Claim form from BWLegal

BWScammer

IN THE COUNTY COURT
Claim No.: ****
 
Between
 
             NAPIER PARKING LIMITED
(Claimant)
 
-and-  
 
 *****
           (Defendant)
 
__________
 
WITNESS STATEMENT
__________

 

 

1. I,******. I am the defendant to which 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.
2. Throughout this Witness Statement I shall refer to documents supplied with this statement referring as exhibits and labeled as **01. 
3. The Claimant already knows from the defence the fact that, whilst I was the registered keeper I was not the driver at the time of the alleged contravention. If necessary, I am willing to confirm this fact on oath. The driver on the date in question was in fact my partner and I, the passenger. 
4. On the date in question, my partner drove into what appeared to both of us to be access to some bricked garages behind some the high street shops with parking bays and not at all what could be assumed as a “shopping centre car park”. As you can see from exhibit **01, ‘*************’ is in fact a large obvious parking area further along Priory Road with its own entrance, not where the Claimant highlights on his map within his witness statement. Therefore, raises the question if the Claimant actually knows which area of land he is authorised to regulate.
5. The Claimant is relying on Terms and Conditions set out within signage in the area and claims it to be contractable. 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 “the sign should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.
6. As you can see from exhibit **02 - **03, taken from Google Maps on the 15th September 2020 the entrance of the area and sign claiming to be “Private Land” is not in clear view, as demonstrated by different angles. The sign is small and could be easily obscured from view when driving into the walled area by a nearby tree making it difficult/impossible to see. Even if the sign had been seen, the text on it was so small it would have been impossible to read from any reasonable passing vehicle given the entrance is on a busy town road, with a bus stop opposite, making it dangerous to stop prior to entering.
7. Neither myself or my partner noticed any pay and display or any signs when entering the area stating payment or a permit was required. Once inside the walled area the signage explaining the terms and conditions of such ‘contract’ was too small to see unaided. The font is tiny and unreadable and the sign positioned at such height to make is difficult to see (exhibit **04-**05). Even the Claimants own Witness Statement demonstrates an ineligible sign - see page 11 of Claimants Witness Statement. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract, and as such, no contract was ever in place, thus rendering a breach impossible. 
8. In addition to the ‘parking charge’, the Claimant has added a sum of £60 which has been described in a number of ways by the Claimants Solicitor, ranging from ‘Legal Costs’, ‘Additional Charges/Costs’, ‘Contractual Costs’, ‘Instruction Fee’, Debt Recovery Costs’. The added £60 constitutes double recovery which is an abuse of process and demonstrates the Claimants blatant disregard to circumvent the Smalls Claims costs rules using double recovery. 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 stands. 
9. I have appended with this bundle, a fully detailed cost assessment (**08) and invite the Court to consider making an award to include these, pursuant to the courts powers in relation to misconduct (CPR44.11). 

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.

BWScammer

Would this paragraph fit?
 
This additional charge is not recoverable under the Protection of Freedoms Act 2012 Schedule 4 nor with reference to the binding Supreme Court judgement, which expressly approved the parking charge because it included costs of administration (ParkingEye Ltd v Beavis [2015] UKSC67 - paragraphs 98,193 and 198).  Additionally, s71(2) of the Consumer Rights Act 2015 requires the court to consider the fairness of a contract term/notice, and the inclusion of additional charges falls into examples 6, 10, 14 and 18 of the indicative list of unfair terms in Schedule 2 of the Act.

Coupon-mad

Yes of course.    You need to look at the example WS that I link in the NEWBIES thread which shows you what else to include.

 ineligible = illegible.

BWScammer

Sorry, I have read that post so many times and still managed to forget the list of things to add. On it now!!

Coupon-mad

Yeah but I changed it yesterday to a new WS posted this week!

BWScammer

I think I've beefed it up and included all the relevant documents in it. Hopefully this worked 

Coupon-mad

You've missed out all the stuff about the Semark-Jullien Salisbury case, fully explained by @robertcox999 in his version that I posted in the NEWBIES thread for everyone to copy from.  Throwing in the Southampton case without dealing with the appeal at Salisbury as well, hangs you out to dry.  Please don't crop out stuff recently written for all to copy!    YOU NEED TO FOLLOW THAT MODEL ANSWER.

I'd add to this as well, if I were you:

1. The Claimant already knows from the defence the fact that, whilst I was the registered keeper I was not the driver at the time of the alleged contravention. If necessary, I am willing to confirm this fact on oath. The driver on the date in question was in fact my partner and I was the passenger.  I have exercised my right not to name him (her?) because I have no obligation to do that with a private firm, despite the parking industry and their robo-claim solicitors routinely misleading courts that keepers who don't name the driver have 'failed', which is disingenuous and untrue.  I also wanted to protect the driver, my partner, from the onslaught of aggressive letters that I have endured.  I have evidence that the parking signs and hidden PDT machines with no arrows pointing to them at the exits on foot are wholly inadequate to draw the attention of drivers to any terms - and vitally, the parking charge itself - and thus it is my position that this Claimant has failed the requirement of 'adequate notice' of the parking charge, as required in Schedule 4 of the Protection of Freedoms Act 2012.

BWScammer

Thanks - I have hopefully added this in now. 

Coupon-mad

Are you deliberately not copying the version by @robertcox999 insofar as the point about 'no landowner authority' is concerned, and redaction of contracts, because this is a car park that Napier own?  It is glaring by its absence from your WS and a standard thing we usually put a PPC to proof about, with an unredacted contract.  Given that you say earlier on that you question whether the C knows which area they are contracted to infest, I wold have thought the MODEL ANSWER version should be copied in that respect too (not sure why you are not copying it all except for the facts, which are your own - this is the second time I've said not to crop stuff out)?

You have also not put the date under the signature. 

Not sure that you've done your costs assessment and Index as well (copy from the Model answer example).


Finally, I would put this on a separate line because it is swallowed up in the format you've got it, and vital for a Judge to read:

https://www.bailii.org/ew/cases/EWHC/QB/ 2011/4023.html
''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.'' 

BWScammer

Sorry, I must be being completely stupid, but this is confusing me. If i copy and paste robertcox999, which bits do I take out of mine? Honestly, I am lost.