Parking Eye County Court Claim filed - Payment Made but no reciept given by PADM

chijiokeike

Thanks, you have all been helpful. I will amend my wife's WS accordingly. 

Can someone advise still whether my name must be included in the WS when She refers to her Husband as I plan to be her Lay Rep.

Le_Kirk

I don't think so but IANAL and I am sure the judge can work out to whom she is referring.  Whether or not it makes any difficulty around the Lay Rep issue, again, I do not know but so long as you are not appearing as a witness as well, I think it should be OK.  Others, such as @bargepole, may have a lawyerly type view if he is around (he's been a bit busy of late!)

chijiokeike

I want to make a couple of additions to my Wife's WS, so want to get thoughts on this.

In section PCN AND APPEALS subsection, under para 17, I want to add

18. It’s also worth noting that POPLA although is an independent mediator, is wholly funded by the BPA (British Parking Association). PE are a member of the BPA and pay membership fees for this privilege.

In section THE BEAVIS CASE IS AGAINST THIS CASE under para 38, I want to add

39.                   Just to stress the point that PE does not always act in the legitimate interest and under the direction of the Landowner, I would like to use as the example of the recent PCN XXXXX (see exhibit XXX) my husband received after picking up an order at Holiday Inn, Quays, Waterfront Quay Salford, Manchester M50 3XW on XX/07/21 for a parking period of 24 mins.

40.                   It’s important to bear in mind that this is a free car park and to note the amount of time stayed. However, a £100 PCN was still issued.

41.                   Due to my ongoing dispute with PE, and the unfair appeal process, my Husband decided not to appeal this PCN via PE standard route. Instead, He wrote to the landowner directly (see exhibit XXXXX). The Landowner contacted PE requesting the cancellation of the PCN, which they did.

Thoughts????

KeithP

I would change all those "my husband" references to "the driver".

chijiokeike

Thanks for all your Help in the Forum. I will be posting below my wife final WS. Looking to submit tomorrow

chijiokeike

Witness Statement of XXXXXX

 

1.                   I am Mrs XXXXX of XXXXXXXXXXXX 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 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

The sequence of Events on XX Sept 2020

3.                   On the XX of September 2020 at around 09:15 am, I parked at the car park, as I was attending an Exam at XXXXXX, 2nd Floor, Richmond House, Bloom Street M1 3HZ. The exam was scheduled to start at 09:30 am (Exhibit X/Page X).

4.                   On parking my car reg XXXXX, I approached the PDT (Pay and Display Terminal). Following the instructions, I made a payment of £6 to cover a 3-hour stay. On requesting receipt of payment from the PDT, none was issued. I pressed the coins return button multiple times, but the coins were not returned. It is important to note that this was not my first time using this car park or PDT (Paragraph 21 to 26 below and Exhibit X/Page X).

5.                   I looked around for a parking attendant and none was available. There was also no means to request help via the PDT (Exhibit X/Page XX and Exhibit X/Page XX). After a couple of minutes of playing with the machine to see if I could get my money back, I gave up. I did not have any spare coins on me as I had come prepared with just the right amount to pay for my parking session, so I could not make another payment. I had no choice but to leave my car parked in the car park as I would be late for my exam if I kept waiting around for a parking attendant. I planned to return later and get help from a parking attendant to resolve the issue.

6.                   At around 11 am I returned to the car park as planned. I still was not able to find a parking attendant. I spoke to another car park user and they advised that I could make payments online and showed me how to do this. However, the online payment could not be back timed. I then proceeded to make a payment for the remaining time I planned to spend at the car park so that I could have some proof of payment. Time paid online was for 2 hrs (Exhibit X /Page X)

7.                   At around noon on XX Sept 2020, I exited the car park. In total, payments made to PE (ParkingEye) were £10.70, £6 via PDT, and £4.70 online. This is enough to cover a 9 hrs stay at the car park, however, time spent at the car park was 2hrs 40 mins.

PCN and Appeals

8.                   Initial PCN (Parking Charge Notice) was received on XX/10/20 for £100 and was issued to the registered keeper of the vehicle. The registered keeper appealed the charge stipulating the sequence of events as above.

9.                   On the XX/10/2020 PE replied requesting the driver’s details. The registered keeper replied providing my details

10.               On XX/11/2020 PE re-issued the £100 PCN in my name. I appealed stipulating the sequence of events as above (Exhibit X/Page XX)

11.               On the XX/12/2020 PE replied rejecting the appeal stating, “Our records show that insufficient time was PAID for on the date of the parking event”. The reply did not state what “Records” were used and what “insufficient Time” was (Exhibit X/Page XX). All PCN’s issued to date were for a parking time of 2hrs 40 mins.

12.               None of PE communication up till this point acknowledged the online payment or the unreceipted PDT payment.

13.               I appealed the case through POPLA (Parking On Private Land Appeals).

14.               On XX/06/2021, a decision was made in favour of PE with the Assessor stating “POPLA’s remit is to assess the validity of the PCN, whilst I do sympathise with the appellant and appreciate, they were in no way trying to avoid payment, it’s clear they only paid for 2 hrs and remained on site for 2hrs 40 mins”.

15.               It is clear from above that POPLA remit is to make decisions based only on the evidence provided by both parties at the time of appeal. There is no onus put on either party to provide any evidence to counter/support statements made by the other.

16.               No requirement was made by POPLA for PE to verify the parking Event on XX/08/20 by reg XXXXXX and whether a payment was made, by what means and how much.

17.               No requirement was made by POPLA for PE to present the PDT collections/accounts on XX/09/2020 and to compare these against receipted amounts from PDT.

18.               It’s also worth noting that POPLA although an independent assessor, is wholly funded by the BPA (British Parking Association). PE is a member of the BPA.

19.               Following POPLA’s disappointing decision. It became clear to me that the only way to resolve this issue and get a full and just hearing of my case was to await a court claim from PE.

Court Claim and Subject Access Request

20.               On XX/08/2021, PE entered a claim against me, which I acknowledged on XX/08/2021.

21.               On XX/09/2021 I made a SAR (Subject Access Request) to PE (Exhibit X/Page X). The request was as follows below

a)       ALL photos taken - all letters/emails sent and received, including any appeal correspondence earlier (including POPLA appeal correspondence)

b)      PDT machine record from the date of PCN issue, of payments made (VRNs (Vehicle Registration Numbers) can be partially redacted).

c)       Receipt/Accounts showing monies collected from the above PDT machine to cover the PDT record period above for the date PCN was issued

d)      Video from the ANPR (Automatic Number Plate Recognition) CCTV (Closed Circuit Television) to cover the first 30 minutes of car entry to the premises on the date of the PCN issue

e)      all data held, all evidence you will rely on, and a full copy of the PCN, NTK (Notice to Keeper)

f)        ANPR record for entry and exit to the same car park by VRN XXXXXX on XX/08/2020

g)       PDT machine record from XX/08/2020 to cover period parked for XXXXXX

h)      a list of all other PCNs outstanding against me for VRN XXXXXX

22.               On XX/10/2021, PE replied supplying only a), and b). Note however that the PDT record provided at the time only covered (i.e. b above) only covered the period of 09:2X to 17:4X on XX/09/2020 (Exhibit X/Page XX), as opposed to the full time period covered in their Court Exhibits.

23.               I replied PE on XX/09/20 insisting all information requested by submitted.

24.               PE responded stating “Please note that a Request for Access only entitles you to information about, or copies of, your data. On this basis, the more general requests you have made for documentation, such as for a copy of PDT records and CCTV, will not fall within the remit of our response and such documentation will not be provided within our response” (Exhibit X/ Page XX).

25.               It is important to note that all information with relation to VRN XXXXX can be classed as my data as PE has verified with DVLA the registered keeper, and in turn, the registered keeper has verified that I am the drive of the vehicle. According to their statement, they should be providing me with the records of any entries, PCN’s and payments made for VRN XXXXX as requested.

26.               If PE had produced details with relation to XXXXXX from XX/08/20, this would show my record of making payment in full on entry to the same car park with the same PDT machine. I used this car park on XX/08/20 when I attended the XXXXXXX exam at XXXX Manchester, Boulton House, Chorlton St., Manchester M1 3HY (Exhibit X/Page X)

27.               PE refused to provide collections/accounts and receipts issued for the same period from the PDT on XX/09/20. A review of this would show a discrepancy between amounts collected and receipted to the tune of at least £6.

28.               PE lack of desire to check for and provide information on requests is baffling for a company that claims to perform up to 20 checks before issuing a PCN.

chijiokeike

Signage at Car Park and PE’s claims to be in a binding contract to pay £100 based on T&C’s

29.               On XX/01/2021, I returned to the car park to review and take photographic evidence of the signage which PE claims to form a binding contract on entry to the Bloom Street Car park.

30.               At the point of entry to Bloom Street Car park, the entrance terms, and conditions sign is not easily visible, readable, or in direct line of sight for the driver (Exhibit X/Page XX) . The only readable signage in single text on entry is the “Tariffs Payable” and the “P” sign on the PDT at the entrance. These Two Signs do not mention anything related to the paying  £100. On Exit from the Car Park there is a sign showing “Parking Tariffs Apply” which is readable (Exhibit X/Page XX).

31.               There are a total of 5 signs on site (excluding “P” sign on PDT). Three signs mention “Failure to comply with the terms and conditions will result in a Parking Charge (£100)” on close inspection. These words are only easily readable on one sign, but this sign is at the corner of the car park between Bloom Street and Chorlton Street and faces away from the car park, so was not seen by me when I came into the Car park each time. I enter Manchester Piccadilly  from Ashton Old Road, hence go through Minshull Street before entering Bloom Street (Exhibit X/Page XX and Exhibit X/Page XX).

32.               The two other signs showing £100 are a lot less readable. One is posted parallel to driving direction into car park  and faces away from the PDT machine (Exhibit X/Page XX and Exhibit X/Page XX) . The other is posted at the back of the Car Par on the ANPR CCTV post (Exhibit X/Page XX and Exhibit X/Page XX). Furthermore, these signs are above driving position eye level, and has with a mixture of different fonts. None of these signs was read on the day of parking.

33.               All the Terms and Conditions which are meant to form basis of this binding contract are not easily legible on all three signs even on close inspection. Hence there is no way of knowing what the provisions are in PE T&C’s for Payments made that were not receipted by PDT, or under what grounds £100 is payable.

34.               In the 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 about the sign”. It also states that “they should be seen upon entering the site” and that the signs are a vital element of forming a contract with drivers

35.               PE claim that by using the car park you automatically agree to pay a charge of £100 for not following their T&C’s. I never undertook such a contract, and however, dispute that such a contract becomes irrelevant if you have taken up another contract to make Tariff payments at the PDT machine.

36.               A review of the signage and instructions on the PDT which is the only instructions read when using the car park has no mention of Parking Charges of £100 (Exhibit X/Page XX and Exhibit X/Page XX). The PDT machine also makes no provision to seek assistance in the event of monies being seized/not returned.

The Beavis case is against this case

37.               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 like damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, 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.

38.               However, there is no such legitimate interest where the requisite fee has been paid in full and then some 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.

39.               Just to stress the point that PE does not always act in the legitimate interest and under the direction of the Landowner, I would like to use as the example of the recent PCN XXXXXXX (Exhibit X/Page XX) the registered keeper received for Car Reg XXXXXX after picking up an order at Holiday Inn, Quays, Waterfront Quay Salford, Manchester M50 3XW on XX/07/21. Time Parked was 24 mins.

40.               It’s important to bear in mind that this is a free car park for Holiday Inn Patrons and to note the amount of time stayed. However, a £100 PCN was issued.

41.               Due to my ongoing dispute with PE, and an appeal process that shows absolute contempt towards a Car Park users statement of facts, plus nonchalant attitude to performing proper checks and providing information, the Registered keeper decided not to appeal this PCN via PE. Instead, He wrote to the landowner directly.

42.               The Landowner contacted PE requesting the cancellation of the PCN (see Exhibit X/Page XX). PE promptly cancelled the PCN. Needless to say the outcome of this PCN was different only because the registered keeper had direct access to the Landowner, unlike in this scenario.

 

Redacted Landowner Contract and T&C’s

43.               The Claimant has appended as an Exhibit a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?). Two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts is key in these cases since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

44.               In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal is now clear that most redactions are improper where the Court is 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 a good reason for redacting an otherwise relevant provision...'

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.

chijiokeike

WE WON 💪💃🏾🕺

This victory was made even sweeter by the fact we hardly needed to make much argument/representation at the hearing + PE had submitted a 2ñd witness statement to counter ours, well past the date of final submissions set by the courts, I wasn't even aware that this could be allowed.

It almost felt as if the Judge was our advocate during sections of the hearing. She saw right through the PE schemes. What a great Judge.

Thanks to everyone on this forum for all your help in preparing our defense and understanding the process. This is your victory too. God bless you all and remain blessed.

Coupon-mad

Brilliant news!  ParkingEye can be harder to beat but clearly you had paid (twice) in good faith so there was no breach at all.

ANOTHER PARKINGEYE ONE BITES THE DUST!