May be too late but am i doomed!!!!

Coupon-mad

Both stand. One argument is just an alternative way of saying the same thing, and the CRA 2015 is binding and unarguable as it is statute law.

Your job is to convince the Judge that para 18 applies to this circumstance because it is all about how you or the Judge interprets the law. But at least you know to use it, and which 4 Schedule 2 'grey list' paras apply to your case, so it makes it easier as you simply hand it out and read those 4 paras out and let the penny drop as to how to interpret it.

The danger is to see off any attempt by the Claimant to muddy the waters by saying:

- you can't use this as it wasn't in your defence.

- the test of fairness does not apply to 'price terms' due to the 'core exemption'

Rehearse the answers to those two false statements and you are OK. In my case the barrister didn't try and I suspect he knew his clients had a meritless argument.

If you don't know the answers as to why they are false, or are unsure, ask!

TA1986

Thanks, CMad and thanks on behalf of all those that you help on a daily basis in repsonding to almost every thread. Absolute Star.

The argument for the 2nd is explained in your CEC16 thread. Although the jargon does bedazzle me a bit , I think I would get by rehearsing it:-)

Not sure of how I would argue the ''not in your defence part'', However, they could use this throughout the case as well because I did not mention much in my defence.


Regards

Coupon-mad

Not sure of how I would argue the ''not in your defence part'', .

Paragraph 71 'supplementary provisions' of the CRA 2015!

TA1986

HI C Mad,

Thanks for the above. Upon closer inspection of your CEC16 court thread, I noticed that both of these were actually answered in the case.

In regards to CPA 2015, do I actually state this in my WS or not bring it up at all and bring it up as a surprise at the hearing.

And 1 last thing as I can't really remember my actual intentions when paying on the p&d on that day.
For argument sake , If I only intended to pay for 4 hours which is £3.40 but the machine charged me £5, would this still be considered a frustration of contract?

Or would it only be frustrated if I underpaid by 0.80p as the machine failed to charge me the correct tariff being £5.80 for 24 hours.

If we were to take into consideration that, when paying by card the machine would only charge according to the tariffs and amounts displayed. Not a penny more or less.

Thanks in advance.

Coupon-mad

In regards to CPA 2015, do I actually state this in my WS or not bring it up at all and bring it up as a surprise at the hearing.

You are allowed!

It's a rare thing, as normally you cannot ambush with any new evidence but the CRA is different and a confident person could throw it in on the day, as I did in Southampton having hardly mentioned it (if at all) in the skeleton argument we decided to chuck at them 48 hrs before.

And 1 last thing as I can't really remember my actual intentions when paying on the p&d on that day.
For argument sake , If I only intended to pay for 4 hours which is £3.40 but the machine charged me £5, would this still be considered a frustration of contract?

Or would it only be frustrated if I underpaid by 0.80p as the machine failed to charge me the correct tariff being £5.80 for 24 hours.

If we were to take into consideration that, when paying by card the machine would only charge according to the tariffs and amounts displayed. Not a penny more or less.

I say you can argue that any fault of the machine and system is capable of frustrating the contract and absolving you of any fault, and that para 18 of the CRA 2015 grey list is breached by any faulty machine, as they failed in their obligations, yet want to charge you for 'failing' yours as a direct result.

NB: it is the CRA not the 'CPA'.

TA1986

Is this too long? Not sure if point 15- 19 is needed.



In the County Court at xxxxxxxx
Claim Number : Fxxxxxxxxxx
BETWEEN : xxxxxxxx ( Defendant)
AND
National Car Parks Ltd ( Claimant )

---

Witness Statement

---

I am xxxxxxx xxxxx , defendant in this matter and deny liability for the entirety of the claim.

1. This matter relates to a pay & display alongside ANPR car park and on the material day, xxxx

2. On that day, I parked my Vehicle Reg XXX XXXXX in the NCP car park located at xxxxxxxxx

3. I confirm, as a matter of fact, I intended to stay for 4 hours meaning I would need to pay £3.40 but was charged £5 instead. Evidence attached marked appendix 1.

4. The tariffs for the parking are set as follows;
Upto 1 Hour - £1.00
Upto 2 hours - £1.80
Upto 3 hours - £2.60
Upto 4 hours - £3.40
Upto 24 hours - £5.80
Evidence attached marked appendix 2

5. A few weeks later, I received a PCN for the alleged overstay in the car park. At that point I was a bit uncertain and checked my bank statement to see how much I actually paid on that day, thinking I may have made a mistake and underpaid, therefore, I received the PCN but to my surprise, it was £5.

6. I decided to re-visit the car park to check the tariffs’ listed and how the machine actually charged.

7. When making a payment by card, the machine enables you to ONLY PAY according to prices displayed on the tariffs whereby the machine rates and times would only jump between the tariffs stated above. Evidence Attached Marked Appendix 3 (taken after the apparent contravention).

8. While it may be possible for someone to overpay when paying by cash , it is simply impossible for the someone to overpay by paying with a debit or credit card, as the machine was set to charge exactly according to each tariff, with the exception in my case as the machine charged me a tariff on my card that the machine would not normally have allowed. .

9. As the machine overcharged me, the extra amount paid could have covered the extra stay. Therefore the claimant could have not suffered any loss at all.

Frustration of Contract.
10. While a contract may have been formed when payment was made, the contract was subsequently frustrated when the machine malfunctioned and charged a tariff that did not exist.
11. I therefore rely on the doctrine of Frustration of Contract in my defence. The contract was formed between the Claimant and the driver, in which the Claimant granted parking for a charge and if paid by card the tariffs were pre-set on the machines. The machine failed to charge the correct amount and there was, in this case, a change in circumstances which was not the fault of either party and which rendered it impossible for the driver to perform the contract.

12. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case, there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £245 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.

Signage in the Car Park & Disproportionate Charges

13. In relation to the car park sign, there is a huge amount of wordy but small font text on it; Only the hourly tariffs are in the largest font. Vital information is hidden in small print so none of the charges was known or agreed as a contract when a payment was made. the fact that it states in extremely small font that no change is given( Which only applies to cash payments) is very unfair and definitely seems to be there to force errors. The T&CS sign which is the main sign that a consumer will rely on. States that a charge ‘’MAY’ ’apply given no indication as to the amount and states that may include debt recovery costs. Evidence attached Marked Exhibit 4


14. This is also a Breach of BPA’S CODE of practice stating
Evidence Attached Appendix 5

Para 18.3 Specific parking-terms signage
tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible and written in intelligible language, so that they are easy to see, read.
The sign is so badly placed, in a dark corner and in such a small font that one, with a perfectly normal eyesight, would require reading glasses to read it.

Para 19.3 If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain your terms and condition
The sign merely states that charges may apply which leaves plenty of doubt on what charges could be.
The claimant's charge not only includes the apparent £100 Parking charge but also an additional £60 which the claimant has no bases fro. Simply an attempt at double recovery. Many recent cases have been struck out on ‘’ Abuse of Process’’ for this exact add on.

And lastly in Breach of Consumer Rights Act 2015, Schedule 2 (the grey list of terms that may be unfair) paragraphs 6, 10,14 and 18. Evidence attached Appendix 6

15. This claimant may try to rely upon the case of ParkingEye v Beavis [2015] UKSC 67, regarding disproportionate charges. However, the Court of Appeal and the Supreme Court's decisions during the course of that case do not support this claim at all. Beavis was a matter concerning an unusual enforcement regime and location, offering a free licence to park followed after 2 hours, by a charge. Indeed at the Court of Appeal stage the Judges stated that the 'free licence to park' regime was the factor which made that case 'completely different' from ordinary transactional contracts where a sum of money owed can be easily quantified.


16. The Supreme Court Judges did not disagree with the court of Appeal about ordinary economic contracts and found that such disputes may still be determined by using Lord Dunedin's 'four tests' for defining an unrecoverable penalty, which continues to have useful application in such cases where the facts could be distinguished from the Beavis case, where the Judges held:

- at 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.
In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

- and, continued Lord Neuberger: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was “unconscionable” or “extravagant”. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

- and at 99: ''…deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract...the question whether a contractual provision is a penalty turns on the construction of the contract.’’

- Lord Mance at 143: ''The qualification and safeguard is that the agreed sum must not have been extravagant, unconscionable or incommensurate with any possible interest in the maintenance of the system.’’

- Lord Mance at 152: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable.''

19. It is my position that, under the doctrine of frustration of contract,
the breach of BPA’s COP, the breach of CRA 2015 and lastly the abuse of process, the Claimant has no standing, or cause of action, to litigate in this matter.

20. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

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

signed:

Coupon-mad

This is in the wrong place (it says 'lastly' but it's in the middle!). It is also far too short, like an afterthought, and doesn't say enough about the added £60. I suggest it needs to be the FULL WORDING that I typed out in post #14 of the Abuse of Process thread, appended as a separate supplementary WS:

And lastly in Breach of Consumer Rights Act 2015, Schedule 2 (the grey list of terms that may be unfair) paragraphs 6, 10,14 and 18. Evidence attached Appendix 6

However, as you have also got the breach of para 18 of Schedule 2 of the CRA, you will need to cover that as well in your main WS, because the breach of para 18 is not about the added sixty quid, it is specifically about them failing in their obligations to have a transparent and fairly working PDT machine that would not have accepted a random fiver.

TA1986

Thnaks C- Mad for the input. Is 15 onwards needed as well? My para numbering seems a bit as well but will sort that out shortly.

Regards

Coupon-mad

I think para 15 onwards make important points but it looks jumbled, and every para needs a number.

Your #13 ends by talking about the signs saying that they 'may' add 'debt collection costs' so to me, that is the obvious please to mention the CRA 2015 breaches for the first time, underneath it in a new para 14, which can then point to the Supplementary WS which will be my words from post #14 of the Abuse of Process thread.

The breach of para 18 of the CRA needs adding, as I said, to the MAIN WS:

as you have also got the breach of para 18 of Schedule 2 of the CRA, you will need to cover that as well in your main WS, because the breach of para 18 is not about the added sixty quid, it is specifically about them failing in their obligations to have a transparent and fairly working PDT machine that would not have accepted a random fiver.

TA1986

Your #13 ends by talking about the signs saying that they 'may' add 'debt collection costs' so to me, that is the obvious please to mention the CRA 2015 breaches for the first time, underneath it in a new para 14, which can then point to the Supplementary WS which will be my words from post #14 of the Abuse of Process thread.
The breach of para 18 of the CRA needs adding, as I said, to the MAIN WS:

Would adding CRA Para 18, own its own under the frustration of the contract part be better. Or this all of the CRA breaches have to be raised at the same time.