Court Claim - Forbidding Parking PCN - 5 years ago

Coupon-mad

Yes that's a good idea.

KeithP

Being away for three weeks isn't going to be a problem. When you get a Directions Questionnaire, you'll have over four weeks to deal with it.

The CCBC sent you a letter, or will send you a letter, saying the Claimant has twenty eight days to consider your Defence.

What you don't know is when the CCBC sent a copy of your Defence to the Claimant. It follows from that that it is not known when the Claimant has to respond to the CCBC.

Further, we don't know what delays there are in the CCBC that means they don't send you a Directions Questionnaire as promptly as you might like.

And this recent thread indicates that longer delays are likely... CCBC are currently 26 days behind with DQs

Recent posts suggest delays of two months are being seen.

Can I suggest that you keep checking your MCOL Claim History and as soon as you see that the CCBC has sent a DQ to you, you are ready to download a DQ, complete it and fire it back at the CCBC, remembering to send a copy to the Claimant of course?

tygrysek

Hi, Thank you for letting me know, that's very helpful and makes sense! Having 4 weeks to respond I should indeed still have enough time to fire it once I'm back. 

YankeeBrit

There is nothing to stop you downloading the N180 form now, pre-filling it and then having it ready to fire off as soon as you get MCOL notification tat your DQ has been sent to you.

tygrysek

Thank you for your advice! 

tygrysek

Hi All, as expected I received court papers couple of weeks ago and I got a witness statement deadline of 8/02 and court hearing of 11/03.

Today I received a witness statement from the claimant so I'll start drafting my own. I believe the advice is to return it as close to deadline as possible? 

Funnily, Gladstones witness statement mentions I'm using a generic defence from the internet and got no understanding of the law, so I will need to address that too!

I'm just so grateful for all the support from this forum. Not long to go...

Coupon-mad

Here's a thread where the OP came to us at WS stage and said "They also stated that I have not correctly pleaded my case as "the defendant has lodged a template defence that is heavily circulated on the internet" referring to the defence template shared on this forum. I'm not sure how to respond to this part?"

https://forums.moneysavingexpert.com/discussion/6368316/witness-statement-feedback/p1

Look what happened in the end!

DON'T use their WS as 2022 is too long ago and misses out the new case of CEL v Chan and the 2023 DLUHC IA updated info.  Use one of the 5 exemplar WS linked by username in the NEWBIES thread, as your base and read the a-f Exhibits advice too.

tygrysek

Thank you, love the ending of that case! (https://forums.moneysavingexpert.com/discussion/6368316/witness-statement-feedback/p1)- all thanks to this forum and people like you @Coupon-mad

Time to get started and thank you so much for the additional advice, that's very useful!

tygrysek

Hi All,

I finally drafted the witness statement and need to get it to court in few days.

I would really appreciate if someone could please kindly take a look and offer some advice or any useful changes?

I appreciate it's long so even if you select one or two paragraphs to comment on that would be much appreciated.  Many thanks in advance.

I am using the newest ‘template’ WS for the beginning: a request to strike off due to 'generic auto-fill unspecific wording' with few recent examples of cases. Then the last paragraphs are also from templates so I won't be asking to review those (Exaggerated Claim and 'market failure' currently examined by the Government + CRA Breaches + The Beavis case is against this claim

Could you please take a quick look on what I have added in the middle and a conclusion:

Facts and Sequence of events

9. On Friday, March 16th, 2018, at approximately 4:22 PM, I parked my car (registration number xxxxxxxx) on Old Towcester Road to visit my brother, a resident of the nearby flats adjoining the road. I was there for about half an hour as evidenced by my Google Maps record (Exhibit xxx). I was a permitted visitor, to evidence that I had a valid visitor permit provided by my brother and displayed in my windscreen, as evidenced by photograph supplied in the Claimant's (Exhibit XX).

10. Crucially, I selected this specific parking location because I had no reason to believe it contravened any regulations. No evident signage indicated the area's private nature, nor were there any clear entrance signs. Had adequate and conspicuous signage been present, I would not have parked there and thus wouldn't have entered into any implied contract leading to this significant charge.

Inadequate Signage and Ambiguous Restrictions

11. The lack of clear signage at the entrance and along the Old Towcester Road managed by the Claimant failed to effectively communicate parking restrictions to drivers.

12. The only sign on the nearby building was inconspicuous, with small fonts and insufficient visibility from a distance. Even upon closer inspection, the sign did not specify the restricted area or make it evident that the restrictions applied to roadside parking. The provided photos of the signs confirm this ambiguity (Exhibit xxx).

13. As per the map supplied by the Claimant (Exhibit xxx), the Claimant only controlled a part of the Old Towcester Road. The remaining part of the road was not under Claimant’s control and without any parking restrictions at the time. Please see the full length of Old Towcester Road (Exhibit xxx). Please also see the Google Maps snapshot from October 2018 to confirm the parking on Old Towcester road was unrestricted (Exhibit xxx). Without proper entrance signs or sufficient signage, it was impossible for motorists to discern the private nature of that part of the Old Towcester road or any parking restrictions.

IPC Code of Practice Violations:

14. The Claimant, contractually bound to adhere to Independent Parking Committee accredited scheme, in this case: International Parking Community (IPC) rules (Exhibit of Claimants contract with Bellway Homes xxx), explicitly outlines requirements for entrance signs, clear signage, and appropriate text size (Exhibit xxx IPA’s code of conduct Signage section snapshot).

15. The IPC Code of Conduct stipulates: "Entrance Signs should make it clear that the Motorist is entering onto private land and refer them to the signs within the Car Park displaying full terms and conditions." Furthermore, signs must be placed at the entrance or within the Car Park to be obvious to motorists.

16. The IPC Code of Practice (CoP) also states that ‘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’ (Exhibit xxx). On the date of the parking charge, the available signage was unclear and featured terms and conditions in a font size that rendered them illegible from the roadside. These signs were solely located on a building a few meters from the road.

17. The inadequate signage, the absence of entrance signage or clear directions to terms and conditions on the Land managed by the Claimant directly violates IPC guidelines, revealing a breach by the Claimant and significantly undermining their case.

Observations Regarding Signage During Subsequent Site Visit on May 23, 2023

18.       On May 23, 2023, I revisited the location of the alleged parking contravention on March 16, 2018, to gather evidence for this case. I observed significant changes to the signage in the area which I wanted to draw court’s attention to:

•          Exhibit XXX: New signage is now displayed directly next to the road at the location where I received the PCN. This signage explicitly identifies the area as private land and outlines parking restrictions. This signage was not present at the time of the alleged contravention.

•          Exhibit X: The previous signage, which I believe was poorly placed and lacked sufficient visibility, has been removed from the side of the building.

•          Exhibit XXX: New signage located closer to the road was since added, mounted on the fencing, it also now clarifies that parking restrictions apply to both sides of the road. The original signage, also located at a significant distance from the road (on the building) did not provide such clear information regarding the designated area.

•          Exhibit XXXX: A new sign was added since and positioned near the entrance to the part of the road claimed to be managed by the Claimant, indicating the commencement of parking restrictions. This signage was not present at the time of the alleged contravention.

19.       This information is provided for the court's consideration regarding the signage at the time of the parking event compared to the signage observed on my return visit. I believe such significant changes to the signage raise questions about the adequacy of the signage in March 2018.

 

No Contract, No Breach:

20.       In the absence of clearly visible and adequate signage, the Defendant contends that no valid contract can be established. The Defendant denies entering into a legally binding contract.

21.       The Claimant's notices purport to make a forbidding offer, which, in essence, is not an offer at all. Consequently, no contract can be said to exist. The Claimant lacked the authority to offer a contract, as there was no meeting of minds or exchange of consideration. None of the essential elements necessary for the formation of a contract were present, rendering the alleged contract impossible. At most, the Defendant was granted a license to park. If the Claimant asserts a breach of this license, it would be a matter of trespass, not a breach of contract, which can be pursued only by the landowner.

22.       In PCM- UKv Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company. This case relates to this claim, as the signs are forbidding (Exhibit xxx), and thus no contract was in place.

 

Section 69 of the Consumer Rights Act 2015

23.       I draw attention to Section 69 of the Consumer Rights Act 2015, which addresses contract terms that may have different meanings.

The Consumer Rights Act 2015 reads (Exhibit xxx):

“Section 69: Contract terms that may have different meanings

Contract terms can be ambiguous and capable of being interpreted in different ways, especially if they are not in writing or in an accessible format. In these cases, this section ensures that the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that is used.”

24.       In the context of the insufficient signage in this case, the signage is a crucial aspect of the contract between myself and the parking company. Ambiguities in the signage, particularly when they are not in writing or in an accessible format, should be interpreted in a manner most beneficial to the consumer, as outlined in Section 69.

25.       The signage provided by the parking company lacks clarity and is open to different interpretations. The absence of clear entrance signs, ambiguous directions, and small font size render the terms ambiguous and challenging for a motorist to comprehend. As per Section 69, in cases of ambiguity, the interpretation that is most beneficial to the consumer should prevail.

26.       Despite being pointed to the signs only after receiving the Parking Charge Notice (PCN), the ambiguous nature of the signage fails to communicate parking restrictions effectively. The lack of prominent entrance signs, in violation of the Consumer Rights Act 2015, hinders a clear understanding of the terms and places an unfair burden on the consumer.

27.       In light of Section 69, I request that the court interprets any ambiguities in the signage in a manner that is most advantageous to me as the consumer. This aligns with the principles of fairness and consumer protection enshrined in the Consumer Rights Act.

 

Unreasonable Delay and Disproportionate Interest Charges

28.       As stated in my Defence, as well as denying that the Claimant is entitled to parking charges, I deny that the Claimant has incurred any ‘damages’ or ‘debt recovery fees’. Then there is the extortionate attempt to harvest several years’ interest, which must surely be dismissed by the court. Interest is discretionary, not an absolute entitlement and it has been falsely calculated from day one on the whole amount.

29. I take the point that enhancing their claim to interest on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

30. Furthermore, the Claimant has unreasonably delayed initiating proceedings for five years, seemingly aiming to benefit from an overly inflated 'reward' by default, had I not contested the claim. In the improbable event of the claim's success, I assert that interest should either be disallowed or substantially reduced, as per the precedent set in Claymore Services Ltd v Nautilus Properties Ltd [2007] BLR 452  (Exhibit Number xxx.

.....................

Conclusion

31.  The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

52.  Striking Out the Claim: The Defendant urges the court to consider the persuasive appeal judgment in Civil Enforcement Limited v Chan and subsequent cases that indicate the inadequacy of the Particulars of Claim (POC). The Claim should be struck out under CPR 3.4 due to non-compliance with CPR 16.4 and Practice Direction Part 16, as supported by the Chan judgment and similar cases.

53.  Inadequate Signage and Ambiguities: The evidence presented highlights the lack of clear signage, including small fonts and inconspicuous signs, which failed to communicate parking restrictions effectively. The Defendant argues that, without proper signage, no valid contract could be established, and the Claimant's case is undermined.

54.  IPC Code of Practice Violations: The Claimant's breach of the Independent Parking Committee accredited scheme, specifically the International Parking Community (IPC) rules, is emphasized. The absence of sufficient signage, clear entrance signs and directions to terms and conditions on Controlled Land directly violates IPC guidelines, compromising the Claimant's case.

55.  Consumer Rights Act 2015 - Section 69: The Defendant invokes Section 69 of the Consumer Rights Act 2015 to emphasize that any ambiguity in signage should be interpreted in the manner most beneficial to the consumer. The lack of clarity in the signage places an unfair burden on the consumer and should be interpreted accordingly.

56.  Exaggerated Claim and 'market failure': The Defendant contests the inflated claim amount, asserting that the alleged 'core debt' cannot exceed £100 and challenging the legitimacy of the added damages and fees. Reference is made to the draft Impact Assessment by the Department for Levelling Up, Housing and Communities, indicating excessive 'Debt Fees' charged by parking firms.

57.  CRA Breaches: The Defendant argues that the Claimant has breached the Consumer Rights Act 2015 by claiming costs on an indemnity basis, which is deemed unfair. The Defendant asserts that the signage and notices were not prominently displayed and lacked clarity, violating the CRA's requirements.

58.  The Beavis Case and Penal Nature of the Charge: The Defendant contends that the Supreme Court's Beavis case sets a high bar for justifying parking charges. The present case falls short of this standard due to hidden terms, including the £100 penalty clause buried in small print, making the charge purely penal and unenforceable.

In summary, the Defendant calls for the dismissal of the meritless claim, highlighting multiple legal grounds, including inadequate signage, breaches of codes of practice, and violations of consumer protection laws. The evidence presented demonstrates the lack of a valid contract, rendering the claim untenable.

Defendant’s fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 40.

59.  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 (Exhibit xxx). 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.

 

60.     41.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

"I am using the newest ‘template’ WS" 

There isn't one.  Just checking: you aren't accidentally using the Template Defence are you?  The above is confusing.

There are 5 links to 2023 exemplar WS linked in the NEWBIES thread and an a-f list of suggested exhibits, but no template.