Small claim advice needed

jay2896

Thanks, I’ll make the suggested adjustments and read the documents and get a second draft posted on a few days. 

The claimant is vcs  

jay2896

with adding in the content (6-25) from the new wording I take it this replaces 12-21 in my draft?

Coupon-mad

I advised:

To cover the new Code of Practice you should add 6-25 from this new wording:

https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299

...to your witness statement instead of your 12-24.

jay2896

Hi guys, 

Below is my second attempt with all of the suggested adjustments. I'd be really grateful for further feedback. 

also a few additional questions. As I have admitted to being the driver is paragraph 16 relevant to my case or should it be removed. 

The person from the company leasing the parking slots is happy to provide a witness statement. I'm guessing his has to follow suit but can be more basic than mine? I have him down as a witness for the hearing.

WITNESS STATEMENT OF DEFENDANT FOR TELEPHONE HEARING ON xxxxxx. 

1. I am xxxx 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 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: 

Sequence of events and signage

3. In xxxxxx my colleague and I were invited by Mr xxxx of xxxxx to attend a meeting at the companies head office based at xxxxx Airport on the evening of xxxxxx.

4. On the day in question I arrived at Mr xxxx's office at approximately 7:45pm. I displayed the parking permit provided by Mr xxxxx in the car window. My Colleague and I removed our work bags from the car, went for a short walk (to stretch legs) before returning to attend the meeting. It is worth noting that on the evening in question the wind was particularly strong and may have affected the placement of the said permit.The valid parking permit is included in exhibit xxxx. As per the code of conduct from February 2022 production of a valid parking permit warrants a cancellation of a parking charge.

5. On the approach to the office of xxxxx there are Parking information signs. However, this is a busy dual carriageway and complex roundabout. The signs in this area are unlit and difficult to read after sunset (see exhibit xxxx). Therefore, it is impossible to read the full terms and conditions and maintain control of a moving vehicle.  

6. When pulling into the parking lot for xxxxxx I had not seen any parking signs on the gateway as these signs were hidden by foliage (exhibit xxxx). Please be aware that the pictures in exhibit xxx were taken during winter and therefore have significantly less foliage than in early October when the PCN was issued. 

7.On receiving the parking notice from xxxxxxx I initially made contact with the company to explain that permission had been granted by xxxxx to park in the allocated parking slot and the correct permit displayed. I was informed of the appeals process. 

8. On the xxxxx I submitted an appeal via the website myparkingcharge.co.uk (exhibit xxx) on the xxxxx Mr xxxxx submitted an appeal also via my parking charge (exhibit xxxx). The outcome of the appeal was printed on the xxxxxx (exhibit xxxx). 

9. I did not have any further contact with the company for some time as this coincided with the beginning of the COVID19 pandemic. During this time I was working as a clinician on the front line at xxxxxxx Hospital (exhibit xxx). When I raised this with the International parking community (IPC)  I was informed that the window for an appeal had closed. 

10. I have now been issued with a PCN for an inflated charge of £160 and have been threatened with additional debt recovery charges. 

11. A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit *** for comparison. In this 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 in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

12.  The quantum and interest has also been enhanced.  It is denied that the sum sought is recoverable and a significant chunk of this claim represents a penalty, per the authority from two well-known ParkingEye cases.  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet here, the learned Judge also considered added 'costs'.  The parking charge was set at £75 (discounted to £37.50 for prompt payment) then 'admin costs' inflated it to £135.  At paras 419-428, HHJ Hegarty sitting at the High Court (decision ratified by the CoA) found that adding £60 to enhance the sum sought to £135 'would appear to be penal', i.e. unrecoverable.  

13.  My stance regarding this punitive add-on is now underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators must comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

14.  Adding 'debt recovery' costs, damages or fees (however described) on top of a parking charge is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

15.    This particular 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 unincurred 'damages' enhancement of £60 or £70 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.

16.  The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue.  According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'.  This despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and exposed as fact, in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis and are effectively Trade Body Board member colleagues passing motorists' data around electronically and inflating parking charges.  This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

17.  The Ministerial Foreword to the new Code is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

18.  These are now banned costs which the Claimant has neither paid nor incurred, and were not quantified in prominent lettering on signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists, and came far to late.  The driver did not agree to it.

19.  Whilst the new Code is not retrospective, it was brought in due to the failure of the previous two competing (self-serving) BPA & IPC codes of practice and the Ministerial Foreword is indisputably talking about existing cases when declaring the add-on to be 'designed to extort money'. A clear steer for the Courts from now on.

20.   This overrides the mistakes and presumptions in the appeal cases that the parking industry had been relying upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive or assisting with clarifying the law, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in niche private parking law and where the litigant-in-person consumers had no financial wherewithal to appeal further.

21.   In case this Claimant tries to rely upon those old cases, significant errors were made.  Evidence - including unclear signage and Codes of Practice -was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC.

POFA and CRA breaches

22.  Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with the other requirements (e.g. adequate signage, correct wording and dates of Notice to Keeper, and the existence of a relevant contract/relevant obligation that was properly communicated).  The Claimant is put to strict proof of full compliance, if seeking keeper/hirer liability under the POFA, because liability is not accepted by the Defendant. 

23.   Claiming unexpected ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the official Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA goes further than the UTCCRs, introducing a requirement for 'prominence' of both contract terms and 'consumer notices' (i.e. signage and any other notices/communications, including the timely service of any PCN in parking cases).

24.   Section 71 provides for the duty of court to consider the test of fairness. This includes whether all terms and notices were unambiguously and conspicuously brought to the attention of the consumer.  In the case of letters/the PCN, this means such communications must have been served.   In the case of signage, this must be prominent, plentiful, well placed and lit, and the terms clear and unambiguous.  I claim that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and having regard to the requirements for transparency and good faith and as guidance, examples 6, 10, 14 & 18 of Schedule2.  

ParkingEye v Beavis is distinguished

25.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 PCN and overcame the possibility of it being dismissed as punitive.  However, their Lordships were clear that ‘the penalty rule is plainly engaged’ in these cases.  Their decision mentioned a 'unique' set of facts including the legitimate interest, site location and prominent, clear signs with the parking charge in the largest/boldest text.  The unintended consequence is that, rather than persuading Judges that these charges are automatically justified, the Beavis case facts (and in particular, the brief and conspicuous yellow/black warning signs) set a high bar that this Claimant has failed to reach.

26.   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 an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

27.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests.

28.   The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding any person reading them.  Consequently, it remains my position that no contract to pay an onerous penalty was seen, known or agreed.

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

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

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.  The CoA held that it was unsurprising that Miss Vine did not see the sign, due to "the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in statements, they have misled courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio.  

30.  Fairness and clarity of terms and 'consumer notices' are paramount in the new statutory Code and this stance is supported by the BPA & IPC Trade Bodies.  In the 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." 

Lack of landowner authority evidence and lack of ADR

31.  DVLA registered keeper data is only supplied to pursue parking charges issued on private land, where there is an independently signed landowner agreement (this is part of the KADOE rules for AOS BPA or IPC members).  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, etc. and there has been no evidence that the freeholder authorises this Claimant to issue PCNs at the place where the vehicle was and/or for the reasons given.  Nor is it known what the land enforcement boundary and start/expiry dates are or were.  The Claimant is put to strict proof of same and that they have standing to enforce charges by means of civil litigation in their own name.

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. 

SIGNATURE xxxxxxxx 

DATE xxxxxxxx

Coupon-mad

Are you attaching a separate costs assessment, as your WS doesn't mention your costs at the end?

That's a good WS.  Being pedantic about detail, there are two errors that I saw:

" to attend a meeting at the companies company's head office "

" parking lot " = American.  No such thing here.  Only use the phrase 'car park' to avoid that grating with a Judge as pedantic as (non-legally trained) me!

I do like the idea of VCS reading para 20 and 21, saying their previous appeal cases are history due to the Government looking properly at the fixed £60 add-on and banning it.

jay2896

Hi, again thanks for the feedback. I will include a paragraph on costs. I did have one initially but have accidentally cut it out during editing. 

Do you think paragraph 22 is needed as I’ve admitted to being the driver? 

Im really grateful for your pedanticness as I usually overlook the small details. It’s really helpful 

Trainerman

jay2896 said:

Im really grateful for your pedanticness as I usually overlook the small details. It’s really helpful 

Ummmm would that be pedantry ?? (ducking)

1505grandad

"4. On the day in question I arrived at Mr xxxx's office at approximately 7:45pm. I displayed the parking permit provided by Mr xxxxx in the car window. My Colleague and I removed our work bags from the car, went for a short walk (to stretch legs) before returning to attend the meeting."

More pedantry  -  in your draft D you posted:-

"3. The defendant entered the car park after 19:30 in the month of October."

Although WS says "office" as opposed to "car park" the WS talks about actions in the car park.

Para 4  -  "code of conduct"  -  should that be "Government Code of Practice"

Coupon-mad

And only remove this end bit from 22:

  The Claimant is put to strict proof of full compliance, if seeking keeper/hirer liability under the POFA, because liability is not accepted by the Defendant. 

jay2896

just trying to upload my final witness statement but struggling with how to upload documents, any ideas?