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

Le_Kirk

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

For witness statements, it is First Person, I, me etc; for defences it is Third Person,  "the defendant".

Coupon-mad

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

And should I keep the following paragraphs in Para 20? 
NO.

Yanness

Coupon-mad said:

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

And should I keep the following paragraphs in Para 20? 
NO.

Ok. Thank you guys for your dedication.

I have made the changes has advised using I,me and my where necessary and deleted the sections mentioned in para 20. I have also moved the landowner point much higher as para 8.

But I have kept the first picture to explain ma point about no signage just when entering the car park.

I have also added the BPA page/info for grace period.

Yanness

Here is my witness statement CORRECTION. 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.                                                          15

Exhibit A -  2 Small font signage and lack of landowner authority evidence. 16

Exhibit B - 1 BPA Approved Operator Scheme (AoS)                                    17

Exhibit B - 2 Claimant BPA Membership.                                                       18

Exhibit B - 3 BPA Approved Operator Scheme – Grace Period.                     19

Exhibit B - 4 The Beavis case sign for comparison.                                        20

Exhibit B - 5 The ParkingEye Ltd v Beavis [2015].                                          21

Exhibit B - 6 Excel Parking Services vs Wilkinson.                                          23

Exhibit B - 7 Defendant’s Schedule Of Costs.                                                  33

 

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 I 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).

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. I believe 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 - 2).

7.      No sum payable to this Claimant was accepted nor even known about by me 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). Therefore, no contract was formed due to the failure to provide adequate signage.

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

8.      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 (See Exhibit A - 2).

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.

From the sign at Exhibit A - 2 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. I aver 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.

9.      I observed 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. 

10.      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).

11.    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.

12.    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 - 4 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)

13.    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 - 4).

14.    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.

15.    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 - 5 for paragraphs of ParkingEye v Beavis).

16.    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).

17.    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

 

18.    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').

19.    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.

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And the rest is the same apart from the deleted pictures in Exhibit A.

Yanness

Hi all, 

I have now sent the WS by email. 

Do you guys know what happens if the claimant doesn't fill its writing statement by the deadline which is today 07/02/23 at 4pm?

Because I have not received anything yet from them. 

Cheers 

Coupon-mad

You just mention it at the hearing.

Yanness

They have actually filled their witness statement as well. 

Should I pass it on here for review?   

Coupon-mad

Yes - but only once you've gone through it and you are able to tell us what you want to take issue with (i.e.undated or old photo evidence, pics of signs that are not actually there, etc).

What never helps anyone (least of all Defendants) is a bare posting of a Claimant's WS expecting us to know your case and what to look for.  Give us your thoughts when you copy it here, and we can help!

Umkomaas

Yes - but only once you've gone through it and you are able to tell us what you want to take issue with (i.e.undated or old photo evidence, pics of signs that are not actually there, etc).

Once you're familiar with any inconsistencies/fails, the better you will understand it and be able to handle it at the hearing, rather than just dumping it here and leaving regulars to dismantle it for you. 

Yanness

Umkomaas said:

Yes - but only once you've gone through it and you are able to tell us what you want to take issue with (i.e.undated or old photo evidence, pics of signs that are not actually there, etc).

Once you're familiar with any inconsistencies/fails, the better you will understand it and be able to handle it at the hearing, rather than just dumping it here and leaving regulars to dismantle it for you. 

Roger that 👍