CPM poor signage - claim form

SlashDot

Redx said:

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

Ah yes, rushed my post there so will take my time.

SlashDot

I've removed from my Witness Statement the section on 'Lack of Evidence of any Landowner Authority' as the claimant has provided this in their pack. I have also added a reference to my Supplementary Witness Statement from my partner essentially confirming the lack of clear signage. Also added the the additional Grounds for Contract Impossibility @Johnersh .

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 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 and the ticket 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.       A supplementary witness statement is attached [supplementary witness statement] who could not attend the hearing. He similarly states that there was no sufficient signage at the entrance/exit to the site and the closest sign to where I had parked in the car park was too small in size, low down on a fence, with too small font and too distant to notice from afar.

 

8.       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)

 

9.       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.

 

10.   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."

 

11.   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:

12.   On [date] after receiving the PCN via the post, 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.

 

13.   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

 

14.   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).    

 

15.   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. 

 

 

16.   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.

 

17.   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 anywhere 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. 

 

18.   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.''  

 

19.   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.

 

20.   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.

SlashDot

Alternative Defence Issue: Grounds for Contract Impossibility

 

1.       The Claimant alleges that the Defendant was in breach of the terms of parking stipulated on the signage thereby forming a ‘contract’, therefore leading to the penalty charge. However, referring to section 62 of the Consumer Rights Act 2015, this has to be a “fair” consumer contract. As the Supreme Court held in ParkingEye Ltd v Beavis [2013] EWCA Civ 1539 and [2015] EWCA Civ 402, the concept of fairness requires the parking firm to comply with the requirements of the relevance code of practice, being either the British Parking Association’s code or the International Parking Committee’s code.

 

2.       Paragraph 28.1 of the former provides, “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.”

 

3.       Paragraph 2 of Part B provides, “2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental important that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. 2.2 Signs must conform to the requirements as set out in a schedule 1 to the Codes. The recommended sign has a large image of the letter “p” with the words “Pay and Display” under it, though this can be adapted to different situations.”

 

4.       Part E states that such signs must, “Have clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing a trespass as the case may be.” It is an important element of both of these that the signs inform the driver the he is entering into a contract with the Claimant.

 

5.       Referring to [evidence], nowhere within it does it inform the reader that by parking in the car park he is entering into a contract with the Claimant. Indeed, the word “contract” does not appear at all within the sign, which merely refers that by entering the car park the driver will “agree to abide by all of the Terms and Conditions”. The phrase “terms and conditions” is not synonymous with a contract.

 

6.       Additionally, if the Claimant is insisting that I entered into a contract when entering the site, then the lack of sign at the entrance to the car park would mean a breach as soon as I entered the site without any warning – as I would not have any time to source a permit to display. The inability to do this was not caused by any act or omission on my part, but by a state of affairs over which I had no control. Therefore, insofar as there was any contract between the parties, I believe it was invalid under the doctrine of impossibility of performance.

 

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

 

7.       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.

 

8.       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

 

9.       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.

 

10.   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.

KeithP

I wouldn't use the words 'Supplementary Witness Statement' in the way that you have.

You are talking about a Witness Statement from a second witness.
Perhaps use words like:
"7.       A second witness statement from a passenger in the car is attached [exhibit SDnn]. He confirms that...".

You should not start you paragraph numbering again halfway through. 

Don't forget a Statement of Truth at the end and of course all the headings at the beginning.

Fruitcake

If you have received the scammers WS and exhibits, please show it to us. Only redact your personal data.

Hold off sending your pack until the regulars have seen and commented on their WS, especially the contract to scam, but obviously don't miss your filing date.

DoaM

As above, don't blithely remove one of your points because the Claimant has presented something which they say gives them authority - you need to read and and pick it apart. Very rarely are such contracts presented in a way that actually gives them authority - often they don't even meet the legal requirements for a valid contract.

Johnersh

The second witness statement is NOT an exhibit - it is a document in its own right.

As regards the statement do read Vine v Waltham - Gladstones routinely quote the claimant's barrister as though it was the judge's finding. It's misleading. 

SlashDot

KeithP said:

I wouldn't use the words 'Supplementary Witness Statement' in the way that you have.

You are talking about a Witness Statement from a second witness.
Perhaps use words like:
"7.       A second witness statement from a passenger in the car is attached [exhibit SDnn]. He confirms that...".

You should not start you paragraph numbering again halfway through. 

Don't forget a Statement of Truth at the end and of course all the headings at the beginning.

Thanks @KeithP. I've adjusted to "A second witness statement is attached from a passenger in the car [second witness statement] who could not attend the hearing. He confirms that that..."
Sorry - I didn't follow your comment on the paragraph numbering?
Indeed, headings and Statement of Truth are in the document, I was just copying over the main text for now. Thanks for the reminder though.

SlashDot

DoaM said:

As above, don't blithely remove one of your points because the Claimant has presented something which they say gives them authority - you need to read and and pick it apart. Very rarely are such contracts presented in a way that actually gives them authority - often they don't even meet the legal requirements for a valid contract.

Ah I see, will do.

KeithP

SlashDot said:

Sorry - I didn't follow your comment on the paragraph numbering?

I thought the text following the heading Alternative Defence Issue: Grounds for Contract Impossibility was part of your Witness Statement. If it is then the numbering should not restart again at one with that section.
If it is not part of your WS, then what is it?