court hearing with UK CPM (Gladstones) please help with witness statement

Le_Kirk

6.      There is also a purple sign under the signage at the front where it asks about payment, however there are no pay stations in the car park. I checked all around the car park to find a pay station and found nothing. It states on the purple sign:

I think you should use what was stated on the sign to make it clear to the judge how an inanimate object can ask you anything.

mhagle

i will add that just below that point thank you also does my witness statement look ok?   

1505grandad

Paras 7 and 8 appear to be the same.

Para 11.2  -  "2.      UKPCM would have refused to give me a permit"?

"12.  The contract could never be performed as it was unfair as I did not have a permit so therefore once I entered the car park it created a breach of contract and therefore (sort) payment immediately."

Not sure that you have interpreted correctly the previous post by Johnersh but anyway should be (sought).

mhagle

im really sorry 1505grandad but i am confused and i what have i interpreted wrong? if you can help me please

Coupon-mad

You should also be appending Pace v Lengyel as an exhibit. It is in the Parking Prankster's case law.

You've only covered signage so far and there's too much repetition so I'd try to be more concise. Get a friend to read it and look for repetition.

The rest of your WS should deal with the usual other issues.  See the recent example on the thread by @wobs2k

1505grandad

"12.  The contract could never be performed as it was unfair as I did not have a permit so therefore once I entered the car park it created a breach of contract and therefore sort payment immediately."

Probably the way my annoyingly pedantic mind works but I interpreted the above to mean that YOU sought payment, whereas the relevant post stated the sign (contract) sought payment:-

The contract could never be performed: The obligation (to display a permit) was not ever going to be possible for you. It created an immediate breach of contract the second you entered the site, for which it then sought a payment. 

Note that the payment sought is not for parking as an alternative to displaying a permit (don't let them say it is). The sign clearly states the payment is for the breach of terms - which, in fact it was impossible for the o/p to comply with. 

mhagle

1.       I am Mr xxx 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.      Firstly, I have appended the actual signage at West London Mental Health, photographed on August 11th 2021 and again on May 16th 2022 with date stamps and will refer to it (EX-1).

4.      I went to West London Mental health on 2 January 2020 to visit my brother who was admitted into the hospital for having suicidal thoughts and depression. I have attached the hospital admission for my brother who was in the hospital on that day (EX-2).

5.      I parked my car xxxx in a bay and went out and looked at the signs (EX-1). As it was around 17:50 and quite dark I read the signage for this hospitals parking. The terms and conditions are:

·         Staff must display a valid Green West London NHS Trust Permit in the front window screen at all times

·         You must park wholly within a marked bay. No parking on roadways/yellow lines/ paved / hatched or landscapes areas

6.      There is also a purple sign under the signage (Ex-1) at the front where it asks about payment, however there are no pay stations in the car park. I checked all around the car park to find a pay point and found nothing. It states on the purple sign:

·         Have you paid for your parking?

7.      This mention of paying for parking is misleading to visitors of the Mental Hospital. As there are no pay stations located anywhere in the car park.

8.      The signs which the Claimant is relying upon as notice of contractual terms are worded in such a way as to require all users of the parking spaces (both hospital staff and visitors) as requiring to display a permit – this is evidently not the case.

9.      It is therefore denied that the signs used by the claimant can have created a fair or transparent contract with a driver in any event hence incapable of binding me to as the claimant failed to comply with the international parking company code of practice ‘PART E Schedule 1- Signage’(EX-3). Entrance signs requirements, ‘Have a clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with a creditor or committing a trespass as the case may be’.  

 PACE v Lengyel is distinguished

10.   As per the legal ruling provided in the above case (EX-5), there is no clear indication that I was entering into a ‘Contract’ with the Claimant. The phrase ‘terms and conditions’ as displayed on the notice are not synonymous with a contract.

 

11.  The opening wording used by the notice implies that the ‘Contract’ is between those drivers displaying a permit and the Claimant. This is something that I was unable to do (display a permit). Therefore, insofar as there was any contract between the parties, the defendant believes it was invalid under the doctrine of ‘impossibility of performance’.

12.  I am not a staff member at West London Mental Health. I was a visitor visiting my sick brother and I have attached the admission letter for the day he was admitted into the hospital (EX-2). There is no relevant obligation nor contract applicable for a non-staff member to park as it is impossible to perform therefore once I entered the car park it created a breach of contract and therefore sought payment immediately.

 

13.  The bay in which the car was parked is one the Claimant deems as ‘requiring a permit’ did not have a sign immediately next to it. The sign was several feet away and contained small lettering, and is worded in a way that is both confusing and contradictory.

 

14.   Signs which only permit certain people to park there have ‘staff only’, ‘Residents Park only’  or ‘permit holders only’ on them.

 

15.  It is averred that the Claimant is not the landowner and therefore lacks any cause of action. If it is alleged that a trespass had occurred then the remedy available for that tort (which is denied) is in the hands of the landowner alone, to seek damages.

Claimant using old signage

16.  The claimant on their witness statement is relying on a signage that is not at the hospital site (Ex- 2). The picture was taken on 22/05/2019. My picture was taken recently. Also the claimant has a 0845 number which was banned in 2014 on the sign. This shows clearly that the claimants witness statement should be discredited by the court as the claimant is making a false witness statement and using as evidence a sign that is not at the sight.

17.  The claimant has not seen the site or been there. The sign has also on the small print a charge of £1.50 for using card payments and this was also banned by the government in January 2018.

18.  The old signs from 2019 state:

·         A valid green West London Mental Health trust permit must be clearly displayed in the front windscreen at all times

·         You must park wholly within a marked bay. No parking on roadways / red lines / paved / hatched or landscaped areas

19.  This is unfair as the claimant is trying to penalise me due to a sign that is not at the car park.

20.  I have two pictures one from August 11th 2021 and another from May 16th 2022 (EX-1) that show the signs that are at the car park are not the same to the claimant’s one. The claimant’s is from 2019 and not a recently updated sign.

21.  The claimant clearly knows that the signs are confusing and therefore is using an old sign and not the new signs in the car park. This is unfair to anybody that parks in this carpark who is penalised due to an old sign from 2019.

Terms that are for all users to use car park

22.  The terms and conditions on the signage for all users states that:

·         You must park wholly within a marked bay. No parking on roadways/yellow lines/ paved / hatched or landscapes areas

23.   This applies to all drivers and was complied with, so therefore there was no breach of the signage or contract.

 

Signage

24.  The claimant’s signage is indeed prominent but is also excessively wordy and the print size excessively small, therefore, I deny that it is capable of creating a legally binding contract. (Ex -1)  

25.  The IPC’s CoP states that text size must be such that signs are ‘clearly readable’ by a motorist, I believe that the claimant’s signs do not adhere to this guidance.

26.  Furthermore, the sign states ‘Additional charges will be added’, an ambiguous statement that appears to contradict the precedent set by the Supreme Court in ParkingEye v Beavis, that the main reason for the parking charge was to meet the costs of enforcing the parking rules.

Contract terms

27.  The ‘Contract’ instructs that UKCPM’s signs should state ‘Permit holders only’ at this site however there is no sign in the car park that states this as this is what the contract required. The sign in the car park only mentions ‘Staff’ displaying a permit no other members using the car park.

28.  Therefore the claimant cannot purse this claim as they have not followed the ‘Contract’ terms of the signs that were agreed upon when signing the ‘Contract’.

 

POFA and Consumer Rights Act

29.  Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 (POFA), the sum claimed exceeds the maximum sum which may be recovered from the keeper.

 

30.  Pursuant to Schedule 2 paragraph 6 of the Consumer Rights Act 2015, the sum claimed could be regarded as unfair by the court as it considers the test of fairness laid out in Section 71.

 

The Quantum and abuse of process

31.  This Claimant continues to pursue a hugely disproportionate sum; it is denied that the quantum sought is recoverable, indeed it represents a penalty. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] KSC67.  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 admin costs inflating it to £135 'would appear to be penal'.

32.  In addition to this, the ‘additional charge’ constitutes a double recovery and the court is invited to find the quantum claimed is false and an abuse of process as found by HHJ Jackson in Excel v Wilkinson in which £60 had been added to a parking charge. (Ex 7)

33.  This is now underpinned by Government intervention and regulation.  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

34.  Adding debt recovery costs, damages or fees (however described) onto a parking charge is now banned. In a very short section called 'Escalation of costs' the new 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." 

35.  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.

36.  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, 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; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.  

37.  This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

38.  The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

39.  The new Act 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. 

40.  Where this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

Aggressive Debt Collection

41.  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." 

Conclusion:

42.  It is submitted that, whilst a delay in payment occurred, the subsequent fine was disproportionate and the ‘additional charges’ are (and were at the time) unreasonable in the face of case law precedent and, subsequently an Act of Parliament. The Claimant’s signage contradicts published guidance and therefore is incapable of forming a legally binding contract, and their representative’s tactics are base and aggressive.

43.  I therefore request that the court find the quantum claimed is false and constitutes an abuse of process.

mhagle

Hi, i have written my witness statement can someone please look at it and tell me if it is ok for me to send and i thank you very much for the help and guidance. Thank you very much everyone that has helped me and gave me advice.  

Coupon-mad

Not 'PACE V LENGYEL is 'distinguished'!  That word means it's different than your case and NOT relevant.  That's not what you mean if you are using it to show your case is on all fours with it.

Re this, I can't see that this tells the Judge that the signs the Claimant has produced are different signs with a significant omission of the word 'staff' which changes the whole meaning of what was really on the signs:

8.      The signs which the Claimant is relying upon as notice of contractual terms are worded in such a way as to require all users of the parking spaces (both hospital staff and visitors) as requiring to display a permit – this is evidently not the case.

mhagle

Thank you coupon-mad, I will change this to say that. 

8. The signs which the Claimant is relying upon as notice of contractual terms are different signs and the 'Claimant' has omitted the word 'Staff' which changes the whole meaning of what is on the sign.

is this ok? thank you