CAPITAL CAR PARK CONTROL / DBL LEGAL COSTA COFFEE PCNs

Coupon-mad

Metaphysicist said:

@Umkomaas Hi, not as far as I am aware. It it still pending for hearing on MCO. 

Sadly you won't get costs back now, if you didn't ask for your costs at the CCJ set aside hearing (assuming you have already had a hearing for that). 

Metaphysicist

*Update*

Just to let you guys know, I went past that Costa coffee today and, to my surprise, parking restrictions have changed and it’s all free parking now. All the cameras have been taken off and signage covered. I asked the staff member when this change took place and was advised a while back due to numerous complaints from customers and delivery drivers like Uber eats. Do you think this will work in my favour when this goes to court?

Kind regards 

Metaphysicist

Updated pics with restriction updates.

Metaphysicist

Pic no 2. 

Coupon-mad

Yes that should be exhibited with your WS bundle before the hearing.

Could you please also add the BEFORE and AFTER photos here?

https://forums.moneysavingexpert.com/discussion/6463361/dluhc-private-parking-code-government-launches-call-for-evidence-discussion-thread/p59

Great evidence for me to show the Government that carmageddon does not ensue without a PPC infesting a site!

Please also state the location and date you took the photos.  Or screenshot them which includes the date taken, and post screenshots instead of photos.

See what others have posted.

I'm collecting evidence for the DLUHC, of "low deterrents & no deterrent" sites.  Your pics are perfect - especially if you can post 'before and after' images please.

What I am collecting there:

Either "£70 or under" PCN threat on signs (such as signs seen at Tesco, Aldi, Asda and most Hospital car parks) or no PPC at all.

Umkomaas

Great evidence for me to show the Government that carmageddon does not ensue without a PPC infesting a site!

In fact more powerful than that, it shows the damage to businesses caused by PPC infestation. Like any other parasite, get rid of it and start to instantly make a recovery to better health!

Metaphysicist

Hi,

I have received the THE FIRST WITNESS STATEMENT OF TERRY SZMIDT. Court hearing is next month. 

Metaphysicist

I am attaching the claimants statement.

On behalf of the Claimant  

Witness: Terry Szmidt  

Statement no. 1  

Exhibit 1 - 6  

04/01/2024  

IN THE COUNTY COURT AT CLERKENWELL & SHOREDITCH  

 CLAIM NO: J3KF

BETWEEN: -  

CAPITAL CAR PARK CONTROL LTD  

CLAIMANT  

-V -  

DEFENDANT  

THE FIRST WITNESS STATEMENT OF TERRY SZMIDT  

I, Terry Szmidt, of SVS House, Oliver Grove, London, SE25 6EJ, state as follows: -  

1. I am a Director, employed by Capital Car Park Control Ltd (“my Company”). I am duly authorised to  make this Statement on my Company’s behalf.  

2. I make this Statement in support of the Claimant’s Claim and in response to the Defence.  

3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise.  I believe them to be true. Where I refer to information supplied by others, the source is identified.  Facts and matters derived from other sources are true to the best of my knowledge and belief.  

1

Parties  

4. My Company provides private car park management services to private landowners, to manage the  way motorists are permitted to park on their private land. My Company does so by issuing parking  charge notices to any vehicle parked in a way the landowner does not permit.  

5. The Defendant is the recipient of parking charge notices (“PCNs”) issued by my Company. The  details are set out herein.  

Accreditation  

6. At all material times, my Company was accredited by the Accredited Trade Association (“ATA”)  known as the British Parking Association (“BPA”). The BPA has a Code of Practice (“Code”) that its  members are expected to adhere to, or otherwise face potential sanctions. My Company operates in  accordance with the Code.  

7. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency  (“DVLA”) my Company must be a member of an ATA. It is therefore essential for my Company to  comply with the Code.  

Background  

8. My Company issued PCNs (“Charges”) to the Vehicle (“Vehicle”) with details listed below:  PCN No. Location (“Land”) VRN Issue Date Reason for Issue  

5011091 664-690 Chigwell  Road, Essex, Ig8 8ah  

5011207 664-690 Chigwell  Road, Essex, Ig8 8ah  

AV67OGS 21/01/2022 Parked In An Area Displayed  As No Parking, No Stopping,  

No Waiting In A Bay Reserved  

For Costa Staff Only  

AV67OGS 7/01/2022 Parked In An Area Displayed  As No Parking, No Stopping,  

No Waiting In A Bay Reserved  

For Costa Staff Only  

5011837

664-690 Chigwell  Road, Essex, Ig8 8ah

AV67

09/03/2022

Vehicle Parked On Yellow  Lines

2

9. At the time of issue, my Company was instructed by the owner of the Land (“Landowner”) to  manage parking on the Land. A copy of my Company’s agreement with the Landowner (“Landowner  Agreement”) is exhibited to this Statement at “EXHIBIT 1”.  

10. I confirm that the term of the Landowner Agreement has been extended by mutual consent of the  parties.  

11. I refer to the recent decision in One Parking Solution Ltd v Wilshaw [2021] (“Wilshaw”) whereby it  was found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a  valid cause of action to recover the PCN, what is required is proof that there is a binding contract  between the Claimant and the Defendant. Further, it was found in Wilshaw that the contract between  the Claimant and the Freeholder (Landowner) does not affect the validity of any contract between the  Claimant and the Defendant. 

Contract  

12. At the time of issue, my Company was prominently displaying signs on the Land setting out the  Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”.  The signs formed the basis of the Contract with the driver (“Contract”).  

13. The following was a term of the Contract: -  

“Vehicles are not permitted to park, wait or stop in bays marked Costa only at anytime, unless the  vehicle has already been pre-registered with our office.  

No parking, waiting or stopping on yellow lines and/or hatched areas.”  

14. In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being  the Consideration. It is evident from the photographic evidence exhibited to this Statement at  “EXHIBIT 3” that the driver failed to adhere to the terms of the Contract by parking as they did,  thus breaching the Contract.  

15. The Contract provides that a charge is payable by the driver upon breach, with payment falling due  within 28 days.  

16. A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at  “EXHIBIT 4”. 3

17. Copies of the Notices to Keeper and further reminder notices are exhibited to this Witness Statement  at “EXHIBIT 5”. 

Defendant’s Liability  

18. Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.  

19. My Company uses Manual Number Plate Recognition (“MNPR”) technology on the Land to manage  the parking. Cameras capable of accurately recording vehicle registration numbers are constantly  monitoring the entrance and exit to the Land. A photograph is taken of each vehicle as it enters and  exits the Land. Any vehicle found to have breached the Terms of parking will be issued with a PCN.  

20. In order to issue a PCN, my Company requests the details of the Registered Keeper from the DVLA  to send notices compliant with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). Upon  receipt of those details, Notice is sent to the Keeper via the post in accordance with paragraph 9 of  POFA. The Notice to Keeper is followed up with other reminder notices. Copies are with “EXHIBIT  5”.  

21. The Defendant admits to being the Driver of the Vehicle and is therefore pursued on that basis. My  Company has complied with POFA and can pursue the Defendant as Keeper in the alternative.  

Defence 

22. The Defendant was afforded a 28-day period in which they could appeal and I am instructed they did  not. The potential next step was clearly communicated to the Defendant in notices. It is respectfully  submitted that if the Defendant genuinely believed the Charges had been issued incorrectly, they  would have engaged with the appeals process further.  

23. If there was any doubt regarding their liability, the Defendant has had ample time to challenge the  Charges or request evidence in support. Despite correspondence being sent to the Defendant by a  debt collection agency and a Letter of Claim being issued in accordance with the Pre-Action Protocol  for Debt Claims, no challenges have previously been raised.  

4

24. The Defendant has filed a widely available templated Defence, rather than dealing with the  substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my  Company’s time.  

25. Notwithstanding the above, I respond to the issues raised in the Defence by way of sub-headings as  follows (as the defence is quite repetitive, I will only deal with each point once, but for the avoidance  of doubt nothing within the defence is accepted unless I specifically state otherwise): - 

The Contract  

i. The Defendant alleges that there is no contract between them and my Company. It is my  Company’s position that there is and the details of which are set out above. Parking Eye -v Beavis established that this form of contract is perfectly workable. 

Defendant’s Allegations  

ii. The Defendant alleges that they have been informed by the staff at Costa Coffee that they are  permitted to park in the area. Respectfully, the staff at Costa Coffee have no authority to  permit the Defendant to park in breach of the Terms and Conditions. Authority has been  granted from the Landowner for my Company to enforce restrictions on the Land. The staff at  Costa Coffee are third parties to the Landowner Agreement at “EXHIBIT 1”.  Notwithstanding this, the signs clearly indicate that parking is for Costa staff only, and that no  parking is permitted on double yellow lines. The Defendant is well aware that they are not  staff at Costa Coffee, and it therefore seems unreasonable that they would believe they were  permitted to park as they did. It is also widely known that parking is not permitted on double  yellow lines regardless of whether the land is private. I again submit that the Terms and  Conditions were clearly displayed throughout the Land and if the Defendant did not agree to  them, they ought not to have parked.  

iii. The Defendant alleges that Costa has raised a formal complaint on their behalf and are  uncertain as to why the Defendant has received the PCNs. It is submitted that my Company  has not received any contact from Costa in relation to a complaint. It is again submitted that  my Company has full authority from the Landowner to issue and enforce PCNs on the Land.  The staff at Costa Coffee have no right to permit the Defendant to park in breach of the  Terms.  

Protection of Freedoms Act  

5

iv. The Defendant alleges that my Company has not complied with the relevant requirements of  POFA. This is denied. Copies of the Notices sent to the Defendant are exhibited at  “EXHIBIT 5” and it is my Company’s position that they are in full compliance with POFA.  In any event, the Defendant admits to being the Driver of the Vehicle.  

Signs / Unfair Contract Terms  

v. The Terms on the signs were adequate in respect of overall size, font size, plain English,  location and content. The Plan demonstrates where the signs were located and it is submitted  they are adequate to constitute notice of the Terms to the Driver. If the Defendant did not  understand the Terms on the signs, they should have exited the land and found alternative  parking. 

vi. The signs clearly outlined the Terms of parking and the Defendant was on notice of the Terms  upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These  Terms state that if breached, the Defendant agrees to pay within 28 days of issue. 

vii. In respect of the ‘terms’, as per Schedule 2 of the Consumer Right Act 2015, specifically  referred to: -  

Term 6 – It is submitted the sum is not disproportionate for the reasons set out within the  ‘amount claimed’ section of this Statement, nor is it ‘compensation’.  

Term 10 – As is evident from the Plan, signs were displayed throughout the Land. The  Driver was aware of the fact that parking was managed from the point of entering the  Land and could leave if they did not agree to the Terms. It is not unreasonable for the  Driver to need to potentially walk no more than 10 meters to fully familiarise themselves  with the full Terms. This would have all happened before the conclusion of the contract.  

Term 14 – The price is stated on the sign.  

Term 18 – The fact the Driver was able to park means my Company fulfilled its  obligations.  

viii. The Terms clearly stated what would happen if payment was not made: -  

6

“Fees owing to C.C.P.C may be passed onto our debt recovery agency and maybe  increased… You will incur additional charges resulting in further action being taken  against you if charges remain outstanding.”  

ix. With no concession made in this regard, if a Driver ever does not understand the Terms on the  signs, they can exit the land and find alternative parking. They are under no obligation to park  on the Land. 

Penalty / Amount Claimed  

x. In respect of the Defendant’s allegation that the claim is a penalty, my Company is not  seeking more than the original charge as the core debt. The core charge remains the same for  each PCN (i.e. £100); however, my Company is now also seeking further costs/damages. 

xi. My Company is instructed to manage the Land, the Landowner agreement previously referred  to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation.  The Landowner’s legitimate interest in managing the Land is because it is for Costa staff  only. If vehicles were permitted to park in breach of the Terms and Conditions, then the Land  could not be used for its intended purpose. Because there is a clear legitimate  interest/commercial justification, the same as that established in ParkingEye -v- Beavis, this  case does not fall foul of the penalty rules established in that case. 

xii. The amount charged is in line with the guidelines given by the ATA. Part 20.5 of the BPA  COP states “We would not expect this amount to be more than £100. If the charge is more  than this, operators must be able to justify the amount in advance”. It is my Company’s  position there is no requirement for the amount of the charge to bear any relevance to the  actual or potential cost of parking. The PCN is a fee charged by my Company for providing  the service and it stays within the guidelines given by the ATA. As with many other  ‘services’; the service provider is entitled to charge as they deem appropriate. 

Metaphysicist

xiii. The PCN was not paid within the prescribed 28 days or indeed at all. In view of this the sum  of £70 is also claimed as a contractual cost pursuant to the Contract which states “Fees owing  to C.C.P.C may be passed onto our debt recovery agency and maybe increased… You will  incur additional charges resulting in further action being taken against you if charges remain  outstanding.” The Defendant was on notice of the fact that the outstanding amount may  increase as a result of any necessary debt recovery action. In support I draw the Court’s  7

attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby,  when considering contractual indemnity costs, it was stated: - 

“There is nothing … which enable[s] the rules to exclude or override that contractual  entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to  assess the costs free from any restraints imposed by CPR 27.14”  

xiv. The sum added is a contribution to the actual costs incurred by my Company as a result of the  Defendant’s non-payment. My Company’s employees have spent time and material  attempting to recover the debt. This is not my Company’s usual business and the resources  could have been better spent in other areas of the business, generating profit. Had the  Defendant paid as per the Contract, there would have been no need for recovery action so the  amount due would not have increased. 

xv. With respect of Parking Eye -v- Beavis, whilst it is accepted the original charge is designed to  include the ‘operational costs’; this was with reference to maintaining the land, taking  payment or sending the relevant POFA compliant notices. It was never intended to include the  need to pursue the debt in Court to recover it. If that were the case, it would override the Civil  Procedure Rules (allowing fixed costs and recovery of court fees) which of course is not the  case. The Defendant has misunderstood the phrasing ‘operational costs’. 

Private Parking Code of Practice  

xvi. The Defendant refers in detail to the Private Parking Code of Practice in respect of the  additional costs incurred in this matter. I respectfully submit that the Private Parking Code of  Practice has been withdrawn since 07/06/2022. The Defendant also acknowledges that it is  not retrospective guidance. I therefore submit that it does not apply to this matter and I do not  intend to comment on this point any further.  

Alternative Dispute Resolution (“ADR”)  

xvii. The Defendant alleges that my Company has failed to engage in any genuine ADR. This is  denied. On each occasion the Defendant was provided with the opportunity to appeal the  matter but chose not to do so. As well as this, my Company’s solicitor provided the Defendant  with the opportunity to request ADR prior to the Claim being issued. Exhibited at “EXHIBIT  6” is a copy of the Letter of Claim. No response was received to the same. It is submitted that  

8

if the Defendant genuinely had doubts regarding liability, they would have engaged further  with each opportunity provided to dispute the PCNs.  

26. In view of the above, it is my Company’s position that the Defendant breached the Contract as set out  in this Statement and as such the Defendant is liable.  

Conclusion  

CPR Costs  

27. My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any  event.  

28. In the alternative to the contractual costs set out above, my Company reserves the right to claim  additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the  robust appeals procedure in place, should not have been necessary. It is my Company’s position that  this is unreasonable behaviour and it is respectfully requested that the Court considers whether they  conclude the same.  

Conclusion  

 29. It is my respectful submission that the Defence is entirely without merit and as such it is requested  that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith.  

30. I may not be able to attend the forthcoming hearing. Should this be so, an advocate will attend on my  behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1). If I am unable to  attend, please decide the claim in my absence, taking into account the advocate’s submissions, this  Statement, and any other evidence filed. This paragraph demonstrates my compliance with CPR  27.9(1)(a)-(b).  

31. In the event an advocate does attend the hearing, I request their fee be added to the amount sought.  9

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.  

Signed  

Terry Szmidt on behalf of the Claimant  

Dated 04/01/2024  

DCB Legal Limited  

Direct House  

Greenwood Drive  

Manor Park  

Runcorn  

WA7 1UG  

Ref: 117101.456D

Metaphysicist

Any advice would be appreciated.