Urgent help needed - County Court Claim - First Parking / DCB Legal

AlwaysTrying23

Whilst I try and find a way for you to preview the whole file, please see main body of my WS below:

IN THE COUNTY COURT

Claim No.: XXX

Between

First Parking LLP

(Claimant) 

- and -  

XXX

 (Defendant)

BUNDLE – TABLE OF CONTENTS

Contents	Page(s)
Witness Statement
Exhibits Index
Exhibit 01 – Car park location
Exhibit 02 – Entrance barrier intercom
Exhibit 03 – Entrance sign
Exhibit 04 – Delivery confirmation email
Exhibit 05 – Signage from vehicle
Exhibit 06 – Signage on foot
Exhibit 07 – Time stamped evidence (1)
Exhibit 08 – Time stamped evidence (2)
Exhibit 09 – BPA AoS 2020 amendments
Exhibit 10 – Jopson v Homeguard [2016]
Exhibit 11 – PACE Recovery and Storage Ltd v Lengyel [2017]
Exhibit 12 – Claimant evidence showing illegible signage
Exhibit 13 – National Debt Collection Ltd letter
Exhibit 14 – DCBL letter
Exhibit 15 – Excel Parking Services v Wilkinson [2020]
Exhibit 16 – Schedule of costs

IN THE COUNTY COURT

Claim No.: XXX

Between

First Parking LLP

(Claimant) 

- and -  

XXX

 (Defendant)

WITNESS STATEMENT OF DEFENDANT

1. I am XXX, and I am the Defendant against whom this claim is made. 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:

3. The car park in question is situated on a busy main road which had no safe places to stop and unload. See Exhibit 01. The land is secured via an electronic barrier for entry/exit, which is manned via intercom, see Exhibit 02. There is a sign on entry, see Exhibit 03, which states ‘Permit Holders Only’ and implies that to read the associated terms and conditions, the driver must enter and see the signage within.  

4. After pressing the intercom for entry, a male operator answered. I mentioned I had a delivery for the on-site contractor and he granted me permission into the car park. For email confirmation of delivery from the University, see Exhibit 04. No stipulations were given from the operator for my entry so I entered in good faith believing the operator had given me permission to be there. As a result, my vehicle was de facto authorised to be there and the doctrine of promissory estoppel applies. 

5. On driving in, there were small signs fixed unreasonably high up on poles around the car park which were not legible from the car, see Exhibit 05. After finding a space, I could see that the signs stated ‘Staff Permit Holders Only’ along with a number of restrictions but the text on the terms and conditions were far too small to be legible, see Exhibit 06. There were no larger versions of the sign around the car park to assist in understanding its interpretation. 

6. My understanding was that loading/unloading was not clearly prohibited, nor did the signs clearly state there was a limited time to do so, therefore I briskly proceeded to the Medical building to deliver the package, which is approximately a 3 minute walk away. 

7. On returning to my vehicle, I noticed the PCN attached to the windscreen. I raised my concern to the contractor and believed it was resolved until learning of the letters subsequently posted by the claimant, chasing payment for increasing and inconsistent amounts of penalties. I went on to complain to the University but was told the case was too far down the line for them to stop it at that point.

Unloading is not parking  

8. The Claimant implies that my vehicle was parked however photographic evidence provided by the Claimant fails to prove that the vehicle was indeed parked for a significant duration of time. Time stamps range from 14:13 to 14:15, see Exhibit 07 and Exhibit 08. Furthermore, this PCN would fall under the grace period allowed by the BPA AoS [2020], see Exhibit 09 and further supported by Judge Harris in paragraph 19 of the Jopson v Homeguard [2016] B9GF0A9E, see Exhibit 10, where it was agreed unloading does not constitute to parking. 

No contract was formed 

9. The Claimant has stated that it’s grounds for the claim relate to a ‘breech of contract’. I do not believe that a contract was formed between myself and the Claimant. Nowhere within the generic terms and conditions sign, does it inform the reader that by parking in the car park, they are entering into a contract with the Claimant. Furthermore, the words “contract” or “agreement” do not appear in the Claimants sign, which only talks about matters relating to ‘Permit Holders’ or ‘Staff Permit Holders’, neither of which category I fall within. Manchester County Court District Judge Iyer in PACE Recovery and Storage Ltd v Lengyel [2017] C7GF6E3R noted in his judgement that the “words “contract” or “agreement” do not appear at all within the sign, which merely refers to the driver “accepting liability for a charge”” and that “the phrase “terms and conditions” are not synonymous with a contract”, see Exhibit 11. DJ Iyer rightly dismissed the case against the Defendant stating that a contract had not been formed between the two parties.

 

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 £85.00 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.

11. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case where I parked in a manner approved by the barrier operator, (as per paragraph 4). As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage 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. The Claimant provides evidence showing the signage, see Exhibit 12, but fails to prove its clear 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 no contract to pay an onerous penalty has been seen, known or agreed.

Abuse of process – the quantum

13. In addition to the disputed Parking Charge Notice claim amount of £60, the Claimant has added an unidentified sum of £70, subsequently changing to £60 that is then disingenuously described as 'recovery fee’ or ‘administration’. The Claimant stated that this misleading £60 cost was incurred by the Claimant when instructing DCBL to recover the unpaid penalties. However it is extremely confusing to see a higher £70 charge appear in correspondence from ‘National Debt Collectors Ltd’ prior to the involvement of DCBL, see Exhibit 13 and Exhibit 14.  The Claimant is intentionally trying to mislead the court by suggesting these costs represent renumeration for the work of DCBL which is untrue. Consequently, this is a feeble attempt at double recovery by using a generic template in the hope of intimidating the reader into paying for their unjustified charges.  

14. With the added £60 constituting double recovery, 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 seen in Exhibit 15) . The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

15. 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''. 

Landowner Contract

16. The claimant has given no evidence of an IPC compliant Landowner contract which contains wording that specifically assigned them any rights to form contracts with the drivers in their own name. 

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

17. 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

18. 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. 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 of regularly reassuring my partner of our safety and of the integrity of our credit records.

19. Therefore, I am appending with this bundle a fully detailed costs assessment, see Exhibit 15, 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). 

20. 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.

Witness’ signature:

<SIGN HERE>

Date:

18/07/21

AlwaysTrying23

Can you please see if the below link works? You ‘should’ be able to now view the whole file. 

https://www.icloud.com/pages/0xNesrnrwksunbwY6u31OZb9Q#Forum_WS

1505grandad

Have you left your name and claim no.?

16. The claimant has given no evidence of an IPC compliant Landowner contract which contains wording that specifically assigned them any rights to form contracts with the drivers in their own name. 

IPC?

Your link is asking us to join something.

AlwaysTrying23

1505grandad said:

Have you left your name and claim no.?

16. The claimant has given no evidence of an IPC compliant Landowner contract which contains wording that specifically assigned them any rights to form contracts with the drivers in their own name. 

IPC?

Your link is asking us to join something.

Now edited thank you 

I need to amend paragraph 16 from IPC to BPA but was more hoping the bundle arrived before I send. 

I have no idea how I can upload my final copy. It’s 33mb but seem to be having issues. I’ll look into. 

Thanks for the feedback !!

Coupon-mad

You've missed the Discussion thread I started last month about a new Recorder Cohen QC appeal transcript to include with WS. 

Click on my username to view my recent Discussions I've started, it's right there.

AlwaysTrying23

Coupon-mad said:

You've missed the Discussion thread I started last month about a new Recorder Cohen QC appeal transcript to include with WS. 

Click on my username to view my recent Discussions I've started, it's right there.

Found it !! I’ll add under Excel v Wilkinson and include the full transcript in the appendice thank you!! 

Does everything else make sense to you? I’m still working on finding a way to make my full file visible 

KeithP

AlwaysTrying23 said:

Do you know of an easier way for to to post the attachment? 

The problem is because the filename is something.pages.
Change it to something.doc or something.pdf.

AlwaysTrying23

KeithP said:

AlwaysTrying23 said:

Do you know of an easier way for to to post the attachment? 

The problem is because the filename is something.pages.
Change it to something.doc or something.pdf.

Appreciate the info. Tried and tested link below... I say... 

https://www.dropbox.com/s/ndgq3dy3bbv3xrz/Main%20WS%20Forum%20PDF.pdf?dl=0

AlwaysTrying23

Is anybody able to access the link and view my WS without having to download. Should be accessible now. 

Appreciate the help!! 

Coupon-mad

Yes that works.

#9 misspelling: breech should be breach

#13 misspelling:  renumeration should be remuneration

#37 misspellings 'alegedy' and 'latter'.

Who do you mean by 'contractor' here, please explain to the Judge who that party is?

7. On returning to my vehicle, I noticed the PCN attached to the windscreen. I raised my concern to the contractor

And where you have transcripts, you shouldn't copy and paste them so they are not the original transcripts any more.  You've copied them and thrown out the original Auscript confirmation of authenticity so to me, this is no longer a true transcript.  Also, you've used a badly scanned version of Excel v Wilkinson which is blurry and fails to cover her first name.  The one in my Discussion thread is the better version, isn't it?