.

11.1. 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 car park once they have finished parking.

11.2. [STRIKE]Grace periods are not defined, but [/STRIKE] The CoP requires [STRIKE]them[/STRIKE] the final period of grace after expiry of paid-for time to be "a minimum of 10 minutes". [STRIKE]either side of the actual parking (paragraphs 13.2 and 13.4).[/STRIKE] It is worthy of note that [STRIKE]the recommendation[/STRIKE] this mandatory period is a minimum of 10 minutes, not a maximum, and is different from the time on entry, variously described by the BPA as the 'transaction/observation/consideration' period, for which the duration is not stipulated in the CoP because it depends upon the facts of the size of the car park, how busy it is, the queues to pay, the circumstances and speed of the driver to find the right coins and read the terms, and many other factors.

12. Helpfully, Kelvin Reynolds, BPA Director of Corporate Affairs [STRIKE]says[/STRIKE]has gone on record in a official BPA article about 'good practice and grace periods' (plural) that there is a [STRIKE]differance[/STRIKE] difference between 'grace' periods and 'observation' periods and that good practice allows for this. ''Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,'' he explains. ''No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.'' Exhibit 5.

Absence of any legitimate interest
13. In the Beavis case, the Supreme Court made clear in Paragraphs 96 and 111: ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.'' Exhibit 6. And at 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.'' [STRIKE](emphasis added).[/STRIKE] Exhibit 7.

14. In this case, the data produced and relied upon by the Claimant shows that the period [STRIKE]passing[/STRIKE] between my car entering and leaving via the ANPR cameras was an unproven but alleged 15 minutes only, from start to finish in moving traffic. Applying the "minimum" 10 minutes [STRIKE]either side of the parking,[/STRIKE] grace at the end, and allowing for the fact that the ANPR camera clock is a completely separate system and timing than at any machine within a site, it is impossible to say that I overstayed. On the balance of probabilities, allowing for timing variances between the two systems and the time taken at the start and considering grace periods, I did not exceed the parking licence at all.

15. 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 periods. 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.

16. The claimant and their legal representatives have sent correspondence to my address totally dismissing my defence casting judgment themselves before any hearing, with more bullying tactics demanding I pay an unjustified and wholly disproportionate [STRIKE]unconscionable[/STRIKE] sum. [STRIKE]which are unrecoverable by statute within 14 days.[/STRIKE] Exhibit 8.

17. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. And at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

Absence of good faith/breaches of statute (Consumer) law
18. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

19. The arbitrary addition of a fixed sum purporting to cover 'administration/recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

20. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

21. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, case law and two statute laws hold that the parking firm's own business/operational costs cannot be added again to the 'parking charge' as if they are additional losses.

22. The parking charge sum of £85 in the Beavis case was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

[STRIKE]* Unlike this greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. [/STRIKE]

23. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

23.1. At para [98]. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} it was held: ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

23.2. At para [193]: ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

23.3. At para [198]. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

24. Further, the Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge. [STRIKE]and prescribed documents served in time/with mandatory wording[/STRIKE]. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

25. Many Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, the case was summarily struck out: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

26. That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to the Beavis case, and subsequently.

27. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit, all stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4)...''

28. At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 ('the CRA') and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the POFA para 9.

29. Further, it was successfully argued that the parking firm's consumer notice stood in breach of the CRA ( EXHIBIT XX ?? - the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.

30. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance 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) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' (EXHIBIT xx ??).

31. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.'' Exhibit 17

32. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is my position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

33. This Claimant knew or should have known that to claim £160 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that they were in breach of their own CoP and paying disregard to their own CoA case v HMRC by continuing to sue in cases where no fair grace periods have been allowed in a PDT machine car park. I believe that relief from sanctions should be refused by the Court, whilst allowing the Defendant unreasonable behaviour costs under 27.14(2)(g)

Statement of Truth:

I believe that the facts stated in this Witness Statement are true.


Name

Signature

Date