UKPC McDonalds County Court Claim

Rinceward

Ok so I have written my witness statement. Court date is towards the end of October, statements should be in by end of July.
How long should I leave this? Do I have to send a hard copy?

Rinceward

Witness statement for my defence. Any improvements please?

WITNESS STATEMENT OF DEFENDANT

 

 

 

1.         I am XXXXXX, 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.         The approach and entrance to the car park is on an A road. This is a busy road exiting Matlock where stopping is dangerous due to traffic (including many buses) not being able to pass. The only safe way to stop to view the car park terms and conditions is by entering the Car Park.

 

4.         At the point of entry, the terms and conditions sign although visible is not readable. As the vehicle entered the McDonald’s carpark, I could see that it was very busy. We were visiting for my son’s birthday. As there were no free spaces we decided to wait until a space became available. This I would estimate to have took 5 minutes. Due to the spaces being quite tight before the vehicle backed into the space, the passengers got out of the car. This took an estimated 2 minutes due to child seats and folding down the rear seat of the car to let the far rear passengers out. (Pic1 shows the signage that is visible from the entrance of the road).

 

5.         After waiting to find a suitable place to park I took time to read the signage. As I was highly aware of how purposely deceiving private parking terms can be I made sure that I read fully the terms and conditions . As seen in Pic2, Pic3 and Pic4, some of the signs were placed too high to read clearly (Over 7 foot high). The Blue Private land picture as seen in Pic2, Pic3 and to a lesser extent Pic1, is the only signage of that type in the carpark. The red signage directs the person to read the sign carefully as seen in line 5.

 

6.         After reading the terms and conditions fully, I decided that we was in no danger of breaching them. I looked at the time which I remember being 6pm as I stated to my family that we needed to be leaving by 7:30pm.

 

 

7.         Towards the end of our meal, I was conscious of the time limit regarding the parking. The restaurant was busy, and the service was slow to reflect this. We left the restaurant at 7:20 to ensure that we were back in the car with time to spare.

 

8.         With the vehicle having to be pulled out of the car park space to allow the passengers to get back in the car. Once we were all seated in the car, it was decided that we would have a dessert, as we were mindful of the parking rule, we were not going to eat inside. I suggested that we go through the drive thru order point. This I believe is where the discrepancy comes into the parking rule. I was of the belief that as the car was no longer parked and instead going through the Drive-Thru area no parking charge could be applied

 

9.         It appears that there was no exonerating camera based at the drive thru entrance, thus the unfair charges (Pic6)

 

10.     However, I received a PCN and was asked to pay a charge of £100. On receiving this notice, I called McDonalds stating that I was being charged for using their carpark. McDonalds suggested that they have no control of the car park and that no actions would be forthcoming and that the letter was a standard letter that gets sent out. I took McDonalds words as truth in this.

 

 

11.     After a quiet period of several months I start to receive threatening letters from various debt collectors, stating that there is money owed to UK Parking Limited and that I now owe various amount of pounds. The amount owed changed per letter from the original £50 up to £300 to include costs then back down to £100. The Debt collection agency also changed frequently, with one stating that they had featured on ‘TV’s,” Can’t pay? We’ll take it away”’. The fact that these figures and companies seemed to change so frequently led myself to believe that this was a scaremongering tactic used by UK Parking Limited. Indeed, they did cause a lot of stress and worry.

 

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 in Pic05 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.

 

The Beavis case is against this claim

 

13.     This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, 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 where the parking( Vehicle stationary) was less than the time stayed.  As such, I take the point that the parking charge in my case is a penalty, and unenforceable.   This is 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.

 

 

 

 

15.     The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £82 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process – Appendix A - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision stands. 

 

16.     Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence. 

 

17.     The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419):  https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''  

 

18.     This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both. 

 

19.     This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (Appendix , the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest. 

 

 

 

 

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

 

20.     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.

 

21.     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.''

 

 

Coupon-mad

UK Parking Limited? Don't think I've heard of them. Is that the full name of the Claimant on the Claim form?

This isn't a full sentence, looks unfinished:

9.         It appears that there was no exonerating camera based at the drive thru entrance, thus the unfair charges (Pic6)

Also:

You've used the Crosby case from Southampton, which you won't see used any more here in any 2022 WS here. A similar case was appealed, so it's pointless to use the Crosby case.

That's an older version from a year ago. It also fails to mention the new Code of Practice and what Ministers said about the added £70 being 'extortion'.

Apologies - I have not yet had time to update the NEWBIES thread since the groundbreaking February 2022 Announcement about the incoming Code of Practice and intention to BAN the added fake £70 as 'extortion'. So I know the example there is the old one by Robert Cox.

Bin it and instead, insert your facts into an adapted version of the WS bundles posted in 2022 by:

@aphex007

@Daiapolon2021

Fruitcake

There is no harm in showing us your exhibits/evidence/photos as well since there may be something useful in them that one of the regulars might spot.

Rinceward

Coupon-mad said:

UK Parking Limited? Don't think I've heard of them. Is that the full name of the Claimant on the Claim form?

This isn't a full sentence, looks unfinished:

9.         It appears that there was no exonerating camera based at the drive thru entrance, thus the unfair charges (Pic6)

Also:

You've used the Crosby case from Southampton, which you won't see used any more here in any 2022 WS here. A similar case was appealed, so it's pointless to use the Crosby case.

That's an older version from a year ago. It also fails to mention the new Code of Practice and what Ministers said about the added £70 being 'extortion'.

Apologies - I have not yet had time to update the NEWBIES thread since the groundbreaking February 2022 Announcement about the incoming Code of Practice and intention to BAN the added fake £70 as 'extortion'. So I know the example there is the old one by Robert Cox.

Bin it and instead, insert your facts into an adapted version of the WS bundles posted in 2022 by:

@aphex007

@Daiapolon2021

Thank you I will do it tomorrow. Is the basic content OK?
Do I email it in a few days before deadline or wait

Rinceward

Fruitcake said:

There is no harm in showing us your exhibits/evidence/photos as well since there may be something useful in them that one of the regulars might spot.

Here are the images of car park. Only one blue sign as seen on the entrance photo. Quite a few of the heavy lot of terms and conditions. 
I overstayed the 90 minutes by 19 minutes according to the anpr entry and exit images

Fruitcake

So it's UKPC Ltd. Make sure you get that right.

The Ts and Cs on the sign refer to use of the car park, but make no mention of the drive through.
There are no signs at the entrance of the drive through, or in any part of it as far as the images show, so the Ts and Cs do not apply to the drive through, do not make an offer to park in the drive through, there is no consideration to motorists using the drive through, and therefore there can be no acceptance by motorists using the drive through, therefore there was no breach of parking terms by a motorist using the drive through.

Any time spent using the drive through must be deducted from parking time spent in the car park.

McD's should be ashamed to have allowed this to happen.

Coupon-mad

The £100 is also utterly minuscule and should feature in very large font (like the Beavis case sign). There's a red band they could have put £100 into, in the parking charge square icon to the left, but no, that red band tells you nothing about the onerous sum by which you are later unfairly bound.

Le_Kirk

Rinceward said:

4.  At the point of entry, the terms and conditions sign although visible is not readable. As the vehicle entered the McDonald’s carpark, I could see that it was very busy. We were visiting for my son’s birthday. As there were no free spaces we decided to wait until a space became available. This I would estimate to have took taken 5 five minutes. Due to the spaces being quite tight before the vehicle backed into the space, the passengers got out of the car. This took an estimated 2 two minutes due to child seats and folding down the rear seat of the car to let the far rear passengers out. (Pic1 shows the signage that is visible from the entrance of the road).

See edit above.  It is normal to write out in words any numeral under ten but not the end of the world if you don't.  Providing this backs up and supports what you put in your defence and you are mindful of what @Coupon-mad and @Fruitcake have said and edit it accordingly it seems fine.

Rinceward

Thank you for your words.
Can you check the following?

1.         I am XXXXXX 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.         I drove to McDonalds on the 2nd March 2019 in order to have a family evening out together.

 

4.         The approach and entrance to the car park is on an A road. This is a busy road exiting Matlock where stopping is dangerous due to traffic (including many buses) not being able to pass. The only safe way to stop to view the car park terms and conditions is by entering the Car Park.

 

5.         At the point of entry, the terms and conditions sign although visible is not readable. As the vehicle entered the McDonald’s carpark, I could see that it was very busy. We were visiting for my son’s birthday. As there were no free spaces we decided to wait until a space became available. This I would estimate to have taken five minutes. Due to the spaces being quite tight before the vehicle backed into the space, the passengers got out of the car. This took an estimated three minutes due to child seats and folding down the rear seat of the car to let the far rear passengers out. (Exhibit XX-01 shows the signage that is visible from the entrance of the road).

 

6.         After waiting to find a suitable place to park I took time to read the signage. As I was highly aware of how purposely deceiving private parking terms can be I made sure that I read fully the terms and conditions. As seen in exhibit XX-02, XX-03 and XX-04, some of the signs were placed too high to read clearly (Over 7 foot high). The Blue Private land picture as seen in exhibit XX-02, XX-03 and to a lesser extent XX-01, is the only signage of that type in the carpark. The red signage directs the person to read the sign carefully as seen in line 5.

 

7.         After reading the terms and conditions fully, I decided that we were in no danger of breaching them. I looked at the time which I remember being 6pm as I stated to my family that we needed to be leaving by 7:30pm. It should be noted that the £100 charge is hidden in the fine print and is not clearly stated in large font as the Bevis case sign exhibit XX-05.

 

 

8.         Towards the end of our meal, I was conscious of the time limit regarding the parking. The restaurant was busy, and the service was slow to reflect this. We left the restaurant at 7:20 to ensure that we were back in the car with time to spare.

 

9.         With the vehicle having to be pulled out of the car park space to allow the passengers to get back in the car. Once we were all seated in the car, it was decided that we would have a dessert, as we were mindful of the parking rule, we were not going to eat inside. I suggested that we go through the drive thru order point. This I believe is where the discrepancy comes into the parking rule. I was of the belief that as the car was no longer parked and instead going through the Drive-Thru area no parking charge could be applied

 

10.     It appears that there was no exonerating camera based at the drive thru entrance, thus the unfair charges relating to a parking offence that was not committed (Exhibit XX-06). The terms and conditions on the signage refer to use of the car park but make no mention of the drive thru.

 

11.     There are no signs at the entrance of the drive thru, or in any part of it as seen in exhibit XX-06, so the terms and conditions do not apply to the drive through. There is no consideration to motorists using the drive through, and therefore there can be no acceptance by motorists using the drive through, therefore there cannot be any breach of parking terms by a motorist using the drive through.

 

12.     I was of the belief that any time spent using the Drive Thru must be deducted from time spent in the carpark

 

13.     However, I received a PCN and was asked to pay a charge of £100. On receiving this notice, I called McDonalds stating that I was being charged for using their carpark. McDonalds suggested that they have no control of the car park and that no actions would be forthcoming and that the letter was a standard letter that gets sent out. I took McDonalds words as truth in this.

 

 

14.     After a quiet period of several months, I start to receive threatening letters from various debt collectors, stating that there is money owed to UK Parking Control Limited and that I now owe various amount of pounds. The amount owed changed per letter from the original £50 up to £300 to include costs then back down to £100. The Debt collection agency also changed frequently, with one stating that they had featured on ‘TV’s,” Can’t pay? We’ll take it away”’. The fact that these figures and companies seemed to change so frequently led myself to believe that this was a scaremongering tactic used by UK Parking Limited. Indeed, they did cause a lot of stress and worry.

 

15.   I refer to the BPA Approved Operator Code of Practice 2012 - Version 7, January 2018, section 18.4 bullet point 2 “signs must give adequate notice, this includes adequately bringing the charges to the attention of drivers. The signage present does not meet this ‘Approved Operator Code of Practice’. Exhibit xx-04 of which the claimant is a member Exhibit XX-08

 

16.     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 XX-05 for comparison to any alleged claimant sign.  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

 

The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

 

17.     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-05).

 

18.     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.

 

19.     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-09 for paragraphs of ParkingEye v Beavis).

 

20.     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 a like. "If the Claimant alleges the signs were clear, 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.

 

 

 

21.     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').

 

22.     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.

 

23.     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 s62and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

 

 

Abuse of Process – the Quantum

 

24.     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.

 

25.     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:

 

https://www.gov.uk/government/publications/private-parking-code-of-practice.

 

26.     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 reason to think the Government's view will significantly change about adding unconscionable costs that werenot 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.

 

27.     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."

 

28.     This 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  enhancement, upon which the Claimant seems to have also added interest calculated from the date of parking. Clearly an abuse of the court process.