Driver fined because landowner changed their mind on parking space

MFR123

Hi guys, I have my case tomorrow - Quite nervous to be honest - 

I want to post my defence here - It's all I think I have against this case - Not sure if it is enough but maybe you guys could let me know:

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“The claim was an unexpected shock” [para. 1]

-        As previously the building had been totally empty and was only recently bought. Previous to this the car park was empty and no company was charged with overseeing the car park. The claimant’s exhibit is proof of this as they began operating the park as per the 10/10/21 and the ticket was when I came back for my very next shift on 13th oct, just 3 days after.

-        [See: Exhibit 1&6 from Claimant’s WS]

“breach of any prominent term” [para. 1]

-        As the signs were not prominent at all under the circumstances in which the incident took place.

- Only 2 signs visible in the video. There were construction signs present too. How would one distinguish between the 2? In a narrow area, focus is more on the pedestrians as opposed to signs. especially when they were not expected in the first place.  

??? Signs were right below the lamp which decreases the brightness of the signs as light is spreading outwards. Hence is going AWAY from the sign and not onto it. Light travels in a straight line.

- Font was small so cannot see any charges applied nor can it be known what it was.

Thornton V Shoe Lane Parking:

“I do not pause to inquire whether the exempting condition is void for unreasonableness. All I say is that it is so wide and so destructive of rights that the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way. It is an instance of what I had in mind in J Spurling Ltd v Bradshaw [1956] 1 WLR 461, 466. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.”

The signage stating any penalty was not noticeable hence cannot be applied. Unclear and lack of notice dictates the contract must be null and void.

Vine V London Borough of Waltham Forest

Ms Vine won because it was held she did not see the signs she was later to be bound by.

IPC CEO:

“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…”

## No legitimate interest in enforcing a charge

- Explicit permission from the landowner, so that would override any agreement parking operator would have with landowner.

- Cannot possibly distinguish those from parking signs especially when they were not expected.

Frustration of contract.

- We were not made aware of the landowner changing his mind.

### It was my First day back. This alongside the verbal contract and other construction signs being present could not allow the contract to be valid and thus must be set aside.

POFA and CRA Breach:

-        The claimant mentioned they were entitled to pursue court and solicitor fees which they are entitled to. However, the breach mentioned in the witness statement refers to the additional costs the claimants called “damages”. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

-        The claimant has addressed a totally different issue in the witness statement.

-        Furthermore, on this point briefly, there was no letter received by the defendant that made them aware of such damages in the first instance. It was only after filing the court papers, that the damages were seen to be raised to a total of £176. The first time this charge was seen by the defendant was when the defence was to be submitted by the defendant. No communications regarding this was made prior to the defendant. The claimant is put to task of this also.

Vine v London Borough of Waltham Forest [para 15]

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

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

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000(NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

-        Ms Vine was coming home from hospital when she pulled into a private road where there was a car blocking the sign saying she would’ve been clamped.

-        Para 36. From it [LJ WALLER]: “The onus on the person seeking to clamp in reliance on a notice must be very high”.

-        Ms Vine won this case on the basis that she didn’t see the sign by which she would later be bound.

-        The claimant mentions in their witness statement that the sign was seen by myself and hence the agreement took place, but the burden of proof is upon the claimant to prove such was the case as the defendant denies any such assumption as stated from the beginning.

-        This here is a point worth noting since in THRONTON V SHOE LANE PARKING LTD, The Parking company claimed Mr THRONTON knew of the conditions. However, [quote]There was no finding to that effect. The burden was on the company to prove it and they did not do so. Certainly there was no evidence that Mr Thornton knew of this exempting condition. He is not, therefore, bound by it. [end quote]

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Anything else I can add?

Main points of my argument are:

#1 - Landowner allowed us to park there

#2 - Signage not clear 

- There were also construction signs around, how could I distinguish between them

- Thornton case - Judge said: . "In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.”

- The video I took showed 2 signs - The signs shown in the WS by claimant shows more BUT they are taken from 2 feet away in broad daylight - Not the same condition - Especially when driving in a narrow road where the main concern is pedestrians

QUESTIONABLE POINT------ Signs were right below the lamp which decreases the brightness of the sign as light is spreading outwards. Hence is going AWAY from the sign and not onto it because Light travels in a straight line. IM NOT SURE ABOUT THIS POINT, IS IT VALID TO USE?

#3 - Frustration of Contract 

- I wasn't aware the landowner changed their mind - Since I can't read minds. It wasn't something I could've predicted.

#4 - POFA breach has resulted in cases being struck out due to abuse of process - Like Excel V Wilkinson

- CRA requires both terms and consumer notices to be 'fair, transparent and prominent'

- Test of fairness - Where all terms brought to the attention of the consumer, unambiguously and conspicuously?

#5 - They said I saw the sign 

- Ms Vine won because she didn't see the sign 

- They have no proof to say I saw the sign - Thornton quote "Certainly there was no evidence that Mr Thornton knew of this exempting condition. He is not, therefore, bound by it."

--- Even if I did, I would've assumed I was exempt since the principle [Landowner] allowed us themselves

MFR123

Question: is it necessary for them to affix windscreen ticket when they have a warden instead of CCTV?

KeithP

MFR123 said:

Question: is it necessary for them to affix windscreen ticket when they have a warden instead of CCTV?

No.            

Coupon-mad

Not yet.

Will be in 2024 (see this new statutory Code, soon to be resurrected):
https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice

MFR123

Claimant ha quoted the VCS V Ward case - 
In the VCS case, Judge Saffman found at paragraph 52 the following; "In the particular circumstances of the case, as was the case indeed with Mr Crutchley, the outcome, to the effect that Mr Ward is penalised for stopping for no more than 4 seconds to deal with the unforeseen illumination of his car's engine management light, may be seen to be a harsh one. Nonetheless, that is where the authorities clearly lead me. I really cannot find any basis for a proper distinction between this case and Beavis. It is true that one relates to overstaying in the car park for almost an hour and the other relates to 5 stopping on a road for a matter of seconds but the principles in both are identical. Not only are the principles in Crutchley identical, but the facts are almost identical."

It is therefore my Company’s view that the principles of the contractual license in this matter are no more or less different than in the VCS Appeal and therefore, this matter cannot be distinguished from the Beavis case


Question - Now in my defence, it states that In the ward case, a few seconds emergency stop was unfairly aligned with the admitted contract in Beavis - 

But what is the evidence it was 'unfair'? 

Coupon-mad

What do you, as a reasonable and unrelated person to the case, think was REMOTELY fair or even "similar to Beavis" about that appallingly tone deaf (anti Consumer Rights Act) judgment by HHJ Saffman?!

I think we can all see it is ludicrous and plainly wrong to say that a car coming to a halt for FOUR SECONDS due to an electrical fault is 'conduct' (i.e. a deliberate decision) by a driver who merely started the engine again when it stalled?

Mr Ward did it deliberately and accepted the contract did he?  And you considered the MANDATORY test of 'fairness' did you, Judge? Don't make me laugh.

The only reasons I think caused VCS to win were because I don't think Mr Ward turned up (so their confident legal rep had the floor) AND they got very lucky with the Judge being so easily led by parking firm solicitors.

HHJ Saffman did it again in VCS v Percy...

I venture to suggest it was because of that terrible judgment in WARD that the DLUHC's new incoming statutory Code of Practice allows 'no stopping' PCNs from 2024 BUT only if the stop was 'more than momentary' - or words to that effect.

Hoist by their own petard. Nice job, VCS.

Get a stupid judgment by talking a credulous Circuit Judge into it?  Expect that to come back and bite you when the DLUHC come along to regulate the rogue industry and seek to end the worst abuses!

Especially given I was on the BSI Parking Code Steering Group...I won't ever talk about the work or details of meetings or discussions, but what did the industry expect with me there, a round of applause?

MFR123

Hey Guys, I hope you're well

I won 🏆 

Mainly it was 2 points, The email indicating agreement (so glad I found it last minute - plus the late admission wasn't challenged) and the signage

They began by saying they asked the landowners and landowners said there was never any agreement between us and them.
Furthermore, the enlmail clearly said ...don't annoy them to the point they start enforcing... 

So clearly the defendant was aware of some sort of enforcing on the area

Signage is present and clearly visible

My response:

The email was dated 21st sept 2021, parking operator started on 10th oct 2021, so at the time of the email, I could NOT have known of any "enforcement". Rather, what supervisor meant by "enforcement" would therefore have to be OTHER than the interpretation mentioned by the claimant.

Furthermore, the email is an official doc sent to the whole staff. So the claim that at no point was there ever an agreement is a straight up lie, as the document clearly says otherwise.

On the one hand they're saying you can park there, whilst on the other, they hire parking operators.
Even IF there was an agreement, I would've easily thought we were exempt due to what was previously agreed. 

I cannot read minds, so if they changed their's, it was their responsibility to let us know, else the default is that we stay exempt.

As for the signage, the photos are not dated. I have shown through photo's from 2021 and 2023 how there were more signs later on than previously. 
The photos in the exhibit are undated and in broad daylight.
Mine were at night and from a car so it is a fairer comparison.
Furthermore, there was construction going on, so given that I wasn't even expecting signs to begin with, how was I to distinguish between the construction signs and the small unexpected parking ones?
The focus on such a narrow path is pedestrian life, not unexpected hidden signs

Didn't get to Pofa or beavis. Claimant mentioned beavis somewhere but didn't pay much attention to it.

Claimant had his say, I had my say, Judge asked if Claimant wants to come back, he did but said something I don't quite remember.

Then Judge said: I'm going to give a judgement now. It was pretty quick to be honest. Thought I would have to battle it out, but it was the email that ultimately won me the day.

Judge (who was very nice) said the man who signed the document saying we had no agreement was not present to be cross-examined, and the signs are undated (except 1) so we don't know when pics of said signs were taken.

It is on the basis of:

The email agreement;
Lack of witness to explain the claim of no previous agreement at all;
alongside the fact that even if the sign WAS present mentioning the conditions of parking, it is so small that it can be easily missed if one wasn't expecting it;

That this claim fails.

I didn't claim any expenses. Honestly, at this point I was just content to rid myself of this and put it behind me.

I'd like to thank everyone for their help and for being so generous with their time, especially Super Coupon Mad
You Da Real G!

Thank You Once Again!

*Mic Drop*

Coupon-mad

Fantastic!

WELL DONE! What a find that email was...it earned you the virtual "I won!" MSE parking forum T-shirt.

ANOTHER ONE BITES THE DUST!

And...one favour please: don't go just yet!

We need you - as a genuine PPC victim of aggression, sharp practice and an 'extortion' attempt to add £70 - to respond robustly to the Public Consultation on the level of parking charges and banning of the false added DRA 'fee' that too many honest motorists currently fall victim to.

It will need consumer input (powerful voices) but change is afoot. It's taken about 5 years to get to this stage:
https://forums.moneysavingexpert.com/discussion/6333036/breaking-news-government-has-announced-the-statutory-code-of-practice-and-enforcement-framework/p1

And then the industry threw victims' money at it and blocked and delayed it - explained here:
https://forums.moneysavingexpert.com/discussion/comment/79310609/#Comment_79310609

Please now Bookmark BOTH threads and set up email alerts on your posting profile, so that you get an email alert when we post there, as we will, once the Public Consultation opens.

...anticipated very soon...end of July we think.

We need people like you and your driving family & friends to respond.  Separate submissions from everyone you can drum up!  I am sure you want your voice heard to stop this happening again.

See you back here in August, please.