Parking in Own Space

Jenni_D

I'm pretty sure the new CoP bans this activity - but that's not in force yet. Not sure what the current position is. Did the NTKs come within 14 days?

davids612lj

Yes, they were well within 14 days.

Coupon-mad

Jenni_D said:

I'm pretty sure the new CoP bans this activity - but that's not in force yet. Not sure what the current position is.

'Tis banned in future (will be).

Suffice it to say, without talking about the work of the Steering Group, as you'd imagine, I had words to say about the scam of 'soft ticketing' and what IPC calls 'PANs'...!

Current position is we all still await the Impact Assessment, but I see in the news that the SoS at DLUHC resigned today, so no doubt there will be new Ministers and yet another delay.

PPC World certainly know how to successfully kick a can down the road. 

EDIT:
Just saw the news that Michael Gove is back at DLUHC. Like him or loathe him, I am happy about that...IMHO he was decisive about leading DLUHC with the Code of Practice and one would hope he will be keen to see the project through.

Jenni_D

Good to hear - we just need the same junior minister back in post and things might get back on track.  

davids612lj

Now have an update. Finally received directions from my local County Court. Despite me indicating earlier to CCBC at Northampton that I did not want the case heard on the papers, this is what the directions have indicated.

VCS have sent the usual letter advising that they have a very strong case and please send us £200 now.

 I have filed a form N159 with the court to say 'I do not agree that the claim be dealt with on the papers alone.'  Awaiting amended directions.

I have started my bundle and would be really grateful for any feedback on my Witness Statement.

davids612lj

Index

 

 

 

Exhibit Number	Content	Page Number
	Witness Statement of Defendant	2
xx-01	Copy of Property Lease	6
xx-02	Road to Car Park Entrance (photo)	42
xx-03	View when Entering from NE Direction (photo)	43
xx-04	View when Entering from SW Direction (photo)	44
xx-05	Entrance Signage (photo)	45
xx-06	Vehicle Control Services Entrance Signage (photo)	46
xx-07	Beavis Case Sign	47
xx-08	Parking Eye v Beavis paras 98, 193 and 198	48
xx-09	Defendant’s Schedule of Costs	49
xx-10	Britannia v Crosby Transcript	50
xx-11	Jopson v Homeguard Transcript	55
xx-12	Pace v Mr. N Transcript	66

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COUNTY COURT AT xxxxxxxxx                                                      Claim No.:  xxxxxxxxx

 

Between

Vehicle Control Services Limited

(Claimant)

- and -

Mr. xxxx xxxxx

(Defendant)

 

WITNESS STATEMENT OF DEFENDANT

 

 

 

1)     I am xxxx xxxxx of xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx 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:

 

Primacy of Contract

 

3)     I am leaseholder of the flat at the address detailed above. The lease grants me the exclusive right to park a private motor vehicle on the allocated car parking space.  There is no requirement in the lease (exhibit DB-01) to display any sort of permit to park in this space. (The court is invited to take particular note of ‘The Third Schedule’ of the lease on page 27 of this bundle.)

 

Sequence of Events

 

4)     Upon arriving home, on 15th May 2022, I parked my car in my allocated parking space. I did not use my car again until 17th May 2022 when I found two notices attached to my windscreen. These were apparently placed there to inform me that ‘images have been recorded for the purpose of parking enforcement.’ 

 

5)     Seven days later two Parking Charge Notices arrived at my home address by post.  The alleged contravention reason is given as ‘parked without displaying a valid ticket / permit.’  Both these notices were issued on 19th May 2022. The alleged contraventions supposedly took place on 15th May and 16th May.

 

6)     I attempted to engage with the parking company, through its appeals process.  I attempted to explain that primacy of contract means that my lease provides the right to park a single vehicle in the relevant allocated parking bay without limitations, including that of displaying any sort of permit. Unfortunately, the reply I received was a generic cut and pasted response that did not address the points I had raised at all.

 

7)     I then engaged with The Independent Appeals Service (IAS), who deal with appeals for members of the International Parking Community (trade association). Again, the response was a generic one and my references to primacy of contract were not addressed.

 

8)     Now I am expected to pay an inflated sum of £255 per parking charge notice.  A highly questionable amount considering that Vehicle Control Services have not actually incurred the extra costs they claim.

 

Inadequate Signage at Entrance

 

9)     When travelling from a North Easterly direction (exhibit- DB-03), the parking terms and conditions sign is not readable when driving as the small sign is affixed to a railing situated at the left side of the entrance (exhibit DB-06).  In the unlikely event that it was spotted as one was driving round a corner, one would have to stop the car in order to read it because of the very small lettering. This would be impossible as the sign is very close to the main road with double yellow lines present on both corners.

 

10)  If travelling from a South Westerly direction (exhibit DB-04) the only visible signage is the ‘Private Parking for Residents Only’ sign (exhibit DB-05) which does not mention anything related to a risk of paying £100 or that residents must display a permit.

 

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 DB-07 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

 

12)  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.

 

13)  However, there is no such legitimate interest where the car park is for residents only. As such, the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

 

Redacted Landowner Contract

 

14)  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 leaseholders, and   even the signatories could be anyone. 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.

 

 

 

15)  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. Ref. 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

 

16)  The Claimant has added a sum disingenuously described as 'debt collection costs' and 'solicitor fees'. The added £70 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process (see exhibit - DB-10) transcript of the Approved judgement in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

 

17)  Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts  of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

davids612lj

 

18)     The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre- Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419). ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

 

19)     This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 (exhibit DB-08) that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both.

 

20)     This Claimant knew or should have known, that by adding £70 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, the earlier ParkingEye v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and all of those seem to be breached in my case and the claim is pleaded on an incorrect      premise with a complete lack of any legitimate interest.

 

21)     This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I am local and took the evidence photographs appended to this statement myself (on January 25th 2023).

 

22)     Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand   rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all, but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

 

CPR 44.11 - further costs

 

23)     I am appending with this bundle, a fully detailed costs assessment (exhibit DB-09) 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 I appealed and engaged with the Claimant at   every step and they knew all along that the tariff was not enforceable. 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. This is compounded by the witness and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 

 

24)     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.

 

25)     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

 

 

 

Xxxx xxxxx

Date

Coupon-mad

Aaah, the fact you have Crosby (outdated) and not Wilkinson, tells us you've based it on the RobertCox example linked in the NEWBIES thread, which is fair enough (..my bad).

But that's superseded by 2022 example WS bundles, e.g. the one by @aphex007 so start again with that one and Excel v Wilkinson.

Also - as you had a 'privacy notice' x2 on your windscreen, then two postal notices (getting your DVLA data too soon) I recommend you add wording and the court transcript from Adam Burzynski's case, where he talked the Judge around to understand that a 'this is not a NTD' was indeed exactly that - a notice to driver:
https://www.dropbox.com/s/peh3uwf1wnrwq5g/APPROVED -E1QZ7X7C-VCS-BURZYNSKI.pdf?dl=0

VCS v Burzynski - claim E1QZ7X7C, Derby Court, 31/5/2019

Read it. It makes the point that putting a notice on a windscreen, directing a driver to look online, where they can 'pay a PCN' is a NTD. Therefore, para 8 of POFA applies and VCS should not have approached the DVLA for data within the first 28 days.

davids612lj

Thanks Coupon-mad. I'll redo my WS with the updated examples.

Have read the interesting VCS v Burzynski case notes. Would love to include this, however it looks like VCS may have changed their 'privacy notice'.

The notice to driver must contain details of the vehicle, Land on which parked, period of parking and charges.   Burzynski's notice included a website address and a ref. number to check these details. Now there is nothing on the notice except the website address of their privacy policy. So I'm thinking it would be too difficult to argue that these privacy notices are in fact a notice to driver.

Coupon-mad

Yes they did change it but a Judge won't notice that.  Stick it in anyway.