Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

milkybk

Ok cool - so defence all good to be sent I think. Will let people have another evening to look over it and then send it off tomorrow morning. Just moving some stuff around in my Witness Statement and will then post here.

milkybk

So witness statement time. This will appear a bit odd without some of the exhibits and maps etc, as I am still fine tuning them, so there's some place holder text in certain places. This will be removed before the final copy obviously.

Before I post, question - is there a way to post on here that keeps the source formatting? I have lots of bits that are e.g. in italics or in bold etc and whenever I paste on this forum it removes it all. I think it's quote important with these sort of documents.

Jenni_D

Share it on dropbox or similar - somewhere that doesn't ask for your granny's inside leg measurement before allowing access though, of course.

milkybk

Reading the newbies thread @Coupon-mad says an N180 form should be filled in too. Is this something the court will send me once they give me a date for my hearing? As I haven't received one yet or should I just pre-emptively fill one in.

Previous (successful) defendant from this forum added this to his defence (same company, exact same car park AND also at night and didn't receive SAR etc on time etc - identical case basically):

4. The Particulars of Claim state that the claim is, “in respect of a Charge Notice (CN) for a contravention on 14/11/2018 at Broomhill Roof Top Pay & Display Car Park”. It is not stated whether the Claimant is claiming against the driver or the registered keeper or what the contravention is. These assertions indicate that the Claimant has failed to identify a Cause of Action. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

I'm not sure if these paragraphs apply to my defence, if they do apply then I think they're worth adding/adapting. Here is an image of the claim info the Claimant submitted to get their CCJ against me. I don't know if there's anything additional in here that is e.g. unclear claim, who it's actually against etc: 



I've tweaked the defence slightly, trimmed it down further as suggested. Please see below:

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.      It is admitted that the Defendant was the registered keeper of the vehicle. However, over 56 months have passed since the alleged event and the Defendant cannot be sure who was driving on an unremarkable day so long ago, therefore the Defendant is unable to confirm or deny who was driving and the claimant is put to strict proof. Furthermore, upon receiving the aforementioned Notice to Keeper (NTK) from the Claimant in 2017, no person, who might have been the driver, was able to confirm seeing a Notice to Driver (NTD) affixed to the vehicle in question.

3.    As can be seen from the NTK ANPR car photographs, the alleged contravention took place at night. Upon investigation, none of the signs containing relevant parking terms, nor the Pay and Display Machines in the car park were adequately illuminated or in a position to be seen by the driver. The terms are displayed in a font which is too small and too high up to be read from a passing vehicle and are in such a position that anyone attempting to read the tiny font would be unable to do so easily. Repeater signs are high up and poorly illuminated. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4.    Furthermore, it is also denied that the signage is adequate to bring the charge to the notice of drivers (POFA 2012, Schedule 4, at Paragraph 2(3)(b)(ii)) and so keeper liability cannot be claimed.

5.    POFA 2012, Schedule 4, at Paragraph 9(2)(c) states that the NTK must “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose”. The NTK received by the owner states the contravention reason as, “Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site the maximum period allowed at this site is minutes”. Note that a maximum allowed time has been implied but then not been stated. Therefore, the circumstances requiring payment have not been described. Since the NTK is not POFA 2012 compliant, keeper liability cannot be claimed.

6.    POFA 2012, Schedule 4, at Paragraph 2(3)(b)(i) states that notices must, “specify the sum as the charge for unauthorised parking”. Instead it is merely stated on the signs that, “This is a 24hr Pay and Display car park. Failure to comply will result in a parking charge”. It is not explicitly stated what needs to be complied with or what the relevant obligation is. Therefore, keeper liability cannot be claimed.

7.    The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper “parking without payment” as specified in the NTK. The Defendant asked for copies of the pay and display machine records for the time of the alleged contravention in a Subject Access Request in the pre-action stage however the Claimant has ignored this request.

8.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

9.   It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

10.   Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

11.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

12.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

13.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

14.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

15.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

16.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

17.   The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

18.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

19.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

20.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

21.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14

       (b) The Defendant therefore asks the Court to consider his Schedule of Costs.

       (c) that any hearing is not vacated but continues as a costs hearing, in the event of a late        Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

22.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

Jenni_D

The N180 is the defence questionnaire? I'm not sure that will be relevant following a set aside because the court had already been determined.

But wait for others with more understanding of the court process to reply.  

Le_Kirk

Jenni_D said:

The N180 is the defence questionnaire? I'm not sure that will be relevant following a set aside because the court had already been determined.

But wait for others with more understanding of the court process to reply.  

I think that is correct because the OP is now dealing direct with a court not the CCBC.

milkybk

Jenni_D said:

The N180 is the defence questionnaire? I'm not sure that will be relevant following a set aside because the court had already been determined.

But wait for others with more understanding of the court process to reply.  

Ok thanks both of you. Maybe they'll send something out once they receive my defence. As I assume once they have this they will set a hearing date, yet to hear about that.

Any holes in the new defence? Any potential to add the two bits I mentioned given the Claimants claim description (in picture). I want to send the defence today.

milkybk

So I officially visited the car park last night at 9pm. I took lots of videos and pictures. I'm currently uploading them all and will then add them to my witness statement, which I will then share with you all. Trip got delayed by a week due to a bad back.

Needless to say, I don't think Excel are going to win haha. It's genuinely ridiculous. As I say, you will see photos etc but I'll give you a brief breakdown of what any driver experiences at night in the car park in question:

• Tight left hand turn to enter car park - as you turn in on your RH side (driver side) is a large, extremely faded sign with no penalty charge info etc.
• This sign purposefully draws your eyes away from a tiny sign below it in the corner, which states the basic ANPR info etc.
• These signs are so close to the turn that you'd have to stop and sit to be able to read them
• The ramp up into the car park is very steep and only wide enough for one car, so any sensible driver will be concentrating on other motorists and pedestrians.
• The car park is large, I would guess 200+ spaces. There is one single repeater sign for the entire thing, high up, in the centre of the car park, below the ANPR cameras. It is not lit, therefore at night unless you park directly under if you wouldn't even see it.
• There are two PDT machines at the far ends of the car park. Neither of them lights up when you press buttons and you have to enter your entire reg correctly, so anyone could make a mistake. You literally have to use your phone torch to see what you're doing.
• One PDT machines is in the pitch black.
• The other is barely illuminated and not by Excel's lighting but by a stairwell leading down to shops below.
• All signs are impossible to read and not a single one is lit.

I even drove round the car park to prove that no lights turn on through motion etc.

As you leave the car park, down the extremely steep ramp (and into a sharp blind RH bend), if you peer through the shadows, you can just make out a concealed sets of signs, listing some of the legislation required to attempt to form a contract. I only knew these were here as a previous poster had mentioned them, otherwise you wouldn't see it. There is literally 0% chance any driver would spot these when entering the car park. Nice strategic placement.

Needless to say, the Witness Statement will be thorough and well backed up now. It's just a shame the other poster who won in the same car park never got back to me, as I could have referenced his case number. The Judge in his case visited the car park and was critical about all the above in 2019 - clearly Excel have done nothing to improve things.

With regards to videos for hearings (remote hearing in this case) can these be viewed/shown some how? I have an excellent video showing the drivers perspective entering and leaving and also a walk around video etc showing the darkness and signs. I also took pictures obviously. 

I'm not sure how good the photos will even be, as they were obviously taken without the flash on to simulate what you see with the human eye. I did take a couple of flash ones as comparison. May as well just have drawn a black rectangle in paint for most of them though haha!

milkybk

Defence submitted this afternoon to Court and Claimant.

Will post witness statement once pictures etc are finalised. I will have to do this through a hosting website, as suggested by @Jenni_D. However whilst it's being worked on I would rather it wasn't in the public domain until it is ready to be filed. Is it possible to create e.g. a PM group chat on here? So I can share a link with all those helping.

Coupon-mad

No, MSE disallowed that this year.