Opinions on my defence

carbon8

Thanks for the help, @Umkomaas !

carbon8

When describing the 'added costs' that the Claimant is seeking, in my Witness Statement with regard to the Beavis case, should I add the court fee and legal representative's costs to that?

The claimant is seeking the original PCN amount, plus £85, then on the Claim Form these costs have also been added.

I'm not sure if they are something the court has added or if these are also being sought by the Claimant themselves?

Cheers!

c8

Coupon-mad

They are allowed court fees and £50 legal costs. You don't need to describe the costs. The Judge can see the sum claimed, it's on the claim form so this doesn't need repeating.

You need to get it straight in your mind what sum they added is arguably unjustified and 'extortionate' (DLUHC Minister's word).

The Template Defence walks you through the bit that is objectionable and why you can object to that add-on at your hearing in the end. Re-read your defence. It tells you which cost is the 'problem'.

There is no need to add any words about it because the WS example from aphex007 already covers this well and you can copy that bit.

carbon8

Thanks for explaining @Coupon-mad.Yes ill take another look at defence as it was a while ago now! I think I understand the relevance of the Beavis case after doing a bit of research and reading other's WS like the one referred to in the example you recommended.

One other thing actually. The legal firm in question did not respond to my SAR in time, and only when I emailed them did they send me a copy of a letter which was dated within the allowed time frame. This letter never arrived! Even then, the letter did not contain all the information I asked for. Is there any mileage in putting this in my WS do you think?

Umkomaas

Is there any mileage in putting this in my WS do you think?

None whatsoever. 

carbon8

Hi

When writing the witness statement, I see in a lot of examples people refer to "The Claimant" - but what is the proper way to refer to the legal company representing them? "The Claimant's Legal Representative"?

Cheers!

c8

Coupon-mad

Yes that's right.

carbon8

Hi I have been working on my witness statement over the last couple of weeks, I would really appreciate any comments or suggestions before submitting it to the court.

I've pasted and formatted the text below, in reality the paragraphs are correctly numbered but I had to convert them to bullets here.

Also I have not included the exhibits - I have a video of my route into and around the car park not passing any signs apart from the unreadable entrance sign. I also have a few documents and photos which I can upload somewhere in case anyone would like to see them - I am just a bit worried about posting them not sure if that is warranted though.

Thanks for everyone's help so far it has been amazing!

c8

In the County Court at XXX Claim number XXX Hearing date: xx/xx/xxxx

UK PARKING CONTROL LIMITED  (Claimant)

V

XXX (Defendant)

WITNESS STATEMENT OF DEFENDANT

FOR HEARING ON xx/xx/xxxx

• I am Mr XXX XXX of XXX XXX, 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.
• In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. I will say as follows: 

  

Signage and Sequence of events

• The approach and entrance to the car park is on a single lane bend on the road where double yellow lines change to double red (exhibit A). This is a busy area where stopping is impossible both due to the double yellow/red lines and other traffic not being able to pass.
• At the point of entry, on the bend, there is a small sign which, when applying highway code conventions, appears incidental and informational in nature (blue on white background), rather than giving an order or warning (signs with a red or yellow components) saying “No Unauthorised Parking”. This sign is also partially obscured by 2 separate trees during the approach to the bend (exhibit (exhibit V1). 
• I have since found that there is also some much smaller print on the entrance sign which is not readable while driving, and certainly not readable from a motorcycle being driven responsibly while cornering / preparing to corner. This text says “See notices in car park for terms and conditions and data use” (exhibit C).
• The small print on this sign is in fact the only useful part of the content. The large print saying “No Unauthorised Parking” is obvious, ambiguous and as superfluous as a shop putting up a sign saying “No Shoplifting”. It is the small text advising people to check the signs in the car park which in fact should be emphasised here using large print. If more people were made aware to check the signs inside the car park, it would follow that there would be fewer accidental infringements of the rules, and hence less revenue for The Claimant. This would lead a reasonable person to the conclusion that the important text is actually small, and therefore unreadable from a moving vehicle, on purpose.
• There were other signs detailing terms and conditions within the car park. The signs were not clearly visible or readable at any point along my route to the parking location (exhibit V1). They were not designed to be attention grabbing or to indicate an order or warning as per the highway code conventions. There were none of these signs at eye level along my route to the shop entrance. The only sign along the route is too high to notice, 2.3m up a wall immediately to a persons right while walking along the pavement to the shop entrance (exhibit D). I’d not had any usable prompting or other reason to suspect these signs were there at all, or that I should be looking for them. This belief being reinforced by the fact that the carpark is ‘free to use’.
• For the reasons described above, it was certainly not my understanding that I had entered into any contract with The Claimant.
• I drove by motorcycle to the shopping centre with the intention of meeting, and helping my wife with our 1 year old boy. My wife and child arrived by car, a grey XXX registration number XXX, visible in some of the photographs taken by the The Claimant's employee on the day in question (exhibit E). I spotted the car, and took the most direct route to park the motorcycle nearby.
• There were a lot of free spaces that day including immediately to the east of my wife’s car, but in order to be considerate I made a split second decision, rather than occupy a space intended for a car with a bike, which could fit in a much smaller area, to elect to park the bike to the car’s west. This was on a paved area which was not a path, having first determined that it would not cause any obstruction. I was further convinced that parking the motorcycle out of the way like this would be the correct course of action because of my first hand experience in parking motorcycles all around the North East of England on paved areas without causing an obstruction, and never having received a parking ticket from a genuine traffic warden or police officer for this activity. 
• To be clear, there was no benefit to me in parking where I did, financial or otherwise, as I could have just as easily occupied the car space which was as close to my wife’s car, and the parking spaces were ostensibly free. The sole purpose of parking the bike where I did was out of consideration for other visitors to the shopping centre, and it is my opinion that this fact should have been just as obvious to any observer.
• The paved area had no signage or any surface markings indicating that motorcycle parking was prohibited. (exhibit F). 
• Upon visiting the car park again, I found that of all the signs, only one mentioned motorcycles at all and this is close to some motorcycle bays. It has one rule: “Motorcycles only in the motorcycle bays”, (exhibit G) it is not clear whether this means that only motorcycles are allowed to park in the motorcycle bays, or motorcycles are only allowed to park in the motorcycle bays. If it is the latter, then it would be unreasonable for motorcyclists to be expected to check every sign in the car park until they found the one regarding motorcycles.
• These factors would lead a reasonable person to believe that the common practice of parking motorcycles on a paved area, without causing an obstruction, so as not to occupy a space wide enough for a car, would be advisable, not to mention considerate.
• Upon returning to the motorcycle, I noticed a plastic envelope containing an invoice for £100 which had been crudely stuck directly to the paintwork of the motorcycle. (exhibit D5) This kind of envelope is designed to be stuck to the glass of a car windscreen, not the paintwork of a motorbike. I contacted the shopping centre to complain about the event, but they said they were not allowed to offer any assistance. I received no further correspondence regarding the issue for approximately 3 months. I had assumed that This Claimant had managed to interpret the situation for what it was, and had decided not to pursue the matter.
• On 20 August 2021, I became aware that I had not updated the V5 address for the motorcycle, having recently moved house. After this date I started to receive letters from The Claimant’ Legal Representative asking for excessive amounts of money in regard to the incident in question. The Claimant’ Legal Representative denies having sent these letters, and maintains that that the first letter they sent me was on 31 May 2022 demanding £170. This is only 34 days before a County Court Claim being issued on the 4th July 2022 (Exhibits D3, D4)
• I am asked to pay the further inflated amount of £184.44. This is because the amount remained unpaid longer than The Claimant would have liked.
• A key factor in the leading authority from the Supreme Court (ParkingEye Limited v Beavis), was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that they had installed signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in (exhibit H) 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’) (exhibit C). 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

• 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 do not comply with the rules, in order to deter motorists from interfering with the efficient running of the car park and thus ensure further income for the landowner. The Court concluded that the £85 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.
• 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.
  

Abuse of process - the quantum

• The Claimant has added a sum disingenuously described as 'debt recovery costs'. The added £84.44 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit L - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.
• 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.
• 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.’'
• 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. The Claimant can't have both.
• The Claimant knew or should have known, that by adding £84.44 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 (exhibit - J), 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.
• The Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality.
• Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not quantified on the notices at all (exhibit I), but the official CMA guidance to the CRA covers this and makes it clear that any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.
  

CPR 44.11 - further costs

• 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). 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 double recovery.

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

• 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. (exhibit K)
• 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

I don't think that end half is up to date, as I saw nothing about the Government's new (temporarily stalled) Code of Practice and saw nothing about Excel v Wilkinson.

See the WS bundle example by @aphex007

carbon8

Thanks @Coupon-mad I have found the other bundle here, in case anyone else is reading this in future:

https://forums.moneysavingexpert.com/discussion/6320414/yet-another-ukpc-dcb-legal-ltd-ws-bundle/p15

Would you suggest I use the new bundle as a base template then, and paste my specifics in there - rather than try to alter the statement which I have drafted already? The one I did was based on the link in the Newbies thread (see image) so may be that link could be updated?

Cheers!

c8