Parking at Costa

jrc123

I’ll remove that part as from the evidence I have shows a small sign at the entrance which is blocked most of the time by Costa Coffees canopy when it is extended. I will look to include a photo in my evidence too.

I’ll send an updated version of that point this evening

Coupon-mad

I would not remove those two paragraphs entirely but just remove the mention of exhibits 4 & 5.

jrc123

thanks @Coupon-mad I’ll remove the exhibits from my WS but edit those paragraphs to remain

Coupon-mad

Great - then come back each week @jrc123 to check if there's anything good in the Government's analysis (due any week now!) that you might want to ping to your Judge in a Supplementary WS.

Le_Kirk

In paragraph 3 you state: -

Costa Coffee 688-690 Chigwell Road

but in paragraph 7: -

on at 664-690 Chigwell Road

Also you seem to repeat that you have stopped there many times on your way to work, does it need that any repetitions?

jrc123

thanks @Le_Kirk I’ll update that :-)

jrc123

Hi All,

I have received the witness statement from the claimant.

Here is the full WS text copy: ( The remaining pages are their exhibits)

I, XXX, state as follows: -

 1.     I am a Director, employed by Capital Car Park Control Ltd (“my Company”). I am duly authorised to make this Statement on my Company’s behalf.

 2.     I make this Statement in support of the Claimant’s Claim and in response to the Defence.

3.     The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.

 Parties

 4.     My Company provides private car park management services to private landowners, to manage the way motorists are permitted to park on their private land. My Company does so by issuing parking charge notices to any vehicle parked in a way the landowner does not permit.

5.     The Defendant is the recipient of parking charge notices (“PCNs”) issued by my Company. The details are set out herein.

  Accreditation

  6.     At all material times, my Company was accredited by the Accredited Trade Association (“ATA”) known as the British Parking Association (“BPA”). The BPA has a Code of Practice (“Code”) that its members are expected to adhere to, or otherwise face potential sanctions. My Company operates in accordance with the Code.

7.     In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency (“DVLA”) my Company must be a member of an ATA. It is therefore essential for my Company to comply with the Code.

  Background

 8.     My Company issued PCNs (“Charges”) to the Vehicle (“Vehicle”) with details listed below:

 XXXXX

9.     At the time of issue, my Company was instructed by the owner of the Land (“Landowner”) to manage parking on the Land. A copy of my Company’s agreement with the Landowner (“Landowner Agreement”) is exhibited to this Statement at “EXHIBIT 1”.

10.  I confirm that the term of the Landowner Agreement has been extended by mutual consent of the parties.

 11.  I refer to the recent decision in One Parking Solution Ltd v Wilshaw [2021] (“Wilshaw”) whereby it was found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a valid cause of action to recover the PCN, what is required is proof that there is a binding contract between the Claimant and the Defendant. Further, it was found in Wilshaw that the contract between the Claimant and the Freeholder (Landowner) does not affect the validity of any contract between the Claimant and the Defendant.

 

 Contract

12.  At the time of issue, my Company was prominently displaying signs on the Land setting out the Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. The signs formed the basis of the Contract with the driver (“Contract”).

 13.  The following was a term of the Contract: -

“Costa Staff Parking Only

Vehicles are not permitted to park, wait or stop in bays marked Costa Only at any time, unless the vehicle has already been pre-registered with our office.”

 14.  In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being the Consideration. It is evident from the photographic evidence exhibited to this Statement at “EXHIBIT 3” that the driver failed to adhere to the terms of the Contract on all occasions by parking as they did, thus breaching the Contract.

 15.  The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days.

 16.  A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at “EXHIBIT 4”.

17.  Copies of the Notices to Keeper are exhibited to this Witness Statement at “EXHIBIT 5”.

   Defendant’s Liability

 18.  Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.

 19.  My Company uses Manual Number Plate Recognition (“MNPR”) technology on the Land to manage the parking. Cameras capable of accurately recording vehicle registration numbers are constantly monitoring the entrance and exit to the Land. A photograph is taken of each vehicle as it enters and exits the Land. Any vehicle found to have breached the Terms of parking will be issued with a PCN.

 20.  In order to issue a PCN, my Company requests the details of the Registered Keeper from the DVLA to send notices compliant with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). Upon receipt of those details, Notice is sent to the Keeper via the post in accordance with paragraph 9 of POFA. The Notice to Keeper is followed up with other reminder notices. Copies are with “EXHIBIT 5.”

21.  The Defendant admits to being the Driver and the Keeper of the Vehicle, therefore the Defendant is pursued on that basis. My Company has complied with POFA and can pursue the Defendant as Keeper in the alternative.

  Defence

 22.  The Defendant was afforded a 28-day period in which they could appeal. An appeal was lodged regarding PCN 23969 which was unsuccessful. A copy of the appeal and response issued is exhibited at “EXHIBIT 6”.The Defendant was able to submit a second appeal to the ATA’s appeals service, but no successful second appeal has been made. The potential next step was clearly communicated to the Defendant in notices. It is respectfully submitted that if the Defendant genuinely believed the Charges had been issued incorrectly, they would have engaged with the appeals process further.

23.  If there was any doubt regarding their liability, the Defendant has had ample time to challenge the Charges or request evidence in support. Despite correspondence being sent to the Defendant by a debt collection agency and a Letter of Claim being issued in accordance with the Pre-Action Protocol for Debt Claims, no challenges have previously been raised.

24.  The Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my Company’s time.

25.  Notwithstanding the above, I respond to the issues raised in the Defence (by way of sub-headings) as follows: -

 

 Defendant’s Defence

 i.      The Defendant alleges that the bays marked as ‘Costa Only’ were ambiguous in putting them on notice of the Terms. It is my Company’s submission that the Terms are displayed on the signs on park signs, informing drivers of the requirements in order to park. These terms were adequate in respect of overall size, font size, plain English, location and content. The Plan demonstrates where the signs were located and it is submitted they are adequate to constitute notice of the Terms to the Driver. If the Defendant did not understand the Terms on the signs, they should have exited the land and found alternative parking.

 ii.     Further to the above, the Defendant alleges that they were not placed on notice that a contract had been entered into. Respectfully, the prominently displayed Terms made it clear that parking on the private Land meant there was a contractual acceptance of the Terms and Conditions. It is apparent from the Images exhibited that these Terms were not adhered to as the Defendant obstructed the marked bays, and thus, it remains my Company’s position that the Charges were issued correctly.

 

jrc123

 Penalty / Amount Claimed

 iii.   In respect of the Defendant’s allegation that the claim is a penalty, my Company is not seeking more than the original charge as the core debt. The core charge remains the same for each PCN (i.e. £100); however, my Company is now also seeking further costs/damages;

 iv.   My Company is instructed to manage the Land, the Landowner agreement previously referred to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation. The Landowner’s legitimate interest in managing the Land is because it is private land. Because there is a clear legitimate interest, the same as that established in

ParkingEye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case;

v.     The amount charged is in line with the guidelines given by the ATA. Part 20.5 of the BPA COP states “We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance”. It is my Company’s position there is no requirement for the amount of the charge to bear any relevance to the actual or potential cost of parking. The PCN is a fee charged by my Company for providing the service and it stays within the guidelines given by the ATA. As with many other ‘services’; the service provider is entitled to charge as they deem appropriate;

 vi.    The PCN was not paid within the prescribed 28 days or indeed at all. In view of this the sum of £70 is also claimed as a contractual cost pursuant to the Contract which states “you will incur additional charges resulting in further action being taken against you if charges remain outstanding”. The Defendant was on notice of the fact that the outstanding amount may increase as a result of any necessary debt recovery action. In support I draw the Court’s attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: “There is nothing … which enable[s] the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14”;

vii.  The sum added is a contribution to the actual costs incurred by my Company as a result of the Defendant’s non-payment. My Company’s employees have spent time and material attempting to recover the debt. This is not my Company’s usual business and the resources could have been better spent in other areas of the business, generating profit. Had the Defendant of paid as per the Contract, there would have been no need for recovery action so the amount due would not have increased;

viii.                   With respect of Parking Eye -v- Beavis [2015], whilst it is accepted the original charge is designed to include the ‘operational costs’; this was with reference to maintaining the land, taking payment or sending the relevant POFA compliant notices. It was never intended to include the need to pursue the debt in Court to recover it. If that were the case, it would override the Civil Procedure Rules (allowing fixed costs and recovery of court fees) which of course is not the case. The Defendant has misunderstood the phrasing ‘operational costs’;

ix.   Within paragraph 26 of the Defence, the Defendant alleges my Company has failed to adhere to the Landowner's definitions, exemptions, grace period. The Defendant is a third party to the Landowner Agreement. Privity of contract applies;

 

 Protection of Freedoms Act

x.     A Notice to the Keeper was sent compliant with Section 9 of POFA (see “EXHIBIT 5”). Paragraph 1 of POFA states that the Registered Keeper is presumed to be the ‘Keeper’ unless proven otherwise. Paragraph 4 of POFA gives my Company the right to recover from the ‘Keeper’; The Defendant confirms they were in receipt of the Notice to Keeper, however, the Defendant failed to respond;

xi.   The Defendant admits being the Registered Keeper of the Vehicle. The Defendant is therefore being pursued as the Registered Keeper of the Vehicle;

 Code of Practice

 xii.  The Defendant makes reference to the Government’s Code of practice. Respectfully, the Code was withdrawn in February 2022 therefore bears no relevance to discuss here.

 

 Signs / Unfair Contract Terms

xiii.                   The signs clearly outlined the Terms of parking and the Defendant was on notice of the Terms upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These Terms state that if breached, the Defendant agrees to pay within 28 days of issue;

xiv.                   In respect of the ‘terms’, as per Schedule 2 of the Consumer Right Act 2015, specifically referred to: -

 Term 6 – It is submitted the sum is not disproportionate for the reasons set out within the ‘amount claimed’ section of this Statement, nor is it ‘compensation’.

Term 10 – As is evident from the Plan, signs were displayed throughout the Land. The Driver was aware of the fact that parking was managed from the point of entering the Land and could leave if they did not agree to the Terms. It is not unreasonable for the Driver to need to potentially walk no more than 10 meters to fully familiarise themselves with the full Terms. This would have all happened before the conclusion of the contract.

 

Term 14 – The price is stated on the sign.

Term 18 – The fact the Driver was able to park means my Company fulfilled its obligations.

xv.  The Terms clearly stated what would happen if payment was not made. With no concession made in this regard, if a Driver ever does not understand the Terms on the signs, they can exit the land and find alternative parking. They are under no obligation to park on the Land;

 

 CPR Compliance

xvi.                   The Defendant questions whether the Particulars of Claim comply with the Civil Procedure Rules. I submit that the Claim was issued via the County Court Business Centre and in this regard, I refer to Practice Direction 7E (“the PD”) which specifically provides the guidelines for doing so. I respectfully submit that the Particulars of Claim (“the Particulars”) are in keeping with the PD. The following sections are of relevance: -

 

5.2(1) provides a limited character count for the Particulars of Claim; and

 

 

5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form.

 

xvii.                 It is my Company’s position that the Particulars were sufficient to allow the Defendant to identify the subject matter of the Claim. The Defendant could not have submitted a Defence with the detail it contains if the Particulars were so insufficient as to prevent them from understanding the claim. Further, with respect, if the Defendant were of the genuine belief that the Particulars of Claim were insufficient, the correct procedure would have been to make an Application to the Court. The Defendant has chosen not to do so;

xviii.                The phrase ‘double recovery’ suggests the same amount is being recovered twice. This is not what is claimed, as explained later in this Statement;

 

 Dismissal of Claim

xix.                   The recent successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the claim does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a claim of this type does not constitute an abuse of process that would allow for the entire claim to be struck out.

 26.  In view of the above, it is my Company’s position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable.

  Conclusion

  CPR Costs

 27.  My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any event.

 28.  In the alternative to the contractual costs set out above, my Company reserves the right to claim additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary. It is my Company’s position that this is unreasonable behaviour and it is respectfully requested that the Court considers whether they conclude the same.

 29.  It is my respectful submission that the Defence is entirely without merit and as such it is requested that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith.

 30.  I may not be able to attend the forthcoming hearing. Should this be so, an advocate will attend on my behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1). If I am unable to attend, please decide the claim in my absence, taking into account the advocate’s submissions, this Statement, and any other evidence filed. This paragraph demonstrates my compliance with CPR 27.9(1)(a)-(b).

31.  In the event an advocate does attend the hearing, I request their fee be added to the amount sought.

jrc123

Anything stick out that i could counter in my WS before i submit it tomorrow?

Castle

Where's the landowner's agreement?