Claim form received, please I need guidance!

Fruitcake

There is also a small area that appears to be big enough for a few cars to park, outside the scam zone defined by the red line, near the top left of the car park near the "ley" of Wembley Park Drive.

IF you cannot remember where the car was parked, you should require the scammers to prove the car was not parked outside the area marked by a red line on their map/plan.

pawless_patrol

Fruitcake said:

There is also a small area that appears to be big enough for a few cars to park, outside the scam zone defined by the red line, near the top left of the car park near the "ley" of Wembley Park Drive.

IF you cannot remember where the car was parked, you should require the scammers to prove the car was not parked outside the area marked by a red line on their map/plan.

That's the exit from the McDonalds drive thru, no parking there

Coupon-mad

But as the claim is for overstay, isn't it possible that the initial 10 - 15 minutes were in traffic at the drive-thru, and that the parking was in fact not more than 90 minutes?

pawless_patrol

Coupon-mad said:

But as the claim is for overstay, isn't it possible that the initial 10 - 15 minutes were in traffic at the drive-thru, and that the parking was in fact not more than 90 minutes?

I overstayed for quite a lot more than 10-15 minutes 

pawless_patrol

Hi all, apologies for expecting people to look at my WS on a bank holiday. It's ok if you don't, I'm already eternally grateful for all the help received and to give me a chance to fight. 
Here is my last version of my WS. I added the paragraphs suggested by @fruitcake. Not sure whether I should add a summary of my main points at the end.

WITNESS STATEMENT OF DEFENDANT 

1.  I am <NAME> of <ADDRESS>, and I am the Defendant against whom this claim is made. I represent myself as litigant-in-person, with no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional. The facts 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.  On the material date, 4th August 2017, around 10:30hs I visited the Wembley Stadium Retail Park (Wembley Park Drive, Wembley) with my XXX child and a friend who was visiting from another country and does not speak or read English. I turned into the main entrance of the carpark and then turned left to park on the left area of the carpark, with my vehicle (XXXX) facing the entrance road. I did not notice any sign that would clearly warn me that there was a limited time for free parking on the site.

4.  We spent the time at the retail park browsing goods at Curry’s, buying groceries at Lidl and having a meal at McDonald’s. We left the site around 12:40hs.

5.  I didn’t receive any Parking Charge Notice (PCN) or Reminder Notice (RN) at my current address at that time, XXADDRESSXX. I had moved to that property in August 2016 (Exhibit XX01 shows Letting contract and utility bill) after splitting up with my ex-partner and leaving the house we shared at XXADDRESSXX. Although I had requested redirection of my post for at least 6 months and updated my address in my official documents and bills including my driver licence, I inadvertently missed updating the address on my V5C. The house in XXXXX was inhabited since my ex-partner had also moved out, therefore it wasn’t until sometime in October 2017 when we sold the house that I managed to get hold of post delivered at the property. It was only at that time that I became aware of the PCN and RN issued against me, however it was too late to appeal.

6.  Shortly afterwards I returned to Wembley Retail park to inspect the signage in place as I could not recollect having noticed any sign informing of a limited time to park and the charges incurred in case of a breach. It was only then, after parking and closely approaching one of the signs, that I managed to read the small type fonts on the sign informing of the 90 minutes’ maximum stay and a parking charge of £100 in case of breach of the terms and conditions (T&Cs).

7.  The signage in place is inconspicuous and does not comply with the International Parking Community (IPC) Accredited Operator Code of Practice requirements in terms of visibility and font size for a driver to be able to clearly read the T&Cs upon entering the site or parking. Schedule 1 of the aforementioned document (v6, 14th June 2017, page 23 & 24) states that, on a sign “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”. On page 24, on signs “intended to form the basis of contract between the creditor and the driver”, signs must “contain text appropriate to the position of the sign and the relative position of the person who it is aimed at”.

8.  Signage in place fails to engage the attention of visitors. Exhibit XX02, which also forms part of the evidence presented by the Claimant in page 13 of its witness statement (WS), is a photo of a sign taken from a distance of approximately 1m. Even at that close range, the small fonts of approximately 1 cm detailing the limited time to remain on the carpark and the penalty charge in case of breaking T&Cs are barely legible. Also, the position of the signage present, either at the carpark or on the border of the pavement by the shops, meant that once I reached the shops I was no longer able to see/read them as I was facing the back of the signs when walking on the pavement from one shop to the next one. The position of the signs by the shops can be seen in Exhibit XX03.

9.  The extent of the inappropriateness of the signage in place, together with the short maximum time allowed for free parking in a retail park with several shops, supermarket and restaurant is strongly suggestive of use of predatory and misleading tactics.

The Beavis case is against this claim

10.  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 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.

11.  However, the signs in the ParkingEye vs Beavis case were clear, as stated by Lord Toulson in para 298 “The requirement was displayed in bigger and bolder letters than anything else”, as opposed to the signage alluded in the present case.  Exhibit XX04 shows a comparison side-by-side of the signage from the Beavis case vs. the signage from the present case (as shown in Claimant WS page 15). This comparison emphasises the inconspicuous nature of the Claimant’s signage and distinguishes the Beavis case from this claim. The absence or concealment of signage and varying acceptability of parking areas are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

12.  Even taken as an extreme close-up, with no proof as to its visibility from the parking area, the sign that the Claimant has presented as evidence has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, even if I had seen signage of the sort presented by the Claimant – which I didn’t as it was inconspicuous – no contract to pay an onerous penalty would have been seen, known or agreed.

13. The Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality (Exhibit XX04). It is noted that the Claimant is relying on an undated Google aerial view where an unidentified person has dotted markings all over the image as a way of signaling the presence of signs yet with no evidence that this is true. As a matter of fact, the number of alleged signs on the “aerial view” (Claimant WS page 4) are more numerous than the number of actual signs visible in exhibits from pages 5 to 15 of the Claimant WS. Nowhere in its WS it is stated that the images presented in pages 5 to 15 are a sample and not the total number of signs present at the carpark. I can only assume that the number of signs at the carpark are deliberately misrepresented.

 14.  Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule'. 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 (despite the Claimant claiming it is in their WS), 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. 

pawless_patrol

Abuse of process – the quantum

15.  In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is disingenuously described variously as “debt collection costs”, “additional charges levied to cover the cost of recovery”, “additional administration costs”, “debt recovery costs”, “initial legal costs” and “recovery costs”. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is Exhibit XX05). The Judge concluded that such claims are proceedings with “an improper collateral purpose”. Leave to appeal was refused and that route was not pursued.

16.  After hearing this “test case”, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

17.  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.

 

18. 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.''

 

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 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.

 

20. 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 XX06), 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.

Obscure Landowner Contract

21.  The Claimant has appended an obscure ‘Contract Schedule’ which has little or no probative value and which offends against the rules of evidence. According to Section 43 of the Companies Act 2006, a Simple Contract as defined by the Act must be signed by someone from each party having express or implied authority. Express authority would be the owner(s), or an officer of the company such as a director, company secretary, or a person with significant interest in the company, or someone expressly named by the above.
Implied authority would be a position within the company named by the owner(s), or named by an officer of the company, or the named position would be included in the company's articles of association.

22.  The ‘Client’ signatory of the ‘Agreement’, Mark Turner, is not, nor has he ever been an officer of the Client, Wembley Park Limited, company number 00223957 (https://find-and-update.company-information.service.gov.uk/company/00223957/officers and Exhibit XX07). It is averred that he has neither express or implied authority to form a contract on behalf of the Client with a third party. The signature could be from anyone, even a stranger to the land, and the Claimant provides no evidence that the ‘Client’ is the landowner.

23.  In addition, the document has not been validly executed in accordance with Section 44 of the Companies Act 2006 because it has not been signed by two authorised persons from each party. The Act defines authorised persons as a director or company secretary. In case number F1DP92KF heard in the Truro County Court on the 3rd of July 2020, District Judge Simon Middleton found that, "Claire Williams could not have signed the contract on behalf of the owner because she is not a director of the owner."
My case is identical. Mark Turner could not have signed the contract on behalf of the owner because he was not a director of the owner.

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

24.  Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

CPR 44.11 – further costs

25.  As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. This has caused a tremendous disruption to my job and personal life, already under great strain due to the nature of my job as a key worker scientist heavily involved in the research and diagnostics of COVID19 (Exhibit XX08 constitutes my key worker letter) together with juggling child caring as a single mother during the pandemic. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain and the fear for the safety and the integrity of my credit records.

26.  Therefore, I am appending with this bundle a fully detailed costs assessment (Exhibit XX09) which 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 first draw the Court’s attention to the fact that the signage in place was entirely inadequate, and that any terms or conditions of parking outlined on such placed signage could not be binding.

27.  Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.

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.

 

pawless_patrol

Here is the link to the full (redacted) WS with exhibits
https://drive.google.com/file/d/1i8bf9zM567YTQ7JtqHpxx-yafIAwB535/view?usp=sharing
My deadline to submit my WS is tomorrow.

Coupon-mad

I'd change this:

We left the site around 12:40hs.

to 

we returned to the car some 2 hours later, still with no idea that there was supposedly a restrictive time limit for this medium/large multi-store location.  There cannot have been the sort of conspicuous terms that were displayed in the ParkingEye v Beavis case because there were certainly not any signs that were 'bound to be seen' at the entrance road or within.

pawless_patrol

Coupon-mad said:

I'd change this:

We left the site around 12:40hs.

to 

we returned to the car some 2 hours later, still with no idea that there was supposedly a restrictive time limit for this medium/large multi-store location.  There cannot have been the sort of conspicuous terms that were displayed in the ParkingEye v Beavis case because there were certainly not any signs that were 'bound to be seen' at the entrance road or within.

Thanks Coupon-Mad, I will edit/add that

pawless_patrol

Good morning, I'm about to submit my WS. Just added a paragraph at the end to support my argument on the isue of the validity of contract between claimant and landowner:

28. Secondly, the Claimant had no valid agreement with the landowner and as such no authority to manage the car park and specifically, for the purpose of this case, no right to issue and enforce the PCN, nor to seek to recover any other losses or costs arising from either its issue or the Defendant’s use of the car park on that day.

I also added the picture of the 2nd page of the Truro judgement as I thought this was too good to not include it. Unfortunately there is no available copy of the entire judgement, isn't it?