Claim Form Received at old Address

harmy69

Hi Guys

Just been writing a Witness Statement and putting together a few photos. This is where i am so far. 

WITNESS STATEMENT OF DEFENDANT 

 

1. I am <NAME> of <ADDRESS>, 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:

3. At around (time and date) of November 2020 I was driving my car, (VRN) around the area of Allison Street and Coventry Street in Digbeth. I had turned left from the B4100 on to Allison Street.
   

4. The on road parking on Coventry Street, where I usually parked when visiting the City Centre had been full due to the busy time of day so after a few minutes driving around the local streets I drove back up Allison Street in the direction of the B4100 and decided to park in the “Indoor Car Park”.

5. There were two signs on the footpath, the first nearest to the passenger side of the car as I approached the car park (exhibit A) and the second near the entrance of the car park (exhibit . There was also a “Please Pay Here” sign next to the payment machine. None of these signs had any terms and conditions on them. From looking at Google street view, the Claimant has since added a “£5.00 All Day” sign which was not there on the date of the alleged contravention. These signs can also be seen in exhibit B.

6. The entrance did not have any signs stating any terms and conditions neither on the wall closest to the driver side nor on the wall nearest to the passenger side of the car. The only signs on the wall were on the passenger side and these stated “PAY AT MACHINE ON OUTSIDE CAR PARK” and above that there was a sign stating “CCTV IN OPERATION ON THESE PREMISES” (exhibit C). The driver side of the entrance did not have any signs on it either (exhibit D).

7. I drove into the car park and noticed it was very dark in there. The car park was poorly lit with lights only on the far side of the indoor car park with most of the entrance area amongst shadows.

8. As I entered the car park as it was relatively empty and saw an empty space next to a metal pillar and proceeded to park my car there. I parked my car, taking note of the large metal pillar on the passenger side of my car. The position of the metal pillar is such that no other car is able to fit into that empty space.

9. I exited my car and proceeded to the outside of the car park to purchase a ticket whilst my wife remained in the car. As I walked out of the car park I did not see any signs inside the car park that indicated any sort of terms and conditions. I was expecting such a sign to be near the payment machine.

10. There were no signs next to the payment machine regarding terms and conditions either, only a sign about opening hours (exhibit E). I did not see any signs during my drive to, entry into, stay at or exit from the parking area. As such I can only reasonably conclude that there were no such signs.

11. I paid £2.20 for 3 hours of parking and took my ticket and went back to my car and displayed the ticket in the window clearly (exhibit F).

12. At no point did I notice that my car was incorrectly and I believe I would have noticed a bright yellow line as shown in the Claimant's photo (exhibit G, green circle). I made sure there was enough space between my car and the large metal pillar that I was parked next to so I didn’t not bang my door into when opening it. Had there been a yellow line as drawn in the Claimant's photo, I would have adjusted my parking. Due to the metal pillar being next to my car I believed that I was parked correctly without putting the Claimant at any loss. The Orange circle represents the position my car was parked in relation to the wall art. This can be seen to be the same in this photo and also the photo which shows the very poorly lit car park (exhibit H). It can also be seen in this photo that parking bay lines are very poorly maintained and some do not eve appear to be there.

13. When I arrived back to the car park later that evening I noticed a parking ticket on my windscreen. I took this off and got inside the car believing it was a mistake due to having already paid. I handed the ticket to my wife (the passenger) and drove out of the car park.

14. I parked up on the side of Allison Street and proceeded to take the photos that I have presented as there had been a distinct lack of signage. I have also included images from Google Street View that also show a lack of terms and conditions on any of the signage.

15. Exhibit H is a picture I took after departing the car park. There was now another car parked in the same space as I had parked earlier, marked in a orange circle which is the same position as in exhibit G. It can be seen that the parking bay is next to the metal pillar where another car cannot be parked, marked with a red circle.

16. I would like to stress that there is was no parking bay marked with bright yellow lines as shown in the Claimants photos.

17. I got back into my car and discussed with my wife that it must have been a mistake as I had fully paid but also discussed the lack of signs in the car park that expressed any kind of detail. We both felt this to be somewhat strange and she expressed that it seemed very deceptive not to have signs and it was worrying.

18. On the (date), the next day I emailed the contact email address of Premier Parking Logistics, stating I had paid and provided photos of my ticket. In my haste I accidentally gave my parents address where I visit everyday as I am an unpaid carer due to my mothers disability.

19. I received a reply the following day, (date) stating that the charge was for “not parking WHOLLY within a marked bay” and that I “did not comply with the terms and conditions stated on signage within the area...” and that “signage within the area holds a 24 hour helpline which you could have accessed had you any concerns regarding parking on the day in question.”

20. I absolutely disagree with these points as there was no visible signage regarding any terms and conditions and the only signs that were obvious were the ones pointing to the car park and the one regarding where the payment machine is. I did not see any other signs as I entered or exited the car park. There are numerous metal pillars as you walk out of the car park as shown in the photo but none of these pillars have any signs either. As such I can only reasonably conclude that there were no such signs on the date of the parking ticket.

21. Parking bays were not clearly or adequately marked out and some bays had no visible lines at all. There were definitely no parking bays marked with yellow lines where I had parked my car.

22. I did not reply to this email and received no further emails or correspondence at the address that I had provided up until the Claim Form.

23. The Claim Form states that my “vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s). I disagree that any contract was formed due to the fact that there had been absolutely no clear and obvious signage visible relating to any Terms by the Claimant as I entered or exited the car park on that day.

24. I therefore disagree with the Claimant's excessive costs and damages relating to me parking in the claimant's car park that day as no contract was ever formed. I paid the full parking charges as directed by the signs that were visible and displayed my ticket clearly in the windscreen.

25. The Beavis case is against this claim           

26. 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.

27. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay due to another car not being able to park in the bay with the metal pillar. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage and varying acceptability of parking areas 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.

28. Even taken as an extreme close-up, with no proof as to its 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, even if I had seen signage of the sort presented by the Claimant – which I didn’t as it was not present – no contract to pay an onerous penalty would have been seen, known or agreed.

29. Abuse of process – the quantum

30. In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’. The added £60 constitutes double recovery and 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 exhibit XX-04). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

31. 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''. 

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

33. 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).

34. CPR 44.11 – further costs

35. 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.

36. Therefore, I am appending with this bundle a fully detailed costs assessment 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). In support of that argument, I first draw the Court’s attention to the fact that the Claimant was aware that there was no signage at the entrance to the parking area and no signage visible from my vehicle, and that any terms or conditions of parking outlined on any elsewhere-placed signage could not be binding. Such matters, forming a significant part of the Claimant’s business model, can be reasonably considered to be within the Claimant’s expertise, and the Claimant could have avoided this claim.

37. 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>

Exhibit A

Exhibit B


Exhibit C


Exhibit D

harmy69

Exhibit E


Exhibit F


Exhibit G


Exhibit H

Coupon-mad

You haven't got the latest wording about the fact the added fake costs are now banned, under the new Code of Practice published by the DLUHC last month.

An example of that is in the WS by @ricky_balboa

Word missing here:

"At no point did I notice that my car was incorrectly parked and I believe I would have noticed a bright yellow line as shown in the Claimant's photo."


And in 30 you talk about Excel v Wilkinson which is fine to attach but you've not given it a new Exhibit number, it looks like you've just copied wording and not gone and found the transcript yet.

harmy69

Thank you for that info. Will add the case as an exhibit as advised. Will have a good read of the DLUHC and add that to the WS too. 

Wanted to know about landowner authority. From what I know by doing some research is that Wilkins owns the Paper Mill. I’m assuming that land owner authority therefore does not apply in my case as it’s his car park? 

Thanks 

Coupon-mad

If you are certain that he owns the site, then don't use the wording about 'no landowner authority' that I suspect is somewhere in the WS example that I mentioned.

harmy69

Coupon-mad said:

If you are certain that he owns the site, then don't use the wording about 'no landowner authority' that I suspect is somewhere in the WS example that I mentioned.

Cheers. Will leave it out as it seems to be the case according to this.

https://find-and-update.company-information.service.gov.uk/company/12119823/officers

harmy69

When quoting POFA and CRA breaches as in the defence template, do the relevant Acts need to be added as exhibits also? Thank you.

Coupon-mad

You shouldn't have to append statute law.  I think a link is good enough for laws.

1505grandad

No exhibits are sent with Defence  -  WS only

harmy69

1505grandad said:

No exhibits are sent with Defence  -  WS only

Yeah I’m at the WS stage but thought I’d put those statues in. 

My second draft is almost done and just writing up further costs. What would be an acceptable amount to put into that section? Thanks