Excel Parking ticket - on university grounds

teamum16

Draft copy of my witness statement. Any feedback would be very much appreciated

IN THE COUNTY COURT AT xxx                                                                                                   CLAIM NO xxx

 

BETWEEN

 

EXCEL PARKING SERVICES LIMITED

(Claimant)

 

V

 

DR. xxx

(Defendant)

 

WITNESS STATEMENT OF DR. xxx

 

I, Dr. xxx, of xxx, am the defendant against whom this claim is made.  I will say as follows:

 

Introduction

 

1.          I am employed by the University of xx as a Research Manager.

 

2.          Unless otherwise stated, the facts and matters contained in this witness statement are within my own knowledge and are true.

 

3.          I make this statement in readiness for the hearing scheduled for xxx 2023 in support of my defence against the claim made by Excel Parking.  Within this statement I make reference to various documents and these are produced in a paginated bundle marked EV1 to EV10 (tbc).

 

Background and Timeline

 

4.          The Claimant is engaged in managing private parking facilities of behalf of the University of xxx, with whom I am employed.  Xxx University owns these private parking spaces and employees of the university are permitted to park within them under condition of payment and display of a ‘Category B’ parking permit and compliance with the sign posted conditions displayed in each parking area.

 

5.          I am a long-term Category B permit holder and have been parking in various Category B designated parking areas, including those on Xxx Road, Xxx, for approximately 15 years. 

 

6.          On the xx xx 2022, my vehicle, bearing the registration xxx was parked in a designated Category B parking bay on Xxx Road, Xxx.  I confirm that I was the driver, my permit was on display, and I state that I was parked fully within the designated bay, in accordance with the Terms and Conditions on display, and counter to Excel Parking’s claim.  This is clearly demonstrated within Evidence EV1 to EVx.

 

7.          On arrival to work on the morning of xx 2022 at around 9:30am, I parked my vehicle in a designated Category B parking bay on Xxx Road, Xxx.  I parked wholly within the designated bay as shown in EVX.  I paid for my parking using the ‘Connect Cashless’ phone application (refer to EVX [screen shot of app website and bank statement]) as per the conditions of parking and I walked to my workplace at the University of Xxx x School.  Before leaving my car that morning, I made sure, as usual, to display my Category B parking permit on the dashboard of my car, alongside a piece of paper providing my name and contact number, as is the long term established practice.

 

8.          I left work at around 4pm that day and on arrival back to my vehicle I found that I had been issued a parking ticket, stating that I was “24) Not parked wholly within the markings of a designated parking bay”.  Another permit holder was also there when I arrived, and they advised me that they had been issued a warning letter.

9.          As I was in fact parked wholly within the designated bay I sought to appeal.  I initially sent an email to Xxx University Estates and Facilities Management Parking Team on the xx 2022 asking for information about the appeal process, and I received a return email on the xx 2022 directing me to use the myparkingcharge.co.uk website to register my appeal. 

 

10.       I subsequently received correspondence from Excel Parking on the xx 2022 stating that they were evaluating my appeal, and then on the xx 2022 I received further correspondence stating that Excel Parking were rejecting my appeal, and stating that the reason given for rejecting my appeal was that I “was not parked wholly within the markings of a designated parking bay”. 

 

11.       As I was in fact parked wholly within the designated bay, this claim by Excel Parking is false, and evidence in support of this is provided within the evidence accompanying this statement.

 

The Defendant’s Defence

 

12.       I was parked wholly within the designated bay on Xxx Road, Xxx.  The Claimant is unable to provide any evidence in support of their claim that I was not.  Further, the evidence presented by both Excel Parking and myself demonstrates that I was parked wholly within the designated bay.  The evidence EVX shows that no boundaries are specifically provided showing the limits on the designated bay, but none-the-less, I was parked wholly within the boundaries shown on the aerial photographs (EVX) and inferred by the signage.

 

13.       The specific condition under which I was parked, forming the basis of the Claimants Claim, was that “vehicles must be parked wholly within a designated bay as not to restrict access to adjoining bays”.  The evidence shows that I was parked wholly within the designated bay.  With regards to the later requirement “not to restrict access to adjoining bays”, the Claimant has made no claim of a breach of that condition, nonetheless I address it here in points X to X should any question in relation to this arise.

14.       The parking bay in question on Xxx Road, Xxx, is a long narrow bay, capable of accepting several vehicles parked ‘nose-to-tail’.  This can be seen in EVX.  For the entire duration of my employment with Xxx University this has been a permitted and beneficial method of parking as it maximises the available Category B parking spaces at times when such parking spaces would otherwise be in short supply.  In fact, historic signage on display in Xxx Road detailed how this ‘nose-to-tail’ parking should be done.  EVX to EVX show the signs that were on display between 2014 and 2019 permitting this, however, to the best of my knowledge this practice predates 2014 and continued beyond 2019.  The sign in question at the entrance to the parking bay on Xxx Road read:

 

Drivers ‘blocking’ others should leave their name and telephone number on their vehicle windscreen and be prepared to exit immediately when contacted.  Failure to do so may incur a Parking Charge Notice with a fine of £60

 

15.       I have become aware since I received this parking ticket, that these signs are no longer present.  In the event that these were taken down intentionally as a change to policy on ‘nose-to-tail’ parking then this is a violation of the IPC Code of Practice (EVX) which states:

 

Changes in Operator’s Terms and Conditions
Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the Car Park and which materially affects the Motorist the Operator should place additional (temporary) notices at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur Parking Charges.  Notices should be in addition to the signage ordinarily required and left in place for an
appropriate period.

 

16.       To the best of my knowledge, neither Excel Parking, nor Xxx University have communicated any change in policy regarding ‘nose-to-tail’ parking, either to myself or any other Category B permit holder, and certainly not prior to the date the parking ticket was issued.

 

17.       Excel Parking cannot provide any evidence that any user of the bay had their access restricted or were in any way obstructed or inconvenienced by my parking.  No evidence of complaint by any other user has been presented and no claim that I was in breach of this condition has been made.

 

Conclusion

 

18.       I was parked wholly within the designated bay.  Excel Parking erroneously issued a parking fine, and failed to address the particulars of my appeal.  All losses incurred by Excel Parking would have been avoided but for their own failure in this regard.  No losses were directly caused to the University, or any of its staff, as a result of my parking and I actively appealed before any costs were incurred.

 

19.       The Claimant states in their witness testimony that reliance is placed on ParkingEye V Beavis [2015] UKSC67, where the Supreme Court found that the Defendant had accepted a contractual licence to park on the terms of notice posted on various warning signs throughout the site.  It was found that, whilst the £85 was not a sum in the nature of damage or loss, ParkingEye had a ‘legitimate interest’ in enforcing the charge where the motorist overstays in order to deter motorists from occupying the spaces beyond the time paid for. 

 

20.       However, in this case brought by Excel Parking against myself, there is no such legitimate interest, firstly as no time limit on parking was applied, secondly as no commercial loss was incurred as a result of my parking, and thirdly as enforcing the charges claimed does not deter motorists from parking in a manner detrimental to Excel Parking’s business (ie in the case of ParkingEye V Beavis [2015] UKSC67 the legitimate interest to deter motorists from occupying the spaces beyond the time paid for ensures that spaces remain unoccupied for other paying customers.  However, in this case brought by Excel Parking against myself, deterring ‘nose-to-tail’ parking behaviour is in fact detrimental to Excel Parking’s business as it reduces the number of spaces available for paying customers, and hence it is in fact in their financial interest to allow it).  Consequently, Excel Parking has no legitimate interest in enforcing these charges.

 

21.       Further, ParkingEye V Beavis [2015] UKSC67 determined that a contractual licence to park was formed based on the terms of notice posted on various warning signs, however this case did not address agreement on ‘changes to terms’ as may be relevant in this case.  If indeed the subject of ‘nose-to-tail’ parking arises, I would ask the court to consider the method by which the change to the terms was implemented.  Simply removing the signs carrying that permission cannot be considered an acceptance of new terms where a contract had already been formed based on the previous terms, hence the IPC Code of Practice requirements for additional signage communicating changes to terms.  In this respect I would additionally draw the courts attention to the hatched areas that were introduced in other Category B parking spaces to restrict ‘nose-to-tail’ parking (evX shows hatchings introduced between 2012 and 2014 in the parking bays on the corner of Northumberland Road and Xxx Road), but no such hatchings or any other positive notification of any change was ever introduced in the parking bay in question in this case.  Regardless, Excel Parking have not made any claim in this respect.

 

 

22.       A counter claim is submitted for my time in defence of this claim, amounting to 3 days, resulting in costs of £xxxx to myself.

 

STATEMENT OF TRUTH

 

23.       I believe the contents of this written 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.

---------------
I'm compiling all of my evidence photos and documents so let me know if it would be helpful to see them

Thank you!

Coupon-mad

Para 22 - claiming costs is not a 'counterclaim'.

And your Statement of Truth should not be numbered, so remove the no. 23 and it's not a 'written statement' it's a witness statement.

Otherwise it looks very good; what's your deadline? Can you wait for the imminent DLUHC update and draft Impact Assessment to be published this month?

teamum16

Great, I'll change those couple of things.

I'm unaware of the DLUHC update, what is the relevance?
Ideally I'd like to send WS off on Monday

Coupon-mad

Huge relevance to ALL people currently defending a private parking charge.

There could well be some good wording and revelations in the Impact Assessment.  Things you would definitely want your Judge to read.

Do you HAVE to send it next week?

teamum16

Update: My court hearing is tomorrow and I've just received this from Excel stating they intend to file a copy. I was planning on still going anyway. Is there anything I have to do? I haven't received anything else

Coupon-mad

teamum16 said:

Update: My court hearing is tomorrow and I've just received this from Excel stating they intend to file a copy. I was planning on still going anyway. Is there anything I have to do? I haven't received anything else

Go along anyway and if the court says your case isn't on the list, ask the Usher for 5 minutes with the Judge to discuss your costs because the Discontinuance came far too late to stop you taking the day off and attending.

Read THESE DOCUMENTS (in the case below) for what to say, AND point out that the end of your defence already covered this scenario and quoted from the White Book (point to it. The Judge has the White Book and can look it up).

Residential PCN (initially lost at POPLA, of course)

Premier Park Ltd ordered to pay £500 in costs for unreasonable late discontinuance at Southampton County Court (includes all orders and judgment transcript following his application for a costs hearing:  Premier Park v S Jones):

https://forums.moneysavingexpert.com/discussion/6271727/residential-pcn-premier-park-ltd-ordered-to-pay-500-in-costs-at-southampton-county-court

The letter to the Judge asking for costs is interesting; it was treated as an 'application' by the Court:

https://www.dropbox.com/s/pjuljss3bo0totu/04%20C%20TWIMC%20%2B%20Costs%20Hearing%20Legal%20Arguement.pdf?dl=0

teamum16

Well the good news is I came away with a claim of £95.

It was very interesting, no one from Excel showed up but there was someone who stood in to 'represent' them although he basically said that looking at my evidence pack it was obvious there was no case. He also said that the judge would not be happy with such a late discontinuance being filed and if I wanted to seek a claim, he would not object - so I went in, did not object to the discontinuance and was awarded £95. The judge didn't really want to entertain any more than that.

So all good... until today, when I have received an email from the university parking manager to say they have ordered Excel to drop the court case but the charge has not been cancelled and if I don't pay, I will not get my permit renewed.

Surely, they can't do this? The court has ruled that the PCN is finished, can the landowner still pursue this - quite frankly, I feel I am being bullied now to pay this fine!

Coupon-mad

No they can't do that.

Reply as politely as you can to the university parking manager (keep the moral high ground!) and tell him that you've had your court hearing and the claim by Excel for this PCN has been decided at xxxxxx court before a Judge and you won, and were awarded your costs.

So the case (and the validity of the charge) is over, because a Judge has decided it and the charge is null and void.

If there is any query about a Judge's decision being final, the parking team should seek advice from the Law Faculty before threatening to block the renewal of the permit. 

teamum16

Thank you. I honestly wasn't sure whether this could turn into a private matter or if the courts decision was final.  Also due to the discontinuation, I wasn't sure if I had 'won' or its just a cancelled. The representative did say this it was all over and this couldn't go forward also, so I feel more confident now going back to defend this.

I really thought this was over and could do without the further stress of being threatened

Umkomaas

It was very interesting, no one from Excel showed up but there was someone who stood in to 'represent' them although he basically said that looking at my evidence pack it was obvious there was no case.

I'm sure SRS will be delighted with his advocate's observations!