Minster Baywatch Ltd Claim Issued through Gladstones Solicitors LTD - CASE DISMISSED!!

Yanness

Hi guys,

I believe I have finished the WS. I hope I have not forgotten to remove everything allowing identification. If that the case please give me a shout out and I will promptly correct that silly mistake.

Also I have put cases I hope should stand. If that is not the case I will be happy to correct or change them.

Please see the attached document. If you cannot access it let me know. And as always thank you very much for you input and support.

https://mega.nz/file/iNwBhTqa#jPpCxrXMs28qNVKzHdQh4ywp4ExD0aFh-B2AVQW844Q

Cheers

Le_Kirk

You have to download it and some regulars won't do that.

Yanness

Le_Kirk said:

You have to download it and some regulars won't do that.

Ok I see. Then I will have to past it onto the forum then.

Yanness

Hi guys,

Here is my witness statement. Thank you for your help once again.

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First part.

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Index

Table of Exhibit                                                                                                     

Exhibit A -  1 No visible Claimant Sign. 13

Exhibit A -  2 Entrance to car park. 14

Exhibit A -  3 Camera. 15

Exhibit A -  4 Camera. 16

Exhibit A -  5 Small font signage. 17

Exhibit A -  6 Small font signage. 18

Exhibit B - 1 BPA Approved Operator Scheme (AoS) 19

Exhibit B - 2 Claimant BPA Membership. 20

Exhibit B - 3 The Beavis case sign for comparison. 21

Exhibit B - 4 The ParkingEye Ltd v Beavis [2015]. 22

Exhibit B - 5 Excel Parking Services vs Wilkinson. 24

Exhibit B - 6 Defendant’s Schedule Of Costs. 34

 

IN THE COUNTY COURT

Claim No.: XXX

Between

(Minster Baywatch Ltd) 

(Claimant) 

- and -  

John Doe (Defendant)

 

 

 

WITNESS STATEMENT OF DEFENDANT

FOR COURT HEARING ON 01/01/3022

 

 

 

 

1.      I am Mr John Doe of 10 Carpark Street, London, SW1A 2AB, 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 facts

3.      I drove to the car park on the xxth of December 20xx for a quick meal with my family.

 

4.      Upon entering the car park, there was no visible contractual signage at either side of the entrance to the land directly from the public highway such as the Defendant had no ability to know about any conditions for parking in the location before entering and being recorded by their camera (See Exhibit A - 1).

 

5.      When entering the car park, directly from the public highway, there is no way to turn around, if you decided not to park at the location afterward. Unfortunately, you have to enter into the car park and then turn around further away in the car park before leaving. But by entering, you are already recorded by their camera and deemed supposedly in a contract (See Exhibit A - 2, Exhibit A - 3 and Exhibit A - 4).

 

6.      The location has inadequate signs which are not contract by any means. Signages are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charges at the entrance from the highway. Therefore, no contract was entered. The small and short description, which is not visible from the highway, is merely an "invitations to treat" and could only be deemed to be accepted as a contract when you feed the meter.

This supports a legal principle in that when there is an unsigned agreement and an onerous clause then this clause must be bought to the attention of the trader. Indeed, this approach is inserted into the BPA Code of Practice where 'adequate notice of the parking charge' is mandatory. The defendant believes that the signs used by the claimant do not clearly mention the ‘onerous’ clause of the charge and contractual terms in accordance with this trite of law because it is hidden in smaller print underneath far larger lettering used to state that “parking is for valid permit holders (See Exhibit A - 5 and Exhibit A - 6).

 

7.      No sum payable to this Claimant was accepted nor even known about by the defendant as they were not given a fair opportunity to discover the terms by which they would later be bound due to inadequate grace period mentioned on any of their signages (See Exhibit A - 5 and Exhibit A - 6). Therefore, no contract was formed due to the failure to provide adequate signage.

 

8.      The Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however, the claim is unfair, objectionable, generic and inflated. 

 

9.      As there was no visible signage, this is in contravention of the British Parking Association (BPA) Approved Operator Scheme (AoS) version 7 - October 2018 section 18.3, see Exhibit B - 1 (this is the version that is applicable to the date of issue of my PCN) under which the claimant is an active member as per https://www.britishparking.co.uk/BPA-Members  (See Exhibit B - 2).

 

10.    It is therefore denied that I entered a legally binding contract, as no adequate and appropriate signage existed in the location I was parked upon on the date of the 10th of April 2022 and at no point did I believe any permission to park was needed.

 

11.    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 Exhibit B - 3 in comparison to any alleged Claimant sign.  In the alternative, if the Claimant alleges signage was present, 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)

12.    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 B - 3).

 

13.    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.

 

14.    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 B - 4 for paragraphs of ParkingEye v Beavis).

 

15.    In the alternative, if the Claimant alleges signage was present, I aver that the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains my position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i)   Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded;

and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where Ms Vine won because it was held that she had not seen the terms by which she would later be bound.  It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

16.    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 alike."  If the Claimant alleges a sign was present, 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. 

 

 

POFA and CRA breaches

 

17.    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').

 

18.    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.

 

19.    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 s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

Yanness

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Second part.

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Lack of landowner authority evidence - the operator is put to strict proof of full compliance with the BPA Code of Practice and lack of ADR

 

20.      DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area.  The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

 

I believe that there is no contract between the driver and the operator. I use this platform to argue that the notice does not state anything about a contract with Bransby Wilson Parking Solutions, though they are shown as site managing agent of the car park. I must bring to your attention that it is neither obvious, nor clear which company operates this site. So, it is unclear which company the driver allegedly entered into a contract with, because of the confused signage and terms, as both entities have displayed that they manage the site.

 

As this operator does not have proprietary interest in the land then a copy of the contract with the landowner should be produced as proof of operating on this land. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

 

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

 

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

 

Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

 

7.3 The written authorisation must also set out:

a)      the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b)     any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c)     any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d)     who has the responsibility for putting up and maintaining signs

e)     the definition of the services provided by each party to the agreement.

 

21.      I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.

 

No Evidence of Period Parked – Notice to Keeper (NtK) does not meet PoFA 2012 requirements

 

22.      Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”
Minster Baywatch’s NtK simply claims the vehicle was involved in breaching the stated terms and conditions of use” at the car park location. The NtK separately states that the vehicle “Entrance Date/Time: XX/XX/20XX at xx:xx:xx.” and departed at” Exit Date/Time: XX/XX/20XX at xx:xx:xx.”. At no stage do Minster Baywatch explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012. It is not in the gift of Minster Baywatch to substitute “entrance/exit” or length of visit in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result. By virtue of the nature of an ANPR system recording only entry and exit times, Minster Baywatch is not able to definitively state the period of parking.

 

 

Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

 

23.      The BPA Code of Practice point 20.5a stipulates that:

"When issuing a parking charge notice you may use photographs as evidence that a vehicle was
parked in an unauthorised way. The photographs must refer to and confirm the incident which you
claim was unauthorised. A date and time stamp should be included on the photograph. All
photographs used for evidence should be clear and legible and must not be retouched or digitally
altered."

The PCN in question contains two close-up images of the vehicle number plate. Neither of these images contains a date and time stamp “on the photograph” nor do they clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The time and date stamp has been inserted into the letter on the side, but not part of, the images. The images have also been cropped to only display the number plate. As these are not the original images, the Defendant has therefore not entered into any contract with Minster Baywatch. It remains to be seen whether or not Minster Baywatch  can produce evidence of the original "un-cropped" images containing the required date and time stamp and to evidence where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.

 

 

The ANPR System is Neither Reliable nor Accurate

24.      Minster Baywatch Notice to Keeper (NTK) shows no parking time, merely two images of a number plate corresponding to that of the vehicle in question. There is no connection demonstrated with the car park in question.
The Notice to Keeper states: Parking Fee covering visit duration was not paid in full “Entrance Date/Time: XX/XX/20XX at xx:xx:xx.” and departed at” Exit Date/Time: XX/XX/20XX at xx:xx:xx.

These times do not equate to any single evidenced period of parking. These times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed. Since there is no evidence to actual parking times this fails the requirements of POFA 2012, paragraph 9(2)(a), which states;

“Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order. Minster Baywatch has not produced records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and
synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

As ‘grace periods’ (specifically the time taken to locate any signs, observe the signs, comprehend the terms and conditions, decide whether or not to purchase a ticket and either pay or leave) are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times (XX minutes and XX seconds apart). Consequently, Minster Baywatch could have not entered into a legally binding contract with the Defendant based on flimsy digitally manipulated images.

 

 

Abuse of process - the quantum

 

25.      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.

 

26.      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.  

 

27.      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 26), 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 were not 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.

 

28.      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." 

 

29.    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. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £55 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

 

30.    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."

 

31.    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 (also in February 2022), 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, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

 

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

 

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

Yanness

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Third part.

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34.      These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it. 

 

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.      This 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.

 

37.      It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit B - 5) where she went into great detail about this abuse.

 

38.      The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much needed clarity for consumers and Judges across England and Wales.

 

39.      In case this Claimant tries to rely upon those old cases, significant errors were made.  Evidence - including unclear signage and Codes of Practice - was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC.

 

 

CPR 44.11 - further costs

 

40.      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). In support of that argument, I remind the court that the Claimants did not have reasonable cause to issue the PCN as there were no Claimant signs clearly displayed at the entrance of the car park directly from the highway. The very words “clearly displayed” are actually taken from the Claimants PCN details in relation to the Claimants signs (as to how they should be).  It is denied that signage exists at this location; therefore, it is denied I am in breach of terms and conditions. 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

 

41.      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.

 

42.    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.''

 

 

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.

 

 

SIGNATURE

 

……………………..

 

xxxxxxxxxxxxx

 

DATE    xx/xx/xxxx

 

 

 

 

 

 

(Exhibits on next pages)

Yanness

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Fouth part.

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Exhibit A -  1 No visible Claimant Sign

Approach road leading into the car park (No visible Claimant sign directly from the highway before turning into car park).

 

(Photo taken on the xx/xx/20xx as shown by the date and time stamp, created from the photo metadata)

 

 

Exhibit A -  2 Entrance to car park

Entering the car park (Only way to turn around is entering through the car park and go deep inside car park to then turn around).

 

(Photo taken on the xx/xx/20xx as shown by the date and time stamp, created from the photo metadata)

 

 

 

Exhibit A -  3 Camera

Camera at the entrance of car park

(Photo taken on the xx/xx/20xx as shown by the date and time stamp, created from the photo metadata)

 

 

Exhibit A -  4 Camera

Camera at the entrance of car park

 

(Photo taken on the xx/xx/20xx as shown by the date and time stamp, created from the photo metadata)

 

Exhibit A -  5 Small font signage

Signage with very small font, impossible to read.

 

(Photo taken on the xx/xx/20xx as shown by the date and time stamp)

 

 

Exhibit A -  6 Small font signage

Signage with very small font, impossible to read.

(Photo taken on the xx/xx/20xx as shown by the date and time stamp)

 

Yanness

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Fifth part.

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Exhibit B - 1 BPA Approved Operator Scheme (AoS)

British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 7 - October 2018 section 18.3 (highlighted in red).

 

Exhibit B - 2 Claimant BPA Membership

Screenshot showing the Claimant is a member of the British Parking Association (BPA)

 

Exhibit B - 3 The Beavis case sign for comparison

The ParkingEye Ltd v Beavis [2015] UKSC 67 – case sign in comparison to any alleged Claimant sign

 

 

Exhibit B - 4 The ParkingEye Ltd v Beavis [2015]

The ParkingEye Ltd v Beavis [2015] UKSC 67 - Paragraphs 98, 193 and 198

 

 

 

Exhibit B - 5 Excel Parking Services vs Wilkinson

Copy of Excel Parking Services vs Wilkinson (G4QZ465V) Approved Judgement by Judge Jackson of Bradford County Court

In the County Court at Bradford
Claim Number	G4QZ465V
Date	2 July 2020

General Form of Judgment or Order

EXCEL PARKING SERVICES LTD			1st Claimant Ref XL11305889
	MISS ANN	WILKINSON	1st Defendant Ref

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Before District Judge Jackson sitting at the County Court at Bradford, Civil And Family Centre, Exchange Square, Drake Street, Bradford, BD1 1JA on 01 July 2020.

Upon hearing the Agent for the Claimant and the Defendant in person

And Upon the hearing being conducted by telephone and in private in accordance with CPR 51PDY due to the global health emergency

IT IS ORDERED THAT

1.                 The claim is struck out as an abuse of process.

2.                 Permission to the Claimant to appeal is refused.

3.                 An appeal from this order lies, and any further requests for permission to appeal should be made, to the- Circuit Judge at Leeds.

Dated 1 July 2020

The court office at the County Court at Bradford, Civil And Family Centre, Exchange Square, Drake Street, Bradford, BD1 1JA. When corresponding with the court, please address forms or letters to the Court Manager and quote the claim number. Tel: 01274 840274 Fax: 01264 785018. Check if you can issue your claim online. It will save you time and money. Go to www.moneyclaim.gov.uk to find out more.

Produced by:Mrs D Sutcliffe

      N24 General Form of Judgment or Order                                                                                                                                             CJR065C

 

 

 

 

 

 

 

 

 

 

Claim number XXX                                                          Hearing date: 01/01/3022

Exhibit B - 6 Defendant’s Schedule Of Costs

 

In the County Court at xxxxxx

Claim Number: xxxxxxxxx

Hearing Date: xx/xx/xxxx

 

DEFENDANT’S SCHEDULE OF COSTS

 

Ordinary Costs

Loss of earnings through attendance at court hearing:

£95.00

 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11 Research, preparation and drafting documents (?? hours at Litigant in Person rate of £19 per hour): 

£???.??

 

Stationary, printing, photocopying and postage:

£??.??

 

TOTAL COSTS CLAIMED £???.??

Signature

 

…………………….

 

xxxxxxxxxxxxxx

 

xx/xx/xxxx

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END END END.

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Coupon-mad

Not sure the photos help you EXCEPT the one that shows the contract is offered by Bransby Wilson, not Minster Baywatch.

Paras 7 and 8 talk about 'the Defendant' in the third person but this is your signed statement, so it should be 'I' or me/my.

Remove para 22 and the sub heading above it, because you are an admitted driver.  POFA isn't required and they didn't have to comply with it.

Change para 34 to say the added false 'costs/damages' are in the process of being banned.

Para 20 has too much in it taken from a POPLA appeal so remove the last 3 paragraphs under para 20.  And this needs removing because this is the polar opposite of what you should be saying (that if there was any contract, it was only with BW):

"I use this platform to argue that the notice does not state anything about a contract with Bransby Wilson Parking Solutions, though they are shown as site managing agent of the car park." 

THIS is what your argument is (below). Burying it as low as para 20 is not recommended. I think it should be higher:

"I must bring to your attention that it is neither obvious, nor clear which company operates this site. So, it is unclear which company the driver allegedly entered into a contract with, because of the confused signage and terms, as both entities have displayed that they manage the site."

To support that, you should be citing Fairlie v Fenton and saying MB are merely an agent (did not offer the contract on the sign) & cannot sue because there is a disclosed principal.

Add this:

From the sign at exhibit xx it is clear that the contractual licence is offered by, and the site maintained by, a different limited company called Bransby Wilson, who are the disclosed principal. 

Therefore, unlike in ParkingEye v Beavis, this Claimant has placed their service, and themselves, in the position of an agent/broker/middle-man, making the bargain for another party and collecting monies (the parking fees from the machine) for that party.  The Defendant avers that this Claimant does not retain nor pay VAT on the tariffs and they have no possessory title in this land.

I believe it is fatal to their claim, that the Claimant made no offer of a contract to me, at all. I take the point that the principles established by the authority of Fairlie v Fenton (1870) LR 5 Exch 169 apply and there is no contractual relationship between this Claimant and myself.  I had never heard of Minster Baywatch until the postal notice arrived weeks later.

Yanness

Coupon-mad said:

Not sure the photos help you EXCEPT the one that shows the contract is offered by Bransby Wilson, not Minster Baywatch.

Paras 7 and 8 talk about 'the Defendant' in the third person but this is your signed statement, so it should be 'I' or me/my.

Remove para 22 and the sub heading above it, because you are an admitted driver.  POFA isn't required and they didn't have to comply with it.

Change para 34 to say the added false 'costs/damages' are in the process of being banned.

Para 20 has too much in it taken from a POPLA appeal so remove the last 3 paragraphs under para 20.  And this needs removing because this is the polar opposite of what you should be saying (that if there was any contract, it was only with BW):

"I use this platform to argue that the notice does not state anything about a contract with Bransby Wilson Parking Solutions, though they are shown as site managing agent of the car park." 

THIS is what your argument is (below). Burying it as low as para 20 is not recommended. I think it should be higher:

"I must bring to your attention that it is neither obvious, nor clear which company operates this site. So, it is unclear which company the driver allegedly entered into a contract with, because of the confused signage and terms, as both entities have displayed that they manage the site."

To support that, you should be citing Fairlie v Fenton and saying MB are merely an agent (did not offer the contract on the sign) & cannot sue because there is a disclosed principal.

Add this:

From the sign at exhibit xx it is clear that the contractual licence is offered by, and the site maintained by, a different limited company called Bransby Wilson, who are the disclosed principal. 

Therefore, unlike in ParkingEye v Beavis, this Claimant has placed their service, and themselves, in the position of an agent/broker/middle-man, making the bargain for another party and collecting monies (the parking fees from the machine) for that party.  The Defendant avers that this Claimant does not retain nor pay VAT on the tariffs and they have no possessory title in this land.

I believe it is fatal to their claim, that the Claimant made no offer of a contract to me, at all. I take the point that the principles established by the authority of Fairlie v Fenton (1870) LR 5 Exch 169 apply and there is no contractual relationship between this Claimant and myself.  I had never heard of Minster Baywatch until the postal notice arrived weeks later.

Should I use I, me, my all along the document instead of Defendant?

And should I keep the following paragraphs in Para 20?

As this operator does not have proprietary interest in the land then a copy of the contract with the landowner should be produced as proof of operating on this land. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).