CPM poor signage - claim form

Coupon-mad

That sign is placed so low that no-one in a car could read that on a metal fence.  Is this at a block of flats?

SlashDot

Coupon-mad said:

That sign is placed so low that no-one in a car could read that on a metal fence.  Is this at a block of flats?

Indeed - the car park does slope downhill towards where I parked somewhat, but, even then, it's still below eye level and behind me where I parked so I didn't notice it at all.
This is opposite a block of flats (where I lived previously). There is parkland over the other side of the fence and the car park itself is next to and owned by a church.

Coupon-mad

But residents were allowed to use it?  What were the arrangements with the Church and how good were they are cancelling scam PCNs?

SlashDot

Coupon-mad said:

But residents were allowed to use it?  What were the arrangements with the Church and how good were they are cancelling scam PCNs?

No, residents of the apartments over the road were not authorised to use it. The church operated a permit system (unknown whether you had to be a church attendee to avail of this) and the car park was heavily used during weekday working hours for commuters. It was largely empty thereafter.
I did ask CPM for a copy of their contract with the landowner back in 2018, but they stated they were not obliged to provide this under the Data Protection Act.
I confess that, given how long this has been going on for, I haven't contact the church regarding cancelling the PCN.

SlashDot

Thanks very much for the references @Coupon-mad - some really good arguments applicable to my case. Updated draft below minus the 2nd witness statement (that @Johnersh mentioned), which I will get to next.

In the County Court at xxxxx

Claim No. xxxxxx

Between

Xxxxxxxx (Claimant)

And

Xxxxx (Defendant)

 

Witness Statement for Telephone Hearing on xx/xx/xxxx

 

1.       I am xxx xxx, of [Address], [Postcode], the Defendant against whom this claim is made. I will say as follows:

 

Sequence of Events - no contract seen or agreed:

 

2.       On the material date, more than 2 years ago, on [date], I drove my leased company car [registration] towards [address] as I was visiting the convenience store on that road and then visiting the nearby cinema [address]. Due to the lack of on-street parking available, I parked my vehicle in the largely empty car park at [address] and walked over the road to visit both the convenience store and cinema.

 

3.       The reason for using this particular car park was that I had lived on the street previously from [dates] in an apartment directly opposite and overlooking it (and above the convenience store). I had used it for several years outside of weekday business hours with no issues. The land owner is the next door [building] with an entrance sign confirming this and, at the time, with no barrier operated at the single entrance/exit to the site along with no clear parking restrictions.

 

4.       I parked my vehicle at the front of the car park facing the road in one of the middle bays and exiting the vehicle at around 6pm. I returned at around 8.30pm to find a paper Parking Charge Notice for £100 alleging 1) not displaying a valid permit and 2) unauthorised parking.

 

5.       After checking the entrance/exit for an indication of new parking restrictions, I discovered a nearly completely removed sign that was partly obscured by foliage, see [evidence]. The remainder of the sign was also set beneath the original and much larger sign from the land owner (see [evidence]). This made it unclear as to who was operating the parking on the site and if there were any parking restrictions in force. Another identical sign from the land owner was also visible as you entered the site affixed to the side of the [building], similarly not stating any other new parking restrictions (see [evidence]).

 

6.       Looking around the car park itself, I eventually found the closest sign to me on the far side of the site (further away from the convenience store and site entrance/exit), which was around 8 metres away, below my line of sight and written in too small text to be read from that distance (see [evidence]). In addition, it was located behind me as I exited my car and, if I had turned around, the back of my car would have occluded it (see [evidence]).

 

7.       I returned to the car park on [date] to collect further photographic evidence and, although a barrier is now in place, the sign at the entrance remained unrepaired (see [evidence]).

 

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 was the entrance sign nearly completely removed and the signs within the site impossible to read at a distance and situated behind someone parking where I had, 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.

 

9.       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."

 

10.   There was very little in the way of clear signage (and no entry barrier) to indicate that the Claimant had jurisdiction over the car park when I used it or that there had been a change in operation of parking restrictions – as such, I could not have entered into a contract, as the Claimant alleges. If there was adequate signage on the way into the car park and visible where I had parked, I would have made alternative arrangements.

 

Later Events:

11.   Later in [month/year] after receiving the ticket (I cannot remember the exact day) I wrote to CPM to appeal the alleged offence on the basis of insufficient signage (attaching a picture of the partially removed entrance sign, see [evidence]), as well as to ensure all correspondence was routed to myself as keeper of the vehicle in question rather than my employer. I also requested a copy of their policy with the landowner in order to cancel the PCN.

 

12.   A response was received on [date] (see [evidence]) that notified me that my appeal was unsuccessful, but only referred ‘clear signage’ to the small sign within the car park. As the onerous terms were not 'bound to be seen', I had no idea of any parking terms and could not be bound by them. The Claimant's signage is unremarkable even from a short distance. The wording all shares a small font size and nothing is immediately noticeable as being of major importance, nor even that it relates to parking regulations of any description. It was also located so that anyone parking where I had would not have seen it from the car driving in or when exiting the vehicle given that it was affixed on a low fence.

 

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

 

13.   On [date] I received ‘pre-action protocol’ correspondence from [debt recovery] claiming £160, but with no explanation as to why the additional £60 had been added or how it was calculated. 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] - 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).    

 

14.   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 facts of that case were examined. However, there is no such legitimate interest in this case. 

 

 

15.   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 (see [exhibit]), 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.

 

16.   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. 

 

17.   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.''  

 

18.   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.

 

19.   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] 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.

 

Continued...

SlashDot

Alternative defence issue: Lack of evidence of any landowner authority

 

20.   I have seen no evidence that the landowner authorises this Claimant to put up signs and then penalise users. 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 lack of or 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].

 

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.''

 

 

Further costs for the wholly unreasonable conduct of this Claimant – CPR 44.11

 

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 and related materials. My personal life has been severely impacted and this matter has been hanging over me for 2 years. I am appending with this bundle, a fully detailed costs assessment that 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 me, relying upon the entrapment of insufficient signage, 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.

 

24.   I Invite the Court to dismiss this claim in its entirety, and to aware my costs of attendance at the hearing, as such as are allowable pursuant to CPR 27.14, see xxxx.

 

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.

 

Defendant’s signature:

Defendant’s name:

Date

Johnersh

I can't say this will definitely fly as an argument, but it's worth considering inmho:

Strictly speaking the terms of parking were impossible to perform weren't they? Assuming only residents of flats were issued with permits. 

That's an argument, even had you had seen the signs. I note from your statement that you did not.

Where do you get a permit from? Who's entitled to one? What about lawful visitors? What is the boundary? The sign doesn't say. 

The wording makes clear £100 is levied for a *Breach* of terms. It is not an agreement to pay £100 as a parking charge, it's a penalty.  It is not an alternative fee for waiver of an obligation to display a permit. Basically you were never offered parking as you could never meet the terms. 

There is no way you could ever comply with those terms. One might suggest the contract is Void for Impossibility (Google that legal doctrine). Indeed even to remain on site to read the sign would put you in breach. 

Pace v Lengyl is worth a read. Search the forum for it. There is a full judgment kicking around somewhere. 

Umkomaas

Pace v Lengyl is worth a read. Search the forum for it. There is a full judgment kicking around somewhere. 

http://nebula.wsimg.com/07b493fc1a4ea8623a8fe73dce20287a?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

SlashDot

Had the pack through from the Claimant - earlier than I expected. Am I still OK to email my pack if they have posted it?
Highlights:

• "Liable for a parking charge pursuant to the Contract (i.e. the Sign)" - presumably relates the the sign within the car park as the one at the entrance was torn down.
• A site plan of the signs actually refers to the torn down sign at the entrance along with my photo of it (included with an initial appeal I sent), wow.
• Looks like they are relying on the small & low down sign with small text that was behind me and away from the entrance as I exited the vehicle. I can barely make out the blue P.
• A paragraph how my defence was generic and found on the internet + I would not be about to understand the complexities of all of the references to the CPR, POFA and case law - so they are not accepting anything that I have outlined & deny it. Rude.
• Arguments raised against costs / striking out of claims / ParkingEye v Beavis / Consumer Rights Act 2015 - I can detail these but it's quite a few paragraphs. Their position is that issuing a claim with contractual costs is not sufficient for it to be struck out - as these were not considered in the Beavis case. Also that the term is not unfair under the CR Act, this is also not sufficient for them to be struck out.
• As I didn't engage with them after the LBC, they are claiming that my defence is not prejudiced.
• Reject my insufficient signage defence (not mentioning the entrance one) mentioning Vine v Lonodn Borough of Waltham Forrest 2000. They quote sufficient & adequate warning notices were in place. Also state that my lack of parking issues prior to the new operation of the site is irrelevant.
• Signage is apparently prominent throughout the parking area and audited + approved by the IPC.
• Do not believe that the case is distinguishable from Beavis referencing the VCS appeal.
• £60 added as contractual costs under the IPC code of practice based on the sign states additional charges can be added - costs being a nominal contribution to the actual losses. The also state the have a right to costs pursuant to the sign (i.e. the contract).
• Also received the Parking Enforcement Contractual Agreement between the car park operator and land owner. Not sure what to look for in this.

I'm finishing up my next draft defence so will post that shortly. Do I need to adapt my witness statement based on these arguments @Coupon-mad or continue?

Redx

it used to be the case of posting it, but due to covid email tends to be used, so have they given you permission to use email ? plus an email address ? if its Gladstones then email is currently used in other cases , have you not read other recent similar cases ?

you are not drafting any defence that I know of, your defence must have been submitted months ago , unless the judge has ordered you to draft a new defence ?

reading your posts above you are at WS + EXHIBITS + SUMMARY COSTS ASSESSMENT stage , not defence stage, get your mind in order, clear thinking is required