PPS delayed payment on entry advice

SayNoToPCN · 6 April 2021 at 1:07PM

Use what I said above
The reason to distinguish from Bevais is due to the fact the charge becomes a penalty. Private companies cannot levy penalties to consumers

Devonisheaven11 · 6 April 2021 at 2:00PM

1. I am Mr , 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. I have appended photos of the unsuitable signage and will refer to them throughout.

4. The approach to the car park is on a single-track road which leads to the gated entrance with a wall and foot path on the passenger’s side. The foot path is in close proximity to the road, so it is important to stay focused on the view ahead. The entrance is very narrow and there is a large distance between the car and the sign (exhibit xx-01). Upon closer inspection by foot, the entrance sign only states that it is a pay and display car park and does not include the car park terms and conditions.

5. After passing the entrance gate there is a parking information sign mounted low on the opposite side of the road (exhibit xx-02). This sign includes the car park terms and conditions however this is not visible or readable especially when driving next to a path. The only safe way to stop to view the car park terms and conditions is by entering. The only way to view the signage is by visiting the pay and display machine sign (exhibit xx-06 and xx-07) or by viewing the other signs by foot after parking the car (exhibit xx-04). It should be noted that none of the signage mentions that tickets must be purchased within 10 minutes.

6. After finding a suitable place to park I made my way out of the car and across the car park. Then, I endeavoured to fully understand the terms and conditions signage around the car park as I was highly aware of how purposely deceiving private parking terms can be.

7. I made my way towards the pay and display signage to read the smaller print that cannot be read from the car. I tried my best to read all the terms however the extremely small print and low height made this very difficult (exhibit xx-07). After reading the signs I returned to my car to find some cash. After searching my purse, I discovered that I did not have the full amount required for the 2 hours stay that I had planned.

8. I had planned to meet a friend halfway between Andurn point and Heybrook bay, at a little cove we like to visit. This is a moderate distance from the carpark, but I hoped that they might have the extra cash I needed to purchase the ticket. I then began my walk along the coast path and eventually met my friend and explained the situation. Thankfully, they had the required cash and we agreed to meet later after I had sorted the ticket situation.

9. After this I was able to make my way back to the pay and display machine to pay. The walk there and back took a while which explains the payment 58 minutes after entering the car park. I paid for a full 2 hours to allow for some time to safety make my way out of the car park. My total stay time was 1 hour 6 minutes and 38 seconds. Therefore, before I had left the car park, I paid in full for the entire time I stayed.

10. I was shocked to later receive a PCN in the post and now am asked to pay an inflated charge of £160. This is not because I did not pay fully for my stay (which the claimant also agrees I did), but because I paid later than the Claimant would have liked.

11. The Claimant had not stated a set time that the payment needs to be made, therefore making the basis of their case invalid. It is also not listed in the contractual terms that the Defendant can be punished for 'paying late’ and even if it was a listed term, the Supreme Court case of ParkingEye v Beavis confirmed that the purpose of a parking charge must never be to merely punish a driver.

12. I did not gain any advantage from paying ‘late’ and there is no overriding commercial justification for the claimant to have issued a parking charge in these circumstances.

13. 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'. I have included a copy of this sign in exhibit xx-09 for comparison. 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 Beavis case is against this claim

1. 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.

2. However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. 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.

Abuse of process - the quantum

1. 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 - see exhibit xx-12 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

2. 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.

3. 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.''

4. 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.

5. 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 - xx-10), 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.

6. This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ, and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I am local and took the evidence photographs appended to this statement myself (on November 24th 2019). I can state from my own knowledge that there are nothing like that many signs in this car park and nothing beside the Pay & Display machine about a risk of paying £100 or about paying within 10 minutes. There is a tariff list in large lettering and nothing more at the machine where the keys are input.

7. 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 (despite the Claimant

claiming it is in their Witness Statement in writing and by appending signage that does not exist at the car park), 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

8. 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 I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery. This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

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

9. 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.

10. 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.

Devonisheaven11 · 6 April 2021 at 2:02PM

I have adapted the template, I hope what I have included still applies to my delayed payment case?
Thanks

SayNoToPCN · 6 April 2021 at 3:04PM

How many defences did you read?

To start every para has a number, and it is a SINGLE sequence. Never restart.

You only show us what you changed from the template. And you have not used the current template but an old one.

The background - para 2 and 3. Is meant to be a short summary of the facts. Not a narrative. You know, because the newbies thread has you covered on this, the WS covers the full sequence of events.

Devonisheaven11 · 6 April 2021 at 3:13PM

SayNoToPCN said:

How many defences did you read?
To start every para has a number, and it is a SINGLE sequence. Never restart.
You only show us what you changed from the template. And you have not used the current template but an old one.

The background - para 2 and 3. Is meant to be a short summary of the facts. Not a narrative. You know, because the newbies thread has you covered on this, the WS covers the full sequence of events.

I don't know why they copied like that, the paragraphs are numbered in a single sequence on my PDF.
I thought that was the most up to date WS template, I did try to confirm this in a previous post? I used the copy robertcox999 posted that coupon mad had helped.
Before sending it off I edited out my mistakes and removed any of the statements that I wasn't completely sure applied to my case.

SayNoToPCN · 6 April 2021 at 3:28PM

The point is we don't need to see the template again. Only show us your para 2 and 3 (or maybe 4 or 5, but rarely is this needed). Nothing more.

It's easy to find the template - it's a sticky thread named as such.

Before sending off? What!? Have you already filed your defence?! No one said to do that!

Devonisheaven11 · 6 April 2021 at 3:37PM

SayNoToPCN said:

The point is we don't need to see the template again. Only show us your para 2 and 3 (or maybe 4 or 5, but rarely is this needed). Nothing more.
It's easy to find the template - it's a sticky thread named as such.

Before sending off? What!? Have you already filed your defence?! No one said to do that!

Ok that's fair enough, I just wanted to make sure the other points were valid for my case.
I used the recommended templates for both and have already filed my defence. My telephone hearing is in July and the court requested a WS.

SayNoToPCN · 6 April 2021 at 3:46PM

The template is a template. You don't ask if the other sections are valid by simply copying and pasting them in - because we don't know that's why you're doing so! You need to read and ask questions which are specific as to why you don't think a trm0late is suitable for you.

So your defence is filed
have you written your WS? When is the deadline?

SayNoToPCN · 6 April 2021 at 3:51PM

Gah. Sorry tired day!

There isn't a true template for witness statements, as the facts vary so much.

What you can do is read other WS and copy in suitable para, but you have to know if they fit your defence or not. Your WS is there to support YOUR defence, no one else's. You are signing the statement of truth, no one else!

I would say that para 1 - 13 can be made shorter. You don't get paid by the word, and too long a WS is confusing for everyone.