Claim Form CCBC

moby_a

I'd like to thank you all for your help so far, I think I've got a final draft ready - with the alterations as recommended above.

This is due by 4pm today, so hopefully someone will see it by then, but if not I will submit as necessary..

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Signage 

3. In the first instance, it must be clarified that the claimant has appended to their witness statement signage that is incorrect for this car park. The signage they have put forward is clearly a generic bundle, and is outdated and for a different location (‘xxxxxx) rather than xxxxxx. Furthermore, their photographs of the area are also outdated & do not reflect the current signage and setting.  

4.  I have thus appended the correct signage present, with photographs taken by myself in December 2021, which I will refer to throughout.  

5. The approach and entrance to the car park is unmarked with regards to signage as well as road markings, and ends in a general cul-de-sac area (see exhibit -01) 

6. At the point of entry, there is no signage present - any signage with terms and conditions is neither visible nor readable from this location (-01). Any visible signage is placed at a height of around 7 foot, mounted on various walls. Each sign is of a different nature, with the one closest to the area I parked in shown in exhibits -02,03,04. A zoomed-in version is evident in -05 

7. As can be seen, this sign merely states that Parking conditions apply. There is no further direction to alternate signage, nor the implication of any contract formed as a result of parking in this location. There is also a distinct lack of anything relating to a risk of a fine as a result of parking here.  

Sequence of Events 

8. Regarding the circumstances at the time of the incident, there was the assumption that, as a result of the unprecedented circumstances of the Covid-19 pandemic & the first lockdown, most parking locations had lifted any restrictions. In addition to this, I was working within a specially set up acute emergency clinic to handle the needs of patients in pain during the first lockdown, and In this case was parking in order to collect some prescription medications from a nearby pharmacy (Boots, High Street) which was around a one-minute walk away from this parking location. This location was merely chosen for ease of access & proximity to the pharmacy, allowing me to collect the required items & return to the car as soon as possible.  

9. As a result of working in a high-risk environment during the Covid-19 pandemic, as well as further family issues in this time, I was not present at the address where the letters were delivered, and thus had no knowledge of the penalty notice/s nor the opportunity to appeal. I had no intention of ignoring this notice, had I been aware of it. Once I had received the notice, I submitted an appeal.  

10. This appeal covered three main grounds (-09); (1) there was insufficient & unclear signage, (2) mitigating circumstances – regarding the aforementioned circumstances of being a key worker during the first lockdown of the pandemic & that the vehicle was parked for a valid reason, causing no clear obstruction or inconvenience to any other users and (3) the charge is disproportionate and not commercially justifiable. This appeal was rejected by the claimant.  

Inappropriate & Inadequate Signage 

11. For the Claimant to be compliant with the BPA Code of Practice (-10), their sign, according to section 19.3 ‘must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.’  Furthermore, section 19.2 relays that ‘Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of’. Taking these factors into account, it is clear that neither parameter on the signage here was in accordance with BPA guidance. I include the Beavis case sign (-11) as a comparison with the inadequate and unclear signage present in this event.  

12. 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 (-11) for comparison.  In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking associations, such as the aforementioned BPS, as aforementioned, there was no obvious and clear signage present here. 

The ParkingEye v. Beavis case is distinguished 

 13. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67 (Exhibit -13), 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.  

14. However, there is no such legitimate interest in this scenario whereby at the time, during the lockdown, there was no precedent to deter drivers from occupying car parking spaces, nor is there a charge for the usage of the car park, let alone during a time when the general public were prevented from being out of their households.  

15. Resultantly, the Defendant proffers that the charge in this case amounts to a penalty and as such is unenforceable. This can be said to amount to just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one. 

16. The Beavis ruling 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. This case is further distinguished in that there were no clear ‘terms’ that were ‘bound to be seen’ present on any signage as set out in the Beavis case, and as such, I was not at any point aware of the formation of a ‘contract’.  

17. Without the Beavis case to support this claim and with no alternative calculation of loss/damage, this claim must fail.  To paraphrase 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.  

18.     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. 

The quantum & abuse of process  

19. The Claimant has added a sum disingenuously described as 'debt recovery costs'. This added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process. Thus 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. 

20. The Defendant's 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  

21. Adding 'debt recovery' costs, damages or fees (however described) on top of a parking charge is now 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." Whilst this new Code and Act is not retrospective, it was enacted due to the failure of the self-serving Codes of Practice from organisations such as the BPA. It is clear also, where it is stated within the Act that ‘recovery’ fees, such as the charges levied in this case, were ‘designed to extort money’, that this refers to already existing cases, and not future ones.  

Aggressive Debt Collection 

22. 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. Numerous letters were received regarding debt collection – three agencies were used, with varying sums of payment being demanded, from £150, to £160 & £170 (see Exhibits -14,15,16,17,18). The claim is exaggerated by inclusion of a false, wholly disproportionate and un-incurred enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking; a clear abuse of the court process. 

23. The new Ministerial code referred to in point 20, also references the all-too-common bad practices displayed by overzealous private parking firms and their debt collectors - ‘Private firms issue roughly 22,000 parking tickets every day, often adopting labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists’. This, in no uncertain terms, is highly antagonistic to previous and ongoing abusive cases, with such strong wording as ‘extort’ leaving no doubt to the unequivocal aversion of the new Code and Act to such malpractices.  

24. To further the point that the Claimant has been unnecessarily aggressive and hostile, the Claimants debt collectors have referenced my defence to be ‘irrelevant’ and ‘nonsensical’, stating that the Defence has been ‘copied & pasted, largely irrelevant to the claim, liable to be stuck (sic) out and arguably amounting to a false statement. The Defendant would like to clarify that the defence, as well as this Witness Statement, have come from the Defendant’s own knowledge and honest belief. The Defendant should not be criticised for using some pre-written wording from a reliable source. The Claimant is urged not to patronise the Defendant with unfounded accusations of not understanding their defence. This Defendant signed it after a great deal of research, after adding facts and reading the defence through several times.  

25. Of course, having no prior of the inner workings of legal proceeding and with the court process being entirely outside of my life experience, as well as the shock of a claim being received whilst being a frontline health worker during the Covid-19 pandemic, I have aimed to present my case in the best way possible. Taking this into account, whilst utilising as much of my free time outside of what is an already strenuous job (all the more so during a pandemic) to only be met with such disdain, I find the Claimants chosen approach highly derisive. The claims of the defence being nonsensical or irrelevant are all the more preposterous when the exhibits within the Claimants trial bundle, supposedly of the site and signage, are incorrect – a wholly different site is evident within one image, as well as incorrect stock signs being used as evidence.  

My Fixed Witness Costs - ref PD 27, 7.3(1) and CPR 27.14  

26. As a litigant-in-person, I have had to research the relevant law, as well as then formulating and compiling a defence, witness statement and evidence. I thus ask for fixed witness costs; I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.    

27. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.'' 

Further Costs 

28. In addition to fixed witness costs, and pursuant to Civil Procedure Rule 44.11, I request that as a result of the Claimants misconduct, further costs be covered. Being a self-employed individual, I am not in receipt of any form of absence pay. I have no current prior knowledge of when the hearing will take place, and will, once I am made aware, have to (at short notice) cancel an entire days list of patients. This will lead to a noticeable negative impact on my income, as I am paid for items of work that I carry out. I believe I have, with the above statements, shown that the Claimant has acted wholly unreasonably and resultantly should pay my wasted costs in full.  

29. (a) My average daily target to be met (‘units of activity’) is ****, and I am paid **********. Thus, ** x ***** = £405. If required, I aim to obtain a statement from ***************** to provide evidence for this; at this moment in time, I am unable to obtain accurate recent figures. 

(b) The above does not include the time taken to research, prepare and draft documents such as my defence and witness statement, which has taken a minimum of 14 hours of my time. At the rate of £19/hour as a Litigant in Person, this amounts to £266.  

(c) I humbly request that these costs be considered, in light of the Claimants aggressive and unreasonable approach throughout this case, as demonstrated. 

Statement of truth 

30. 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.  

Coupon-mad

 liable to be stuck (sic) out 

Hilarious incompetence!

moby_a

Coupon-mad said:

 liable to be stuck (sic) out 

Hilarious incompetence!

It’s honestly farcical! I thought I was being too petty at times but I feel I’m only giving as good as I’ve got! 

Does the added costs section seem appropriate? I think I will submit it as is now

Coupon-mad

Yes I think so.  You would need proof at the hearing though.

1505grandad

Unless I missed it do you have exhibits Nos. 6, 7 and 8? (If not too late)

moby_a

Hi all, any last minute advice for the hearing?

The initial letter had said it would be via telephone call but after calling the court (and after a 2 hour wait on hold), I have now found out that it is an in-person hearing! 

Coupon-mad

Hearing tips are on the NEWBIES thread. Good luck!

Coupon-mad

moby_a said:

Hi all, any last minute advice for the hearing?

The initial letter had said it would be via telephone call but after calling the court (and after a 2 hour wait on hold), I have now found out that it is an in-person hearing! 

How did you get on?

moby_a

Coupon-mad said:

moby_a said:

Hi all, any last minute advice for the hearing?

The initial letter had said it would be via telephone call but after calling the court (and after a 2 hour wait on hold), I have now found out that it is an in-person hearing! 

How did you get on?

Thank you for checking in! I’m glad to say I came out on top - my defence was hinging on signage, and this was sufficient for the claim to be dismissed. It helped that the claimant’s witness statement incorporated generic and incorrect ‘evidence’ of signage, as well as some other holes I was able to pick at. 

‘Another one bites the dust’  

Thanks to all who helped out along the way, it is so very much appreciated 

Coupon-mad

moby_a said:

Coupon-mad said:

moby_a said:

Hi all, any last minute advice for the hearing?

The initial letter had said it would be via telephone call but after calling the court (and after a 2 hour wait on hold), I have now found out that it is an in-person hearing! 

How did you get on?

Thank you for checking in! I’m glad to say I came out on top - my defence was hinging on signage, and this was sufficient for the claim to be dismissed. It helped that the claimant’s witness statement incorporated generic and incorrect ‘evidence’ of signage, as well as some other holes I was able to pick at. 

‘Another one bites the dust’  

Thanks to all who helped out along the way, it is so very much appreciated 

Yay - well done and congrats!  Most cases will hinge (in whole or in part) on signage. 

ANOTHER ONE BITES THE DUST, INDEED!

Horrible and disproportionate to get threatened by £100 parking charge, isn't it?  Make sure your voice is heard about it this year.

Don't disappear from the forum please. Come back regularly to check when the final Govt Public Consultation opens, discussed here:
https://forums.moneysavingexpert.com/discussion/6345732/secure-parking-solutions-ntk/p6

Basically, the Govt published a Code that included banning false debt recovery fee extortion and capping parking charges for many instances (such as shopping overstays) at £50 - discounted to £25.

The industry threw a hissy fit and threw money at it. The industry want to bully through £100 or more, so it becomes part of the new law!

Get your revenge and PLEASE stick around so you know when the final Consultation opens.  I am sure you have an opinion about ridiculously inflated and greedy parking charge threats.
It's really important that people come back and join us in responding in droves.

If you are unlikely to keep popping back here or are concerned you might miss it, please bookmark the top thread by MSE_JC and set email alerts on your posting profile now, so that you get alerted to the Consultation.

It won't be till after the new PM gets his or her ministers sorted and in place, I suspect. But it will be this year.