County Court Defence I Park Services Overstay

Saj_1982

I was out of city for work and found the letter of hearing when came back yesterday, hearing date is 8th February and as far I understand I have to submit my witness statement by 25th January. Do I have to post the witness statement or I can email it to 'smallclaims@birmingham.countycourt.gsi.gov.uk'

I spent some hours today looking at Newbies Sticky and other witness statement threads and got together a witness statement. I request members of this great forum to have a look and suggest any amendments:

Sequence of events

1.       I drove to Church Road Car Park on the 19th of June 2022 and paid for 1 hour parking. (exhibit 1)
2.       I then went to the Erdington High Street for shopping together with my son however during our visit to B&M store my son got sick and while attending to him, I lost the sense of how much time have passed as I was very concerned and completely focused on his wellbeing. I therefore couldn’t get back to the car park in time.
3.       However as soon as my son got a bit better, I rushed back to the car park and paid for another 2 hours (exhibit 2), twelve minutes after the expiry of previous parking ticket. As my son was feeling better we went back to the high street for shopping and left the car park after about an hour.
4.       I paid for three hours of parking (exhibit 1 & 2) and remained in the car park for less than three hours therefore I believed (and still believe) that I have fully paid for my stay in the car park however after a few months I started receiving intimidating letters from DCB Legal Ltd (I never received the PCN from I Park Services Ltd.) asking to pay an inflated charge issued on the basis of overstay in the car park.
No Grace Period 5.       The signs in the car park did not contain any information about the grace periods (exhibit )
6.       A contract to park by conduct cannot be formed unless there is a grace period to discover, read, understand and accept the contract. To do any of these is impossible if a motorist is not allowed to stop or wait, in direct conflict with the IPC Code of Conduct’s “Grace Periods”:
“15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site” 7.       In the persuasive case of Excel v Mr Cutts [2011] 1SE02795, Deputy District Judge Lateef agrees with the principle argument: “...it is, in my view, not enough for him to merely physically enter the site. Instead the Defendant has to see the offer so he can choose whether or not to accept it, and thereby enter a contractual relationship.”
8.       Additionally, binding a motorist to a contractual agreement without a grace period would constitute a breach of Schedule 2 of the Consumer Rights Act 2015. “i) irrevocably binding the consumer to terms in which he had no real opportunity of becoming acquainted before the conclusion of the contract;”
9.       The Defendant has demonstrated to the Court that no contract could have existed with any driver at the material time
10.   The facts of this case are similar to those in the Appeal case of Jopson v Homeguard Services (B9GF0A9E, Oxford County Court, 2016), where a car had stopped temporarily near the entrance in order to unload some furniture. HHJ Harris QC held, in his Judgment at [18], that ''a right of access permitted short incidental stops for the purpose of access to her flat''. Specifically, it was stated that brief stops for delivering or unloading items, dropping off passengers, etc. were not 'parking'; a definition which was fully explored by this Senior Circuit Judge, who observed that life at a block of flats would be ''unworkable'' if every resident or visitor ran a risk of immediate ticketing, when the vehicle was not in fact parked, and before any contract could possibly have been agreed.
11.   The Judgment in Jopson also makes it clear that the factual circumstances are quite different from those which applied in ParkingEye Ltd v Beavis [2015] UKSC 67, and that case is distinguished.   The Parking Eye v Beavis is distinguished

12.   A key factor in the leading authority from the Supreme Court, 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 Claim in exhibit xx-09 for comparison. In this case, the signage (exhibit XX) fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC') as it is too high and written in very small font. The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

13.   This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, 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.

14.   However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the point that the parking charge in my 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.

 

Lack of landowner authority evidence and lack of ADR

15.   However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the point that the parking charge in my 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.

16.   In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract.  Ref. paras 74 & 75

''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

Abuse of process - the quantum

17.   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 Ltd ChD [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'. 

18.   This finding is 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: 

19.   Adding 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."  

20.   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."  

21.   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, 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, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.   

22.   This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit. 

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

24.   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.

25.   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. 

26.   In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters. 

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.1442.

27.   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 CPRand (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. 28.   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.'

Saj_1982

I am sorry, I don't know why para 1-11 got messed up and I don't know how to correct it

Coupon-mad

We'll have a close look in the morning but don't put the word 'of' in a date (it reads like slang).

WS are emailed to the local court and the Claimant's solicitors copied in.  When they see it, DCB Legal will discontinue!

Nellymoser

PPC choose not to provide proof of posting we must press DLUHC to ensure they do in the new Parking Code of Practice. Please  @Saj_1982 sign and share
https://petition.parliament.uk/petitions/652355
Require communications from Private Parking companies to be traceable/trackable

Saj_1982

Coupon-mad said:

We'll have a close look in the morning but don't put the word 'of' in a date (it reads like slang).

WS are emailed to the local court and the Claimant's solicitors copied in.  When they see it, DCB Legal will discontinue!

Thank for your suggestion I will change it

Saj_1982

Nellymoser said:

PPC choose not to provide proof of posting we must press DLUHC to ensure they do in the new Parking Code of Practice. Please  @Saj_1982 sign and share
https://petition.parliament.uk/petitions/652355
Require communications from Private Parking companies to be traceable/trackable

I have signed the petition

Coupon-mad

I assume you are starting with the usual first paragraphs seen before 'Sequence of Events' in all the WS examples in the NEWBIES thread?

Remove paras 5-11 which make no sense for your case because you DID decide to stay. I'm not convinced Jopson has relevance to your case.

Only include para 16 if you've seen their WS and it includes a redacted landowner contract.

Everything under (and including) the sub-heading Abuse of Process down to the end is out of date by a year.   Please go back to the recent WS exemplars, one of which was from this month.  Much more up to date and includes CEL v Chan that you also need.

Finally you don't seem to have used some (any?) of the a-f suggested exhibits listed in the NEWBIES thread?