Observice Parking Consultancy - Defence Advice for Court Claim

D_P_Dance

I am a bit confused, you told us this morning that you were ticketed  for parking in the wrong bay.  If there are no allocated bays you should have a slam dunk win in court, possibly with a counter claim.

Coupon-mad

You are not meant to look for an OPS WS, just use and adapt the single one that I show in the NEWBIES thread now.

And this weekend: An urgent task – deadline is MONDAY!

Please now make a real difference because not enough people have yet, and time is running out. 

The Government is consulting for just a few more days, about a new statutory code of practice (CoP) and framework intended to rein in the rogue parking firms. 

Does it go far enough?  Read and comment on the draft CoP proposal and the enforcement framework consultation (two separate consultation documents).

HOW TO DO THE SUBMISSIONS:

BSI PAS 232 – COMMENTING ON THE CODE OF PRACTICE AS DRAFTED :

1.    You will need to register then log in, to comment on the CoP and enter an occupation even if you are retired or a homemaker.  

 

2.    Register, log into the BSI page, and download & read the cover letter here:

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

 

3.    Read the cover letter again and note the suggested extra questions... if you agree that, say, the 'loading/unloading and dropping off, asking for directions, and disabled people parking on double yellows as they can on street' activities listed should be exempt (not parking events, what do you think?) then please go to the Annexes at the end of the PAS Code and find the one about Exempt Vehicles and state what other activity you think should be added to the exempt list. 

 

4.    Download the PAS itself and start commenting on what you wish to say something about.  Quick links to each section appear on the left of your page. 

 

You don’t have to comment on everything, e.g. you might want to skip the definitions and focus on later sections, and certainly look at the Annex tables at the end that show things like consideration & grace periods and exemptions.

 

5.    Submit comments when you are happy with them. Don’t just ‘SAVE’ and forget!

 

THAT IS HALF THE JOB DONE!

THE MHCLG CONSULTATION IS EASIER AS IT IS JUST A LIST OF QUESTIONS. 

 

6.    You can do it first if preferred or pushed for time:

https://forms.office.com/Pages/ResponsePage.aspx?id=EGg0v32c3kOociSi7zmVqAVPfAOtwRxLhHRwQ610oElUMzhQSVo0WUQ4SERVSEZaUU9DTUhFQ1VMUy4u

If your answers exceed 4000 characters (approx. 500 words to a single question or 16000 words (approx. 2500 words) for all the questions below, you can email your answers to parking@communities.gov.uk as long as you state who you are.

 

 

THESE ARE THE QUESTIONS YOU WILL SEE, FOR RESPONSES TO THE FRAMEWORK:

Q1 Do you agree or disagree that members of APAs should be required to use a single appeals service appointed by the Secretary of State?

Strongly agree/Somewhat agree/Neither agree nor disagree/Somewhat disagree/Strongly disagree

 

Q1.1 Please explain your answer

(free text)

 

 

Q2 Please provide any other feedback on the determination of appeals, including the funding model and features that an appeal service should offer e.g. telephone or in-person hearings, the ability to submit evidence online

(free text)

 

Q3 Please provide any comments you have on the proposal to enforce the Code by combining the ATA’s existing audit procedures with additional safeguards.

(free text)

 

Q4 Please outline any alternative means by which the Code could be monitored and enforced. You may wish to cite evidence from other regulatory frameworks which are relevant.

(free text)

 

Q5 Please provide any feedback you have on the proposed governance arrangements for monitoring the new Code of Practice

(free text)

 

Q6 Which parking charge system is most appropriate for private parking?

 a) the Three-tiered system

 b) Mirroring the Local Authority system

(free text)

 

 Q6.1 Please explain your answer. You may, for example, wish to make reference to other deterrent frameworks (for example, for railway tickets or traffic violations)

(free text)

 

 

Q7 What level of discount is appropriate:

40% as is currently offered in private parking and suggested in the three-tiered system, or

50% as is offered in Local Authority parking?

a) 40%

b) 50%

 

Q7.1 Please explain your answer, including whether the discount should be set at a different level

(free text)

 

 

 Q8 How should the level of parking charges be set and how should the levels be revised in future?

(free text)

 

 

Q9 Do you agree or disagree in principle with the idea of the Appeals Charter?

Agree/Disagree

 

Q9.1 Please explain your answer

(free text)

 

 

Q10 Do you agree or not that the examples given in the Appeals Charter are fair and appropriate? Agree/Disagree

 

Q10.1 Please explain your answer.

You may wish, for example, to suggest additional cases to be covered in an Appeals Charter or query existing examples.

(free text)

 

Q11 Do you agree or disagree that the parking industry should contribute towards the cost of the regulation?

Agree/Disagree

 

Q11.1 Please explain your answer.

(free text)

 

YOU CAN INSTEAD GIVE MORE CONCISE ANSWERS ONLINE, USING THE MHCLG PAGE LINK.

Don’t forget that answering these questions is the easier bit…

Looking at the BSI PAS (the draft code of practice itself) involves logging in and submitting comments again, and again and again and takes more time!

There is a discussion about PAS submissions and what the pages look like, here:

https://forums.moneysavingexpert.com/discussion/6195417/am-i-doing-something-wrong/p1

 

 

 

easytry16

D_P_Dance said:

I am a bit confused, you told us this morning that you were ticketed  for parking in the wrong bay.  If there are no allocated bays you should have a slam dunk win in court, possibly with a counter claim.

Sorry for the confusion, I parked in the bay which had no signs stating not to park in that bay, also I requested and checked the copy of my friends tenancy agreement and  there are no references made about parking motor vehicles apart from item 2.32 quoting “Not to store or keep on the Property or any communal car park, any boat, caravan or commercial vehicle without the prior consent of the Landlord or his Agent. Such consent will not be unreasonably withheld. (If order to avoid misunderstandings or disputes later, it is strongly recommended that the Tenant obtains confirmation in writing of any such consent granted) The Landlord reserves the right to withdraw, for reasonable grounds, and upon reasonable notice, any such consent previously given.

Coupon-mad

OK that gets added to the example WS from the NEWBIES thread, along with a full PDF copy as an exhibit, among the others mentioned in the NEWBIES thread that most people put in (their signs next to the Beavis sign ...Google it... is always good!).

easytry16

Hi Guys, any feedback on the below draft WS (Template used from NEWBIE thread) and any other queries would be much appreciated.

1.      I am Mr xxxx, of xxxx 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.

 2.      In my statement I shall refer to exhibits within the evidence 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 and signage

3.      The claims against me relates to parking charges that allegedly occurred at my friend’s current address for which he had ownership since xxth xx xxxx to present date (Exhibit 01 –Assured Shorthold Tenancy Agreement dated xx/xx/xxxx).

 4.       I have appended the actual signages, photographed in April 2020, and will refer to them throughout.

 5.      The car parking area contains parking spaces for residents, and there are no specific allocated bays for parking spaces to particular flats. The vehicles are required to be parked in spaces where available within the car park. Under the terms of the lease (Exhibit 01) there are no references made about parking motor vehicles apart from item 2.32 quoting “Not to store or keep on the Property or any communal car park, any boat, caravan or commercial vehicle without the prior consent of the Landlord or his Agent. Such consent will not be unreasonably withheld. (If order to avoid misunderstandings or disputes later, it is strongly recommended that the Tenant obtains confirmation in writing of any such consent granted) The Landlord reserves the right to withdraw, for reasonable grounds, and upon reasonable notice, any such consent previously given.

 6.       The approach and entrance to the car part is on a single carriageway with double yellow lines (Exhibit 02). The entrance to the residential car park is through a fob access gate (Exhibit 03).

 7.      At the point of entry, the viewable signage at the entrance sign states ‘Please Display Valid Parking Permit At All Times’ (Exhibit 04). At this point there was no display of terms and conditions nor any signs directing the reader to other signs for “full terms and conditions”. (Exhibit 03)

 8.      After finding a suitable place to park and displaying a valid permit on the car dashboard near windscreen which was clearly visible as required by exhibit 05. The permit that was displayed at the material date is shown in (Exhibit 05).

 9.      In this case, on 23/09/2017 when the PCN was issued, there was no sign adjacent to my vehicle, I had not passed any legible signs to park or not to park, and no signs in the vicinity could possibly be read from inside my vehicle. There was no signage or marking on the ground to indicate my vehicle was parked in a “No Parking area”. The car was parked at the location shown in (Exhibit 06 & 07), the wall adjacent to the car park bay showed no signs either.

 10.  Other cars parked in the parking bay when photo was taken in April 2020 (Exhibit 08). The only signs that were present at the location is shown in (Exhibit 09). Again, not stating anything relating to the parking bay.

 11.  I checked with my friend, who was most apologetic and told me he had no idea there were any parking restrictions on the site apart from parking and displaying the valid permit. He then checked his tenancy agreement of any restrictions and there are no terms within the lease requiring lessees to park vehicles within any particular bays.

 12.  On a subsequent visit to the site (14 April 2020) I was able to determine that additional and new signage had been added by The Claimant since the date of my alleged contravention. One of these signs (Exhibit 10) has been placed at what I now understand to be the start of The Claimant's “jurisdiction” (for want of a better word) on the site. They have also placed some new signs on the right-hand side of the car park at the entrance (Exhibit 11). Whilst still very poor, these additional signs are a clear indication that the Claimant was well aware that their signage was woefully inadequate on the material date and have since taken some steps to attempt to improve this.

 13.   I’d like to also state the Claimant did not display clear, large, prominent signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case. (Exhibit 12 pictures of Signage). From the pictorial evidence you can see that there is no signage at the location in question as shown in exhibits 06 & 07.

 14.  I did, at all material times, park in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.

 The Beavis case is against this claim

15.  The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

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.

 17.  However, in Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

 Abuse of process - the quantum

 18.  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 - Exhibit 13 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

 19.  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.

 20.  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 preBeavis 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.''

 21.  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.

 22.  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 (Exhibit 14), 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.

23.  Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all, but the official CMA guidance to the CRA covers this and 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, even if the added sum was on the signs.

 CPR 44.11 - further costs (Exhibit 15)

 24.  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).

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

 25.  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.

 26.  The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs 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.''

 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.

KeithP

Paragraph 8 - The first sentence isn't good and needs adjustment. 
Maybe something like:

8.      I left the vehicle after finding a suitable place to park and as required, displaying a valid permit clearly visible on the car dashboard near windscreen.

It is a usual convention to label exhibits with the writer's initials followed by a number.
For example, if your name was Mr Easy Try, then exhibits would be labelled ET01 - ET99 rather that Exhibit 01 etc.
This avoids possible confusion with the exhibits of other parties.

easytry16

KeithP said:

Paragraph 8 - The first sentence isn't good and needs adjustment. 
Maybe something like:

8.      I left the vehicle after finding a suitable place to park and as required, displaying a valid permit clearly visible on the car dashboard near windscreen.

It is a usual convention to label exhibits with the writer's initials followed by a number.
For example, if your name was Mr Easy Try, then exhibits would be labelled ET01 - ET99 rather that Exhibit 01 etc.
This avoids possible confusion with the exhibits of other parties.

Thanks KeithP, points taken onboard, will update accordingly. Do you think the rest of the WS is good enough to be submitted?

Coupon-mad

Looks good to me.  Have you done your costs and cover sheet/index too?

easytry16

Coupon-mad said:

Looks good to me.  Have you done your costs and cover sheet/index too?

Thanks Coupon-mad, yes have done it based on the template in the Newbie thread, also prepared the draft order based on the Luton case (except adding details in the footer to the word doc). My telephone hearing is on 28/10/2020, and the letter from the court states both parties need to submit their witness statements and supporting document 14days before the date of hearing, so I am looking to submit first thing tomorrow morning, I haven't received the WS from the Claimant. OPC is using DCB legal as their legal representative, so should I be emailing my WS to DCB legal or OPC? Also, I am thinking to include them in the same email that I am sending to the court, I guess that way court can see we have sent the documents to the Claimants as well.

nosferatu1001

The claim form instructs you where documetns are to be served. Almost certainly it will be to DCB
CC'ing in is no bad idea.