Claim Form Received (Countrywide Parking Management/BW Legal)

p0laris

Fruitcake said:

You normally get two weeks prior to the hearing date to provide a witness statement and evidence. Failure to meet that deadline could result in a default judgment before the hearing date. Send your WS and evidence today, by 4pm with an apology and explanation why it was late. Don't forget to send it to the claimant/solicitors as well.

Thanks Fruitcake. I'm due to see them next week but thankfully I live nearby the court so I can drop it off in person, hopefully that helps.

Coupon-mad

It will definitely help you. 

Make sure it includes a Witness Statement & evidence (see NEWBIES thread) and a costs schedule.  Did you have to pay the CNBC a fee to set aside the wrongful CCJ?

p0laris

Coupon-mad said:

It will definitely help you. 

Make sure it includes a Witness Statement & evidence (see NEWBIES thread) and a costs schedule.  Did you have to pay the CNBC a fee to set aside the wrongful CCJ?

Drafting a witness statement and preparing evidence now, thank you Coupon-mad.

I haven't - it's not gone to CCJ stage.

One thing I did want to ask about - with the Chan defence, I understand that the term "breached" has to be used specifically. In my case, the wording was as follows:

We have issued the above Parking Charge Notice (PCN) to your vehicle via
Automatic Number Plate Recognition (ANPR) because it breeched the terms &
conditions of the below site.

Is it worth mentioning the use of the word breeched rather than breached? Or will that seem silly?

Coupon-mad

Neither of that is relevant because what you have quoted isn't on the claim form.  Chan is about the claim POC.

p0laris

Coupon-mad said:

Neither of that is relevant because what you have quoted isn't on the claim form.  Chan is about the claim POC.

Thank you for clarifying Coupon-mad. I'll continue to do some research and update my witness statement. I'm intending to draw on Beavis, the fact that the signage was not adequately lit (the alleged contravention took place at night), and that the grace period was not acceptable. The Notice to Keeper states that the vehicle was in the car park for 13 minutes. 3 minutes are what these scumbags are attempting to charge me for - I'm hoping I can make the argument that, given the lack of visibility, additional time is required to have read the terms and to decline them.

Also, the claimant possesses no evidence of the vehicle being parked. I believe I'm correct in saying that entering the site would count as trespass in this instance. Given the sign below was the one at the front of the site, I think it's unreasonable to assume a contract has been agreed to by simply entering the site.

Coupon-mad

Agreed.      

p0laris

Unfortunately I couldn't get to the court today and intend to go tomorrow. My witness statement is as follows:

Witness Statement of Defendant

1. I, <redacted>, of <redacted>, am the Defendant in this matter. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. Firstly, it should be noted that no witness statement or any other supporting documentation has been received from the Claimant.

3. It is admitted that on the material dates, I was the registered keeper of the vehicle with numberplate <redacted>.

Previous Usage of the Site

1. The Defendant recognises the site as a thoroughfare. The Defendant is familiar with the area as the Defendant had attended a gym close by for a number of years. The site of the alleged contravention was used as a thoroughfare between <redacted> and <redacted> (exhibit A) prior to being converted to private parking.

1. At the point of entry, the terms and conditions sign is not visible or readable. The only viewable signage only indicates a motorist should seek the additional signage displayed within the car park (exhibit . There is no mention of anything related to a risk of paying £100 or that the grace period of this car park is 10 minutes. 

1. I argue that by indicating this at entry, the sign coaxes the motorist into the car park whereby the Claimant can turn around and claim a contravention occurred. This is incredibly predatory behaviour aiming to confuse the motorist; I question how a contravention could have taken place when the signage at the front of the site indicates a motorist should enter the site to fully understand the terms and conditions, then penalises the motorist for entering said site.

1. After finding a suitable place to stop (not park), the Defendant endeavoured to fully understand the terms and conditions signage around the car park as the Defendant was highly aware of how purposely deceiving private parking terms can be. As seen in exhibit C, the signage directs the reader to various other signs (including signs within the building) for “full terms and conditions” leaving the Defendant confused whether they had read enough to understand the full terms. Given the nature of this site was previously understood to be a thoroughfare, the Defendant endeavoured to fully understand the terms and conditions of this car park and thus remained stopped in the car park for long enough to understand and decline the contract. I argue no contravention occurred here, at worst this could be considered trespass.

Stopping is not Parking

1. In addition, given the site had served a different purpose for a number of years, I posit that carrying out the actions above and deciding not to enter into the contract does not constitute parking. The Claimant has not provided any evidence of the vehicle being parked, rather - the Claimant has just provided two photos of a numberplate (exhibit F). According to Jopson vs Homeguard Services Limited 2016, His Honour Judge J Harris QC determined that “stopping is not parking”. Due to this, I argue that no terms and conditions were breached as no contract was entered into.

Unclear Signage

1. A key factor in the leading authority from the Supreme Court in ParkingEye Limited v Beavis 2015 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 D for comparison.

1. According to the International Parking Community (IPC) Code of Conduct (exhibit E), of which the Claimant is a member, text on signage “The size of the text on the sign must be appropriate for the location of the sign and should be clearly readable by a Motorist having regard to the likely position of the Motorist in relation to the sign”. and that “inform the Motorist of all the Terms and Conditions applicable to the use of Vehicles on the Controlled Land” and that the signs are a vital element of forming a contract with drivers. Neither of these rules were respected in this instance, the signage being made up of a mix of font sizes and indicating that the full terms and conditions are not on the sign but rather within the building, confusing the motorist and forcing them to spend more time on the site.

1. Drawing further upon the ParkingEye Limited v Beavis 2015 case, the Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also considered void pursuant to Schedule 2 of the Consumer Rights Act 2015 (CRA). Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known, or agreed. As an example, ParkingEye Limited v Beavis 2015 established the charge must be prominent on the sign (exhibit D) but as you can see in exhibit C, the charge is indistinguishable from the rest of the sign. Similarly, the signage has no dedicated lighting making it far harder to read for motorists at night.

1. This situation can be fully distinguished from ParkingEye Limited v Beavis 2015, 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.

1. However, there is no such legitimate interest where no contract has been entered into and the motorist remained at the site for the purpose of investigating the terms and conditions of said site. As such, I take the point that the parking charge in this 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.

Grace Periods

1. The IPC Code of Conduct also states in section 13.2: Before a Parking Charge is issued Motorists must be allowed a Grace Period [...]. A Grace Period is a 10 minute period at the end of a Permitted Period of Parking. This is not indicated anywhere on the car park signage but rather a motorist would have to seek this online (exhibit G), further indicating a lack of full terms and conditions on the signage.

1. According to the Claimant, the alleged contravention took place for 13 minutes in total, from the period of <redacted> to <redacted> (exhibit F). The grace period referenced above is intended as a minimum where the conditions are ideal for a motorist to enter the site, find the sign, exit their vehicle, read the side, and decide if they wish to enter into the contract. I argue that three additional minutes is a wholly reasonable period of time required to carry out the aforementioned actions given the poor lighting and time of day.

Abuse of Process

1. The alleged “core debt” from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

1. The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP 2021, where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to Section 62 of the CRA, as it created imbalance between the parties.  Such a “contractual indemnity costs” clause sidesteps the Civil Procedure Rules (CPR) and cannot be recoverable, absent unreasonable conduct by the Defendant.

1. Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied.

Witness Costs

1. In the matter of costs, the Defendant seeks standard witness costs for attendance at Court, pursuant to CPR 27.14, and that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

1. 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.

1. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at Practice Direction 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.''

1. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

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.

I intend to drop this off at the court tomorrow and hope that they will accept it.

As an indication of what the signage in the car park looks like:

Coupon-mad

If you haven't had a WS from the other side, they've probably discontinued the claim.  Phone the court first thing.  Might save you printing and a trip.

p0laris

Coupon-mad said:

If you haven't had a WS from the other side, they've probably discontinued the claim.  Phone the court first thing.  Might save you printing and a trip.

Great shout - cheers for the tip. Will give them a call and update the thread tomorrow.

p0laris

UPDATE: called up the court today, case has been discontinued. Wish I had known that before typing up my defence but hopefully it helps someone else out!