Defence - Countrywide Parking Management & BW Legal

Umkomaas

EXCEL v WILKINSON JUDGMENT

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V%20Excel%20v%20Wilkinson.pdf?dl=0

add some words about Excel v Wilkinson, into the usual point about the added £60.

 e.g. your extra paragraph could say:

 At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

Le_Kirk

jrhys said:

7.         Two weeks following the 8th January 2020, I passed by the site and saw a new entrance sign for the first time. I believe the Claimant intended to have entrance signage up at the site on the day in question, but had not yet erected any, and instead rushed to erect such signage after the fact to attempt to make money from drivers who had no opportunity to learn of any terms on that date.

8.         On 3rd December 2020, I passed by the site again and could not see signage up at the entrance. Exhibits XX-03 and XX-04 are photographs of the entrance to the parking area, taken from inside my car, showing that there is no visible signage upon forwards entry – as was the case on 8th January 2020.

9.         In addition to highlighting the absence of entrance signage, Exhibit XX-03 shows a car parked in a similar position to the one I parked in on 8th January and what appear to be painted parking spaces, demarcating the area in which I parked as a Claimant-approved place to park. This evidences the reasonable and considerate nature of my parking on the date in question. These photographs can also be considered a demonstration of the number and frequency of changes made to the signage in and around the parking area.  

Are your dates right here?  Seems an extraordinary amount of time between visits, as any number of signs could have been erected and dismantled in that time.

jrhys

Le_Kirk - Yep and it's sort of my point. The point I'm trying to make (but subtly, since I feel obliged not to use their WS since I'm beyond the submission deadline) is that in their WS they refer to a signage plan and pictures taken days prior to the claim, but the judge can't rely on these (and their use is indicative of the unreasonableness of the claim) since they put up, move and take down signs all the time.

What with Covid I didn't go for many non-essential trips and my workplace was closed (which is near the site). Wish I had taken photos on the day or on that drive-by, but didn't engage with the process until much later.

SayNoToPCN

Dont be subtle. You can use their WS. Just make the point plainly. 

jrhys

SayNoToPCN - Is it not better to address their WS in a concise written response to their statement? - which could then be submitted before 15 April in accordance with the court's Order?

SayNoToPCN

Do either, just get it done!
Youre now quite a few days past


The point I am making is just make your point plainly: they do not have photos from before teh contravention, only something X months after. You aver the signs they claim are NOW there were NOT there. 

jrhys

roger. Done and sent.

redacted WS below.

https://drive.google.com/file/d/1GxivGH6D0WJB5YcP6PqZuDMvF6QXduJn/view?usp=sharing

Coupon-mad

That's really good, in fact a shining example of a WS and evidence. 

Let's hope the Judge allows it, if not, use it as your crib sheet at the hearing and call them out on their lack of evidence over the phone.

The only thing you didn't expand on is lack of landowner authority, putting them to proof of their authority and boundary of enforcement, and start/end dates of any such contract, but as long as that point was in the defence (and it is in the forum's example defences as standard) then you can also attack that in the hearing.

jrhys

thanks!

I tried not to use anything from their WS that i didn't have access to prior to them sending it, so couldn't really say much on the contract.

I plan to bring it out in the written response to their WS that I'm drafting (and would appreciate the team's help with).

jrhys

first half of draft response below - not sure how long (or snarky) to go with it. any ideas?

BWL's WS for reference
https://drive.google.com/file/d/1ijWshQ7y6OJVwu6yvUVU8JwSM6dTTF4J/view?usp=sharing

____

Usual stuff (me v them etc.)

____

A.            I have responded concisely to a subset of the points in the Claimant’s (template) witness statement (padded with irrelevant images and poorly worded sentences) below and prepend a short summary of my response.

B.            In summary, the Claimant’s witness statement fails to provide any evidence that there was either the signage in place at the site in question at the material time on the material date to be able to reasonably bind any persons to any Terms and Conditions, nor a valid flow of contractual license in place between the Claimant and the landowner to sue visitors, and as such the Claimant has no Cause of Action.

C.            Further, in a blatant act of misconduct, the Claimant has tried to deceive the Court by including irrelevant evidence of alleged prior signage in appendices P3 and P7 that clearly contradict the relevant evidence of a lack of signage on the material date presented in appendices P16, P23 and P25. Such misconduct as this and the charge for double recovery underlies my claim for further costs. 

BACKGROUND

6.             The Claimant has appended a redacted ‘Customer License Agreement’ (Agreement). The start date of the Agreement should be noted as being 7th January 2020. On the matter of the Agreement, it has no probative value since:

a.              Whilst the Agreement contains mention of a start date, the signatures are not dated. There is therefore no proof that the contract was signed prior to the alleged parking event.

b.             The document has not been signed by two Directors of either company, nor by one Director in the presence of attesting witnesses. As such the Agreement cannot – according to the Companies Act – be considered a validly executed contract;

c.              In the event that the ‘Client’ signatory of the Agreement (the Client) is the landowner, the Claimant has provided no proof of this. The Claimant argues that the charges are contractual and so must demonstrate that there is a flow of the authority to sue visitors from the landowner to the Claimant.

d.             In the alternative, the Claimant has provided no evidence of a valid written contract between the landowner and the Client stating that the Client may act on the landowner’s behalf.

On the matter of the redaction of the Agreement, the Court of Appeal recently clarified, in the case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907, that most redactions are improper where the Court are being asked to interpret the contract (https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html)

Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

9.             The small and illegible signage on display in the exhibits documented in point 10, particularly exhibits P4, P7, P12 and P13 demonstrate that the signage upon which the Terms and Conditions are alleged to be displayed is neither large nor highly prominent. The IPC’s self-serving Code of Practice does not constrain the Court.

10.             The exhibited documents are briefly commented upon below. A number of these images are timestamped as to be before the effective date of the contract presented in exhibit P1-2 and addressed in point 6 of my response.

Exhibit P3 – Site Plan: I entered by the little blue arrows at the bottom of the picture and parked approximately where the blue square is shown.

Exhibit P4 – image of illegible parking signage alleged to have been taken on the data of the alleged parking event without indication as to its location.

Exhibits P5, P6, P9 and P10 are irrelevant as they relate to other entrances to other parking areas. They are also alleged to have been taken on an earlier date. My sworn witness statement gives examples and evidence of the numerous variations to the signage erected by the Claimant over short periods of time.

Exhibit P7 – image, dated approximately 10 days prior to the alleged parking event, taken of the approximate area of alleged parking event that shows examples of considerate and reasonable parking, likely by residents or visitors, identical to my own. Also of interest, the exhibit shows some, illegible, signage on the leftmost entrance pillar.

Exhibits P8 and P11 – images, dated approximately 10 days prior to the alleged parking event, taken, without indication as to their location, but assumed to be of the signage present on the leftmost entrance pillar.

Exhibit P12– image, dated approximately 10 days prior to the alleged parking event, showing examples of considerate and reasonable parking, likely by residents or visitors, identical to my own. The exhibit also shows a small and illegible sign placed on the rightmost wall of the building.

Exhibit P13– image, dated approximately 10 days prior to the alleged parking event, showing a small and illegible sign placed on the rightmost wall of the building.

12.             Exhibit XX-03 appended to my witness statement showed the Claimant has since marked out bays in the area in which I reasonably and considerately parked. It is clear that, were they to have been there at the time, my vehicle would have been wholly parked within the confines of one of them.

13.             The Claimant’s own exhibits demonstrate that the signage is not prominent and the Terms and Conditions not clearly displayed.

14.             The VCS v Crutcheley decision is not binding upon this Court. In addition, Judge Wood’s decision relates to instances when it is clear that a person is entering private property. This claim does not relate to such an instance. In any case, as a person who regularly, reasonably and considerately parked my vehicle in the parking area for an extended period prior to the date of the alleged parking event, I can be reasonably considered to have attempted to establish any terms and conditions – of which there were none – on numerous previous occasions. It cannot be reasonably asserted that on each and every occasion, a person must get out of their vehicle and inspect every inch of an area on the off-chance new terms and conditions may or may not have been established. To demand that would mean “the Car Park would be filled with vehicles unable to manoeuvre causing congestion and obstruction”.

15.             Without adequate signage, I cannot be deemed to have been aware of nor have wilfully agreed to abide by the Terms and Conditions.

18.             Of the exhibited photographs, only exhibits P16, P18 and P20 should be of interest to the Court and are commented upon below. Exhibits P17, P19, P21 and P22 are various images of my vehicle, with and without PCN affixed, and of illegible, wall-mounted signage with no indication as to its location.

Exhibit P16 – this image clearly shows an absence of the signage purported in exhibits P3 and P7 to be on display on the leftmost pillar (bottom right of the image as presented; top left when properly oriented). Without evidence of signage visible upon entry, the Claimant cannot assert that I was aware of nor had wilfully agreed to abide by any Terms and Conditions. The Claimant has not provided any evidence that there was signage visible to me from my car on the material date.

26.             As detailed above, in my witness statement and in my defence, the notices in this case do not meet the thresholds set in the Beavis case.

27.             As a litigant-in-person without any prior professional legal experience, it is reasonable to leverage online resources, including various online forums, to develop the knowledge required to defend myself. It is reasonable for this to include, but not be limited to, taking inspiration from the defences of other litigants-in-person who successfully defended themselves against similarly spurious and causeless claims, many of which have been represented by the Claimant’s solicitors.

30.             The Claimant has not proven the existence of a valid contract.

32.             There was not ample signage in situ, as evidenced by the Claimants own exhibits.

35.             The distance a parking attendant can cover within 1 minute bears no relevance to the visibility of any signage on that date.

36.             I allege that, since – as per the Claimant’s exhibits – there was no signage in place visible from my vehicle, any signage the Claimant has photographed was either not visible or had been placed after my arrival.

37.             The Claimant has enclosed clearly contradictory photographs in an attempt to deceive the Court.

38.             The Claimant has enclosed evidence showing that there was no signage at the entrance to the car park and has enclosed no evidence showing that any signage was visible from the parked car.

39.             Vine vs Waltham Forest LBC 2000 (there is no 2002 case) was Mrs Vine’s successful appeal of the Vine vs Waltham Forest LBC 1998 judgement of Mr Recorder Crawford, CBE; wherein it was actually held that “if the appellant had not seen the notice, then she could not have consented to, or voluntarily assumed the risk, of her car being clamped”.

This is as far as I've got - am I going too heavy on it?