Premier Parking County Court Defence

PChallenger

Coupon-mad said:

It worries me when this happens, remembering the 2018 cases that BW Legal left dormant and then paid to lift the stays and pursue people again in 2020 without even having to check that the person hadn't moved.

Thank you all, the question I need clarifying is, do you all think I should call CCBC asking for an update?
I want this to be done and over with but assume only the Claimant (Premier Parking) can make the decision. I'm I right to assume this?

nosferatu1001

You can certainly call and ask, saying it has been months, and asking if a stay is in place

You are correct. Once a claim is stayed due to a failing by the claimant, its up to the claimant to pay to lift the stay. Realistically you have NO control over this stage

KeithP

PChallenger said:

Thank you all, the question I need clarifying is, do you all think I should call CCBC asking for an update?

On Tuesday I wrote:

KeithP said:

That does seem rather a long while.
Might be a good idea to ring the CCBC and ask them what's happened.

Yesterday nosferatu1001 wrote:

nosferatu1001 said:

Indeed, its not good. So, OP CHECK WITH THE CCBC

I am sorry, what exactly do you need clarifying?
 

PChallenger

KeithP said:

PChallenger said:

Thank you all, the question I need clarifying is, do you all think I should call CCBC asking for an update?

On Tuesday I wrote:

KeithP said:

That does seem rather a long while.
Might be a good idea to ring the CCBC and ask them what's happened.

Yesterday nosferatu1001 wrote:

nosferatu1001 said:

Indeed, its not good. So, OP CHECK WITH THE CCBC

I am sorry, what exactly do you need clarifying?
 

Thank you, I want to call to check if a stay is in place or not. So that I know what to expect or do at this stage.

KeithP

PChallenger said:

KeithP said:

PChallenger said:

Thank you all, the question I need clarifying is, do you all think I should call CCBC asking for an update?

On Tuesday I wrote:

KeithP said:

That does seem rather a long while.
Might be a good idea to ring the CCBC and ask them what's happened.

Yesterday nosferatu1001 wrote:

nosferatu1001 said:

Indeed, its not good. So, OP CHECK WITH THE CCBC

I am sorry, what exactly do you need clarifying?
 

Thank you, I want to call to check if a stay is in place or not. So that I know what to expect or do at this stage.

OK. Two people have given you their opinion on what you should do. Do you need further clarification?

PChallenger

KeithP said:

PChallenger said:

KeithP said:

PChallenger said:

Thank you all, the question I need clarifying is, do you all think I should call CCBC asking for an update?

On Tuesday I wrote:

KeithP said:

That does seem rather a long while.
Might be a good idea to ring the CCBC and ask them what's happened.

Yesterday nosferatu1001 wrote:

nosferatu1001 said:

Indeed, its not good. So, OP CHECK WITH THE CCBC

I am sorry, what exactly do you need clarifying?
 

Thank you, I want to call to check if a stay is in place or not. So that I know what to expect or do at this stage.

OK. Two people have given you their opinion on what you should do. Do you need further clarification?

No Thank you, I appreciate your time and effort

PChallenger

Coupon-mad said:

We are not talking about the signs (contract).  He means when you eventually get the evidence, check what company name is on the landowner agreement.

Did you know about good old Walton?  Been around the block a bit for parking practices, that man:

http://parking-prankster.blogspot.com/2017/07/no-honour-amongstoperators.html

https://www.birminghammail.co.uk/news/local-news/birmingham-woman-won-car-back-4859

https://www.birminghammail.co.uk/news/local-news/birmingham-car-clamping-boss-to-carry-91288

''the judge found their fee of £390 was not extortionate for clamping and towing as British Parking Association guidelines suggest £410''.  
WOW.  THAT'S THE BPA FOR YOU (IF TRUE).  NO WONDER THEY RECKON £100 NOW ISN'T EXTORTIONATE. 
THE PARKING INDUSTRY IS JUST NOT ON THE SAME PLANET AS RIGHT-THINKING CONSUMERS...

...BUT CLEARLY HIS LEVEL OF PARKING CHARGES IS THE SAME AS THE BPA'S VIEW - SO THEY ARE ON THE SAME PAGE AS A CLAMPER - BECAUSE WHEN CLAMPING WAS BANNED HE DECIDED TO ISSUE TICKETS FOR UP TO £150:

https://www.itv.com/news/central/2012-09-27/birmingham-clamper-says-new-laws-will-make-his-job-easier

''He says the new legislation means he can instead issue motorists with legally enforceable parking tickets worth £150 a time.  He also says ticketing is much less hassle as it costs him less than clamping.'' 

He seems to like to mislead people about how much money he made from clamping, before it  was made illegal:

Rich beyond his wildest dreams?

https://www.dailymail.co.uk/news/article-1387286/Clamping-boss-Walton-Wilkins-claims-10m-impounding-cars.html

But maybe not:

http://news.bbc.co.uk/1/hi/england/west_midlands/7636110.stm

"If I was out to make money, I'm in the wrong business as my company actually made a loss last year, and I don't know where the council gets its figures from.''


Likes his sports memorabilia, though:

https://www.bbc.co.uk/news/uk-england-birmingham-19168876

Good evening, I received the witness statement 2 days ago and the Land owner's name is A. MIR & CO. LIMITED.
see link: https://find-and-update.company-information.service.gov.uk/company/02470744

PChallenger

Hi all,

I hope you are doing great. Could you help review my statement of evidence, please? Thank you
**************

1.         I am Mr xxxxxx of xxxxxxxxxxx, 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 defense is repeated, and I will say as follows:

 

Sequence of events and signage

 

3.         Firstly, it should be noted that the claimant has appended to their witness statement signage that does not match what the defendant saw at the car park. I have appended the actual signage, photographed myself in 2020, and will refer to them throughout.

 

4.         The approach and entrance to the car park clearly showed 20p one hour and £2.40 all day (exhibit – 1) on display.

 

5.         After packing, I walked to the nearest parking meter close to exhibit – 2 , which showed the following pricing:

•        hour - 20p

•        2 hours - 40p

•        12 hours - £3.20p

•        Up to 24 hours - £3.50p

 

6.         The pay and display terms and conditions instructed me to read the signage displayed around the car park for full terms and conditions. The sign (exhibit – 3) was difficult to read because of the mixture of large and small prints.  Also, exhibit 3 was too high to read without straining my sight because the contents are worn and faded.

 

7.         I paid £1 (see exhibit – 4) because of the advert at the entrance (exhibit – 1) of the car park and the signage by the payment machine (exhibit – 2 and 3). I was guided by the signages (exhibit – 1 &2) that £1 cover 5 hours.

 

8.         After which, I displayed the tickets in my car (see exhibit – 5).

 

9.         However, I received a PCN and now am asked to pay an inflated charge of £100.

 

 

                        Section 69, Consumer Right Act 2015

10.     Since the charge for two hours is double the charge for one hour, it would be reasonable for the consumer and the man on the Clapham omnibus to assume that the cost for three, four, and five hours would be three, four, and five times the tariff for one hour until a different tariff was reached at twelve hours.

 

11.     This is the meaning that is most favourable to the consumer, and irrespective of what is printed on the ticket, it is the meaning that should prevail according to the CRA 2015 s69 which states,” 69 Contract terms that may have different meanings

 

•        (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.”

 

                        The Signs / Unfair Contract Terms

12.     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 6 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 (see exhibit – 7)

 

13.     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.

 

14.     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

 

15.     The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added £69.16 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process (see exhibit - 9 ).

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

 

16.     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.

 

17.     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 £169.16 if the motorist took the point that the additional £69.16 over and above the original figure of £100 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 £100 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 £69.16 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.''

 

18.     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.

 

19.     This Claimant knew or should have known, that by adding £69.16 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 – 7), 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.

 

 

 

20.     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

 

21.     I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs (see exhibit – 8) 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

 

22.     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 see exhibit – 8). 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.

 

23.     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.''

D_P_Dance

If the judge unreasonably denies your full costs, read this.

https://www.citizensadvice.org.uk/law-and-courts/legal-system/small-claims/making-a-small-claim/

At the very least you can waste the  scammer's time.

Fruitcake

It is a Witness Statement, not a statement of evidence. It doesn't include a statement of truth, which you must have.
You haven't shown us the exhibits to which you refer.
Exhibit numbers would normally be your initials followed by sequential numbers.
If your real name was P Challenger then your exhibit numbers would be PC01, PC02 etcetera.

You haven't pointed out the apparent difference in tariffs between the entrance sign, and the signs within the car park. (Tariffs in your para 4 compared with those in your para 5.) 



Please show us the claimant's WS asap. Only redact YOUR personal data. Upload it to Dropbox or similar and post the link here. Make sure it doesn't need a password or asks users to agree to have their personal data processed. Make sure it does not include other personal data such as holiday snaps, and is not in your real name.
Believe me it has happened!