New MCOL N1 court claim filed by BW Legal re Parking Fine by Napier Parking in 2018

disrepair

Hi all,

After a full day of reading and making sure everything fits, I feel like I can't see any issues I may have in this witness statement because by this point, I've got the thing committed to memory. 

Please let me know if there's anything I can and should edit - I'll be having to submit this within 12 hours of THIS post.

The case is set for exactly 2 weeks and 12 hours time, on the 6th of October, so hopefully with the assistance I have received from everyone, I will prevail and have another win to throw onto the pile. 

disrepair

In the County Court at (COURT NAME)

Claim No: xxxxxxxx

Napier Parking Ltd (Claimant)

v

REDACTED (Defendant)

 

WITNESS STATEMENT OF DEFENDANT

FOR HEARING ON xx/xx/2020

 

1. I am xxxxxx xxxxxx of (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.  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: 

 

2. On the date in question, the vehicle with the registration mark XXXX XXX was registered under my name, and was parked at Willen Lake at the time of the alleged contravention. The driver had purchased a valid pay and display ticket (shown in ZN/01), which had been allegedly overstayed by a short period of time.

3. I had moved out of [An Old Address] before receiving any NTK, to then move into the new address of [Current Address], the purchase of which was completed 6th July 2018, as can be noted in the letter in XX/05. I as registered keeper had applied to update the address with the DVLA by post using the V5C certificate. By the time a NTK from Napier Parking could have been received, the I had already left the previous address held on file, waiting to move into the new address, meaning that all notices were sent to the previous address of x rather than the new address – this is noted in the SAR, where the contact address is listed as the previous address.

4. It is also noted in the SAR that the NTK was sent to the previous address, and was therefore not received (see XX/04), however, after the new address was obtained, the NTK was not sent again – the first correspondence to the new address is an outstanding balance being passed on to BW Legal.

 

5. At the time of the alleged contravention, Napier Parking was a member of the IPC, and their Code of Practice at the time (Version 7, January 2018, as seen in ZN/02) states in section 15.2 that ‘Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired. As seen in ZN/01, the PCN was issued a minute after the minimum recommendation.

I take issue with the fact that the only evidence to ‘prove’ an overstay occurred is the alleged 'time' printed by an unidentified person at the bottom of the photo. This exact data has been proved to be unreliable and editable in seconds, in the case where another parking firm (UKPC) were banned by the DVLA for falsifying timestamps on photos. This can be done from within the handheld machine or later as a back-office edit.  My concerns are (and I put the Claimant to strict proof):
(i)   I am not certain that the time shown is reliable, given what happened in the UKPC case which was well-publicised and fairly recent, and given that the time is conveniently set to one minute past the grace period.  
(ii) This is not necessarily the true metadata attached to the photo itself and I expect the Claimant to provide the actual photo image metadata which will be simple to prove to the court.
(iii) Even if it is the right time as shown on the handheld device, I do not believe that the ticketer synchronised the handheld device with the separate pay & display machine's clock, as Local Authority wardens always do when arriving at an off-street car park. The systems all run to slightly different times and PDT machines have been shown in other case to be as much as three minutes out with other devices.
(iv) I am the only true witness, given the Claimant has elected not to supply any evidential notes or statement from the ticketer themselves.  I believe I was back at the car within ten minutes of the expiry of my ticket, going by the time on the ticket/machine and this evidence does not disprove my statement. The Claimants must prove to the contrary.  

 

Additional defence issue: Lack of a reasonable grace period

6. Furthermore, a 10 minute minimum grace period for parking for Willen Lake is unreasonable in itself. The distance between Willen Lake and the car park itself when taking the huge size of the lake makes a 10 minute grace period much too small as there are various points at which the car park I used is the closest parking, however, returning to it could take up to 25 minutes on foot. Therefore, a 10 minute grace period is surely not reasonable.

Lack of clear signage

7. The Claimant’s signs have vague and hidden terms in a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. As seen in ZN/03, the Claimant's signage is unremarkable even from a short distance, with text that cannot be read even when standing at the driver door of a car. The wording all shares the same font size and nothing is immediately noticeable as being of major importance, and further to this, examining the photos of the signs taken by the Claimant in their own evidence bundle from p16 to p19 are shown to be barely legible from up close. In particular, p19 is a photo of the vehicle with a sign nearby. The sign in this specific image looks very unremarkable and in such small font that 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. 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'. A photo of the signage used by ParkingEye can be seen in ZN/03. 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 are the signs ridiculously hard to see or read (at all) even in the clearest conditions, 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."

 

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

 

10.  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 C - 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).   

 

11. 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, as the requisite fee has been paid, but there is an alleged small overstay. 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.

 

 

 

12.  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.

 

13. The Judge at Salisbury correctly identified that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): 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.'' 

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 debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.   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.

14.  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 D shows the exasperated words of District Judge Jones-Evans sitting at Caernarfon court in April 2020, when striking out a similar inflated claim by another parking 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.

disrepair

Alternative defence issue: Lack of evidence of any landowner authority

15.  I have seen no evidence that the landowner authorises this Claimant to penalise paying visitors of Willen Lake, 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. One key point is that details regarding a minimum grace period may have been redacted. As seen in the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907, which can be found under Exhibit D, 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...''

An alleged ‘part admission’ made by the Defendant

16.  Paragraphs 28 to 36 are without merit as seen from the call record I received in the SAR I requested, as seen in ZN/06 which conveniently is not present in the evidence presented by the Claimant, where the details clearly state that there was a “tel in from unauthorised TP”, where “we would need authorising from the def to confirm whether unauthorised TP can speak in regards to this matter”. I have not authorised any third party to act on my behalf and as seen in the call log, there was no confirmation made by me or any arrangement to pay that had been authorised by me.

 

Issue taken with an apparently ‘cut and paste’ defence

17.  As an individual who hasn’t studied law to the level required to construct a defence from scratch, I can very comfortably say that I have read in great detail the defence, which I made clear changes to, and edited many portions in order to make it relevant to this particular case and claim. This is more than can be said for the template “Response to your Defence” posted to me on 2/July/2020, containing the sentence “Irrespective of the large volume of nonsensical content within your Defence”, a simple Google search of which shows that hundreds of other defendants have been sent an identical document with just the personal details adjusted. I do not see what issue is taken up from the usage of resources that can assist me in successfully defending myself in a court of law, and why I should restrict myself from doing so.

18.  It is stated in paragraph 39 that the Defence is “clearly not being within the Defendant’s own knowledge”. Again, I refer you to paragraph 19 – any and all documents pertaining to this case have obviously been thoroughly read and understood by me before signing the Statement of Truth, seeing as I am the Defendant. As it has been made apparent from this witness statement, only information that pertains to this case and is relevant has been included.

 

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

19.  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.  I ask 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 (including fares and/or parking fees) 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

 

21.  I am appending with this bundle a fully detailed costs assessment which also covers my proportionate, but unavoidable 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).   In support of that argument, I remind the court that it is vexatious to pursue an inflated sum that includes double recovery, and an abuse of the court system to claim monies that are not due.  This is compounded by the witness attempting to claim that a part admission was made and held against me in their witness statement, when they have the necessary information in the SAR which they have clearly omitted from their own evidence bundle stating in no unclear terms that the only contact they had was with an unauthorised third party who I have not permitted to act on my behalf.

 

 

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

nosferatu1001

They've redacted huge parts of that contract. They're not allowed to do so. Raise that with the judge. 

They've simply asserted they complied with para 9 of pofa yet we know they haven't. 

Le_Kirk

I would remove your VRM from paragraph 2 ,(just for the forum) unless of course it is not your real one!  I also would add "alleged" before the word overstay, no point in agreeing with the claimant's case!

disrepair

Thank you @nosferatu1001 and @Le_Kirk - good spot, both updates have been made. VRM has been removed with a quick search of the word overstay in the whole document, and I've added para 15 with a point about redactions! 

Deadline soon approaching but I'm feeling more confident - wouldn't have made it this far without the support I have received here

disrepair

nosferatu1001 said:

They've redacted huge parts of that contract. They're not allowed to do so. Raise that with the judge. 

They've simply asserted they complied with para 9 of pofa yet we know they haven't. 

For their assertion of complying with para 9 of POFA, I've read the paragraph and still am not completely sure if their NTK (which I didn't receive due to old address) is fully compliant.

It is on page 55 of the file attached to this post - could someone give it a quick once-over and point out what I seem to evidently be missing? 

Coupon-mad

Yes that is a POFA one so forget that.
Change this because they HAVEN'T shown the Metadata:

I take issue with the fact that the only evidence to ‘prove’ an overstay occurred is the metadata attached to the photo itself. 

I take issue with the fact that the only evidence to ‘prove’ an overstay occurred is the alleged 'time' printed by an unidentified person at the bottom of the photo. This exact data has been proved to be unreliable and editable in seconds, in the case where another parking firm (UKPC) were banned by the DVLA for falsifying timestamps on photos. This can be done from within the handheld machine or later as a back-office edit.  My concerns are (and I put the Claimant to strict proof):
(i)   I am not certain that the time shown is reliable, given what happened in the UKPC case which was well-publicised and fairly recent, and given that the time is conveniently set to one minute past the grace period.  
(ii) This is not necessarily the true metadata attached to the photo itself and I expect the Claimant to provide the actual photo image metadata which will be simple to prove to the court.
(iii) Even if it is the right time as shown on the handheld device, I do not believe that the ticketer synchonised the handheld device with the separate pay & display machine's clock, as Local Authority wardens always do when arriving at an off-street car park. The systems all run to slightly different times and PDT machines have been shown in other cases to be as much as three minutes out with other devices.  Even a minute out, means I was within the grace period.
(iv)  I am the only true witness, given the Claimant has elected not to supply any evidential notes or statement from the ticketer themselves.  I believe I was back at the car within ten minutes of the expiry of my ticket, going by the time on the ticket/machine and this evidence does not disprove my statement.    The Claimants must prove to the contrary.  

disrepair

@Coupon-mad Absolute godsend, thank you for reading over this for me. I will make the applicable changes, and I guess I'll send it off in about 15 minutes unless some glaringly obvious mistake is spotted.

In your opinion, would you say I have covered the sufficient points? Or is there something else I can add?

Redx

bear in mind that if they complied with POFA then a better defence and WS is as a driver (not beating about the bush or hiding behind POFA) , so if you have told them who was driving then POFA wouldnt help you and is a red herring , or if they have complied with POFA its still a red herring

ensure that the facts of the case as you see them are presented, so why you as first person witness are not liable for any pcn charges at all, hence why you did not pay the pcn , if you are defending as the driver