Private PCN - Excel Parking - WE WON!

KeithP

Umkomaas said:

In your 3rd exhibit (CD03) you state there is 'no parking sign', unless my eyes are totally deceiving me, what is the sign stuck right at the front of the bay? 🤓 

That's right Umkomaas.

I believe the text should be "No cross hatched markings and no No Parking sign".

daniel_uk

Haha, that sign isn't a no parking sign. I will amend that as it should read no No Parking sign

Umkomaas

daniel_uk said:

Haha, that sign isn't a no parking sign. I will amend that as it should read no No Parking sign

I think I'd be saying that as the sign is in the bay, it would appear that it invited parking, and as nothing on the sign (an obvious place to do so) stated that parking in that bay was prohibited, the only conclusion one could reach is that it was allowed. 

I realise it's not easy to label your photo with all that, but you do need to get it in the preamble to the photo. 

Coupon-mad

Please show us your next draft of the WS.  I wouldn't use the pic of the white car as it looks like it is obstructing outwards.  Yes, I know they are using that photo but don't put it in your bundle!

The other pics are great!

daniel_uk

Awesome! I'll see what I can do about adding that about the sign Umkomaas.

Coupon, I did read a reply to your thread from @painbl . It was to do with the sum not being mentioned in the particulars of claim. I also have no sum mentioned. Is it worth adding this?

The stylised template Particulars of Claim are incoherent and fail to state how much the parking charge on the signs even was.  The parking charge was not the £130 listed in the tabular presentation of the claim on the right of the N1 form.  At no point has the Claimant broken down the quantum, yet this is a moneyclaim.  No sum of money is mentioned (at all) in their Particulars, contrary to CPR 16, and in view of this and the template witness statement of prolix this Claimant is likely to plaster over this omission, the court is invited to strike this claim out.

Coupon-mad

You read a short reply on that thread from me, but didn't bother to go back a bit and read the whole thread and find the FULL TEMPLATE WS I wrote for them?

daniel_uk

No, I have read the whole thread and applied it to my draft. Here is the update.

CLAIM No: ---

EXCEL PARKING SERVICES LTD (Claimant) V

--- (Defendant) ________________________________________

WITNESS STATEMENT

________________________________________

1.             I am ---, of ---, ----, ---, and I am the defendant against whom this claim is made. I am unrepresented, with no experience of Court procedures, if I do not set out documents in the correct way I trust the court will excuse my inexperience. 


2.            The facts below are true to the best of my belief and my account has been prepared. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

Sequence of Events - no contract seen or agreed:

3.            On Sunday 2rd Nov 2019, I was visiting my boyfriend’s dad at the Queens Medical Centre who was recovering from a serious brain aneurism. During a distressing time and many visits to the QMC over many weeks, along with his mum, we decided to clear our heads and grab a bite to eat in Nottingham.  My boyfriend knows Nottingham quite well and suggested we head towards The Lace Market to find a place to park on the street, however, there were no spaces so we decided to try Woolpack Lane Car Park. (EXHIBIT CD01).  On entering the tightly spaced car park I spotted two bays. One was to the far right corner which looked too tight to get into, and the one I ended up parking in was the available bay on the left. (EXHIBIT CD02). When we parked up my boyfriend paid for the ticket and displayed it on the dashboard.

4.            On returning to my vehicle a few hours later, I was shocked to find a clear plastic packed attached to my windscreen and found it to contain a “Parking Charge Notice”.

5.             The reason given on the PCN was “namely not parked wholly within the markings of a designated parking bay” even though there was no clear and visible signage stating whether or not this was a parking bay.

6.            During the time of parking I observed, and I had no reason to believe this was not a valid parking bay. The sign is in the bay, it would appear that it invited parking, and as nothing on the sign (an obvious place to do so) stated that parking in that bay was prohibited, the only conclusion one could reach is that it was allowed.  (EXHIBIT CD03) I didn’t see any clear signage or cross-hatched markings to make it clear that I could not park in this bay. If these measures were in place at the time I would NOT HAVE parked in this bay. It has all the hallmarks of a bay. My boyfriend paid for a valid parking ticket and I believed I was correctly parked.

7.             I feel this bay has been left like this as an entrapment to catch out off-guard and vulnerable drivers to make Excel as much money as possible from a car park with only a very limited number of spaces available.

Later Events:

 

8.     On 6th November 2019 I received a Notice to Keeper, which I appealed to the claimant to object to the parking charge they had issued to me. On 30th November I received what appeared to be a template response from the claimant, rejecting the appeal without specific reference to the facts but offering an option to appeal to a body called the “Independent Appeals Service” (IAS).   Due to the fact the whole situation was becoming increasingly stressful I decided not to continue with the appeal to the IAS. Further research into the IAS, shows it to be the very essence of a “kangaroo court” run by the Trade Body of the parking firms themselves, where only 5% of appeals were accepted by the anonymous 'adjudicators' in 2018, and 6% in 2019, according to the only published IAS Annual Reports I can find. 

 

9.     On 28th January 2020, I received correspondence from the Claimant, notifying me that their solicitors (BW Legal) would pursue the parking charge as if it were a 'debt'.  Within this letter the claimant indicates that the parking charge has been enhanced by £60 (i.e. double recovery) noted as ‘associated costs’. This does not match how the sum is described in the Particulars of Claim and is clearly an attempt to 'gild the lily' by inflating an already disproportionate penalty which has no legitimate interest behind it. Whilst I fully appreciate the need for parking control on private land I do not appreciate the apparent business tactics of this Claimant, whereby they insist people going about their daily business have entered into some kind of vague “contract” with them, based on the tiny words on small and obscured signs.  Excel used to be a clamping firm and their tactics now are no better than when that activity was banned in 2012.  They are responsible for the letters from their agents, BW Legal.  Both the Claimant and their agents have sent me many harassing and distressing letters over the past year, making veiled threats towards my credit rating and even my employability.

  

Inflated and false 'costs' have been added to the parking charge

10.   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 CD04/CD05- transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision in the case of Mr Crosby stands. This Claimant knew or should have known, that by adding £60 in false (unpaid) 'costs/damages' over and above the purpose of the 'parking charge' is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, and para 419 of the earlier ParkingEye Ltd v Somerfield Court of Appeal authority.  As an experienced parking operator, the Claimant should also know that the 60% uplift does not pass when compared to the CRA s62, expanded with examples of 'terms that are likely to be unfair' in Sch 2 (paras 6, 10 and 14 appear to be breached in my case).    

 

11.   This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause, when all the fact of that case were examined.   However, there is no such legitimate interest in this case. 

 

12.   I take the point that the enhanced parking charge in my case is a penalty, and unenforceable.   This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.   I attach the Southampton Court Approved Judgment in Britannia Parking v Crosby and anor, where the question of enhancing a parking charge by a disproportionate percentage (for costs that were neither properly incurred nor additional to the core 'debt') was recently tested.

 

13.   Whilst it is known that another decision to strike out a parking claim 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 (unpaid and false) costs twice.  The Appeal Judge merely pointed out that he felt that insufficient information was known about the facts of that case, where the Defendant had not appealed nor engaged with the process and no evidence was in play, unlike in the Crosby case.  The Salisbury Appeal Judge merely listed the Semark-Jullien case for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.   In short, that was an appeal against the striking out as a 'draconian measure' and not - as this Claimant may have it - some sort of landmark appeal about the illegality of adding false sums to a parking charge. 

 

14.   The Judge at Salisbury correctly identified that costs were not added in the Beavis case.  True - but (unbeknown to the Salisbury Judge because the Appellant failed to draw the relevant case law to his attention) that had already been addressed in ParkingEye's earlier claim, the authority in ParkingEye v Somerfield [2011] EWHC 4023 (QB) High Court case (ratified by the Court of Appeal in 2012), ref para 419 from HHJ Hegarty:  
''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.''  

 

15.   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 aggressive and misleading debt demands, which appear to have been very similar to those I received.  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.  

 

16.   It is certainly an abuse of process to add sums that were not incurred.  However, the Salisbury Appeal Judge was not informed by the Claimant's representative that these enhanced costs were known to be false, following thousands of claims heard by the Courts, where parking firms have been warned not to file claims like it again.  (EXHIBIT CD06) shows the exasperated words of District Judge Jones-Evans sitting at Caernarfon court in April 2020, when striking out a similar inflated claim by this Claimant's sister company, VCS, after warning parking company advocates over a 'very significant period of time' not to bring cases to court where the parking charge has been inflated by an unrecoverable sum of money dressed up as the costs that must already be within the parking charge itself.  There can be no excuse that this Claimant, or their advocate, 'doesn't know' that adding false sums to inflate a claim is an abuse of process and the Salisbury Appeal case is entirely distinguished.

 

daniel_uk

Alternative defence issue: Lack of evidence of any landowner authority

 17.   I have seen no evidence that the landowner authorises this Claimant to use this land for private parking practices.  Because 'the devil is in the detail' of any landowner contract, and I have found that they vary from site to site with various definitions, exemptions and even hours of operation, a redacted landowner contract will not be enough to satisfy a court.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal made it clear that most redactions are improper where the Court are being asked to interpret a contract.  Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''  (EXHIBIT CD07).

 

 

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

 18.   I ask the Court at the very least, 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, plus the court may award a set amount allowable for loss of earnings or loss of leave.

 

 19.   Travel costs do not apply for a telephone hearing but the fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed 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 for the wholly unreasonable conduct of this Claimant

 

20.     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.  As I stated at the start, family life has been severely impacted and this matter has been hanging over me for the best part of a year.  I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate 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 and no legitimate interest in pursuing me, relying upon the entrapment of unclear signage (conduct that this ex-clamping firm should have left behind, years ago) but it is also vexatious to pursue an inflated sum that includes double recovery.  It is my position that the Claimant's conduct in pre-and post-litigation has crossed the line of unreasonable conduct.

 

 

 

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

1505grandad

para 10  -  "........... the Claimant should also know that the 60% uplift ......"  

is the % correct?   -    was the original pcn for £70 increased by £60?

Edit  -  disregard above on looking back see that pcn was £100.

Umkomaas

6.            During the time of parking I observed, and I had no reason to believe this was not a valid parking bay. The sign is in the bay, it would appear that it invited parking, and as nothing on the sign (an obvious place to do so) stated that parking in that bay was prohibited, the only conclusion one could reach is that it was allowed.  (EXHIBIT CD03) I didn’t see any clear signage or cross-hatched markings to make it clear that I could not park in this bay. If these measures were in place at the time I would NOT HAVE parked in this bay. It has all the hallmarks of a bay. My boyfriend paid for a valid parking ticket and I believed I was correctly parked.

Nicely done. 👍