I think I've messed up my defense is it too late.??

Melabear

based on how terrible my defense is do you think this is enough as a witness statement? I know my case isnt the strongest but its also got a dealine of today so im not sure how much better i can make it tbh

1. I am xxxxxxxxxxxx of xxxxxxxxxxxxxxxx, 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
3. On the DATE I was 38 weeks pregnant and started to experience some stomach cramps. I pulled into the car park and got out of the car. I briefly rang my partner and then got back in the car and drove off after my pains had eased. I was there for no longer than a minute. please see Exhibit 01 which shows only 08 seconds between the pictures of my car.
4. There was multiple cars in the car park too as shown in the first picture I recieved on my parking charge notice (PCN) see Exhibit 02 and upon entering I did not see a sign to enter into a contract. After receiving a PCN in the post, I have since returned and found very small unlit signs as seen in Exhibit 03. Furthermore one of the signs is high up on a fire escape not visible to a driver see Exhibit 04. Another of these small signs is facing an adjacent main road and would not even be visible to drivers on that road due to its size and that road not being the road in which the cark park is entered. Finally see Exhibit 05 which shows the Sign hidden behind the sign for the business not visible from a car.
5. It is my position that this amounts to serial predatory ticketing of people at this location. The Claimant is put to strict proof that, at the time of the parking event that the signage was evident, correct and clearly visible on this car park in question.
6. As the business was Closed during the time of said breach, I did not affect the business in any way, nor did I take up a parking space for a potential customer. and as previously stated there was other cars using it so there was nothing to suggest that this was a place I couldnt stop.
7. 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” and these signs fail to do so as they are small, hidden or facing the wrong way.
The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)
8. 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 06).
9. 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.
10. 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 07 for paragraphs of ParkingEye v Beavis).
11. Therefore as the small signs had vague/hidden terms and a mix of small font, they 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
(ii) 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).
12. 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." 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.
The Jopson vs Homeguard about parking
13. It is stated in the Jopson vs Homeguard case that "The purported prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time." It is therefore my suggestion that I didn't even park, please refer back to Exhibit 01 where you can see only 8 seconds between pictures, it would have taken me longer, being heavilly pregnant, to walk to the sign, should I have seen it, and read it due to its small nature.
14. It also states "Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jamswould consist of lines of parked cars." which strengthens my belief that it couldn't be classed as parking.

Melabear

Also I have a "notice of transfer of proceedings" to my local court so who do I file my witness statement and evidence to?

Le_Kirk

You file it to the court, which you should find on the notice of transfer and you serve it on the claimant, whose address you should find on the original claim form.

Melabear

Le_Kirk said:

You file it to the court, which you should find on the notice of transfer and you serve it on the claimant, whose address you should find on the original claim form.

Can I email it to them? It's due today 🙈

Not_A_Hope

Email is the best and most convenient way of sending your WS. Alternatively you could print off and deliver by hand to your local court

Melabear

Not_A_Hope said:

Email is the best and most convenient way of sending your WS. Alternatively you could print off and deliver by hand to your local court

Great thank you! Does the ws look okay?

Not_A_Hope

You are leaving it very late for any major input. What you have written comes across as an honest account of what happened and I would hope a reasonable judge would dismiss the claim. In case you get Judge Bingo (who doesn’t understand the scam nature of the industry) I would however add a section on double recovery to make sure that if you lost they should not get the extra £70 in damages / costs or whatever they called it in addition to the £100

Melabear

Not_A_Hope said:

You are leaving it very late for any major input. What you have written comes across as an honest account of what happened and I would hope a reasonable judge would dismiss the claim. In case you get Judge Bingo (who doesn’t understand the scam nature of the industry) I would however add a section on double recovery to make sure that if you lost they should not get the extra £70 in damages / costs or whatever they called it in addition to the £100

thank you! i know ive definitely learned my lesson on leaving things to the llast minute is this added okay?

Abuse of process - the quantum
15. 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.
16. 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.
17. 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."

And then obviously the exhibits i mentioned too.

Coupon-mad

Change the wording a but: adding the fee is not 'banned'. Please use ALL the paragraphs about the disproportionate £70 that aphex007 used, which includes the fact the legislation intending to ban the add-on is stalled at the moment.

Jopson vs Homeguard must be an exhibit. You need the transcript of that case appended as a PDF, and you need to point out in your wording that it is a persuasive case because it was heard on appeal.

You need to also add in a paragraph near the Jopson one, that cites the BPA Code of Practice clause about grace periods on arrival.  That is important. They breached the CoP if they only took photos in less than 5 minutes!

Melabear

So I'll add the jopson as an exhibit like the beavis one? Do I need to include the whole case or just the paragraphs I took from. Shall I remove the quote and just say exhibit number?

I've added the other paragraph from aphex now but he used the word banned so what can I change it to? I'm not good at this wording thing! 

Do I just add at the end that it's pursuasive?

I didn't know if grace periods apply but I wasn't there for 5 minutes so they definitely breached that! Fabulous I shall add that.