BW Legal court date received for case against Premier Park

jacksparrow2000

Hello
Can anyone proof my witness statement please? BW Legal are taking me to court in 6 weeks time.
In short i parked for 20 mins in a car park outside a subway restaurant to get a sandwich, turns out it had ANPR and was owned by the neibours Vets 4 Pets. I refused to pay as I dont think the signs are great and it was on a Sunday when Vets for Pets doesnt even open. Please google maps "subway merryoak, Southampton" and look at street view.
Ive tried to read various reviews and came up with the below but any help would be appreciated, thanks! Ive had 2 letters from BW legal since the court date was issued trying to settle, i guess this is a positive and they think they may lose? I do have some photos of the site obtained from google which show the signage before and now, ill include as evidence.

Thanks again

WITNESS STATEMENT

I, (DEFENDANT) of (ADDRESS), being the Defendant in this case will state as follows:

 

1.       I am (DEFENDANT), the defendant in this matter and the facts in this Witness statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

 

2.       It is admitted that I was the registered keeper of the vehicle concerned, but the defendant cannot confirm being the driver at the time of the supposed event. There is no evidence of the driver, and I do not recall who might have been driving. The defendant therefore puts Premier Park to strict proof that any contract can exist between the Claimant and themselves.

 

3.       I initially received a letter, from memory, a few weeks after the apparent offence, which stated the driver had been caught out by this trap and should pay the £100.00 parking charge. I ignored this letter as I did not take this seriously due to bad advice given online, and did not keep copy of this letter.

 

4.       After the initial letter requesting payment of £100, I recall receiving a further letter in June 2018 from what looked like a scam debt collection agency, apparently acting on behalf of Premier Park, named ZZPS. The initial fine had now escalated to £182.00 and I was being threatened with a CCJ and debt collectors coming to my house, none of which they had the power to enforce. As keeper there was no requirement for me to respond to the alarmist notices that appeared to be threatening scam mail in early 2018. This was not an offence or fine from an Authority like a council, and there was no reason or obligation as registered keeper to appeal to what appeared to be scam mail impersonating a parking ticket.

 

5.       The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes additional charges for which no detailed explanation is given, and which appears to be an attempt at double recovery.

 

6.       Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

 

 

7.       The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

 

8.       It is denied that the Claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

 

9.       The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would need to stand directly in front of them. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

 

10.   The signage has been upgraded since the apparent offence in December 2017. There is now additional signs at the site, all larger and arguably clearer. Why did the claimant feel the need to upgrade the signage at the site if already adequate? I would also argue that they are still positioned to catch out unsuspecting motorists as they are not at drivers eye level or readable from a vehicle.

 

 

11.   At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

 

12.   Running a hidden ANPR camera data stream, is against the rights and interests of thousands of unsuspecting but circumspect visitors to the Subway Restaurant at this site, who are being caught out regularly by this trap.

 

13.   These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibtions in the Consumer Protection from Unfair Trading Regulations 2008.

 

14.   The Defendant avers that the signage at the site in question is woefully inadequate and extremely unclear. The small signs in the car park at the time of the apparent offence do not state clearly that it is affiliated with Premier Park, nor that ANPR camera is in use.

 

 

15.   The PremierPark affiliated signs within the parking area are equally as hidden and therefore misleading. The unnclear signs were not within a driver’s line of sight. Furthermore there are no clear signs that were 'bound to be seen' between where the Defendant believes the car was parked and the entrance to the Subway restaurant. It could be argued the sign on the right hand side of the car park entrance is an exception, however when approaching form Tescos with a view to park the sign is never in the line of sight of the driver, and even so only indicates the area is Private Land. Why would a driver have any reason to believe this car park was not for Subway customers.

 

16.   This regime in a car park that was free for many years and had been used many times before without charge is damaging the reputation of the Subway restaurant, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. In addition to various online feedback where drivers appear to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against.

 

17.   No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

 

18.   I initially received a Letter Of Claim from BW Legal dated 12th July 2019, and responded via email in acknowledgement of this. The letter informed that I was being pursued for a charge in to the amount of £160 rising to an estimated total of £247.84, a ludicrous inflation of the alleged parking charge. In the Beavis case, it was held that the £85 'parking charge' was already significantly inflated for profit and that there were no damages or losses/incidentals that a parking firm not on possession, could lawfully claim.

 

19.   The claimant may state that if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case.

 

20.   This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and interests of the landowner. Strict compliance with the BPA(CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case. In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question!

 

21.   I have no liability as I am the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges. a. The driver has not been evidenced on any occasion b. There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of keeper liability as set out in Schedule 4.

 

22.   It is contended that the signs that were in place at the location were unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract.  In reference to the British Parking Association Code of Practice, in which it states under appendix B, entrance signage: -

 

a.       “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

b.       "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"

 

23.   The amount claimed includes charges that the Claimant has charged without any detailed explanation as to how it has been calculated. There is a discrepancy between the charge for breaching the claimants terms and the amount claimed on the particulars of this claim.

 

24.   The apparent breach happened on a Sunday. The client Vets 4 Pets does not even open on a Sunday and therefore suffered no loss of revenue.

 

 

Umkomaas

What did your Defence say?  

I'd leave out #24 as that is no defence, not unless you believe that any private car park is fair game to park on when the store is closed. Good luck arguing that with the Judge. 

jacksparrow2000

Thanks. I saw somewhere no loss of revenue was a good argument? 

My defence was probably not great to be honest. I should have seeked help first possibly. This is what was registered with the court as a defence:

"I wrote to Premier Park back in February 2019 after their initial threats to tell them I refuse to pay due to the following reason:

-Inadequate signage at site at the time of apparent offence. Signage has actually been upgraded since the apparent offence. New signage is now much larger and alot clearer with visable P letter indicating parking restrictions. For this reason alone Premier Park are admitting signage was inadequate at the time of the issued PCN.

-The driver did not acknowledge the sign detailing parking regulations so did not enter any contract, meaning any charge is

void.

-Charge is completely unreasonable for stopping 20 minutes on a Sunday, especially given the client Vets For Pets is not open for business on a Sunday.

-The driver parked there on a Sunday visiting the Subway restaurant located in the car park, believing it was for the

Subway restaurant. The client vets 4 pets does not even open on Sundays and the car park was completely empty. No effect on the business or loss of revenue. After speaking with Subway restaurant. I understand the driver was by far not alone being caught out by this parking system at this site.

-The car park had previously been free to park and been used many times before without charge.

In addition to the above I have been sent multiple threatening letters from Premier Park and their associates telling me they

will issue me with a CCJ and would be sending debt collectors, both of which they have no power to enforce. They have caused me a great deal of stress and anxiety with their approach.

I believe the above to be a good enough defence against this claim, however, if this is not deemed the case I would be prepared

to settle with a payment for a reasonable amount for 20 minutes parking on a Sunday where by the stopping had no effect on the

client Vets 4 Pets and no loss of revenue to them."

bargepole

jacksparrow2000 said:

Thanks. I saw somewhere no loss of revenue was a good argument? 

It was, up until the Supreme Court ruling in the Beavis case in 2015.

Now there doesn't have to be any loss of revenue, all the parking company has to demonstrate is that there is a legitimate interest in deterring abuse of the parking facility.

So unless you want to guarantee to lose the case, I suggest that you remove that paragraph.

Umkomaas

Thanks. I saw somewhere no loss of revenue was a good argument? 

Not since The Supreme Court Judgment in the Beavis case almost 5 years ago. 

In many respects my comments re para 24 of your WS are rather academic given that a significant chunk of your Defence centres around 'if the store is closed I'll park on their private car park because they suffer no loss of revenue'! 

See what others say, but while we have major success helping people succeed at court, sometimes damage is done before we become involved. 

jacksparrow2000

Thanks Bargepole. This is all a minefield to me, appreciate the help.

jacksparrow2000

Umkomaas said:

Thanks. I saw somewhere no loss of revenue was a good argument? 

Not since The Supreme Court Judgment in the Beavis case almost 5 years ago. 

In many respects my comments re para 24 of your WS are rather academic given that a significant chunk of your Defence centres around 'if the store is closed I'll park on their private car park because they suffer no loss of revenue'! 

See what others say, but while we have major success helping people succeed at court, sometimes damage is done before we become involved. 

I didnt really take this seriously until the court date. Still hopeful that BW Legal seem keen to settle this with me, but still the lowest offer was £160 and ive come this far! Also the court papers threatened to strike out the claim if BW Legal dont pay the trial fee and file a properly completed application by 4pm on the 18th June. Fingers crossed!

Coupon-mad

No, that won't happen. The case will proceed further but stop thinking about settling a 3 figure sum!

Umkomaas

jacksparrow2000 said:

Umkomaas said:

Thanks. I saw somewhere no loss of revenue was a good argument? 

Not since The Supreme Court Judgment in the Beavis case almost 5 years ago. 

In many respects my comments re para 24 of your WS are rather academic given that a significant chunk of your Defence centres around 'if the store is closed I'll park on their private car park because they suffer no loss of revenue'! 

See what others say, but while we have major success helping people succeed at court, sometimes damage is done before we become involved. 

I didnt really take this seriously until the court date. Still hopeful that BW Legal seem keen to settle this with me, but still the lowest offer was £160 and ive come this far! Also the court papers threatened to strike out the claim if BW Legal dont pay the trial fee and file a properly completed application by 4pm on the 18th June. Fingers crossed!

It doesn't cost you anything to keep this going in the hope that the trial fee/associated paperwork aren't filed by the due date, or the bureaucratic complexities and burdens placed on the Claimant to bring a court hearing to fruition, caused by the C19 virus, might see them discontinue. While you need to continue to comply with the current requirements placed on you by the court (to avoid a judgment in default), now is not the time to panic and capitulate.  You are 6 weeks away from your hearing date ...... if it gets that far. 

jacksparrow2000

Thanks all. I still believe I have a pretty good argument regarding signage with date stamped captures from google street view showing the upgrades. Offence was in December 2017 so i guess PP would have to provide evidence upgrades were done before the offence, but i'm sure the additional signs were not there.

July 2017
https://www.google.co.uk/maps/@50.9090301,-1.3603653,3a,75y,62.56h,76.97t/data=!3m7!1e1!3m5!1sP-7_7-tlnMHLwG81hoqG0Q!2e0!5s20170701T000000!7i13312!8i6656

Additional signs added - May 2018
https://www.google.co.uk/maps/@50.9090699,-1.3603957,3a,75y,73.1h,87.58t/data=!3m7!1e1!3m5!1sjyRpHst8n0Y6r-ONbFLGgw!2e0!5s20180501T000000!7i16384!8i8192

Further upgrade (sign added at subway entrance) - June 2019
https://www.google.co.uk/maps/@50.9090722,-1.3603881,3a,32.4y,67.45h,87.47t/data=!3m6!1e1!3m4!1sqXtArA9tHaCwcljq245XZw!2e0!7i13312!8i6656

Le_Kirk

That reads more like a defence than a witness statement (WS), hopefully you put most of that in your defence.  Defences are written in third person, so for example you would say "the defendant" rather than "I" and WSs are written in first person.  You have a mix of the two.  You "put the claimant to strict proof" but that is a phrase normally associated with a defence.  A WS "is in support of my defence as already filed" and is a narrative, your story of what happened on the day and subsequently and should not repeat the defence; rather it backs up and supports the defence with evidence.  Your paragraph about the driver is confusing.  If you were not the driver on the day, you need to say so (but only if it is true) and not leave it open to interpretation (by the judge).  If you were not the driver, you seem to know an awful lot about the signs; of course you could have been a passenger in the car that day or you could have returned at a later date - on foot - to conduct research.