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

KeithP

1.     I am Disrepair, representing XXXX, of [Address], the Defendant in this matter.

'representing the Defendant'?

I don't understand. The Witness Statement is in the name of the named Defendant, not that of a 'representative'.

This was discussed in depth on 15th May.

I believe that the facts stated in this Defence are true.

Two points here:

1) It is a Witness Statement, not a Defence.

2) That Statement of Truth was superseded by a more wordy one in April 2020 - easily found by looking at any other Witness Statement since then. 

Umkomaas

1.     I am Disrepair, representing XXXX, of [Address], the Defendant in this matter. I will say as follows:

Whoaaa - you can't do this. It has to be written in the first person by the Defendant. You are not she.

Statement of Truth

I believe that the facts stated in this Defence are true.

Well out of date content. Search Google for '2020 Statement of Truth'. 

disrepair

Thanks @Umkomaas and @KeithP - I've put it in first person now.

I also added the new statement of truth - turns out I started working on this a few days before the change (first few days of April...), and also only just realised this for this WS I was preparing, I had just cloned my defence then deleted the body... I should pay more attention

@Redx - about mentioning the poor signage - would it still be okay for me to do this, as the driver still paid for a pay and display ticket? I'm assuming if yes, I should just talk about the exact terms and conditions being unclear?

Redx

Your statement at the bottom is also incorrect

It says defence when it's a WS as is stated at the beginning

It's also the wrong statement , which changed 6 months ago , the new statement is much longer

I believe that Napier were IPC members at the time of the incident too

Your exhibits should be labelled as exhibit ABC/001 , ABC/002 etc , where ABC is your initials

Coupon-mad

Have a look at the two I wrote recently, in the threads by @blancswann and @painbl and adapt those, making sure not to copy anything that isn't true (e,g. facts like was or wasn't driving, don't just copy facts that make no sense for YOUR case). 

But do copy the legal stuff and the bits about the Salisbury case and ParkingEye v Somerfield.

AND - please now make a real difference - A TASK FOR SEPTEMBER.

The Government is (this month only) consulting about a new statutory code of practice (CoP) and framework to rein in the rogue parking firms.  Read and comment on the draft CoP proposal and the enforcement framework consultation, and get everyone you know to do the same.

You will need to register to comment on the CoP and enter an occupation even if you are retired or a homemaker, but otherwise it is easy to navigate, and comment upon each section/subsection individually. You can save comments to edit later and or submit comments once you are happy with them.

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

You do not need to register to comment on the enforcement framework which can be found here. It has a link on page 5 to make comments.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/913272/Code_Enforcement_Framework_consultation.pdf

At the very least, we say the parking charge level should be £50/£25 or higher level £70/£35, as per Council PCNs in E&W.  

And we say the added fake 'debt recovery' costs are just double counting the cost of letters, and MUST GO because that is unfair and illegal.

Please be heard.  You can bet the hundreds of PPCs will be commenting.

No apologies for repeating this vital 'call for action' to consumers, on every thread this month!

disrepair

Here's another attempt at making a Witness Statement along with a Supplementary Witness Statement, as shown in the link on the NEWBIES post by ChefDave. Once I finalise everything and am ready to send it off (Court Case is on 6th October, I assume my last day is 22nd before 4pm? I'm trying to have it in on 21st before 4pm anyway just to be sure), I'll redact personal information and upload everything into a single post as a bunch of files in case it helps anyone, and maybe earn a spot on the newbies post as a 'hey check this one out as well'

Coupon-mad

I will if it's good!!

But check out the ones I wrote and gave you 2 links to read, above, as they are newer than Chefdave's and cover the Salisbury appeal, to kill that off.

disrepair

IN THE COUNTY COURT

Claim No.: XXXXXXXX

 

Between

 

             NAPIER PARKING LIMITED

(Claimant)

 

-and-  

 

 

           (Defendant)

 

__________

 

WITNESS STATEMENT

__________

 

 

1.     I am ------- , of [Address], the Defendant in this matter. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.  My defence is repeated and I will say as follows:

 

2.     On the date in question, the vehicle in question, registration mark XXXX XXX was parked at Willen Lake at the time of the alleged contravention. The driver had purchased a valid pay and display ticket (shown in XX/01).

3.     The registered keeper 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 emails 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.     Further research leads me to believe that the sum being claimed by the Claimant is excessive and unenforceable – reasons for which are discussed in the Supplementary Witness Statement, which is also attached.

6.     I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14, see XX/06 Schedule of Costs. 

 

 

 

 

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

Signed: XXXXXXXXX

disrepair

In the County Court at X
Claim Number:
Hearing Date: 06/10/2020

 

SUPPLEMENTARY WITNESS STATEMENT OF  (DEFENDANT)

 

1. Napier Parking is a member of the IPC, and their Code of Practice at the time (Version 7, January 2018, as seen in xx/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 xx/01, the PCN was issued a minute after the minimum recommendation. I assert that a reasonable minimum grace period was not given – bearing in mind the distance between Willen Lake and the car park itself, and the size of the lake, there are various points at which the car park used is the closest parking, however covering the distance could take up to 25 minutes on foot – therefore, the 11 minutes allowed as a grace period is not reasonable.

 

1. Further to this, the signage requirements are that ‘The size of text on a sign will be determined by a number of factors such as the position of it, to whom it is aimed and the information that it needs to convey. Text 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.’ However, as seen in xx/03, the signage is in a very small font and compared to the signage in ParkingEye Ltd v Beavis. 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'.  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.

 

1. Section 19.5 of the BPA CoP states that ‘if the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable. The alleged ‘debt’ exceeds the £100 ceiling set by the Code of Practice that Napier Parking operate under. Further to this, it is established in ParkingEye Ltd v Cargius that £100 is not a genuine pre-estimate of loss, as it is shown that there is no loss to ParkingEye from overstaying if a further payment is made.
   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 in order to deter motorists from parking without payment.  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. 
   However, there is no such legitimate interest the requisite fee has been paid, but there is a small overstay.  As such, I take the point that the 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.

 

1. Further emails sent to BW Legal (seen in exhibit X) asking for clarification on the legal basis of the additional charges resulted in replies simply stating that it had ‘already been explained’ and that it was in their recommended Code of Practice, which does not apply to the motorist – it applies to the parking company, with no real explanation being given of the legal basis behind this. The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process, tainting the claim as a whole - see exhibit xxx - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision stands. 
   
   

 

1. Whilst it is known that another case that was struck out on the same basis 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 costs twice.    The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.
   The Judge at Salisbury correctly identified as an aside, 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.'' 
   
   
2. 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.
   
   
3. This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

Redx

edit the claim reference out, there should be no name , address , claim number , pcn references , VRM details etc in any draft , replaced with anonymous characters

I believe that Napier were IPC members at the time of this incident , so followed the IPC CoP , so not BPA CoP and not BPA AOS members