Late Defence

Coupon-mad

I think take some damning photos with you, yes.  Is it in person?

DCBLegal ones are easier to fight as they often give up before hearings. Unfortunately, yours is PE (direct) who don't give up.

mercuteio

Perfect - that’s a plan then  And yes, it’s an in-person hearing this time. 

Shame that it’s ParkingEye rather than DCBLegal, from the sounds of things, although in a way, when I’ve put the work in I sort of want the satisfaction of going to court and winning “properly”. Less satisfying if you lose, I suppose . . . 

Thanks again, and will be in touch following the hearing. Very best wishes.

mercuteio

Hello everyone, 

I am super delayed with absolutely everything this month, which may make more sense in a few minutes. So, first, a quick update:

I attended the Directions Hearing last month and found that the District Judge was a little more harsh than I expected initially. As soon as I walked in he looked at me with quite a non-plussed expression and said something along the lines of "so, what do you have to say for yourself?". I re-set things by saying what had happened, and emphasising that because I couldn't see the signs at night I did not feel that I had entered into a contract in the first place, thus making the Claimant's case void.

He softened up at that point and said that he hadn't realised the incident was at night, before saying "so, of course, if you couldn't see then signs then you couldn't have entered into a contract". He then told me that, had that not been the case, he was about to throw my case out in the Claimant's favour, but the lack of lighting means that the case needs further determination, and therefore needs to go to a full hearing with another judge sitting.

I breathed a sigh of relief, and shortly afterwards went on a long-awaited holiday (a belated honeymoon, in fact! Lapland, in case you're wondering, and it was wonderful, not least due to catching the Northern Lights while they were in town!). What I didn't expect was that on my return, around the middle of the month, there would not only be a General Judgment giving the outcome of the Directions Hearing, but also a call for Witness Statements by . . . 4th April (that is, tomorrow!), with a view to a hearing around the middle of this month! After waiting for over a year for the Directions Hearing, I wasn't expecting to have two weeks to prepare the Witness Statement!

Anyway, my feeling was that it would be best to get the hearing done and out of the way whilst the case was still fresh in my mind, so I rolled with these dates and planned to get my Witness Statement sorted shortly afterwards. Of course, as I should have predicted, life got in the way somewhat, and I found myself concentrating not on my Witness Statement, but on my Mum, who became quite suddenly unwell on Mothers' Day (of all days!) and has needed a decent amount of support since then, thus pushing my Witness Statement into the ether. 

Had I been a more sensible person, I would have written to the court, explained what's happened and asked them to reschedule to give me a little more time. However, not being that person, I decided that it would be best to just get this out of the way instead, and figured that I'd somehow work out a way to get the Witness Statement written on time.

Fast forward a few days, and we are currently the night before the deadline. I have until 4pm tomorrow to get this sorted, and I have written just a few paragraphs so far, so I'm currently debating whether to go back to my student days and try to get this done overnight, or whether to accept that all-nighters aren't as easy for me these days and maybe I should just get up early to get this done. 

One way or the other, I'll try to post a draft Witness Statement shortly. It may be in the middle of the night (if I plough on now) or some time tomorrow morning (if I decide to get some sleep now and sort it tomorrow morning). If any of you are able to give me some feedback before I submit it formally that would be great, but I do understand that I've given you next to no time at all, so I will completely understand if not. 

For what it's worth, this is what I've written so far, and the paragraphs I'm most concerned about are Paras 10 and 11, because it may have been wiser for me to go through the formal appeals process, but I didn't actually do this (I did, however, email the landowner). Nonetheless, I still think this is a solid case as I genuinely didn't see any of the signs in the dark. The three themes I plan to bring in here are (i) that this is a breach of Schedule 2 of the Consumer Rights Act; (ii) that this case is distinguished from the Beavis case; and (iii) for some reason, despite a £100 charge and no mention of a debt recovery charge, Parkingeye has still listed the amount outstanding as £185, which I think amounts to a double recovery and an abuse of process.

If you have any thoughts either on what I've written so far, or feedback on my plan for the rest of it, please do let me know. Many thanks for all of your help so far, and very best wishes to all of you. Here's what I've got:

Witness Statement So Far . . . 

I, <name>, of <address>, am the Defendant in this matter, and am unrepresented with little experience of Court procedures. If the contents of this Witness Statement or the evidence and exhibits that accompany it are set out in a manner to which the Court is not accustomed, I trust that the Court will excuse my inexperience.

 

Attached to this statement is a paginated bundle of documents marked as <Exhibit numbers>, to which I will refer.

 

1.     I am the registered keeper of the vehicle concerned and was the driver at the time of this incident

 

2.     On <date>, the date of the alleged contravention, I was driving home from work whilst speaking with a friend over the phone using a hands-free speaker system within my car.

 

3.     I was keen to finish this conversation without disturbing the rest of my household, and therefore chose to finish the conversation in my car, rather than going home and continuing the conversation from there.

 

4.     As such, approximately one mile from my home, driving along <road name>, I decided to stop my car and finish the conversation. Almost all of the roads in <name of estate> are free to park on, and under normal circumstances I would simply have parked in a safe and visible area on the road. However, as it was extremely dark and the on-street lighting was relatively poor, I decided that it would be safer to take my car off the road to avoid anyone accidentally hitting my car from behind due to the poor visibility. As such, I drove into the car park at <venue name>, which was just next to me at the time.

 

5.     I have been a resident of <estate name> since <year>, and at the time of parking I believed that the car park for <venue name> was entirely free to park in, as I have never been asked to pay a fee for parking in all of my visits to the hall since I started driving in <year>, and was not aware of any changes to this state of affairs.

 

6.     Furthermore, at the time of parking, the lights within the <building> were all off, and there were no other vehicles in the car park, which indicated to me that there were no events taking place that evening, and no-one would be inconvenienced by my stopping my car within the <venue name> car park.

 

7.     At the time of entering the car park, it was extremely dark, and I did not see any signs indicating that a parking charge applied within the car park, and nor did I expect to see any, seeing as I had never had to pay for parking there before. I did not get out of my car at any point during my stay, and after finishing my conversation approximately 50 minutes later, I left the car park and went home.

 

8.     It was therefore something of a shock to me to receive a Parking Charge Notice from the Claimant several days later. On returning to the car park during daylight hours after receiving this notice, I could see that signs had indeed been erected indicating that fees were now payable for use of the <venue name> car park but these were not visible in the slightest at the time that I visited the car park.

 

9.     Contrary to the claim by the Claimant stating that “there is sufficient ambient lighting from lampposts in the car park”, I can categorically state that the lighting is entirely insufficient for drivers to see the signage erected by the Claimant in the dark. To demonstrate this, I have taken photos of the signage both during the day, and then at night, and have presented these day/night photos next to each other so that a direct comparison can be made <Exhibit numbers>. It is clear from these photos that it is extremely difficult to see the signage erected by the Claimant at night, and it therefore stands to reason that I was not able to see these signs when I entered the car park on <date>.

 

10.  I appealed to the landowner directly at the time <Exhibit number>, as my understanding is that the Claimant is contracted by the landowner, but did not receive a reply to this letter of appeal.

 

11.  The Claimant makes reference to their appeals service in their Witness Statement (para 15). However, on learning more about the process I opted against this service because it did not appear to be truly independent, with appeals initially being assessed by the Claimant directly, and rejected appeals then being offered escalation to POPLA (Parking on Private Land Appeals), which is an organisation funded by the British Parking Association, an Accredited Trade Association that is itself funded by Private Parking Companies themselves. It is therefore unlikely that the process would have yielded a different outcome.

Any thoughts would be gratefully received! Many thanks, as always.

Coupon-mad

Looks great so far.  You could add in the Spurling v Bradshaw / Lord Denning 'red hand rule' argument and the Consumer Rights Act point about the requirement for terms to be both clear and prominent.  Both are already written in the Template Defence but would equally work in a WS.  An easy copy and paste grab!

Forget this though:

despite a £100 charge and no mention of a debt recovery charge, Parkingeye has still listed the amount outstanding as £185, which I think amounts to a double recovery and an abuse of process.

Not in this case.  The £85 comprises allowable legal and court fees. All OK.

Make sure you use the 2020 statement of truth as shown in the NEWBIES thread.

mercuteio

Coupon-mad said:

Looks great so far.  You could add in the Spurling v Bradshaw / Lord Denning 'red hand rule' argument and the Consumer Rights Act point about the requirement for terms to be both clear and prominent.  Both are already written in the Template Defence but would equally work in a WS.  An easy copy and paste grab!

Forget this though:

despite a £100 charge and no mention of a debt recovery charge, Parkingeye has still listed the amount outstanding as £185, which I think amounts to a double recovery and an abuse of process.

Not in this case.  The £85 comprises allowable legal and court fees. All OK.

Make sure you use the 2020 statement of truth as shown in the NEWBIES thread.

@Coupon-mad, you are amazing - thank-you!! I post at 11:07pm, and you reply with great feedback within 20 minutes. How do you do it??

This is super useful - thank-you so much. I'm going to look up the red hand rule now, while I've still got a bit of energy, and will see if I can spin it into the mix. I didn't realise that the £85 charge was a court fee, as they didn't label it in any way. I suppose at least that saves me writing out an argument that would be void from the outset  

Thank-you for the heads-up about the 2020 statement of truth too - noted!

Thank-you so much  

mercuteio

Ok, I decided to plough on through. I'm just in the process of putting together my Evidence Pack, but I think the Witness Statement is complete and now ready for scrutiny from your good selves.

I considered Lord Denning's "red hand rule", as per @Coupon-mad's suggestion. In the first instance, I'm an idiot, because I didn't notice that I've already referenced this rule in my Defence. This was one of the paragraphs that I copied, but did not understand as well as the rest of the Defence. Having now looked up Lord Denning's "red hand rule" properly, I've decided against putting it in my Witness Statement, as the premise of the red hand rule relates to terms that are sufficiently difficult to understand that they should have red text with a red hand pointing at them. In my case, I didn't see the signs at all, so there wasn't a chance for me to consider whether any terms were sufficiently opaque as to meet the criteria of the red hand rule, so I decided not to mention it any further.

That being the case, here is my Witness Statement as it stands - paras 1-11 are exactly the same as those above:

Witness Statement

I, <name>, of <address>, am the Defendant in this matter, and am unrepresented with little experience of Court procedures. If the contents of this Witness Statement or the evidence and exhibits that accompany it are set out in a manner to which the Court is not accustomed, I trust that the Court will excuse my inexperience.

 

Attached to this statement is a paginated bundle of documents marked as <Exhibit numbers>, to which I will refer.

 

1.     I am the registered keeper of the vehicle concerned and was the driver at the time of this incident

 

2.     On <date>, the date of the alleged contravention, I was driving home from work whilst speaking with a friend over the phone using a hands-free speaker system within my car.

 

3.     I was keen to finish this conversation without disturbing the rest of my household, and therefore chose to finish the conversation in my car, rather than going home and continuing the conversation from there.

 

4.     As such, approximately one mile from my home, driving along <road name>, I decided to stop my car and finish the conversation. Almost all of the roads in <name of estate> are free to park on, and under normal circumstances I would simply have parked in a safe and visible area on the road. However, as it was extremely dark and the on-street lighting was relatively poor, I decided that it would be safer to take my car off the road to avoid anyone accidentally hitting my car from behind due to the poor visibility. As such, I drove into the car park at <venue name>, which was just next to me at the time.

 

5.     I have been a resident of <estate name> since <year>, and at the time of parking I believed that the car park for <venue name> was entirely free to park in, as I have never been asked to pay a fee for parking in all of my visits to the hall since I started driving in <year>, and was not aware of any changes to this state of affairs.

 

6.     Furthermore, at the time of parking, the lights within the <building> were all off, and there were no other vehicles in the car park, which indicated to me that there were no events taking place that evening, and no-one would be inconvenienced by my stopping my car within the <venue name> car park.

 

7.     At the time of entering the car park, it was extremely dark, and I did not see any signs indicating that a parking charge applied within the car park, and nor did I expect to see any, seeing as I had never had to pay for parking there before. I did not get out of my car at any point during my stay, and after finishing my conversation approximately 50 minutes later, I left the car park and went home.

 

8.     It was therefore something of a shock to me to receive a Parking Charge Notice from the Claimant several days later. On returning to the car park during daylight hours after receiving this notice, I could see that signs had indeed been erected indicating that fees were now payable for use of the <venue name> car park but these were not visible in the slightest at the time that I visited the car park.

 

9.     Contrary to the claim by the Claimant stating that “there is sufficient ambient lighting from lampposts in the car park”, I can categorically state that the lighting is entirely insufficient for drivers to see the signage erected by the Claimant in the dark. To demonstrate this, I have taken photos of the signage both during the day, and then at night, and have presented these day/night photos next to each other so that a direct comparison can be made <Exhibit numbers>. It is clear from these photos that it is extremely difficult to see the signage erected by the Claimant at night, and it therefore stands to reason that I was not able to see these signs when I entered the car park on <date>.

 

10.  I appealed to the landowner directly at the time <Exhibit number>, as my understanding is that the Claimant is contracted by the landowner, but did not receive a reply to this letter of appeal.

 

11.  The Claimant makes reference to their appeals service in their Witness Statement (para 15). However, on learning more about the process I opted against this service because it did not appear to be truly independent, with appeals initially being assessed by the Claimant directly, and rejected appeals then being offered escalation to POPLA (Parking on Private Land Appeals), which is an organisation funded by the British Parking Association, an Accredited Trade Association that is itself funded by Private Parking Companies themselves. It is therefore unlikely that the process would have yielded a different outcome.

12.  Despite the self-serving nature of Accredited Trade Associations for the private parking industry, one might assume that Private Parking Companies such as the Claimant should at least abide by their Code of Practice. Indeed, on the subject of Accredited Trade Associations, the Supreme Court in Parking Eye vs. Beavis 2015 <Exhibit number> states:

 

“A competent lawyer representing a user in individual negotiation might be expected, among other things, to argue that the supplier should at least commit to following the code of practice” (Para 311, Parking Eye vs. Beavis 2015, Exhibit number)

 

13.  In this case, however, the Claimant has failed to follow a principle tenet of the Code of Practice of its own Accredited Trade Association, the British Parking Association, regarding visibility of signage, where it is stated:

 

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand” (Clause 19.3, British Parking Association Code of Practice Version 8.0, January 2020, Exhibit number)

 

14.  It is my understanding that there are three elements to a contract: offer, consideration and acceptance. The premise of the current claim is that I accepted a contract with the Claimant. However, as can be seen from the photographic evidence, no contract could possibly have been construed in this case because I simply could not see the signage. This is in contravention of the Consumer Rights Act, Schedule 2, Paragraph 10 <Exhibit number>, which states that consumer contract terms which may be regarded as unfair include: 

 

“A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract” (Consumer Rights Act, Schedule 2, Paragraph 10, Exhibit number)

 

The Beavis case is against this claim

 

15.  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.

 

16.  However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case where I parked during a period where no activity was taking place within the venue of the car park and there were no other cars within the car park during my stay. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. Presenting signage in such poor illumination as to make it difficult to see that such a sign exists is a tactic that forms precisely the sort of ‘concealed pitfall or trap’ and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

 

17.  I therefore invite the court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are permissable under Civil Procedure Rule 27.14. A Schedule of Costs is provided in <Exhibit number>.

Statement of Truth:

 

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Any and all feedback welcomed! I recognise that I've given the wisened members of this forum virtually no time at all to read the Witness Statement above, so I do understand if no-one is able to give me feedback before I submit this statement tomorrow, but in case it helps, I will probably start printing and submitting this witness statement around 12pm/1pm. Before that time, if anyone has any feedback I will gratefully receive it and should have enough time to make amendments as necessary.

Very best wishes, and many thanks as always.

B789

mercuteio said:

16.  However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case where I parked during a period where no activity was taking place within the venue of the car park and there were no other cars within the car park during my stay. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. Presenting signage in such poor illumination as to make it difficult almost impossible to see that such a sign exists is a tactic that forms precisely the sort of ‘concealed pitfall or trap’ and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

I think it is an exemplar WS. My only pedantic suggestion is the above edit to para #16.

mercuteio

Ah, this is great @B789 - thank-you! Yes, I think this is a better phrase so I'll change that now. Thank-you  

Btw, may I just say that I absolutely love your signature! With all of the words in the world, I couldn't articulate that note on written tone better, but your signature achieves it in just two sentences! Wonderful!

Coupon-mad

I would just say that:

-  the red hand rule is relevant!  It's not about terms that are difficult to understand.  It's about drawing onerous terms & clauses prominently to the attention of a consumer before they are committed (by parking, in your case).  Maybe you prefer to quote Lord Denning's words about it in Thornton v Shoe Lane (a car park case)?


- remove this phrase (below) because there was no fee to pay in Beavis:

"in order to deter motorists from occupying spaces beyond the time paid for".


- And I think you are missing two things:

(a) two further quotes from the BPA CoP.  There's one para about visibility of signage "in hours of darkness" and another about "new restrictions" that require additional signs to alert people familiar with the old rules/lack of restrictions in any car park.

(b) putting them to strict proof of landowner authority.  It's in your defence but you've not touched on it here.  It is in the exemplar WS by aphex007.

mercuteio

Hi @Coupon-mad!

Argh - I've just emailed it across as this message came through! Fortunately, I've still got a little time so I may be able to amend this now. 

-  the red hand rule is relevant!  It's not about terms that are difficult to understand.  It's about drawing onerous terms & clauses prominently to the attention of a consumer before they are committed (by parking, in your case).  Maybe you prefer to quote Lord Denning's words about it in Thornton v Shoe Lane (a car park case)?

Ok, noted. Will see if I can get that in now. 

 remove this phrase (below) because there was no fee to pay in Beavis:

"in order to deter motorists from occupying spaces beyond the time paid for".

Got it - will do!

- And I think you are missing two things:

(a) two further quotes from the BPA CoP.  There's one para about visibility of signage "in hours of darkness" and another about "new restrictions" that require additional signs to alert people familiar with the old rules/lack of restrictions in any car park.

(b) putting them to strict proof of landowner authority.  It's in your defence but you've not touched on it here.  It is in the exemplar WS by aphex007.

(a) Ah! Totally missed that bit - it's in the appendices! Adding it in now

(b) Ah, ok, sure. I thought the defence covered that, and they responded to it with a contract demonstrated in their witness statement, so I didn't mention it. But I'll do that now.

Thank-you, thank-you! On it now!