Excel Parking Services Ltd County Court Letter - Defence

Coupon-mad

In the County Court at (your town court name)

Claim No: xxxxxxxx

xx parking firm's name as on the claim form xx  Ltd (Claimant)
               v
xx your name as on the claim form xx  (Defendant)

 

WITNESS STATEMENT OF DEFENDANT
FOR  TELEPHONE HEARING ON xx/xx/2020

 

1. I am xxxxxx xxxxxx of (postal address) and I am the defendant against whom this claim is made.   The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.  This hearing was brought forward by a month to the 23rd September (now a telephone hearing) and thus this witness statement and defence has had to be prepared in some haste and I have been very distressed by the entire claim, having to spend many days on it and ignoring my children at home in order to fight the injustice.   Because the hearing was brought forward, this witness statement and evidence is not served late when compared to any Order of the court for this case, as far as I can tell as a Litigant in Person.  

2. In my statement I shall refer to exhibits within the evidence bundle supplied with this statement, referring to page and reference numbers where appropriate.  My defence is repeated and I will say as follows: 

Sequence of Events - no contract seen or agreed:

3.  On the material date, four-and-a-half years ago, on 15th February 2016, I travelled with my family to Swansea to begin our stay at the Premier Inn Waterfront Hotel.   We arrived at SA1 Waterfront car park adjacent to the Premier Inn Hotel at 18:30pm when it was pitch black and the weather was very cold.  On arrival, we walked to the hotel via the car park pedestrian exit located nearest to the hotel.    

4.  I had an honest belief as paying patrons of the Premier Inn, that we were authorised to park at the Hotel and no signs were seen to suggest that any terms were attached to the car park, and nor did the Premier Inn staff say anything about how to exempt a vehicle.  Therefore, because the onerous terms were not 'bound to be seen' I had no idea of any parking terms and cannot be bound by them.    The Claimant's signage is unremarkable even from a short distance. The wording all shares the same font size and nothing is immediately noticeable as being of major importance, nor even that is relates to parking regulations of any description. The signage is inadequately lit and was not anywhere near visible enough on an evening in February.  As a matter of fact, I could not have seen it on arrival that night.

5.  On returning to my vehicle the following day morning, I was shocked to find a yellow plastic envelope affixed to my windscreen and found it to contain a “Parking Charge Notice”.   I decided to take photographs of the poorly lit car park and non-illuminated signage at any of the pedestrian exits leading to the hotel.  These photos were taken that night and show the same lighting conditions. (EXHIBIT 01).  

6.  Only by walking all around the car park, did I find two signs from this Claimant, “Excel Parking Services Ltd” (EXHIBIT 02).  Of course, on arrival the day before, through no lack of observation on my part, I had been afforded no fair opportunity to learn that terms and conditions applied and was therefore under no duty to seek them out (as held in Vine v London Borough of Waltham Forest [2000] EWCA Civ 1069)  EXHIBIT 03.   I note from research about cases filed by this Claimant that they are known to mislead courts using this authority, by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the decision.  In fact, Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

7.   Due to their size, their placement and the size of the font used, these signs were nowhere near adequate for drawing attention to themselves from any reasonable person in a passing vehicle. None of these signs were located near the pedestrian exits.   Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule'.   A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'.  In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC').  The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

The Court's duty to apply the test of fairness of terms and consumer notices (signs)

8.  In addition, consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the Consumer Rights Act 2015 ('CRA') to consider the terms and the signs in order to identify potential terms and notices that may be unfair (ref s62 and Schedule 2).   Not only were the signs impossible to see (at all) in the dark, due to the Claimant's failure to illuminate them in hours of darkness, but the CRA also makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void.  Thus, the signage fails the test of fairness, on any reasonable interpretation and the claim is wholly without merit.

8.1.  This is explained in the CRA’s Guidance at 5.14.3. The Competition & Markets Authority (‘CMA’) is responsible for enforcing the CRA and their Guidance includes the fact that ‘indemnity’ is likely to be an unfair term in a consumer contract and seeking to recover a sum with which a consumer had no opportunity to acquaint themselves, as well as terms that have the effect of counting the same costs twice, are unfair.  The CMA say: "The fairness of any term is assessed having regard to the other terms of the contract, and even if not excessive when considered separately, may be unfair if it could operate together with another term or terms so as to lead to the trader being compensated twice for the same loss."

Later Events:

9.  On 17th February I wrote to the claimant to object to the parking charge they had issued to me. (EXHIBIT 04).  I received what appeared to be a template response from the claimant in March, 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 to continue with the appeal to the IAS.  My appeal was quickly rejected which I now know is normal for this self-serving farce of an appeals process. 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. 

10.   On 23rd October 2017, 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’.  (EXHIBIT 05).  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 when inflicted upon guests of the Hotel.  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 four years, making veiled threats towards my credit rating and even my employability.

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

11.  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 06 - 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).    

12. 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. 

13.  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.

14.  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. 

(continued...)

Coupon-mad

15.  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.''  

16.  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.  

17.  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 07 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.

Alternative defence issue: Lack of evidence of any landowner authority

18.  I have seen no evidence that the landowner authorises this Claimant to put up unlit signs then penalise permitted guests of the Hotel, who should surely be exempt from charges.  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 08.

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

19.  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.

20.   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

21.  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 five years now.  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 Hotel guests, relying upon the entrapment of unlit signs (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

painbl

Coupon-mad said:

Hi All, I'm at breaking point with this now! The amount of time this WS has taken me is ridiculous! I've literally had to ignore my children for the past 2 days so I can get it completed.

Please could you give me some advice on my WS draft. All comments are really appreciated.

I've changed it TOP OF NEXT PAGE to make it more up to date and hopefully, more relevant.   Posting this across two replies as it's to long!

Add Vine v Waltham Forest as an exhibit (NOT AS A LINK, AS A DOCUMENT).
https://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

Same with the case about redactions, not a link, have it as an exhibit:
https://www.judiciary.uk/wp-content/uploads/2020/07/Hancock-draft-judgment-final-14-July-2020.pdf  

And add the Caernarfon April 2020 Moran strike out order:
https://www.dropbox.com/s/4vlhwbujltz8zkb/caernarfon-moran-strike-out.jpg?dl=0

You know you need to append a COSTS ASSESSMENT - really easy - see example in the NEWBIES thread and don't forget to ask for your costs at the end of the hearing!!).

I can't thank you enough for this! It certainly makes me feel more confident, knowing that someone like yourself has provided the best possible guidance and help for someone like me that is completely clueless with this! 

1505grandad

Well @OP you will not get a better WS than the above.

Just checking few pedantic items :-

para 6  -  "...........did I find two signs from this Claimant, “Excel Parking Ltd” (EXHIBIT 02). .........."

Would the signs show Excel Parking Services Ltd?

para 10  -  "Within this letter the claimant indicates that the parking charge has been enhanced by 60%, noted as ‘associated costs’."  -  change 60% to £60 because:-

In a previous post by OP it was stated "In regards to your advice about changing to £100 charge. They are charging £70 as the principal debt then £60 for the debt recovery costs."

para 13  -  Judgment

para 18  -  "Hancock v Promontoria (Chesnut) Limited [2020] EWCA Civ 907 "  -  (Chestnut)

Coupon-mad

Hang on, Excel are only charging a £70 parking charge?

That's useful - I am collecting evidence that lower parking charges are commercially viable, to include in my submissions for the two Government Consultations (that all newbies MUST do as well!).

@painbl, can you please pm me a scan or photo of the front page of the N1 claim form Excel filed?  Cover your name and address.

Coupon-mad

1505grandad said:

Well @OP you will not get a better WS than the above.

Just checking few pedantic items :-

para 6  -  "...........did I find two signs from this Claimant, “Excel Parking Ltd” (EXHIBIT 02). .........."

Would the signs show Excel Parking Services Ltd?

para 10  -  "Within this letter the claimant indicates that the parking charge has been enhanced by 60%, noted as ‘associated costs’."  -  change 60% to £60 because:-

In a previous post by OP it was stated "In regards to your advice about changing to £100 charge. They are charging £70 as the principal debt then £60 for the debt recovery costs."

para 13  -  Judgment

para 18  -  "Hancock v Promontoria (Chesnut) Limited [2020] EWCA Civ 907 "  -  (Chestnut)

All edited, I think - thanks!

painbl

Coupon-mad said:

Hang on, Excel are only charging a £70 parking charge?

That's useful - I am collecting evidence that lower parking charges are commercially viable, to include in my submissions for the two Government Consultations (that all newbies MUST do as well!).

@painbl, can you please pm me a scan or photo of the front page of the N1 claim form Excel filed?  Cover your name and address.

Yes a £70 parking charge and £60 "debt recovery costs".

Hopefully I've attached this correctly. Apologies if I've gone overkill with covering details on the form.

Coupon-mad

OK, haha, they've failed to quantify the sum claimed in the Particulars of claim on the left!  How can anyone know it's £70?!

Add another point near the start:

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.

painbl

I've sent WS and Summary of costs to county court now. Do I need to sent all documents that I'll be using at the court hearing to BW Legal too? If so, by email or post?

nosferatu1001

Yes, of course. The newbies thread AND the court doc is absolutely clear on this. ALL PARTIES means ALL, not "some"
EMail is you have been emailed docs, otherwise post.