Driver fined because landowner changed their mind on parking space

MFR123

Question #2

‘Hugely disproportionate fixed sum’ 22. My Company denies the assertion it is pursuing a ‘hugely disproportionate fixed sum’ 23. My Company seeks its legal costs which are recoverable pursuant to CPR 27 and CPR 45. In this regard, my Company relies upon CPR 27.14 (2)(a)(i) and CPR 27.14 (c). 24. My Company confirms where it seeks recovery of legal costs, it relies on CPR 45.2 (1) (a) and (b), as these rules allow for the appropriate fixed costs on commencement of a claim for the recovery of money or goods in accordance with Table 1 to be sought. As £50 is identified as a recoverable sum within Table 1 as a recoverable sum and therefore does not require substantiation; as it is provided for in the CPR. 25. My Company’s Court fees in respect of this matter are recoverable pursuant to CPR 27.14 (c). 26. My Company is further able to seek recovery of interest of the Claim amount at a rate of 8% pursuant to S.69 of the County Courts Act 1984.

This is abrogated by the POFA and CRA breach right?

Coupon-mad

No, they are allowed to add £50 in legal fees.  And they are also allowed to ask for interest, albeit why should they have that much reward for doing nothing for years...

Your point against the added fake costs add-on is not about the fixed fees the court allows.  It's about the added 'damages' of £60 or £70 that they added to the PCN when sending debt demands.  But you know this from your defence and WS which cover the objection to that sum.

Re the landowner authority, the Judge will probably think it's OK but you could show us a photo tonight.

What's your main point of defence? The fact you were reliant upon a prior promise from the landowner which was rescinded without telling anyone?  That is a main point because you are entitled to rely on a promise/grant of parking and you have emails as evidence that the rug was pulled on the grant of parking without informing anyone.

Secondly, signage is usually dire (unclear terms in small print on an unlit wall) so I expect you'll raise that and say "why would we think those signs applied to us when we were expressly authorised to park there?  Nothing had changed and our promise came from the landowner themselves"

You could show us their signage evidence too if you wish.

Write yourself a crib sheet because the Judge will want you to concisely voice your dispute areas and to draw his/her attention to your photos and exhibits.

Call the Judge 'Judge'.  "Good morning Judge" as you walk in (if it's an in-person hearing).

MFR123

In total excluding any court fees and solicitor fees, They are pursuing £176.56

MFR123

They've said:

. The Defendant’s submissions with respect to contractual costs in this regard were considered in the recent appeal of Vehicle Control Services Ltd and Mr Adam Percy [County Court at Leeds] [28th September 2021] (the “VCS Appeal”) whereby HH Judge Saffman found the following regarding costs at paragraph 37: “Had Mr Percy paid as a result of the PCN (stage 1) there would have been no further work for the appellant to undertake. Because he did not pay, the appellant was obliged to proceed to stage 2 consisting of sending a final notice and…instructing solicitors to send a letter before claim and those solicitors sending the letter of claim. The £60.00 is clearly for stage 2 work.

The Defendant’s submissions with respect to exaggerated costs is addressed in the VCS Appeal at para. 39: “…it is inevitable that further work of some kind is necessary where the motorist does not respond to the PCN. Fundamentally, it requires the appellant to undertake the stage 2 activity which would have been avoided if payment had been made at stage 1. Whether £60.00 is fair for stage 2 work is a different question. It might be unfair but it is not double recovery. It is an attempt to recover in respect of stage 2 work that would not have been incurred if payment had been made at stage 1.”

. In conclusion, the Defendant’s submission that the Additional Charges Term is unfair HH Judge Saffman, in the aforementioned appeal case, stating at para. 57 that: “…I am satisfied that the Additional Charges Term is not unfair and the District Judge, in common with a large cohort of his colleagues, has erred in finding that it was.” 34. In light of the above, my Company submits that additional costs claimed are therefore not “exaggerated” as averred by the Defendant but are costs incurred which my Company are entitled to claim due to work undertaken in an attempt to recover the debt owed, of which the Defendant failed to make any payment. 35. Furthermore, The Defendant asserts that under POFA schedule 4 (4.5), the maximum amount recoverable in these circumstances is the amount specified on the notice to keeper, in this case £100. However my Company rely on POFA schedule 4(6) which states that the paragraph does not affect any other remedy the creditor may have against the keeper of the vehicle. Consequently as my Company are seeking to recover additional costs on an indemnity basis as outlined above, due to the Defendant’s breach of contract; this is not affected. 36. Further, my Company has a contractual right to seek the costs given on the basis the sign specifically states: “Non-payment will result in additional charges which will be added to the value of the charge and for which the driver will be liable on an indemnity basis”

MFR123

Is this the response?

This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of Parking Eye Ltd v Beavis[2015] UKSC67. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419- 428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal',i.e.. unrecoverable
23. Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.
24. The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the preBeavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''
25. This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.
26. This Claimant knew or should have known, that by adding £76 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit xx-11), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.
27. Adding debt recovery/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."
28. This Claimant’s legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate, and uninsured 'damages' enhancement of £60 (more in my case) and above upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

MFR123

If I lose, can I go for another appeal of some sort as it's currently not looking good tbh - P.S. It was a verbal contract so it would've gone down to "He said she said" regarding being allowed to park in said space - right?

MFR123

I think my main point of defence at this point is the following points:

- Their contract began on 10th OCT 2021 - I got the ticket on 13th OCT 2021 - The building in cquestion was unoccupied for over a year - 

So for them to say I should've seen the signs is ridiculous as I came back to work on 13th oct and went off before 10th so it was my first day back - 

Therefore, I shouldn't have expected to see any signs anyway - 

Secondly, they say in their WS that I agreed to the contract after seeing the signs - At this point, the burden of proof is upon them to prove that I saw the signs as stated in the Vine case - Ms Vine never saw the sign and therefore couldn't have been held to have agreed to any contract 

Thirdly, the signs have increased in number since the time of the incident - Why add more signs if they were clear and unambiguous from the beginning?

The CEO of IPC said if they are clear to one person but unclear to the other, the signs are simply not clear - This is important since the signs form the contract and therefore, if I didn't see them since they were unexpected and very small and easy to miss when driving down a narrow road with tight turns and pedestrians walking (as this place is), the signs are missed since the focus itself is on making sure the pedestrians are safe - 

I don't really know at this point if I have anything else 

Coupon-mad

MFR123 said:

If I lose, can I go for another appeal of some sort as it's currently not looking good tbh - P.S. It was a verbal contract so it would've gone down to "He said she said" regarding being allowed to park in said space - right?

But you had emails from your boss didn't you, and you hopefully appended them to your WS bundle as evidence that he was "shocked" when the promise and easement allowing parking turned out to have been removed without telling any of you.

This (below)  is your corroboration, you did put this in evidence?

Manager who the owner spoke to was shocked and sent an email to all staff saying: it seems the owner has changed his mind. The manager told everyone now to not to park their as other staff have now started to received PCN's from the company also.
Manager spoke to the owner who said: "signs are now up saying no parking allowed and they are clear", and that's that. But the parking notice is dated from BEFORE the manager sent out an email. 

Also, this is Parallel Parking Ltd who are in the IPC.  You say there are extra signs up NOW but you can say that's too late, because the IPC CoP, here:
https://theipc.info/brandings/2/resources/documents/Code_of_Practice_v8.pdf

...says at page 30:

"Changes in Operator’s Terms and Conditions

Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the Car Park and which materially affects the Motorist the Operator should place additional (temporary) notices at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur Parking Charges."

They didn't, did they?  They breached their Code and this is why you were all caught out.

Finally, don't forget this point you told us:

the picture taken is as if someone took it from 2 ft away. But the company is claiming it was via 'CCTV', but in the picture, there is no evidence which shows it was 'their' parking space and the driver doesn't even recall parking in the space so this is an avenue to be pursued.

MFR123

To be honest, I actually forgot about those emails (I know, I know very *clears throat* of me to do so) - I really forgot that was the avenue to pursue - I was too busy with the sign defence - I literally have those emails still but too late now - 

Also, this is Parallel Parking Ltd who are in the IPC.  You say there are extra signs up NOW but you can say that's too late, because the IPC CoP, here:

https://theipc.info/brandings/2/resources/documents/Code_of_Practice_v8.pdf

...says at page 30:

"Changes in Operator’s Terms and Conditions

Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the Car Park and which materially affects the Motorist the Operator should place additional (temporary) notices at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur Parking Charges."

They didn't, did they?  They breached their Code and this is why you were all caught out.

Finally, don't forget this point you told us:

the picture taken is as if someone took it from 2 ft away. But the company is claiming it was via 'CCTV', but in the picture, there is no evidence which shows it was 'their' parking space and the driver doesn't even recall parking in the space so this is an avenue to be pursued.

These 2 are excellent points -

There is nothing in the picture per se that indicates it was their parking space since the picture CAN be ambiguous but this is a bit 'iffy' since I of course don't want to lie to the court - It was so long ago, I honestly cannot remember parking there HOWEVER - They now have painted the parking bays at the front with the brand name to clearly indicate that it is their parking spot - Which was ALSO not the case at the time in question otherwise this doubt wouldn't even exist - Is this an avenue to pursue also as I actually have footage I mentioned in the WS which I said I would be presenting under "Further evidence" which points to this clearly?

If I say to the court I genuinely cannot remember parking there (cause I actually don't but I probably did... maybe) and all the parking bays look similar, what happens then?

Coupon-mad

If I say to the court I genuinely cannot remember parking there (cause I actually don't but I probably did... maybe) and all the parking bays look similar, what happens then?

It remains their case to prove.  It's not yours to prove.  The evidence just doesn't stack up does it?

Don't say it was 'dark' at 7pm in early October (before the clocks go back) but you could say it was poor light/dusk, and point out that their own evidence shows unlit, unnoticeable signs on a wall that certainly do not seem at all sufficient for sudden new parking rules started 72 hours before without telling any of the work units!

You just tell the Judge what you know and what happened when in terms of the promise (and the emails... even though you forgot to put them in evidence, you could verbally just mention them!).

And hopefully the Judge will let you read out from the IPC Code of Practice - because it's common ground and they've said in their WS they comply with the IPC CoP (I expect).  Thus the Code is not a surprise to them!