Grace Period Advice

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Use Imgur and post a dead link , changing http to hxxp

Confusedasapickle

[IMG]hxxp://imgur.com/S7afaA2[/IMG]

Fruitcake

Confusedasapickle wrote: »

[IMG]hxxp://imgur.com/S7afaA2[/IMG]

https://imgur.com/S7afaA2

That signage mentions both Napier and PPS who are both IPC members.

I would start by complaining to the DVLA that PPS used BPA signage at the time of the alleged event even though they were not members of that trade association but were instead IPC members. This is both misleading and a breach of both the BPA and IPC's code of practice.

Part C of the mandatory KADOE contract requirements state: -

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/455973/Annex_A_-_KADOE_Fee_Paying_Contract_V4.pdf

PART C
USE OF THE DATA
C1. Signage, Terms & Conditions and Correspondence
C1.1. The Customer shall ensure that signage, terms and conditions of service for parking customers and correspondence with data subjects comply with the Law and with the requirements of the ATA’s Code of Practice or Conduct.
C2

In order to obtain keeper data using their KADOE contract with the DVLA they must abide by the requirements of their ATA which includes the use of adequate and correct signage, which in this instance they did not.
Note the use of the word "shall" in para C.1.1. There is no leeway or ambiguity. This is a specific and mandatory requirement. The client (PPC) shall abide by this contract. They failed to do so.

Having incorrect and inadequate signage is also a breach of Schedule 4 of the PoFA 2012.

Thus, the scammers failed to comply with the DVLA KADOE contract requirements and therefore should not have requested or processed the data subject's personal data.
In addition, the DVLA did not carry out due diligence in ensuring the scammers complied with the KADOE contract and are therefore complicit in this data breach.

The OP could also make a complaint to the ICO for the same reason.

Umkomaas

http://imgur.com/S7afaA2

You'll need to raise in your WS the confusion as to whether the driver was entering a contract with Napier Parking, or PPS. There is no 'certainty' - an important element of any contract.

Confusedasapickle

I have searched and searched for the Order or Judgment of the Caernarfon case as Coupon Mad has mentioned above but I can't find it anywhere! Any links to it within this forum please?

Le_Kirk

Confusedasapickle wrote: »

I have searched and searched for the Order or Judgment of the Caernarfon case as Coupon Mad has mentioned above but I can't find it anywhere! Any links to it within this forum please?

It's contained within the comment at post # 14 of the Abuse of Process thread by beamerguy but if you Search this Forum, Advanced Search, keyword(s) abuse of process User Name beamerguy what do you get? OR just search using Caernarfon as your keyword(s) BUT with both searches change the radio button from threads to posts.

Confusedasapickle

THANK YOU!!!!! You have all been so helpful, it is so appreciated!

Coupon-mad

I've seen that sign on this forum and on pepipoo before, years ago, like this one that the person says has just resurfaced this week with a claim:

http://forums.pepipoo.com/index.php?showtopic=115299

Do some signs in their evidence say £90 and others £100, or have they not yet sent you their WS?

How is the claim £300 ish broken down, this would have been in a pre-action letter and/or in the claim form particulars on the left. I cannot work out how they have morphed £90 into more than triple that sum?

Add the points Fruitcake made to the WS I started for you, and then show us your new draft, and your Skeleton argument about the added £60 (like I showed you already) and costs schedule, and your list of exhibits and we will check it all!

Fruitcake

Please do make the complaint to the DVLA on Monday morning. You will only need to tweak my previous post a little and then copy and paste and send (check formatting/spelling/grammar before you submit it).

Remove the link to the KADOE but embed the image of the sign rather than the link, plus a copy of the PCN/NTK with the IPC logo. Include a screengrab from the IPC website AoS list that shows their incorporation date into the IPC. Worst case, just write the incorporation date but do embed the sign not the link.

The DVLA have the power to cause the PPS a lot of damage and a response from them may greatly help your case.

Confusedasapickle

Hi all, thank you so much for your help. The hearing isn't until Feb so I will work on my skeleton argument prior to that. I received the Claimant's WS on Saturday. I've added some more points as you have mentioned. Annoyingly, I am in Cornwall and the claim form with the costs is at home in Exeter and I need to send this out today so I can't double check it!!! here is the updated version and thank you again so much for your help!
Name of Witness: xxxxxx
Witness Statement: 1
Exhibits: xx1


In the County Court xxxxx CLAIM NUMBER: xxxxxx
Between
PREMIER PARKING SOLUTIONS LIMITED
CLAIMANT
-V-

xxxxxxx
DEFENDANT

---

WITNESS STATEMENT OF xxxxxxxx

---

I, xxxxxxxx will say as follows:
I am the Defendant in this matter. Attached to this statement is a paginated bundle of exhibits to which I will refer.
Summary:
1. Within this statement, I will refer to various documents which are attached in a paginated bundle ‘xx1’. I will make reference to these as per their exhibit number.

2. 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 in the car park by 13.09pm with no sign anywhere of the ticket issuer who would have taken 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 it was highly likely I was in the car park (at or near the car). If the timing was correct I would have seen the ticketer, as I have evidence I was in my car by 13.12pm.
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. The signs are particularly small as can be seen in [EXHIBIT 1]
c. As was stated in my defence - albeit I believed the Claimant was in the ‘British Parking Association’ (BPA) Trade Body, as this is the logo that was on their signs, I now correct this as it would appear that PPS decided to change their accreditor, despite not changing this on their signs. Despite 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 [EXHIBIT 2] which said: '' 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. The signs show that the Claimant was BPA accredited on 3 March 2016, when in fact this was not the case. They were accredited by the ‘Independent Parking Committee’ (IPC), which is evidence that the signs were incorrect on the day in question. However, for completeness, the grace period rules issued by the BPA at the time of my parking was: “Grace Periods: 13.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes….13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
e. 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. To add to this point, the logos used on the car park signs added to the confusion as to whom I would have been entering a contract with Napier Parking, or PPS. [EXHIBIT 3] There is no 'certainty' - an important element of any contract. The Claimant's signage was so lacking to my recollection, that I believe that the signs were old and, as aforementioned, 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, which they weren’t, they were woefully insufficient and in breach of the Consumer Rights Act 2015 [EXHIBIT 4]
f. 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. They simply stated “monies due in respect of a Parking Charge Notice (PCN)”!

g. 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
3. Having recently returned from living in Australia I attended the Job Centre in Truro 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: xxxxxx to attend the appointment.

4. I parked the vehicle at Tabernacle Street Car Park (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 5]

5. The Job Centre was particularly busy 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 6]

6. 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 7]. It is clear that the ticketer started to process the PCN well before the minimum grace period of at least ten minutes had expired. Upon receiving the outcome of the appeal, I no longer wished to correspond with the Claimant, as they clearly did not treat my appeal fairly. I had nothing more to add that I felt would make any difference to The Claimant’s decision to chase me for an unfair sum, and therefore, only returned correspondence with BW Legal when they used the DVLA to locate my address. I again reiterated my point that I did not feel I should have to pay the fine under the circumstances and particularly because the signs were misleading, out of date, confusing, and coupled with the fact that I had overpaid and the Claimant was not at any loss, and I had returned to the car within the ‘grace period’ imposed by both the BPA and the IPC.
Absence of any legitimate interest, open dealing and good faith
7. 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 two 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.

8. 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 on an outdated sign, 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
9. 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.

9.1 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.

9.2 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.''
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'.

10. My defence at point 5(e) 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.
10.1. 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 –
10.1.1 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

10.1.2 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.
10.2 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.
10.3 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.
10.4. 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.
10.4.1. 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...''
10.4.2. 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.''
10.5. 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]
10.6. 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.
10.6.1. 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]
10.6.2. 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.
10.6.3. 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).
10.6.4. 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 (Please see my EXHIBIT 3 already adduced above).
10.6.5. 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.
10.7 . 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).''
Vexatious harassment of a person with known 'protected characteristics’
11. 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.
12. 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 10 & 11]
13. 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 over £100 for a PCN on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015.
14. 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: xxxxxx Date: 25/11/19