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Parking at Costa
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Part 1
IN THE COUNTY COURT
Claim No.: xxxxxxxx
Between
(UK Parking Control Limited)
(Claimant)
- and - xxxxx xxxxx (Defendant)
WITNESS STATEMENT OF DEFENDANT
FOR COURT HEARING ON xx/xx/xxxx
1. I am Miss XX XX of 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
3. I drove to Costa Coffee and parked my vehicle in a bay belonging to Costa Coffee 688-690 Chigwell Rd, Woodford, Woodford Green IG8 8AH on the following dates 08/12/2021, 14/12/2021 and 21/12/2021 at 9am in the morning.
4. I did not see any contractual signs upon entering on the road. I refer to Exhibit xx-01 which shows the entry on the road beside Costa Coffee which I have parked on many occasions on my commute.
5. The parking pay I parked in can be seen in Exhibit xx-02 and xx-03 which had white paint markings labelled ‘COSTA ONLY’
6. I have parked in the Costa coffee bays many times during my morning commute to work to purchase my morning coffee without any issues. I have of course stopped going to that Costa Coffee due to the nightmare it has created with these parking tickets. Staff in the Costa in question have always maintained that I was allowed to park anywhere in that area as its private land owned by Costa coffee.
7. I believe the signs that Capital Carpark Control are relying on at 664-690 Chigwell Road were confusing and misleading, the small print is too small for anyone to read. The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B. Please refer to Exhibit xx-03. This sign says pay by phone parking, again misleading and impossible to read.
8. Next refer I refer to Exhibit xx-04. These signs fail to comply with the British Parking Association Code of Practice Part 18 appendix B. The signs are also so high that terms would only be legible if a driver got out of the car and climbed a stepladder to try to read them. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.
9. The initial correspondence from the claimant Capital Car Parks was received on 15th December 2021, 22nd December 2021 and 29th December 2021 which I appealed.
10. Upon checking the Costa Coffee site on the 9th February 2022 the signage and road markings have since changed. An A-board sign has been left outside by the costa shop due to the signs not being legible and customers complaining please refer to Exhibit xx-06.
11. On this same day I also noticed the road markings have since changed from ‘Costa Only’ to ‘Costa Staff Only’. Please refer to Exhibit xx-07
12. I would also like to add that most of these signs have been updated/upgraded now to meet the compliance required to enforce PCNs. If you compare images before and now, then you will see clear differences. Please refer to Exhibits xx-08, xx-09, xx-10 and xx-10. Each of these signs portray a different message still to this day.
13. Again, I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 8 - January 2020 section 19.2 (Exhibit xx-12). At 664-690 Chigwell Road there was no entrance sign to display any parking restrictions on the days I was parked. I did, at all material times, park in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.
14. Even if the court is minded accepting that a sign was visible, the wording on the sign was prohibitive. Referring to the Beavis vs ParkingEye case [2015] EWCA Civ 402, the Claimant offered no license to park if not a ‘permit holder’. A purported license to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
15. As there was confusing unclear ambiguous inadequate signage so no valid contract formed this is in contravention of the British Parking Association (BPA) Approved Operator Scheme (AoS) version 6 - October 2015 section 18.3, see Exhibit xx-12 (this is the version that is applicable to the date of issue of my PCN) under which the claimant is an active member as per https://www.britishparking.co.uk/BPA-Members. See Exhibit xx-
16. It is therefore denied that I entered into a legally binding contract, due to confusing, unclear, ambiguous inadequate signage on the road I was parked upon. This is proven as the signage has since changed, which I have shown evidence for.
17. A key factor in the leading authority from the Supreme Court, was that ParkingEye was 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 xx-14 in comparison to any alleged Claimant sign. In the alternative, if the Claimant alleges signage was present, I aver the signage fails to adhere to the standards laid out by The British Parking Association (BPA). The BPA Code of Practice says, “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand” It also states that “Signs play an important part in establishing a parking contract” with drivers
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Part 2
The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)
1. 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. 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 (Exhibit xx-14).
2. 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.
3. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests (See Exhibit xx-15 for paragraphs of ParkingEye v Beavis).
4. In the alternative, if the Claimant alleges signage was present, the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains my
position that no contract to pay an onerous penalty was seen or agreed. 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
(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,
where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (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).
5. 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." If the Claimant alleges a sign was present, my position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.
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Part 3
POFA and CRA breaches
1. 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 other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').
2. 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'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.
3. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a
'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.
Lack of landowner authority evidence and lack of ADR
4. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder
(ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.
5. I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.
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Part 4
Abuse of process - the quantum
1. 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 ParkingEye 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.
2. My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: h ttps://www.gov.uk/government/publications/private-parking-code-of-practice.
3. Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 27), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented
Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no
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reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the roboclaim race to court and to side-step the £50 legal fees cap set in the Small Clams Track.
4. 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."
5. 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 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.
6. The Code's Ministerial Foreword 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."
7. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response (also in February 2022), they identified 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 seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.
8. 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.
9. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.
10. These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged 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 too late. I did not agree to it.
11. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.
12. This overrides mistakes made in the appeal cases that the parking industry try to rely 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, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.
13. It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all
along. As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit xx-16) where she went into great detail about this abuse.
14. The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much- needed clarity for consumers and Judges across England and Wales.
15. 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.
CPR 44.11 - further costs
16. I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that the Claimants representative did not have reasonable cause to issue the PCN, as any signs displayed were not clear and all contradicted eachother. Not only could this claim have been avoided and the Claimant has no cause of action, but it is also vexatious to pursue an inflated sum that includes more than double recovery.
My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14
17. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my 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.
18. 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.''
Statement of truth:
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
……………………..
xxxxxxxxxxxxx
DATE xx/xx/xxxx
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Exhibit xx-01
No Clear visible Claimant Sign on entry to the road
This is the entrance into the road where I parked on the left side where the white paint boxes are located.
This photo is taken from Google Maps and shows evidence of the updated road marking from Costa Only to ‘Costa Staff Only’
The white sign is not noticeable on the white painted wall and barely noticeable on this photograph.
(Photo taken in March 2022 as shown by the date stamp, created from the photo on Google Maps)
Exhibit xx-02
Misleading Parking Bay Markings
This photo shows the parking bays which are clearly marked as ‘Costa Only’
There are various small signage placed over 2m high up on the wall.
(Photo taken on 01/01/2022 by the defendant)
Exhibit xx-03
Misleading Parking Bay Markings
This photo shows a closer look at the the parking bay marking which are clearly marked as ‘Costa Only’
(Photo taken on 01/01/2022 by the defendant)
Exhibit xx-04
Misleading Signage
This photo shows the first sign which is title ‘Private Land’ followed by Pay By Phone Parking’
This sign is found next to the first parking bay.
There is no signage found which displays a number to pay for parking by phone also shown in (xx-02)
(Photo taken on 01/01/2022 by the defendan
Exhibit xx-05
Misleading Signage
This photo shows the 2 signs which are displayed by the middle parking bay
The signs are placed over 2m high.
The left sign displays text which is barely legible to read as I (defendant) is 160cm in heigh.
(Photo taken on 01/01/2022 by the defendant)
Exhibit xx-06
New A-board Signage
On the 09/02/2022 an A-board was displayed in front of the first parking bay as your enter the road.
They display the messages:
‘’There parking spaces are for Costa Staff Only’’
‘’Don’t Park here you will get fined!!!’’
(Photo taken on 09/02/2022 by the defendant)
Exhibit xx-07
New Updated Road Markings
On the 09/02/2022 the parking bay markings have now been changed to display ‘COSTA STAFF ONLY’
Under the painted word of ‘STAFF’ you can still notice the faint wording which has been previously removed
(Photo taken on 09/02/2022 by the defendant)
Exhibit xx-08
New Updated Road Markings
On the 26/03/2023 the parking bay markings still have ‘COSTA STAFF ONLY’
But now additional signage has been placed on the wall, still well over head height.
The ANPR Camera has since been removed which was originally in the red circled area.
(Photo taken on 26/03/2023 by the defendant)
Exhibit xx-09
New Updated Road Markings
On the 26/03/2023 the parking bay markings still have ‘COSTA STAFF ONLY’
Under the painted word of ‘STAFF’ you can still notice the faint wording which has been previously removed
There are 3 different signs besides the first parking bay.
All three signs display a different message and extremely small font.
(Photo taken on 26/03/2023 by the defendant)
Exhibit xx-10
New Updated Signage
On the 26/03/2023 a new sign appeared after the initial PCN notices.
The signs details the following:
‘1 Hour Free Parking for registered customer of Costa Coffee’
‘Refer to signage for instructions’
In total there are 4 different signs all displaying different messages.
Exhibit xx-11
New Updated Signage
A further look at the 2 sign which are next to the third parking bay again displaying 2 different messages.
(Photo taken on 26/03/2023 by the defendant
The remaining exhbits are the same as the WS template which has been referenced in various posts.Exhibit xx-12
British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 8 – January 2020 section 19
Exhibit xx-13
Screenshot showing the Claimant is a member of the British Parking Association (BPA)
Exhibit xx-14
The ParkingEye Ltd v Beavis [2015] UKSC 67 – case sign in comparison to any alleged Claimant sign
Exhibit xx-15
The ParkingEye Ltd v Beavis [2015] UKSC 67 - Paragraphs 98, 193 and 198
Exhibit xx-16
Copy of Excel Parking Services vs Wilkinson (G4QZ465V) Approved Judgement by Judge Jackson of Bradford County Court
Exhibit xx-17
In the County Court at
Claim Number:
Hearing Date:
DEFENDANT’S SCHEDULE OF COSTS
Ordinary Costs
Loss of earnings through attendance at court hearing:
£95.00
Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11 Research, preparation and drafting documents (8 hours at Litigant in Person rate of £19 per hour):
£152.00
Stationary, printing, photocopying and postage:
£10.00
TOTAL COSTS CLAIMED £257
Signature
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Any thoughts or changes would be greatly appreciated0
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As above - it is not:-
(UK Parking Control Limited)
(Claimant)
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Yes but of course those brackets should be removed around UKPC or it looks weird!
I would not show the close up pics from 2022, i.e. I think your case is better without exhibit 4 or 5. The Judge might take one look at the clear, red sign and be against you.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
What lease are you talking about here? This paragraph makes no sense and looks like you have just copied and pasted from somewhere else. If it's obvious to me, then it would be obvious to the claimants rep ad the judge. Proof read EVERYTHING!jrc123 said:
13. Again, I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 8 - January 2020 section 19.2 (Exhibit xx-12). At 664-690 Chigwell Road there was no entrance sign to display any parking restrictions on the days I was parked. I did, at all material times, park in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.
Also, your paragraph numbering is all over the place and needs fixing.
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