Grace Period Advice

Confusedasapickle

Hi everyone, I have spent hours looking through this forum and have found it very helpful to date (particularly CouponMad and LoadsofChildren123). I am now drafting my witness statement and I am finding it difficult to get my point across - I will be attaching the BPA code of conduct re the grace period as an exhibit but does anyone have an example of a witness statement whereby you overpaid for the ticket (in this case by 70p as the machine didn't give change) and yet I received a ticket within the 10 minute grace period despite overpaying anyway. The company is BPA regulated and the claim is being brought through BW Legal. Any help would be so much appreciated because I feel I am going round in circles! I will also be making the point that the signage was small as in Beavis etc.

Thank you in advance.

Fruitcake

We are going to need more information in order to help you, starting with the name of the PPC, plus more info about the alleged event that led to a court case.
Date of alleged event, date of issue of court claim, and what stage you are at will be useful.

Don't forget that there are two grace periods in the BPA CoP so any stay should be spilt up to include those points.

There was a case about overpaying that I believe was between NCP and HMRC about tax liability on overpayments. From memory there is information you may be able to use.

An internet search should find it, but I'll see if I have a link in list of useful cases.

Fruitcake

Yer Tis. See if any of that helps.

https://assets.publishing.service.gov.uk/media/5943b2ae40f0b63e0800025b/National_Car_Parks_Ltd_v_HMRC_.pdf

Perhaps it can be argued that since an overpayment is taxable then it must count towards the parking period.

Confusedasapickle

Thank you that is really helpful.

The PPC is Premier Parking Solutions. It took place in 2016 and I stupidly immediately appealed to their better nature by explaining that I parked in their car park to attend the Job Centre and also saying that as I had overpaid by 70p, couldn't they just waive it (I am so naive!). Parking for 1 hour was £1.30 but I paid £2.00. The ticket expired at 12.59 and they issued a ticket at 13.09. I was back in the car by 13.11 (I took a photograph of me in the car, with the ticket and the time on the clock). I have since been chased by BW Legal and have time and time again said that I do not feel I should be paying their inflated charges (around £300 plus pounds). I have also informed them to let their client know that I am currently off work sick with anxiety and am on SSP with barely any income (I sent them several months copies of sick notes to evidence this). I stated that taking this any further would only exacerbate my mental health illness but they took instructions and are pursuing the claim anyway. I have my notice of allocation, and the claim is listed for 2 Feb but i need to serve my witness statements, exhibits and paginated bundle by next Tuesday at 4pm. I don't think my Defence was very good but their particulars were dreadful. I continue to be off sick and this is all stressing me out so much!

Fruitcake

Have you found the guide to court written by bargepole that you will find in post 2 of the NEWBIES? This takes you step by step from the LBC to the court appearance.

That is the best place for you to start.

Also look at the "abuse of process" thread by beamerguy where judges have thrown out court cases where the scammers and scamlicitors have added on fake additional charges.

We need to know what you actually put in your defence in order to help you. You can't add any new evidence without paying a fee, but you can clarify existing points. Your WS can also be carefully used to bring in extra information such as your research of the BPA CoP grace periods (plural) that you have already mentioned in your defence, quoting both paragraphs from the CoP.

What happened when you complained to the landowner?

Confusedasapickle

This was my Defence, which probably is not very good to be honest!


I am xxxxxx, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the driver of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle, Vauxhall, registration xxxxx when it was parked at xxxxxxxx. Subsequent correspondence from Premier Parking Solutions stated the contravention as ‘Remain parked after the expiry of the ticket’ although this reason has been omitted from the Particulars of Claim by the Claimant’s solicitor, BW Legal.

3. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “monies due in respect of a Parking Charge Notice (PCN)” which does not give any indication of on what basis the claim is brought.

4. This puts me in a difficult and unfair position to know how to defend this claim, when it is unclear on what basis the claim is being brought.

5. However, for completeness, it is denied that:

a. A contract was formed.

b. There was an agreement to pay a parking charge.

c. That there were clear Terms and Conditions prominently displayed around the site.

d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim

6. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.

Payment for parking was made via payment machine and a ticket was issued and displayed in the car windscreen. The ticket expiry was 3 March 2016 at 12:59 hours.

b. The payment the Defendant made for the ticket was £2.00. Parking for 1 hour is £1.30 and the Defendant therefore overpaid for parking by 70 pence.

c. The Defendant returned to the vehicle at 13:09 hours, 10 minutes after the expiry of the ticket due to an appointment overrunning at the local job centre.

d.The Claimant has been made aware of these circumstances when the Defendant appealed the PCN on 7 March 2016.

e. There has been no loss to the Claimant and in fact the Claimant made profit through the Defendant’s overpayment of the ticket.

f. An inadequate grace period has been given as required by the BPA Code of Practice which states a grace period of approximately 10 minutes must be offered. This 10 minute grace period was not considered by the Claimant when issuing the ticket at 13:09 hours.The Claimant is operating in breach of Code of Practice.

7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

8. The signage on this site was inadequate to form a contract with the motorist. The terms and conditions of the car park are written in a smaller font and not clear.

9. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe this bullish conduct is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something that I, respectfully, believe the courts should be seen to support. On the basis of the above, I request the court strike out the claim.!


10. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

I believe the facts contained in this Defence Statement are true.

Confusedasapickle

Thank you, yes I found that thread and it's very useful. I haven't complained to the landowner, just to PPS - I hadn't thought about complaining to the landowner. PPS just more or less said that they uphold the ticket and dismissed my appeal. I then did nothing, which now I know was a mistake but I did respond to BW Legal when they contacted me and explained that I still did not think I was liable for the charges and that I would fully defend the claim if they pursued it. I also again reiterated my situation and appealed to their client's fair nature but apparently they don't have one.

Fruitcake

To my untrained eye, that defence doesn't look too bad.

You can expand on all those points at the evidence stage.

It is still not too late to complain to the landowner.

At some point you will want to know what happened to the money you overpayed, and whether they have declared it and payed tax on it to HMRC as per the case I quoted earlier.

Confusedasapickle

Thank you! This is my draft Witness Statement - would you mind taking a look please?

In the County Court XXXXXXXX

Claim No. XXXXXXXX

Between

PREMIER PARKING SOLUTIONS LIMITED (Claimant)

and

XXXXXXX(Defendant)


WITNESS STATEMENT


I, XXXXXXXXXXX of XXXXXXX will say as follows:

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked XY1 to which I will refer. (I don't know whether to call them exhibits or page number them in this way)

1. I confirm that the essence of my defence to this claim is that:
a. I did not breach the terms and conditions of parking
b. The Claimant's signage did not make the terms of parking clear. Firstly, they are to the left hand side of the car park, the drivers side being on the right and the terms were written in a smaller font.
c. Even if I did breach the terms, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association (BPA) to apply separate grace periods of at least 10 minutes at the start and end of each period of parking. [Exhibit 1]
d. The Claimants Particulars of Claim are ambiguous and have put me, a regular lay person with little income, in the difficult position of knowing how to Defend my claim when the Particulars are so unclear.

2. Having recently returned from living in Australia I attended the Job Centre in XXXXX on 3 March 2016 as I wished to find work. I did not have much money or a vehicle at this time and I used my Father’s vehicle, a Vauxhall Astra, registration number: XXXXX to attend the appointment.

3. I parked the vehicle at XXXXXXXX (the carpark) after driving through the carpark to find a space. Once parked, I walked to the ticket machine and input £2.00 expecting to receive change as the cost for parking for 1 hour was £1.30. However, once the money had been taken and a ticket issued, I noticed that no change would be given. The expiry time for the ticket was 12:59 [Exhibit 2]
4. I will say that, although the parking charges were fairly clear, the terms of parking were in considerably smaller font [Exhibit 3]

5. I walked back to my vehicle and displayed the ticket on the windscreen and then walked the short distance to the Job Centre.

6. The Job Centre was busy as usual and my appointment slightly overran. I rushed back to the car park, arriving between 12:09/12:10. The PCN was adhered to the vehicle and so I removed it and found my key to get in to the vehicle.

7. I then got in to the vehicle and opened up the PCN. After reading through it, I noted that the time was now 12:12 hours and I took a picture from inside the car holding the ticket next to the clock [Exhibit 4]

8. I immediately left the car park and on my return home I wrote to the appeal email address provided on the PCN: appeals@pps.uk.com [Exhibit 5] I had hoped that appealing to the fair nature of the reader would resolve the issue, given the overpayment and given the BPA Guildines regarding ‘grace periods’ and considering PPS was accredited by the BPA and given the immediate response.

9.On 4 March 2016 I received an email from Premier Parking Solutions asking me to confirm that I was the driver. [Exhibit 6] and I responded immediately providing the information as requested. [Exhibit 7]

10. On 24 March 2016 I received the appeal outcome letter, with photograph attachments of the vehicle, the car park terms and a photograph of my clearly displayed ticket. The time on the clock of the photograph shows 13.09 hours, 10 minutes after my ticket was due to expire. It also clearly shows that I have paid £2 for the ticket. [Exhibit 8] It is my opinion that any reasonable person would have waited before issuing the PCN to firstly cover the grace period and to secondly acknowledge the fact I had overpaid in the first place.

11. It is my opinion that even if I did breach the terms (if indeed that is what is alleged, it is difficult to tell with such poor Particulars of Claim being provided, and in any case, which I deny due to the poor signage) the Claimant is obliged by the compulsory Code of Practice (CoP) of the British Parking Association (BPA) of which the Claimant is an accredited member to take in to account and comply with paragraph 13 of the CoP, which relates to grace periods. 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.[Exhibit 9]

12. In order to be an accredited member of the BPA, compliance with the CoP is compulsory, as stated in paragraphs 4.1 and 6 of the CoP [Exhibit 10]
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 and so without membership a private parking company would not be able to function without the ability to trace drivers/registered keepers. It seems unfair to me that PPS is picking and choosing which elements of the CoP it wishes to adhere to and it would appear to me that it is picking and choosing only elements of the CoP which are of benefit to PPS.

13. 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:
96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
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.’'.

14. 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. This has been raised with the Claimant on more than one occasion, but I merely receive the response that they are continuing to pursue the claim.

15. Additionally, I have drawn the Claimant’s attention to my current position, which is that of long term sick leave due to anxiety. I have additionally provided the Claimant with copies of my Doctor’s sick notes, but to no avail - despite risking further harm to my health, they still continue to pursue a claim against me. [Exhibits 11 & 12] This situation I find myself in; namely being hounded by the Claimant’s solicitors, has done nothing but exacerbate my current mental ill health, as does the thought of an impending hearing.

16. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “monies due in respect of a Parking Charge Notice (PCN)” which does not give any indication of on what basis the claim is brought. (this is in my Defence - is it worth leaving in to reiterate the point or is it too ‘Defency’?)

16. It is my opinion that the Claimant should have taken a reasonable and proportionate approach, and should have complied with its own obligations under the CoP. 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.

The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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


Signature of Defendant:


Name: XXXXXXX
Date: 21/11/19

Coupon-mad

Is it PPS (who are now in the IPC) or PPS (London)? I assume the former but please confirm?

https://theipc.info/aos-members/p/?page=2

This is important because PPS Ltd jumped ship from the BPA and joined the IPC on 1.3.16, just two days before the parking event. Maybe the signs had not been changed or maybe there was a mix of signs - so let's include that possibility, as this is their claim to prove.

Don't put the BPA CoP in as evidence if this is PPS; you need the IPC CoP VERSION 3 that applied in March 2016:

https://parkingprotection.co.uk/pdfs/ipc-code-of-practice.pdf

In the County Court at XXXXXXXX

Claim No. XXXXXXXX

Between

PREMIER PARKING SOLUTIONS LIMITED (Claimant)

and

XXXXXXX(Defendant)

WITNESS STATEMENT

I, XXXXXXXXXXX of XXXXXXX will say as follows:

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked XY1 to which I will refer.

Summary:
1. The claim relates to a parking charge notice ('PCN') issued on 3rd March 2016. My defence is repeated and the main points I rely upon, that are within my own knowledge as the driver, are:

a. I did not breach the terms and conditions of parking. As stated in my defence, I was back by 13.09pm with no sign anywhere of the predatory ticket issuer who would have take several minutes to key in my VRN data, take photos and issue the PCN before the minimum mandatory grace period was up. There is no evidence that the watch and/or handheld device relied upon by the individual issuing the ticket was synchronised with the pay & display ticket (PDT) machine and neither system counted seconds, so if the timers were even 61 seconds out, then the claim fails. The Claimant would have me believe that the PCN was issued at a time when I was provably in the car park (at or near the car). If the timing was correct I would have seen the ticketer.

b. The Claimant's signage did not make the terms of parking clear. Firstly, the entrance sign is to the left hand side of the car park, the drivers side being on the right and any 'parking charge' terms were not seen at all. That sum was not listed among the tariffs in large lettering (or at all, to my recollection) at or near the PDT machine. [inadequate signs - EXHIBIT 1]

c. As was stated in my defence - albeit I believed the Claimant was in the BPA Trade Body and I now correct this - all parking firms were obliged by their respective compulsory Codes of Practice ('CoP') of both the competing Accredited Trade Associations ('ATA') to apply a grace period [IPC CoP (version 3 which applied in March 2016) 'grace periods' section - EXHIBIT 2] which said, albeit vaguely which is typical of the IPC: '' Grace Periods 15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site. 15.2 Drivers should be allowed a sufficient amount of time to leave a site after a pre-paid or permitted period of parking has expired.'' In fact by 2016, the final grace period after expiry of paid for time both on private land and public highway was a uniform minimum, required to be at least 10 minutes (not a maximum).

d. Whilst there were PDT machines, the penalty was not adequately signed at all and was never agreed, or capable of binding me under a lawful contract. The Claimant's signage was so lacking to my recollection, that I believe some signs were missing or simply stated 'WARNING' in large letters and the rest was unreadable. I believe that the signs were old and some still carried the old (wrong and misleading) BPA Trade Body logo and very small print. I have discovered from research that the signage at all PPS car parks was in a transition phase, given that the IPC Trade Body records show that PPS only joined their new ATA just two days before this event and cannot possibly have completed a country-wide new signage replacement programme in the preceding 48 hours. Even if the signs were an IPC logo version, they were woefully insufficient and in breach of the Consumer Rights Act 2015 (Schedule 2 the grey list of unfair terms) paragraphs 6, 10, 14 and 18. [EXHIBIT 3]

e. The Claimants Particulars of Claim are ambiguous and have put me, a regular lay person with little income, in the difficult position of knowing how to Defend my claim when the Particulars are so unclear and the Claimant has never provided any evidence that the PCN was issued when they say it was and due to the time I found the PCN on the windscreen I will say that on the balance of probabilities, the PDT machine and whatever clock the ticketer was relying upon, were unsynchronised.

Background - the parking event
2. Having recently returned from living in Australia I attended the Job Centre in XXXXX on 3 March 2016 as I wished to find work. I did not have much money or a vehicle at this time and I used my Father’s vehicle, a Vauxhall Astra, registration number: XXXXX to attend the appointment.

3. I parked the vehicle at XXXXXXXX (the car park) after driving through the car park to find a space. Once parked, I walked to the ticket machine and input £2.00 expecting to receive change as the cost for parking for 1 hour was £1.30. However, once the money had been taken and a ticket issued, I noticed that there was some small print on the PDT machine saying that no change would be given. The expiry time for the ticket was shown as 12:59 (with no information given regarding the seconds). [EXHIBIT 4]

4. The Job Centre was busy as usual and my appointment slightly overran. I rushed back to the car park, arriving at 13.09pm. However, inexplicably, a PCN had already been left on my car windscreen and so I looked around for the ticket issuer who was nowhere to be seen, and nor could I see any clear signage that could possibly have warned me about a PCN risk. I removed the PCN and found my key to get in to the vehicle, got into the car and opened up the PCN packet. After reading through it, I noted that the (correct) time on the car dashboard clock was now 13:12pm and I took a picture from inside the car holding the ticket next to the clock. [EXHIBIT 5]

5. Once home, I appealed online and having confirmed I was driving (as I had nothing to hide and believed the PCN had been issued prematurely) the Claimant rejected my appeal in late March 2016. The appeal outcome letter contained photos including my clearly displayed PDT ticket. The time on the photograph shows 13.09pm and showed that I had paid £2 for parking [EXHIBIT 6]. It is clear that the ticketer started to process the PCN well before the minimum grace period of at least ten minutes had expired.

Absence of any legitimate interest, open dealing and good faith
6. There is no explanation for why the Claimant failed to apply a fair grace period and started to process the PCN prematurely, which is a clear breach of the CoP. This has been raised with the Claimant on more than one occasion, but I merely receive the response that they are continuing to pursue the claim. The issue the court depends upon unproven and disputed seconds of time, relying upon to unsynchronised timers, and the matter is de minimis at best, and the court's valuable time should not have been taken up with this matter.

7. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished in all facts. This premature PCN with more than one clock timing in play, used against the consumer in order to profit from a person who paid to park, when taken together with the inadequate PCN term buried in small print, offends against the doctrines of open dealing and good faith. This charge is unconscionable and covers a 'concealed pitfall or trap', and is unrecoverable, given the facts. To quote further from the decision in Beavis:

7.1. 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''.

7.2. At Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

7.3 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.''

The grace period cannot be offset by the time taken to pay
8. In the event that the Claimant may try to expand on its poorly pleaded claim by arguing at the hearing that the mandatory ten minutes grace at the end, could somehow be offset by the time taken on arrival (known variously in the industry as the 'transaction', 'observation' or 'consideration' period) this is untrue.

8.1. The time allowed on arrival is differently and separately applied and (where payment is made within a reasonable time) runs in addition to the ten minutes grace. The 'observation period' 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, how clear the signs and machines are, and other factors.

8.2. Helpfully, Kelvin Reynolds, BPA Director of Corporate Affairs has gone on record in a official BPA article (dating back to when this Claimant was in the BPA) stating: 'good practice includes grace periods' (plural) that there is a difference between 'grace' periods and 'observation' periods: ''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 7].

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'.
9. My defence at point 5(d) denied that in addition to the parking charge there was any agreement to pay additional and unspecified 'costs or damages' and indeed I now state that I have discovered that this sum is false, was never incurred, represents double recovery and it is a gross abuse of process.

9.1. The arbitrary addition of a fixed sum purporting to cover 'administration/recovery costs' in a case involving a PCN issued on private land, is 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 –
9.1.1 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
9.1.2 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.

9.2 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 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.

9.3 Whilst quantified costs can be considered on a standard basis, this Claimant's purported added '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 to the 'parking charge' as if they are additional losses.

9.4. 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.

9.4.1. At para 98:{re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''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...''

9.4.2. 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'' and 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.''

9.5. Further, even in cases where the Protection of Freedoms Act 2012, Schedule 4 ('the POFA') is not being relied upon due to a Defendant admitting to driving (as here) that statute is worth consideration, as the Supreme Court did in Beavis too. The POFA paras 4(5) and 4(6) make 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' (and the ceiling for a 'parking charge', as set in both ATA CoPs in consultation with the DVLA since the POFA was enacted, is £100). [EXHIBIT 8]

9.6. I have discovered that a growing number of Judges have disallowed all added parking firm 'costs' in County courts in England and Wales recently and the three points of law that were argued by joint Defendants at Southampton this month, also fully apply in my case.

9.6.1. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services 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 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 los 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 9 - JUDGMENT OR ORDER from Caernarfon]

9.6.2. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

9.6.3. An N244 application from BW Legal led to a Southampton hearing regarding those claims (effectively being treated as test cases for that court circuit regarding the single fact that the claims were inflated, and thus tainted and an abuse of process). The parking firm sought to oppose the striking out of £160 PCN claims, but their barrister's arguments failed and the Defendants successfully cited the Consumer Rights Act 2015 and the paragraph 71 duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that courts must consider in all consumer contract cases, whether a consumer raises the issue earlier or even if not raised at all).

9.6.4. 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 Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair - see my exhibit 3 already adduced above).

9.6.5. 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.

9.7 . My case is the same and the costs are an abuse of process, whether or not they were in the signage small print, because the Claimant cannot count the operational costs twice. 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 10]

Vexatious harassment of a person with known 'protected characteristics'
10. 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.

11. Additionally, this situation I find myself in - being hounded for nearly 4 years for an unwarranted PCN - has done nothing but exacerbate my current mental ill health, as does the thought of an impending hearing. I have drawn the Claimant's attention more than once to my current position, which is that of long term sick leave due to anxiety (a 'protected characteristic' falling within the long term debilitating medical conditions that are covered by the Equality Act 2010). I have already provided the Claimant with copies of my Doctor's sick notes, but to no avail. Despite risking further harm to my health, they still continue to pursue a claim against me. [Exhibits 11 & 12]

12. I state that this Claimant knew, or should have known, that the PCN offended against the grace period rules, that their signage and timing systems were inadequate, unfair and predatory, and that to claim £160 for a PCN on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015.

13. I believe that relief from sanctions should be refused and my full costs will be sought, including ordinary and additional costs that the court has the discretion in the CPRs to grant on the indemnity basis for my time and significant distress. To be clear, such costs as are allowable pursuant to CPR 27.14 are claimed for wholly unreasonable conduct by this Claimant from 2016 to date, both in the pre- and post-action phases.

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


Signature of Defendant:

Name: XXXXXXX

Date: 22/11/19

And do a costs schedule in two sections, as shown here:

https://forums.moneysavingexpert.com/discussion/comment/76445468#Comment_76445468

You will need to print off all 12 exhibits which are NOT entirely the same as you had.

Do you have photos that show you whether the signs were IPC or BPA that day (given when they changed)?

Please show us your pics of the signs, it will help! I am wondering if they were old BPA ones or new IPC ones and how tiny the small print was.

Confusedasapickle

Thank you, that is so helpful!!! Yes it is PPS of Devon. The signs still said BPA on that day - here is a picture of the signs and I also have a picture of the signs on entry to the carpark, which shows how small they are. I am trying to work out how to post them here. I will input the IPC CoP version 3, thank you.