Witness Statement Review

moby_a

Hi all, 

Please may I have some help with constructing a witness statement; the following is a first (& likely jumbled) statement draft - I would be much appreciative for any guidance & to see if I'm on the right track. 

I am still working on the costs section at the end. 

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Signage 

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 The signage they have put forward is clearly a generic bundle, and is outdated and for a different location (‘***’) rather than ***.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

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

5. The approach and entrance to the car park is unmarked and ends in a general cul-de-sac area (see exhibit ***-01) 

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

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

Sequence of Events 

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

9. Having found a seemingly suitable place to park for a short duration, I attempted to get to terms with the terms and conditions signage around the car park as I was highly aware of how purposely deceiving private parking terms can be. Having looked at the sign (***-05) closest to me (please see ***-06, showing myself, of 6 foot in height, and the sign mounted above me), there was no information here other than that parking conditions apply & parking is for permit holders only, with no further direction. Having said this, in the midst of the first lockdown, it was assumed that these restriction surely did not apply at this current time.  

10. Due to the lack of clarity on this particular sign, I then left the car & sought out any further signage (***-07). This sign was again wall-mounted at a height of around 7 feet. (See again ***-08 for reference to height of this sign) This meant that, even with contact lenses in & as close to twenty-twenty vision as possible, I was unable to clearly read the smaller print of this sign. Only having returned and taken photographs, and then zooming in, is one able to decipher the small print. At the time, I did what I could to read these terms, having not been guided to them at all. With about 380 words present, this would take at least a few minutes time to filter through at an average reading rate, possibly even more so at such a small unreadable size. 

11. Having noted there being ample parking spaces empty, and the fact that there was a country-wide lockdown as a result of the pandemic, a decision was made to leave the car for a short duration. Having returned after collection from the pharmacy, I then departed. 

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

Inappropriate & Inadequate Signage 

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

14. Further to this, the initial sign whereby it is stated ‘parking conditions apply’ does not align with Appendix B of the BPA Code of Practice which states that ‘You must always mention that terms and conditions apply and say where to find more details about them’. (see Exhibit ***-12) 

15. 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 (Exhibit ***-11) 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 ParkingEye v. Beavis case is distinguished 

16. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67 (Exhibit ***-13), where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.  

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

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

19. The Beavis ruling mentioned a 'unique' set of facts including the legitimate interest, site location and prominent, clear signs with the parking charge in the largest/boldest text.  The unintended consequence is that, rather than persuading Judges that these charges are automatically justified, the Beavis case facts (and in particular, the brief and conspicuous yellow/black warning signs) set a high bar that this Claimant has failed to reach. 

20. Without the Beavis case to support this claim and with no alternative calculation of loss/damage, this claim must fail.  To paraphrase from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

21.     The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests. 

 

Abuse of Process – the quantum 

22. The Claimant has added a sum disingenuously described as 'debt recovery costs'. This added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process. Thus it is denied that the sum sought is recoverable and a significant chunk of this claim represents a penalty, per the authority from two well-known ParkingEye cases.  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet here, the learned Judge also considered added 'costs'.  The parking charge was set at £75 (discounted to £37.50 for prompt payment) then 'admin costs' inflated it to £135.  At paras 419-428, HHJ Hegarty sitting at the High Court (decision ratified by the CoA) found that adding £60 to enhance the sum sought to £135 'would appear to be penal', i.e. unrecoverable. 

23.     The Defendant's stance regarding this punitive add-on is now underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators must comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice 

24.     Adding 'debt recovery' costs, damages or fees (however described) on top of a parking charge is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

25.     This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. Numerous letters were received regarding debt collection – three agencies were used, with varying sums of payment being demanded, from £150, to £160 & £170 (see Exhibits MBA-14,15,16,17,18). The claim is exaggerated by inclusion of a false, wholly disproportionate and un-incurred enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking; a clear abuse of the court process. 

Jenni_D

It seems this is in relation to a parking charge court claim - you'd be better served with this in the Parking board. In fact, why not add it to your existing thread?

https://forums.moneysavingexpert.com/discussion/6319978/claim-form-ccbc/p1

Edit: I see that you already have. We can let this thread die.

Car_54

IANAL, but I don't believe a witness statement is the place for legal arguments.

Jenni_D

Defence defines the legal arguments, WS + evidence provides the commentary as to why they apply. (But like you IANAL)

But as I said earlier - the OP has gone back to their original thread in Parking so they'll get targeted help there.

Herzlos

"3. In the first instance, it must be clarified that the claimant has appended to their witness statement signage that is incorrect for this car park."

Presumably the claimant appended their witness statement to claim the signage was correct? If they've said it's incorrect, then you don't need to refute it.