WS Help needed for pending CCJ

Dontbelievethehype

Thank you so much Coupon mad for taking the time to help me and adding your expert knowledge. Im extremely grateful. I shall read it over a few times so I can take it all in properly.

Thank you again. :A

Dontbelievethehype

WS is now ready to be sent to the court once Personal information has been added. This is the final draft.

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).

4. However upon walking back to my vehicle I started to 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 judgement 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. (Exhibit 2).

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. The CoP requires the final period of grace after expiry of paid-for time to be "a minimum of 10 minutes". It is worthy of note that 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 has gone on record in a official BPA article about 'good practice and grace periods' (plural) that there is a 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. 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.'' (Exhibit 6).

14. In this case, the data produced and relied upon by the Claimant shows that the period 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 minute, 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. (Exhibit 7).

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''. Ad 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. (Exhibit 8).

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.

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.'' (Exhibit 9).

24. Further, the Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) (Exhibit 10). 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. 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, (Exhibit 11). 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 12- 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 13).

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 14).

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

Coupon-mad

Great, have you added as exhibits, Schedule 2 of the CRA with 6, 10, and 14 highlighted, and the quotes from the CMA Government Guidance on the CRA 2015, is the guidance exhibit 13 and 14?

Re #27, 28 and 29 about the Southampton case, be aware that this is not a precedent so your Judge might ignore it but I think it would be hard not to at least be guided by it, given that the duty on the court IS to consider the fairness of a consumer term or notice.

As we have not yet got the transcript of the case, you could print my court report post summary as an Exhibit for the Judge to read and use it as a crib sheet for yourself if you need it in the day to explain why they can't add sixty quid and the entire claim is tainted by the C trying to say that the operational costs were both in the £100 and in the £60 add-on. It's a disingenuous argument of the greedy.

Dontbelievethehype

Coupon-mad wrote: »

Great, have you added as exhibits, Schedule 2 of the CRA with 6, 10, and 14 highlighted, and the quotes from the CMA Government Guidance on the CRA 2015, is the guidance exhibit 13 and 14?

Re #27, 28 and 29 about the Southampton case, be aware that this is not a precedent so your Judge might ignore it but I think it would be hard not to at least be guided by it, given that the duty on the court IS to consider the fairness of a consumer term or notice.

As we have not yet got the transcript of the case, you could print my court report post summary as an Exhibit for the Judge to read and use it as a crib sheet for yourself if you need it in the day to explain why they can't add sixty quid and the entire claim is tainted by the C trying to say that the operational costs were both in the £100 and in the £60 add-on. It's a disingenuous argument of the greedy.

Thank you once again Coupon Mad. Your help and guidance is amazing. :T

Right first of yes I have CRA 6,10,14 highlighted as evidence, and Exhibit 13, 14 are CMA Guidance. Will keep in mind the Southampton case might be overlooked by the judge, and I was actually thinking to ask if I could use your court report as a crib sheet so thank you for that. Would I need to have that as a exhibit number in my WS or could I just hand it up to the judge on the day if needed?

ParkingMad

Typo in paragraph 16. Should this say "wholly disproportionate SUM"?

Dontbelievethehype

ParkingMad wrote: »

Typo in paragraph 16. Should this say "wholly disproportionate SUM"?

Thank you ParkingMad.

Coupon-mad

I was actually thinking to ask if I could use your court report as a crib sheet so thank you for that. Would I need to have that as a exhibit number in my WS or could I just hand it up to the judge on the day if needed?

If you want to exhibit it as evidence of what you have read happened at Southampton then you will have to file & serve it in advance as an exhibit.

If you merely want to use my post as a personal 'crib sheet' to read out the 1. 2. 3. as I did when it was my turn to speak on Monday, then you can just take it with you in your own bundle, and not add it in as evidence. It's not really evidence anyway, it is only a (hearsay) forum post until we get the transcript.

Dontbelievethehype

Thanks Coupon Mad. I think your right the way forward is to use it as a "crib" sheet on the day.

Well Witness Statement and supporting evidence has now been posted to the claimant via recorded delivery, and hand delivered to my local court. Que Sera, sera!

I shall keep you informed of the outcome, and a big thank you.

Le_Kirk

"Recorded" delivery!!! Do you mean a signed-for service? What happens if the claimant refuses delivery, they have proof of non-delivery, not what you want. We always recommend just getting a FREE certificate of posting from a post office counter and it is deemed delivered two days later.

Dontbelievethehype

Le_Kirk wrote: »

"Recorded" delivery!!! Do you mean a signed-for service? What happens if the claimant refuses delivery, they have proof of non-delivery, not what you want. We always recommend just getting a FREE certificate of posting from a post office counter and it is deemed delivered two days later.

With Respect, Recorded/signed for delivery is the best way. I send many parcels per week and have never had one refused. Where as with a cert of postage you have no actual proof it has been delivered just posted. This way there is a record. 1, it has been delivered with signed proof. 2, If lets say they refuse. I have my return address on the package and the tracking number will say returned to sender. Now I will know this by latest Wednesday. Which is by then still within service time. So I can if needed still email the documents. :beer: