URGENT request for advice on defence against Britannia Parking (BW Legal)

Mahule2

I have finished my WS so I would be very grateful if it can get checked by someone who know what they're talking about. I used robertcox999's WS but deleted what I believed was not applicable. The parts I wasn't sure about are marked red. Any personal data and sensitive info has been removed. I have created a pdf but don't seem to be able to attach it. Please can someone advise on how to?

I couldn't decide if I should point out there are 3 payment machines and on the payment log it is not clear which source is what, and whether these records are from all 3 machines 

The deadline for delivering my WS and evidence is this Wednesday so I need to send it out tomorrow evening after work. I hope someone will have time to review it for me before I submit it.

PS: I received an email from BW Legal about further reduction to 'only' £175. As the discount is getting bigger closer to the WS deadline we get, I would hope that is a positive thing for me.

Coupon-mad

Please don't use RobertCox's one.  Too old, out of date now -  and if you read his thread, he lost.

We directed you to the one by @aphex007 like we do everyone in 2022.

If your deadline is Wednesday you can email it to the local court & BW on Wednesday morning.

Mahule2

Coupon-mad said:

Please don't use RobertCox's one.  Too old, out of date now -  and if you read his thread, he lost.

We directed you to the one by @aphex007 like we do everyone in 2022.

If your deadline is Wednesday you can email it to the local court & BW on Wednesday morning.

Oh my god! I have no idea why I used that one. I have way too many windows open and working on this way too late at night (or should I say early in the morning)  

Thank you for pointing that out, Coupon-mad! I will redo it now, using Aphex's. 

Just a clarification please. The directions on the hearing notice say to deliver the documents to 'the other party' which I thought was the claimant as their legal representatives BW are not mentioned on the notice at all, only BP is. Have I misunderstood?

Umkomaas

Send to the solicitors, not the PPC. The court claim form, N1, tells you to whom correspondence should be sent. 

Mahule2

Umkomaas said:

Send to the solicitors, not the PPC. The court claim form, N1, tells you to whom correspondence should be sent. 

Thank you. In the WS document where it says 'In the County Court at' should this be the original court which dealt with the claim or the hearing venue? 

I am finishing redoing my WS a per C-m's advice so I hope there will be someone able to check if my WS makes sense

KeithP

Mahule2 said:

Umkomaas said:

Send to the solicitors, not the PPC. The court claim form, N1, tells you to whom correspondence should be sent. 

Thank you. In the WS document where it says 'In the County Court at' should this be the original court which dealt with the claim or the hearing venue? 

The hearing court.

Mahule2

Thank you all for all you guidance and support. I have messed up quite a bit but I'm hoping what I've finally produced will be suitable. As aphex's case was slightly different (no signage issue in my case) I took some references to signage out. 

I hope some mad person will have time to review this tonight and let me know if there are any major issues. I will check here for any comments in the morning as I would like to send it before leaving for work. But in the worst case I can drag it to lunchtime. Though it's already last minute thing....

So here it is. It is sooo long.

PART 1:

1. My name is ............ of .............., 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.

Sequence of events

3. In August 2021, whilst on holiday on Isle Of Wight, myself and my family were coming back from a day trip and decided to have takeaway. We arrived in Newport and I dropped my partner off by Newport Fish & Chip and continued to find a place to park nearby. 

4. I parked roughly in the middle of a car park and, whilst leaving the vehicle driver's door open, walked to the closest pay machine which was right next to a metal barrier separating the car park from what seemed like another carpark. Whilst I was paying, I remember thinking I shouldn’t have left the driver's door open with my two children in it. 

5. There was plenty of signage, and the use of ANPR system clearly shown. The minimum fee was £1.20 for an hour. As I always pay for parking, I purchased a ticket for a 1-hr stay. I had to pay more, £1.50 or £2 (I can’t remember exactly), because we didn’t have the right coins and the machine didn’t give change. I walked back to the car, put the ticket on the dashboard, shut the door and went to find my partner.

6. We then came back with the takeaway and ate it in the vehicle. There was no PCN affixed to the vehicle so I didn’t have a reason to think there could be a problem. I took the parking ticket off the dashboard and put it in the bag of leftovers. It was the worst fish and chips we ever had. This might seem irrelevant but I clearly remember moaning about the fact that, on top of paying quite a bit for our horrible dinner, I also had to pay more for the parking ticket because the machine wouldn’t give change. 

7. A few days after we returned home, I was shocked by receiving a Penalty Charge Notice (Exhibit BP-MM-01) for failing to make a valid payment whilst parking at Hearn Street, Newport, PO30 5EH. I thought maybe I mistyped the number plate so I appealed to the Claimant (Exhibit BP-MM-02) asking them to review CCTV footage of all payment machines and to check the entry records as I knew it would prove I paid and displayed. The Claimant declined my appeal on the basis that ”a valid ticket was not purchased”. They didn’t comment on my CCTV investigation request.  

8. Following the unsuccessful appeal to the Claimant, I submitted a POPLA appeal (Exhibit BP-MM-04) and, once again, requested the CCTV footage of the carpark to be investigated. In order to prove I do pay for parking, I attached copies of two other parking tickets/receipts from other IoW stay (different days) which I found when cleaning my car at home (Exhibit BP-MM-05), as well as a bank statement snippet showing a PayByPhone payment from when I didn’t have any or sufficient change to pay for parking (Exhibit BP-MM-06). I was hoping this would have helped to prove I am unlikely to risk receiving a penalty of £100 from an ANPR operated car park for avoiding paying £1.20. 

9. In response to my POPLA appeal, the Claimant provided several documents amongst which were photos of my vehicle entering and leaving a car park taken by ANPR camera, payment records log (Exhibit BP-MM-07), the first and the last page of their lease agreement for car park premises at Lugley Street (Exhibit BP-MM-08: Letter Of Authorisation, further LoA), their OP Case Summary (Exhibit BP-MM-09), and a layout of the car park (Exhibit BP-MM-10). There was no response to my request for investigating CCTV footage. My POPLA appeal was unsuccessful.

10. As a last resort, I contacted the IoW council for the information about the car park’s CCTV footage and was advised to contact Island Roads (Isle of Wight Highway Service). Their response was that the address of Britannia Parking car park is Britannia Car Park, Lugley Street, Newport, Isle of Wight PO30 5HA (Exhibit BP-MM-11). The address was further confirmed by search on the Claimant website for Newport car park which also showed Lugley Street, Newport, Isle of Wight PO30 5HA. This address is still shown on their website as an address of their Newport car park (Exhibit BP-MM-12).

Lack of landowner authority evidence 

11. In the OP Case Summary (Exhibit BP-MM-09) the Claimant states: ”We have authorisation to act on behalf of the landowners, ensuring that the terms and conditions are adhered to. We have full authority to issue Penalty Charge Notices on their behalf. A copy of the document has been enclosed to show that we have a contractual agreement to manage the parking facilities, to take legal actions or recover parking charges where they remain unpaid - all sensitive company information redacted.” 

12. The document they refer to is the LoA (Exhibit BP-MM-08) which they supplied with their POPLA appeal response and which clearly shows the Claimant leases premises at Lugley Street, Newport; NOT Hearn Street, Newport which they issued the PCN for. 

13. The Claimant not only failed to prove their proprietary rights at Hearn Street but failed to prove any rights altogether because despite their statement in OP Case Summary (see paragraph 11.) the exhibit BP-MM-08 shows that the Claimant only supplied 2 pages of 22; They redacted not only sensitive information but the majority of the information. To this date the Claimant hasn’t provided any further documents showing their rights for either of the two premises. 

14. 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 authority from the landowner to issue charges at the location the PCN was issued for.

>> Par. 15 > YES or NO???

GDPR non-compliance

15. It also appears that the Claimant fails to protect the personal data of their customers. As it can be seen on the payment record log (Exhibit BP-MM-07) provided by the Claimant during the appeal process, the Claimant failed to redact their customers’ VRNs and allowed identification of at least one vehicle, VNR: xxxxxxxxxxx which can be traced via government enquiry service. 

Mahule2

PART 2:

TheParkingEye v Beavisis distinguished (lack of legitimate interest/prominence of terms) 

16. 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 set a high bar that this Claimant has failed to reach.

17. 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.

18. 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 BP-MM-13 for paragraphs of ParkingEye v Beavis).

POFA and CRA breaches

19. 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’).

20. 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.

>> NOT SURE ABOUT par 21. > At Popla appeal stage I wasn't aware of the discrepancy in the location of the PCN. At that point POPLA only had my word that I paid. Should I still include this par.?

21. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

>> NOT SURE ABOUT par 22. EITHER. > Shall I include it?

Lack of ADR (Alternative Dispute Resolution)

22. I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.

Abuse of process - the quantum

23. 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 LtdChD [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.

24. 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.

25. Whilst it is known that the rogue parking industry have since 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 roboclaim race to court and to side-step the £50 legal fees cap set in the Small Claims Track.

26. 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.”

27. It appears that the Claimant and their legal representatives routinely continue to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 upon which they also add interest at 8% calculated from the date of contravention. Clearly an abuse of the court process.

28. 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."

29. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response (also in February 2022), they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

30. 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. 

31. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.

32. These are now banned 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 money-making exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

33. 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.

34. 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.

35. 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 (unincurred, 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 BP-MM-14) where she went into great detail about this abuse.

36. The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much-needed clarity for consumers and Judges across England and Wales.

37. 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

38. 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). 

39. In support of that argument, I would like to point out that I always pay for parking and since the PCN has been issued, I made every attempt possible to obtain evidence to support this. 

40. In my lifetime, I have had one parking charge issued against me by a local Council which was issued for parking in a ‘residential parking only’ zone which was newly introduced. Before leaving my vehicle I checked for any signage but failed to notice the zone entry sign placed by the zone entry point. It was proven to be a correctly issued charge which I paid upon receiving the evidence. 

41. It is also worth mentioning that the Claimant’s signage (Exhibit BP-MM-15) doesn’t mention any requirement for car park users to retain their parking cash receipts beyond the stay at the carpark in case . 

42. It is also unclear to me if, how and how often the Claimant’s payment log reports are being audited by an impartial governing body to ensure the data is not being tempered with and any system faults are being fully recorded and reported. 

43. Taking all of this into account (plus the fact that the PCN was issued erroneously in the first place), any breach of the Claimant’s terms is denied. The Claimant has been informed about their error on several occasions so not only could this claim have been avoided, but it is also vexatious to pursue an inflated sum that includes double recovery. 

44. I have recently requested SAR from the Claimant’s DPO and I would like the court to allow for all of the written communication as well as any records of my phone calls they hold to be included as evidence which can be relied on during the hearing.

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 42

45. As a litigant-in-person I have had to learn about relevant law and spent a considerable time researching the law online, processing and preparing my defence, evidence and 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 other 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.

46. 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.''

Coupon-mad

>> Par. 15 > YES or NO???

GDPR non-compliance

15. It also appears that the Claimant fails to protect the personal data of their customers. As it can be seen on the payment record log (Exhibit BP-MM-07) provided by the Claimant during the appeal process, the Claimant failed to redact their customers’ VRNs and allowed identification of at least one vehicle, VNR: xxxxxxxxxxx which can be traced via government enquiry service. 

No, it's not directly relevant to your defence case.

So, remove that.

But as they showed you this log, what I'm unclear about is, where was your payment?

Do you think they supplied an altered machine log or one from a completely different day or different site, or a second machine (withholding the machine log that had your VRM?).

Para 21 and para 22 keep them both.

Remove #26 because the abusive added 'costs' are not yet banned.

Remove paras 39 and 40 (not relevant).

And add back in the stuff you removed from aphex's WS (about unclear signage) and remove your sentence "There was plenty of signage, and the use of ANPR system clearly shown." from your para 5!

The point you are missing about 'unclear signage' is NOT that a car park did or did not have lots of signs up (they all do!)

The point is that the terms were in very small print (far smaller text than the £ parking fee list) and the £100 was not listed prominently anywhere, so you DID NOT AGREE to pay £100.

Under the CRA 2015 it's not just signs that must be prominent.  It's terms and conditions too.

You said and recognised this yourself:

"41. It is also worth mentioning that the Claimant’s signage (Exhibit BP-MM-15) doesn’t mention any requirement for car park users to retain their parking cash receipts beyond the stay at the carpark in case."

But more importantly did the signs only have the £100 clause in small text (as I suggested) and did it even have a sentence warning people to enter their full & correct VRM?  If not, point that omission out.

Do you even know if this is about a VRM typo?  Their evidence is crap isn't it? Aren't you having to guess? Say so in the WS...

Mahule2

Coupon-mad said:

No, it's not directly relevant to your defence case. So, remove that. > done 

But as they showed you this log, what I'm unclear about is, where was your payment? > exactly my question. I know I paid and I was sure that when I get the record it would show my numberplate.

Do you think they supplied an altered machine log or one from a completely different day or different site, or a second machine (withholding the machine log that had your VRM?). > given the mess with car park location addresses it could be from a different machine or tempered. Don't want to imply they scam people intentionally but from the cases I've seen I wouldn't put anything past them. But it could just be a system error. And then it's the fact they issue PCN for Hearn Street but there isn't a record of Hearn Street car park. So who knows. I never parked at that street. 

Para 21 and para 22 keep them both. > OK

Remove #26 because the abusive added 'costs' are not yet banned. > done

Remove paras 39 and 40 (not relevant). > removed

And add back in the stuff you removed from aphex's WS (about unclear signage) > If you mean Aphex's paragraphs 19. & 20. those are back in. Or did you mean anything else?

and remove your sentence "There was plenty of signage, and the use of ANPR system clearly shown." from your para 5! > done

The point you are missing about 'unclear signage' is NOT that a car park did or did not have lots of signs up (they all do!)

The point is that the terms were in very small print (far smaller text than the £ parking fee list) and the £100 was not listed prominently anywhere, so you DID NOT AGREE to pay £100. > I see your point. The small text is definitely the case. The £100 is not as that is pretty big to see and mentioned on each sign which includes the fees. 

Under the CRA 2015 it's not just signs that must be prominent.  It's terms and conditions too. > I wasn't aware of that!

You said and recognised this yourself:

"41. It is also worth mentioning that the Claimant’s signage (Exhibit BP-MM-15) doesn’t mention any requirement for car park users to retain their parking cash receipts beyond the stay at the carpark in case."

But more importantly did the signs only have the £100 clause in small text (as I suggested) and did it even have a sentence warning people to enter their full & correct VRM?  If not, point that omission out. > The £100 clause is pretty big, sentence about full and correct VRM is there as well, larger than T&C. 

Do you even know if this is about a VRM typo?  Their evidence is crap isn't it? Aren't you having to guess? Say so in the WS... > It doesn't seem to be a typo as there isn't anything even similar to my VRM. Would the machine let me pay but not input the VRM? Would the record even show if there isn't a VRN assigned to it? A lot of guessing...

Thank you. I commented within your message above