CRA 2015 s62 10 Defence - No real opportunity of becoming acquainted with T&Cs

FizzyCharlie

Thanks @Coupon-mad for the update. I've spent this evening looking at all of the various posts of DR and also the updated cases to reference in the WS, looks very convincing about the added charges being thrown out.... Would you (or someone else) be able to clarify - I don't need to send anything (other than my phone number - DONE!) before the DR call but do need to submit the WS before October 26th as stated in the Notice of allocation to the Small Claims Track (preliminary hearing) letter?

Coupon-mad

Yes.  You MUST follow what the NoA says.

FizzyCharlie

Coupon-mad said:

Yes.  You MUST follow what the NoA says.

Understood but the WS is due AFTER the DRH!? It doesn't make sense to me but I guess for the DRH they aren't interested in all the evidence...?

FizzyCharlie

Coupon-mad said:

Yes.  You MUST follow what the NoA says.

Understood but the WS is due AFTER the DRH!? It doesn't make sense to me but I guess for the DRH they aren't interested in all the evidence...?

Coupon-mad

If the Order about the DR hearing doesn't say anything about filing and serving anything beforehand then you don't have to and nor will the PPC.

This will be a waste of time, glorified Mediation to try to persuade Defendants to pay up and save the court time.   Understandable due to court backlogs but always unfair in parking cases where the victim owes nothing and if the courts wanted to save time they could either strike parking cases out more often or set stringent directions for the Claimant to meet, not lean on the poor defendant.

FizzyCharlie

Much appreciated as always @Coupon-mad, completely agree with you. I wondered if the judge would expect me not to offer anything. I don't think I could given I completely deny owing anything, surely even a part payment would be seen as an admission of guilt! Will hold the line and get through the 30min without sounding too irritated. Cheers!

FizzyCharlie

Hi everyone, I'm a little confused as I've just received all of the documents, WS etc from DCBL prior to the DR hearing...!? The letter said the WS was due 26th, DR hearing on 20th... Have they just shown their hand early? Can I post their WS here for comments on what my WS should contain? Thanks!

FizzyCharlie

Coupon-mad said:

If the Order about the DR hearing doesn't say anything about filing and serving anything beforehand then you don't have to and nor will the PPC.

This will be a waste of time, glorified Mediation to try to persuade Defendants to pay up and save the court time.   Understandable due to court backlogs but always unfair in parking cases where the victim owes nothing and if the courts wanted to save time they could either strike parking cases out more often or set stringent directions for the Claimant to meet, not lean on the poor defendant.

robertcox999 (sorry if I've got that wrong!) and kept the generic points the same but here is my specific statements in the WS statement, any comments please - It is quite rushed (and quite late so I will return to it to make it clearer!) Can I also ask, I put my wife down as a witness as well, should that be a separate WS or in mine. TBH I'm not sure she would be up for court so if I put her down but don't want to use her would that be okay, she would basically be backing up my WS... Thanks in advance!

Sequence of events and signage:

3.         I am not a resident of Wakefield and I am unfamiliar with this particular car park. I have a general understanding of how car parks work and in my experience expect that a cashless method of payment is ubiquitous in modern car parks. Commonly this allows for credit/debit card payments via the payment terminal with a high reliability.

4.         Being unfamiliar with the car parking facilities in Wakefield I was directed by Google Maps to a range of car park close to the city centre. I was not aware prior to visiting of the cost of parking in each car park. I chose the car park which is serviced by the Claimant due to the highly visible and prominent display of the low cost parking rates shown on the entrance photo (exhibit PD-01) The advertisement of ‘low cost parking’ is extremely clear and is designed to catch the drivers eye drawing them into the car park. On approach to the car park (from the main road to the right of the picture) the ‘low cost parking’ sign is in direct eyeline of the driver, distracting from the much smaller and illegible entrance sign (exhibit PD-02) placed below eye level. The Claimant’s site map (exhibit PD-03) indicates two signs on entry, an entrance sign (exhibit PD-03) and an enforcement sign (exhibit PD-04) which is clearly not present in photo of the entrance (exhibit PD-01).

5.         I did not see any indication that the condition on which the Claimants case rests, specifically that payment must be made within 10 minutes of entry, was displayed in such a way as to allow any real opportunity of becoming acquainted before the conclusion of the contract which is in breach of CRA 2015 s62 10. As such I can only reasonably conclude that there were no such signs that meet this requirement. Had there been any clear indications that I was required to meet such a condition, I would not have parked there. The Claimant refers to entrance signage. As seen in the photograph of the entrance to the car park (exhibit PD-01), there is no such enforcement sign (exhibit PD-04) on the entrance pillar to the parking. Enhanced photos provided by the Claimant of my car entering and exiting the car park also do not show enforcement signs, only entrance signs.

6.         In fact, the Claimant provides no evidence that any signage claiming to detail the 10 minute entrance time period to be at the site on the material date was visible from any car entering, parking in or exiting the parking area. Any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance nor from any areas, like the one in which I parked, that were available to park in.

7.         With specific reference to the only sign the claimant has provided photographic evidence for (exhibit PD-04), and the only evidence of signage that displays the condition I am alleged to be in breach of, it consists of a sticker that appears to have been hurriedly applied to the larger sign in the centre of the car park. The Claimants own photo shows the illegibly small writing at the bottom of a long list terms and conditions. It can be reasonably assumed most adults will read from the top to the bottom of a large body of text, placing a time dependent condition at the bottom of the sign ensures drivers are not aware of the condition until too late. The Claimants photo also shows that the terms and conditions are facing away from the entrance to the car park such that there was no real opportunity of becoming acquainted with the time dependent condition even if it had been in legible text.

Payment attempts

8.         Once parked, I attempted to make payment taking with me my available form of payment, a credit card. Once I had made my way to the pay machine it became apparent that only cash would be accepted on site. I noticed on the side of the pay machine there were details for an online payment system. I attempted to make a payment via this method but was unable to due to what I believe was a poor/limited mobile data connection. Having already parked, I considered my only option was to seek improved reception/public Wi-Fi in the centre of Wakefield. The Claimant asserts that I had the option to leave the car park should I not be able to make a payment. However, the very condition which I am alleged to have breached specifically states that the condition is binding on entry to the car park removing the opportunity to leave without payment.

9.         I pride myself on making every attempt to follow rules, both on a legal and moral basis, sometimes to my own detriment. I can categorically state that at all times I intended to, and did, make payment for parking (exhibit PD-05) meeting or exceeding the required payment (£1.10 for 2h) for the time at which I entered the carpark (1:02:30PM) to the time I left (2:06:07PM), a total parking time of 1 hour and 5 minutes.

uksniper

FizzyCharlie said:

Coupon-mad said:

Yes.  You MUST follow what the NoA says.

Understood but the WS is due AFTER the DRH!? It doesn't make sense to me but I guess for the DRH they aren't interested in all the evidence...?

My recent DRH required WS prior which seems rather strange!?

Just to reassure you for the DRH, expect the judge not to side with your case and make you feel that progressing to a hearing will be the financially and morally wrong thing to do with little prospect of you winning. DCBL issued a notice of discontinuance in my case even after I was ripped apart at DRH by the judge so stay strong and continue your fight to the hearing

FizzyCharlie

Thank you for the support @uksniper, it is a shame to hear the Judge was not on your side but really good to hear that it ended well! I've been working on my WS all weekend and I was hoping someone might be able to give it a once over - I've tried to keep as much as possible from the templates I've seen for sections that I believe are relevant and of course added specific information for my case. Could anyone let me know if any of the cases rereferred to are now out of date!? I believe I've fully redacted it, let me know if not.... https://1drv.ms/b/s!AjNlH5ODa6XjzVLKXHHaou6aOX8Y?e=PvLZKy 

Sorry to tag but I know @Coupon-mad and @Redx have shown some interest in this case, thanks in advance!