New One! County Court Claim for PCN.

Bachelorplace

Thank you and Thanks GD. Good point. 

16   The Defendant is driver of this vehicle and has no knowledge of any parking charge notice (‘PCN’) or letters. It is not established thus far, whether the car was parked, or just stopped momentarily and caught by predatory ticketing.  It is not accepted that the location included prominent signs giving ‘adequate notice’ of the onerous parking charge.

17.     The defendant assumed the area was common land as part of residential communal parking or overflow area and an acceptable place to park whilst carrying out an eBay transaction with a resident of the apartments, A Mr xi, of xx. The resident did not warn the Defendant of parking charges, and the Defendant did not see any barriers, key fob entrances, nor clearly marked NO PARKING signs or road markings in the area.

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This does rather suggest that one should be deleted. 

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Coupon - I don't mean to be frustrating I have been over it twice I am sorry. I can assure you I have obviously just not absorbed it properly.  I am going over it again now as we speak And I appreciate the massive levels of effort. 

Coupon-mad

OK, read the bit that says 'IMPORTANT! KNOW WHAT HAPPENS WHEN!  (it's in red to grab attention).

And look at the WS I wrote last week for @painbl and adapt that, to suit - should be quite easy.

Bachelorplace

I have made myself a list. 

Is your PAINBL been appended to your help thread? - cancel that - found it. 

1.     Contacted Claimant SARS

2.     Refused to supply intrusive data

3.     Received SARS evidence and photos eventually

4.     Contacted landowner one – discovered landowner and restrictions on parking are unclear. Land is owned and operated by two parties, boundaries and enforcement is unclear.

5.     Landowner two uncontactable on the alleged enforcement area.

6.     Completed Directions Questionnaire. N180

7.     Witness Statement pending.

8.     Costs Pending.

9.     Sending new version to court and claimant due to April and September Amendments.

10.  Collect evidence from resident add to WS and Defence for resubmission

Bachelorplace

BOLD ARE APPENDS from COOPS

Part 1

 

1. I am  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. I suffer from COPD and severe Asthma limiting my quality of life and mobility and I am classed as vulnerable due to acute anxiety, paranoia and depression. This case has been a significant detriment to my mental health.

1a. I am prescribed Flutiform Inhaher which is administered twice daily (four doses) Tiotropium inhaler administered once daily (one dose) for COPD. Ventolin for Asthma exacerbations. For depression and paranoia, I am prescribed Paroxetine 30mg daily for anxiety and depression, along with 5mg of Diazepam for anxiety and 10mg Zopiclone for sleep. Under specialist lung care at xxx and under Mental Health review from xxx, xxx.

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 15th of October at approximately 2000hrs I travelled to the address of the alleged transgression to collect an item I had seen advertised on Facebook Marketplace.

4.  I was advised by the resident of the flats in the area Mr XXX to park in the “visitor’s bay” and come to his front door and ring the buzzer. He asked me not to park in front of any garages or directly in-front of a large mansion house.

5. It was very dark, and none of the “spaces” are marked as “Visitor” nor did they state “No Parking”/ Following instructions from Mr  xxx on the phone I parked in a wide-open area, next to some wheelie bins; space for two cars.  As I opened my door, I remember being shocked at how many discarded laughing gas canisters were present on the ground. It indicated how often users of this drug must be in this vicinity there were literally hundreds. 

Upon returning to my car approximately 10-15 minutes later and noting a parking ticket attached to my car I walked around the car park and noted a very dirty sign affixed to the side of one of the apartments. It was not lit.

6. It has become clear that the landowner’s prioritise parking enforcement over drug users, anti-social behaviour and littering. Sweeping the area or ensuring parking restrictions or “contracts” are clean and sufficiently clear would indicate to the contrary.

7. Please note the evidence, (Exhibit 01). supplied by the Claimant of: “a sign” on “a wall” has been taken using a flash and is therefore visible. It is argued that I could not have seen this sign on arrival.

8. 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.

9.  I asked Mr xxx to record video using a fixed GoPro of typical entry to the parking area by car. Only by walking all around the car park that night and upon viewing this retrospectively, did I note any signs from this Claimant (EXHIBIT 02).  Of course, on arrival the night in question. 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.

10.  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 or visitor to the area for the first time. 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)

11.  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.

11.1 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:

12. After receiving the PCN I requested a Subject to Access request from the Claimant, who then requested I complete a form and supply additional private information, such as driving licence or passport. I refused to supply this information and complained to the Claimant by email on the 14th February 2020.

13. The claimant replied on the 19th of February 2020 by email stating my complaint would be forwarded to the Data Protection Officer and that I would receive documentation shortly. This information was supplied 202 days later on the 9th of September 2020 and after I had sent two further emails to the Claimant. This added considerable anxiety and worry during this period.

13a. Part of my mental illness includes intrusive and repetitive thoughts these can be thoughts that are irrational or negative. I have suffered mental anguish as a result of legal action and its potential consequences. Not being able to attend to this matter for 202 days was both a failure on the Claimant’s part for not handling matters in a “reasonable time” and caused undue stress.

14. Compounding stress noted in 13a I received much correspondence from the Claimant, notifying me that their solicitors (Gladstone’s Solicitors) would pursue the parking charge as if it were a 'debt'.  Within the correspondence the claimant indicates that the parking charge of £100 or £60 if paid immediately, would be raised to £160 (EXHIBIT 04).  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 visitors to the address.  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. 

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.

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

15.  The added fees to the original PCN of £50 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see EXHIBIT 05 - 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).    

16. 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.

17.  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. 


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.''   

Bachelorplace

Part two 

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 06 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.

18.  As part of my ongoing research I have seen no evidence that the landowner authorises this Claimant to put up unlit signs then penalise visitors to the address, 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 07

18a Moreover I have discovered that there are two landowners in this particular vicinity, one of the landowners has instructed the Claimant to enforce parking restrictions, the other has not. Upon contacting the managing agent; one of the land owners whom could be traced and contacted. It was explained there is a boundary defining various parts of the land. This boundary is not clearly marked confusing visitors further as to who owns what land and what areas specifically are governed by any signage.

19. I later discovered that the “mansion house” adjacent to where I parked is built is managed by the landowner who have instructed the Claimant. This infers but does not confirm that the location of my car was parked on their land, however without a copy of the property deeds or a land registry boundary it is not clear who’s land I parked on. Furthermore, with this in consideration it appears that signage has been affixed onto the wall of a property not owned or operated by the enforcing landowner.

20. In further investigation I note that the “mansion house” is part of a “rent to rent” scheme and appears on Booking.com as an air b n b. It is not clear if the landowner is aware that his or her property is being used or has been authorised for use as a business. (Exhibit 8) With this in consideration it should be noted that the landowner has a duty of care to clearly mark bays and what they pertain to i.e. Which are the visitor’s bays for the properties operated by Landowner A and which are the visitors or guest bays for the properties operated by Landowner B. 

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

21.  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.

22.   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

23.  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 two years.  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 visitors to the area, relying upon the entrapment of unlit signs and no road markings 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.

 

1505grandad

Some observations:-

Paras need numbering sequentially

Is this figure correct in (the first) para 15 -   should it be £100?  -  (see your para 14):-

"15.  The added fees to the original PCN of £50 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see EXHIBIT 05............"

Para 17  -  "................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...."

I don't think VCS are anything to do with UKPCM

Just a quick look through  -  probably a good idea for you check that what you c & p is relevant to your case.

Bachelorplace

Ok - thanks. 
With reference to finding the Exhibits. Are these available by searching their case keywords on a specific site? Would WIkipedia entry to PDF be sufficient?

Coupon-mad

 to the original PCN of £50 

Can't have been.  You would not get to £160 from a fifty quid PCN. 

With reference to finding the Exhibits. Are these available by searching their case keywords on a specific site? 

Which cases do you mean?

Would Wikipedia entry to PDF be sufficient?

No.

Bachelorplace

1. Parking Charge of £100 if not paid within etc etc - reduced to £60 if paid within 14 days. 
2. Next letter - pay £100 now or it will be £160.
( Do these figures mean I need to delete the "double" reference from WS)
Cases:
3. I found them using your threads and careful Googling. I might be stuck on one which I am due to do today. 

4. I am going to write to the solicitors today to say that it is too late to offer anything as I have spent too long on this now and want to apply for my costs. 

nosferatu1001

If you supply evidence, you cannot do so in a link to a website. It must be in some durable form, ie you cannot change it after youve sent it .