Parking fine claim county court business centre

ZR18

KeithP said:

ZR18 said:

Thank You for pointing that out. Can I call it a lay-by? 

Why not call it the road?  

I was thinking of a specific description to differentiate from the actual public road

nopcns

But the whole point is to show that there is no delineation between the public road and the location.

Coupon-mad

ZR18 said:

KeithP said:

ZR18 said:

Thank You for pointing that out. Can I call it a lay-by? 

Why not call it the road?  

I was thinking of a specific description to differentiate from the actual public road

No.

You DO NOT want to differentiate it!

ZR18

Thank You all, I’ll make the changes 

ZR18

I have made the changes as advised and used words ‘parking spaces’, ‘parking area’ and ‘road’ I have also removed previous para 20 and also page number and exhibit for schedule of cost.

ZR18

Witness Statement	2-7
XX-01 Approach to the station (photo)	8
XX-02 View approaching the parking area (photo)	9
XX-03 View of the parking area (photo)	10
XX-04 View of the area and signage by the entrance(photo)	11
XX-05 Close up of the sign from a standing position (photo)	12
XX-06 Evidence of Disabled Blue Badge (photo)	13
XX-07 Claimants evidence –1	14
XX-08 Claimants evidence –2	15
XX-09 Claimants evidence –3	16
XX-10 Claimants evidence –4	17
XX-11 Beavis case sign	18
XX-12 ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198	19-20
XX-14 Excel Parking v Wilkinson - Bradford County Court	22-31

 

WITNESS STATEMENT OF DEFENDANT 

FOR HEARING ON xxxxx

 

 

 

 

1. I am Mr xxxx 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 signage 

 

3. On xxxxx 2022 I arrived at Redbridge Train station to collect my elderly

disabled Father- who has very limited mobility and holds a blue badge- (exhibit xx-06). After turning into theapproach road to the station, I continued for a short distance looking for a Disabled parking bay or safe place to stop, leading in to small row of parking spaces around a mini roundabout which appeared to be continuation of the public highway and/or provided for dropping off or picking up station passengers.

 

4. Front of station is on a one-way street with double yellow lines and bus stops on both sides, beside it is the approach and entrance to those parking spaces (exhibit xx-03,xx-04). This is a busy road where stopping is both impossible due to the double yellow lines and traffic (including many buses) not being able to pass. The only safe way to stop is by entering those parking spaces. 

 

5. At the point of entry, the entrance terms and conditions sign is not visible or readable (exhibit xx-02 and xx-03). There are no prominent signs or information close enough to be read by an approaching driver to suggest it is not continuation of the public highway or otherwise restricted. As I entered what looked like: unrestricted station drop off bays looking for a parking spot or disabled bay I realised there aren’t any, I turned the car around to leave (this manoeuvre and position of the vehicle is seen in Exhibit xx-07) and spotted a signage by the exit - entrance and exit same way- this signage is only clear after you enter this road. Following some back and forth manoeuvres I positioned the car for best possible view of the sign (exhibit xx08,xx09 and xx-10) without leaving the car. The vehicle was at a standstill for less than 5 minutes. 

 

6. It is clear from the photographs (exhibit xx-05) that the signs are so high, and the writing so small it cannot be read until right by the sign, as a result it took a little longer for me to read the “Terms and Conditions” leaving me confused whether I had read enough to understand the full terms therefore as stated on the claimant’s signage “IF UNSURE PLEASE SEEK FURTHER ADVICE OR REFRAIN FROM PARKING” after reading this I exited the area without parking.

 

7. The DLUHC code of practice 2.24 ‘parking period’ published in February 2022 (temporarily withdrawn) stipulates; “the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). This is not the period between a vehicle being recorded as entering or departing controlled land”.

 

8. After re-visiting the area I noted there are three signs, one by a bus stop (exhibit xx-03) which is obscured when a bus stops in front, one at the far end not legible to the human eye and one by the entrance (exhibit xx-04, where I had briefly stopped) approximately 2 meters inside from the entrance, poorly positioned hidden by telephone boxes on approach.

 

9. It is also clear from (Exhibit xx-07, xx08,xx-09 and xx-10) that the claimant’s representative was only a few yardsaway taking photographs with presumably a handheld device, watching as I drove in. I believe this was a strategy to entrap and unfairly penalise me, otherwise the claimant’s representative could have easily approached me to assist and advise on any restrictions.

 

10. 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 xx-11) for comparison.  In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC').  The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

 

 

The Beavis case is against this claim  

 

11. This situation can be fully distinguished from ParkingEyeLtd 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.

 

12. 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. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any ‘concealed pitfalls or trap’. Nor can a firm claim an unconscionable sum. In the present case, the claimant has fallen foul of those tests (see exhibit xx-12 for paragraphs of ParkingEye v Beavis).

 

Redacted Landowner Contract 

 

13. The Claimant has appended a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?).  It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act.  The network of contracts is key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

 

14. In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. 

https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.htmlRef. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

 

Abuse of process - the quantum  

 

15. 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.

 

16. 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 27), 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 robo-claim race to court and to side-step the £50 legal fees cap set in the Small Clams Track.

 

17. Adding debt recovery/costs/damages/fees (however described) onto a parking charge is due to be 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."

 

18. 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 in the incoming statutory Code of Practice. The claim is exaggerated by inclusion of a false, wholly disproportionate and un-incurred 'damages' enhancement of £70 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.

 

19. 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."

 

 

20. 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.

 

21. These are 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.

 

22. 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.

 

 

23. 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.  

 

 

24. 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 (un-incurred, 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 xx-14) where she went into great detail about this abuse

 

25. 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

 

26. 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 representative did not have reasonable cause to issue the PCN, as there were no Claimant signs clearly and prominently displayed at the entrance or the approach to those parking spaces. It is denied that I parked my vehicle and stayed longer than it was required for me to read the sign; 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 

 

 

27. 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.

 

28. 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.''

 

Le_Kirk

You have some orphan paragraphs at #3, #10 and #14, hopefully you would have found these on your last check before submitting.

ZR18

Checked,fixed and emailed to the allocated court and the Claimants solicitors. 

Thank you all so much, just have to wait for the hearing now.

ZR18

“Gladstones Solicitors Limited do not accept service of documents by email”
Noticed this in email received recently with claimants WS.
I have already emailed them my WS, does the above mean I’m required to serve documents by post ? 

Coupon-mad

Nope we've never seen any issues with that nor taken any notice!  Email is good enough for the court and good enough for Gladstones in the interests of the Overriding Objective.