Advice needed - Car Park machine that didn't produce ticket - Court hearing stage

bomaya

Hello again, as above DQ was filed in early October and since then I have heard nothing - no emails, no letters and nothing updated on MCOL. Just now, I have received a text saying it's from GOVUK titled Small Claims Mediation Service: Mediation Reminder. It then quotes my claim number and says 20/11/24 between 9:30-12:30. Please refer to your email/letter with details you must read before the appointment. 

I read somewhere on here about a telephone call that I might have to take part in but I can't find the post about that now. Is that this is? I am off work ill right now so if it's not something on the phone or remote then I am very concerned as I've not been told anything. Can anyone please advise?

EDIT: I found the bit I'd read before about compulsory telephone mediation - so is that what this text is? It says mediation reminder but this is the first I have heard of it. A mediation call with one day's notice.

If so, I think I understand it to be just a five minute call which I assume will be sometime in the three hour timeframe they have specified. The mediator speaks to them then to me and we agree to disagree and that's the end of the call. 

Gr1pr

Its a short 5 minute phone call, plenty of recent threads about it, also check the defence template thread, first few posts, plus the newbies sticky thread, both in announcements 

Mediation is now compulsory, just offer £0 , no compromise , 5 minute phone call 

Your can check your MCOL claim history to see where the claim is up to 

I think that they should have updated MCOL and sent you a letter, you can always phone and complain about the lack of the letter etc

Check your spam folder for emails

bomaya

Thanks. yeah, already checked my spam - nothing there. MCOL has nothing new on it and last time I tried to call them (at the DQ stage) I couldn't get through for half an hour so gave up. Coming out of the blue like this had me thinking I'd missed a step and was supposed to attend a hearing tomorrow but I've calmed down now. Thanks again.

Gr1pr

Perhaps email the CNBC using claim responses, stating that no update has been entered onto MCOL since you received the auto email response, especially regarding the N180 logging into your claim history 

Coupon-mad

The mediator speaks to them then to me and we agree to disagree and that's the end of the call. 

That's it! 

 

bomaya

Just about to write up the Witness statement. I haven't seen it mentioned anywhere so wanted to check - can I email this to the Court and DCB legal or does it have to be by post?

Le_Kirk

Yes, e-mail is best.

bomaya

Thanks.

Here is my witness statement, cobbled from one I found on here. Any major issues with it before I send? 

IN THE County Court at XXXX
Claim Number: XXXX

Between:
Euro Car Parks Limited (Claimant)
and
XXXX (Defendant)

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WITNESS STATEMENT OF XXX

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1. Introduction
1.1 I, XXXXXXXXXXXXX, am the Defendant in this claim. The facts in this statement are true to the best of my knowledge, based on my personal experience and supporting evidence.

1.2 This claim arises from an alleged breach of parking terms and conditions at York Street, Manchester on XXXXX. I wholly dispute this claim for the following reasons:

• I attempted to pay the parking fee, and the only reason I did not was either the Claimant’s faulty pay machine or insufficient lighting in the car park.
• The Claimant has suffered no financial loss.
• The Claimant has breached the British Parking Association (BPA) Code of Practice (CoP) 2020, which requires things to be readable at all times including during the hours of darkness.

---

2. The Facts of the Case
2.1 On XXXXXXXX, I parked my vehicle, registration number XXXXX, at the car park on York Street, Manchester. I used the payment machine and paid the required fee for the period of parking.

2.2 I had never visited this car park before and so when the machine did not issue a ticket, I assumed that this was normal due to the barriers and CCTV in place. It was extremely dark at the time and the lighting was extremely poor so if the machine was telling me that there was a problem with my payment card, I could see any such message. In addition, if the signage said that all users had to display a parking ticket then again, this was not visible due to the poor lighting.

2.3 When I was alerted to the lack of payment through a Parking Charge Notice, I immediately offered to pay the money that I thought had been taken at the time and lodged an appeal.

---

3. No Financial Loss to the Claimant
3.1 The Claimant has suffered no financial loss and if they had accepted my offer to pay the parking fee afterwards then none of the following was required.

3.2 The purpose of a parking charge is either to recover losses or serve as a deterrent. Since no financial loss occurred, pursuing this claim is disproportionate, punitive, and unjust.

---

4. Breach of the BPA Code of Practice 2020
4.1 The Claimant is a member of the BPA and at the time was bound by its Code of Practice 2020. Page 30 states:
" Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area."

4.2 This event occurred around 7pm in November and it was very dark. The lighting was not sufficient and so falls within the scope of Page 30 of the CoP. The Claimant’s failure to cancel the charge is a clear breach of the BPA CoP 2020.

---

5. Unreasonable Conduct by the Claimant
5.1 In my initial correspondence, I offered to pay the money that should have been deducted – the lack of which I was unaware of until that moment. Despite this, the Claimant has continued to pursue the Parking Charge Notice (PCN).

5.2 The Claimant’s actions demonstrate a lack of good faith and disregard for fairness and proportionality. Their continued pursuit of this claim is an abuse of process and misuse of court resources.

---

6. Legal Precedents Supporting My Defence

6.1 In ParkingEye Ltd v Beavis [2015] UKSC 67, the Supreme Court upheld the enforceability of parking charges in certain circumstances but emphasized the importance of legitimate interest and proportionality. Unlike that case:

• There is no legitimate interest here, as the parking fee was only not paid due to machine malfunction or insufficient lighting.
• The Claimant's actions lack fairness and proportionality.

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8. Exhibits
I rely on the following evidence:

• Exhibit A: A copy of Page 30 of the BPA Code of Practice 2020, highlighting the requirement for sufficient illumination in car parks.
• Exhibit B: Relevant case law, extracts from ParkingEye v Beavis [2015] UKSC 67.

---

 

9. Conclusion
9.1 The Claimant’s actions lack any legitimate basis, as being an honest patron, I attempted to make the required payment in good faith. Whether the problem was with the machinery or the lighting, these elements were not in my control. I had no intention of breaching the rules of the car park.

9.2 Their failure to cancel the charge, as required by the BPA CoP 2020, demonstrates a lack of fairness and proportionality.

9.3 I respectfully request that the court dismiss this claim and award costs to the Defendant.

 

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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.

bomaya

Also, here are my exhibits. Have I copied the right Beavis paras as I can't see how they help me?

Exhibit A

https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

Contrast and illumination There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.

 

Exhibit B

https://supremecourt.uk/uploads/uksc_2013_0280_judgment_c7f37dda32.pdf

 

98. Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. These two objectives appear to us to be perfectly reasonable in themselves. Subject to the penalty rule and the Regulations, the imposition of a charge to deter overstayers is a reasonable mode of achieving them. Indeed, once it is resolved to allow up to two hours free parking, it is difficult to see how else those objectives could be achieved.

193. The penalty doctrine is therefore potentially applicable to the present scheme. It is necessary to identify the interests which it serves. They are in my view clear. Mr Beavis obtained an (admittedly revocable) permission to park and, importantly, agreement that if and so far as he took advantage of this it would be free of charge. ParkingEye was able to fulfil its role of providing a traffic management maximisation scheme for BAPF. The scheme met, so far as appears, BAPF’s aim of providing its retail park lessees with spaces in which their customers could park. All three conditions imposed were directed to this aim, and all were on their face reasonable. (The only comment that one might make, is that, although the signs made clear that it was a “Customer only car park”, the Parking Charge of £85 did not apply to this limitation, which might be important in central Chelmsford. The explanation is, no doubt, that, unlike a barrier operated scheme where exit can be made conditional upon showing or using a ticket or bill obtained from a local shop, a camera operated scheme allows no such control.) The scheme gave BAPF through ParkingEye’s weekly payments some income to cover the costs of providing and maintaining the car park. Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye’s costs of operation and gave their shareholders a healthy annual profit.

 

198. The £85 charge for overstaying is certainly set at a level which no ordinary customer (as opposed to someone deliberately overstaying for days) would wish to incur. It has to have, and is intended to have, a deterrent element, as Judge Moloney QC recognised in his careful judgment (para 7.14). Otherwise, a significant number of customers could all too easily decide to overstay, limiting the shopping possibilities of other customers. Turnover of customers is obviously important for a retail park. A scheme which imposed a much smaller charge for short overstaying or operated with fine gradations according to the period of overstay would be likely to be unenforceable and ineffective. It would also not be worth taking customers to court for a few pounds. But the scheme is transparent, and the risk which the customer accepts is clear. The fact that, human nature being what it is, some customers under-estimate or over-look the time required or taken for shopping, a break or whatever else they may do, does not make the scheme excessive or unconscionable. The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit. Unless BAPF was itself prepared to pay ParkingEye, which would have meant, in effect, that it was subsidising customers to park on its own site, this was inevitable. If BAPF had attempted itself to operate such a scheme, one may speculate that the charge might even have had to be set at a higher level to cover its costs without profit, since ParkingEye is evidently a specialist in the area.

Coupon-mad

Those are the right Beavis paragraphs but your WS doesn't cover the usual points about the added fake 'damages' and I didn't see anything about no landowner authority or the Consumer Rights Act on prominent signage, etc.

Recent winning WS are seen in these threads:

@imulsion

@Harry77

@Defendant911