Driver fined because landowner changed their mind on parking space

MFR123

I've made a point here about the extra 'damage' you were referring to earlier that they usually add.
I was initially confused when you mentioned the charge and then realised I had received no communication they were adding the £60 extra. I didn't receive (to the best of my knowledge) any debt collector letter at all that said they would be adding £60 or £70 extra. 

Is this a point I can make?

-        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. 

MFR123

Also, the time was 3 hours after sunset so it was really dark - Do I still not mention that it was dark or should I say it was?

MFR123

Can I get a bit of clarification also on the POFA and CRA breaches?

Schedule 4 para.4(5) says: the sum claimed exceeds the maximum potentially recoverable from a registered keeper. 
QUESTION: So what is the maximum potentially recoverable and the proof of this?

Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance(CMA37, para 5.14.3),the Government guidance on the Consumer Rights Act 2015 ('CRA').

QUESTION: But they're allowed to claim legal costs, then what indemnity is unfair? They didn't actually add any costs to the PCN - Both PCN's submitted by claimant is £100 but in the MCON it says they're asking for £176 ??? I am so confused - I think this is going back to my earlier point that they added costs but didn't let me know and didn't mention the evidence in their WS either - Can you clarify these points for me?

MFR123

I've finished my defence notes and I'm posting all that I will refer to below:

Consequence of failure to serve witness statement or summary

32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

RULE 32.10 on Evidence states: in the case a late WS is handed in, the Witness may not be called to give evidence... However, it also states "unless the court gives permission". It is not unknown for courts to show leniency in small track claims so the defendant asks for said leniency. Hence, if the court grants permission, the Defendant will produce their witness statement and the hearing will continue as originally intended. 

- This above statement is what I want to say IN CASE the parking person or court indicates I am to sit silently. I will say the above and then if they allow, continue and present my WS, or I'll just have to sit down and listen if they don't... I mean, it's worth a try, right? - IS THIS A GOOD IDEA?



CRIB SHEET [for now]

The Defence

“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. The claimant said the signs were repeated throughout the sight and were prominent. The images indicate otherwise. The claimant says: “Furthermore, at the entrance to the site in question, there were clear signs present”. This is not quite accurate. Although at the time of hearing, signs are now present, this wasn’t fully the case as images attest. Certain signs were added later. Which indicates, if a sign is clear in the first instance, increasing their number is of no benefit.

-        [Refer to Exhibit xx--01 and compare with exhibit xx--02 and compare Exhibit xx--03 with Exhibits xx--04, xx--05, xx—06 and final comparison between Exhibit xx—07 and Exhibit xx—08]

-        Adding onto this, 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."

-        This didn’t happen. It’s too late to add additional signs that weren’t present at the time. This should’ve been put into place earlier, as it DID affect this motorist in question.

The Signage

-        The signage was not clearly seen from the perspective of the driver as the video shows. And they certainly aren’t as many as the claimant alludes to in the witness statement. If the claimant says they were present, the video is against them. A simple comparison between the videos from 17th Oct 2021 and the video from 5th February 2023 will show the clear difference in terms of the number of signs that could be seen from the drivers perspective.

-        Furthermore, the writing is in a font unreadabe to any driver passing through the narrow path. So from a driver’s perspective, they may as wll have been non-existent.

-        Again, more signs were added, but it is too late for this as it goes against the code of practice of the IPC stated earlier.

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.

Distinguished from Beavis

-        Contrary to the claims made by the claimant, ParkingEye v Beavis is distinguished

-        Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.

-        ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts.

-        That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text

-        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 a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

-        In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed.

-        Refer to Exhibit xx-10 and Exhibit xx--11 ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198

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]

Clarity from CEO of IPC

-        Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, 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."

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I tried to make it as brief as I could as recommended -

Coupon-mad

Do NOT draw attention to a WS being late!  Nothing about that!

If it was dark, then I take back what I said and of course the WS should say it was dark.

The unfair costs are the added £60.

It's not that you weren't told about it!  It's that they are false costs that were never incurred, and are an attempt at double recovery (they even say it's "for the solicitor sending a LBC").

Errrmmmm... but hang on, the fixed legal fees of £50 have already been added for that 'work' in contemplation of the court claim.  They can't have £50 AND £60!  The CPRs cap the fees.

MFR123

Hearing is soon, is there anything else I need to mention or keep in mind?

MFR123

Right, so I walked in thinking this is it - The Judge seemed quite aggressive towards me being a litigant in person going on about how long it takes to be a solicitor and barrister but did say respects anyone who does so - Judge then gave us 10 mins saying go out and try to settle - I didn't as they're asking for £185 now as opposed to the £288 in total - The claimant said we've got fees - the Judge then frankly told the claimant you won't get anything outside the legal fees - None of the damages - so at best looking at £185 - 

And said to me its not worth getting a CCJ against you for such a small amount 

The Judge tried to convince me to not take it to trial - But did say they of course haven't heard the case evidence, however

Now it's going to trial and I was attending a District resolution hearing

So, what now?

B789

Good luck and let us know how you get on.

Le_Kirk

That would be dispute resolution hearing and you wait for an Allocation Notice.  Does the judge not know that you don't get a CCJ unless you fail to pay before the deadline set by the judge? 

Coupon-mad

Well done for withstanding that 'glorified mediation-style' bullying Dispute Resolution hearing!  Onwards & upwards.

Wow...what choice did you have but to appear as a LIP, for Goodness sake?

It's not as if you chose to be sued!

Glad the Judge agreed with us on this:

...hang on, the fixed legal fees of £50 have already been added for that 'work' in contemplation of the court claim.  They can't have £50 AND £60!  The CPRs cap the fees.