Missed the appeal and given 14 days to pay up

Gr1pr

Wait until after the court fee is paid, or no need if its not paid, especially not if a Discontinuance is filed , so be ready by mid December 

Diaz13

Thanks! I want to be prepared and ready in advance in case this does go to the end. Can you please help point me where I can find the example witness statements that have been successful against PE? I have looked through but there are so many posts I feel lost in them.

Coupon-mad

Search the forum for:

new tactic Summer 2023 £25 ParkingEye

Diaz13

I have used lots of examples and wording to help me with my WS, I'm not sure if some of it is eligible so if someone could please review I would be so grateful.

Also do I write this in the first person or third? Where I refer to "I" and then also the "Defendant". As I noted some WS have a mixture of both so I left mine this way too. 

Post split due to size.

Thank you so much.

 

1.       I am XXXXXXXX of Address, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2.       In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

PRELIMINARY MATTER - The Claim should be struck out 

3.      The facts set out in this defence are based on the Defendant’s own knowledge and genuine belief. In stark contrast, the Claimant has submitted a vague and poorly constructed statement of case, which appears to be a generic, cut-and-paste document. The Particulars of Claim (PoC) appear to breach CPR 16.4, as well as Practice Directions 16PD3 and 16PD7, as they fail to "state all facts necessary for the purpose of formulating a complete cause of action." Consequently, the Defendant is left unable to clearly understand the specific allegations being made or the basis of the costs being claimed, making it difficult to provide an informed and comprehensive response. While the Defendant acknowledges the vehicle in question and admits to being the registered keeper, the particulars remain vague and insufficiently detailed.

 

4. The Defendant possesses written confirmation from The Range Southampton (Shirley), located at 230-234 Winchester Road, Southampton, SO16 6TL, which explicitly acknowledges that the parking charge issued in September 2023, for exceeding the maximum stay period, should be rescinded. See Exhibit XX-01. This decision was based on the fact that the Defendant adhered to the store’s established protocol, which requires customers to notify staff if their shopping duration exceeds the two-hour parking limit. Please refer to Exhibit XX-02 for further details. The Defendant has, therefore, complied fully with the store’s rules and followed all necessary procedures. The Defendant had no reason to know that the retailer failed to notify the Claimant as required and was operating under the assumption that all necessary actions had been properly completed. It is therefore denied that the Defendant entered into a legally binding contract.

 

5. Furthermore, although the alleged incident occurred during daylight hours, it remains extremely difficult, if not impossible, to read the signage, whether from inside a vehicle or even when standing outside. The lettering is excessively small, making it challenging for any driver or pedestrian to discern the terms and conditions without significant effort. The combination of the minuscule text and poor visibility, even in daylight, further exacerbates the issue, rendering the signage ineffective in conveying the necessary information. This failure to provide legible and accessible signage violates the principle that parking terms must be clearly displayed, particularly if the Claimant seeks to enforce a contract against drivers. As a result, it would be unreasonable to conclude that any driver, including the Defendant, could have been fully aware of or agreed to the terms presented on such inadequately displayed signs. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.

 

6.           It is admitted that the Defendant was the registered keeper of the vehicle. It must be common ground that the terms have been complied with or substantially complied with. The charge imposed, in all the circumstances, is a penalty (not saved by the ParkingEye v Beavis Supreme Court case, which is fully distinguished).  Further, in a new tactic only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £20 which was not mentioned on the signs in the car park.  The Defendant takes the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

 

7.       The Defendant believe the signs that the Claimant are relying on at The Range, Southampton Shirley, were confusing and misleading, the small print is too small for anyone to read. The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B. Please refer to Exhibit xx-03. This sign displays the sign is impossible to read in its entirety. The signs are also so high that terms would only be legible if a driver got out of the car and climbed a stepladder to try to read them.

  

8.           Even if the court is minded accepting that a sign was visible, the wording on the sign was prohibitive. Referring to the Beavis vs ParkingEye case [2015] EWCA Civ 402, the Claimant offered no license to park if not a ‘permit holder’. A purported license to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

 

9.            A key factor in the leading authority from the Supreme Court, was that ParkingEye was 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 xx-14 in comparison to any alleged Claimant sign. In the alternative, if the Claimant alleges signage was present, I aver the signage fails to adhere to the standards laid out by The British Parking Association (BPA). The BPA Code of Practice says, “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand” It also states that “Signs play an important part in establishing a parking contract” with drivers.

 

Part 2

The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

 

1.       ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach (Exhibit xx-4).

 

 2.       Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

 

3.       The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests (See Exhibit xx-5 for paragraphs of ParkingEye v Beavis).

  

4.       In the alternative, if the Claimant alleges signage was present, the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains the defendants position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

 

(i)  Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

 

(ii)   Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

 

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

 

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

 

where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

 

5.       Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC,

observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved - it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." If the Claimant alleges a sign was present, my position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

Part 3

POFA and CRA breaches

 

 1.       Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').

 

 2.       Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

  

3.       Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

 

4.  I am the registered keeper of the vehicle that is shown in the images and do not deny the vehicle being at this location. However, I the Defendant, categorically denies being the driver at the time of the alleged contravention.

5.           The CHARGE NOTICE (CN) upon which it is assumed that the Claimant intends to rely as a Notice To Keeper (NTK) for the purposes of POFA paragraph 6 (1) (b), states that the keeper will be assumed to be the driver in such circumstances but there are no grounds for this assumption.  POFA paragraph 9 (2) (f) states that "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid".  The applicable conditions have not been met, therefore the Claimant has no right to recover any alleged debt from the keeper.

6.           Even if the POFA conditions had been met, the keeper cannot be assumed to be the driver.  Vehicle Control Services v Edward (HOKF6C9C) is the current authority, a persuasive appeal case who cannot lawfully "assume" the keeper was the driver.  Since VCS lost this appeal case in 2023, they are already well aware that it is improper for them to plead that they may 'assume the keeper was the driver’. Out with the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases involving VCS and its sister firm, Excel Parking Services Ltd. Please refer to Exhibit xx-06 for the transcripts which are adduced in evidence.

 

 

 

 

 

 

 

 

Diaz13

Part 4

Abuse of process - the quantum

  

1.       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', i.e. unrecoverable.

 

2.       My stance regarding this punitive add-on is now 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: h ttps://www.gov.uk/government/publications/private-parking-code-of-practice.

 

3.       Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 27), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the roboclaim race to court and to side-step the £50 legal fees cap set in the Small Clams Track.

 

 

4.       Adding debt recovery/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."

 

 

5.       This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

 

6.       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."

 

7.       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 (also in February 2022), 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, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

 

8.       This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

 

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

 

10.   These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

 

11.   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.

 

12.   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.

 

13.   It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit xx-16) where she went into great detail about this abuse.

 

14.   The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much- needed clarity for consumers and Judges across England and Wales.

 

15.   In case this Claimant tries to rely upon those old cases, significant errors were made. Evidence - including unclear signage and Codes of Practice - was either ignored, even when in evidence at both

hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy). In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC.

 

CPR 44.11 - further costs

16.   I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs, and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that the Claimants representative did not have reasonable cause to issue the PCN, as any signs displayed were not clear and all contradicted each other. Not only could this claim have been avoided and the Claimant has no cause of action, but it is also vexatious to pursue an inflated sum that includes more than double recovery.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

 

17.   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.

 

18.   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.'' 

 

 

Exhibit XX-01 – Attach letter and email proof of the Retailer letter

 

Exhibit XX-02

Attached sign from store which states clearly if shopping for more than 2 hours let store know.

 

Exhibit xx-03

Attach photo of parking signs from car park

 

Exhibit xx-4

The ParkingEye Ltd v Beavis [2015] UKSC 67 – case sign in comparison to any alleged Claimant sign

Exhibit xx-5

The ParkingEye Ltd v Beavis [2015] UKSC 67 - Paragraphs 98, 193 and 198

Exhibit xx – 6 Transcripts from the case of Excel v Smith and VCS v Edward

 

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.

 

Coupon-mad

Go through it and change 'the Defendant' to "I or 'me/my" and remove all the irrelevant stuff, of which there appears to be lots.

I stopped reading after the first few paragraphs because so much of it is irrelevant to you.  But I did see the following:

Start by removing the 'Preliminary Matter' and paragraphs 3, 5 and 8.  It will read better without them and they are either irrelevant or not needed.

And remove this from para 6:

"It is admitted that the Defendant was the registered keeper of the vehicle."

And why in the middle are you denying being the driver? If that's a lie remove that paragraph.

And remove Excel v Smith and VCS v Edward which aren't relevant for a ParkingEye overstay where you were driving. And remove the paragraphs talking about them.

And adjust what you say about distinguishing your case from Beavis because your case is EXACTLY like Beavis except for the vital difference that - unlike Mr Beavis - you had permission to stay longer, had exempted your vehicle and did not breach a 'relevant obligation or contract' (Schedule 4 prerequisite) therefore no charge can apply because the mistake or error was a breakdown in communication between this Claimant and their client. The circumstances did not arise due to any breach, negligent conduct nor mischief of the driver: there was an extended stay mechanism and you used it correctly.


  

Diaz13

The Core claim cost is £120. Honestly speaking all this legal terminology goes way over my head so I have just tried my best to absorb what I can from other statements when it comes to referencing other cases. 

I have tried to cut out all the irrelevant stuff, is this now ok, is there anything else I need to cut?

Not sure about Part 4 - should I remove this all together and just leave in paragraphs 16 onwards? (I copied this from another WS).

2.       In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

 

3.           I possess written confirmation from The Range Southampton (Shirley), located at 230-234 Winchester Road, Southampton, SO16 6TL, which explicitly acknowledges that the parking charge issued in September 2023, for exceeding the maximum stay period, should be rescinded. See Exhibit XX-01. This decision was based on the fact that I adhered to the store’s established protocol, which requires customers to notify staff if their shopping duration exceeds the two-hour parking limit. Please refer to Exhibit XX-02 for further details. I have therefore complied fully with the store’s rules and followed all necessary procedures. I had no reason to know that the retailer failed to notify the Claimant as required and was operating under the assumption that all necessary actions had been properly completed. It is therefore denied that the I entered into a legally binding contract.

 

4.           It must be common ground that the terms have been complied with or substantially complied with. The charge imposed, in all the circumstances, is a penalty (not saved by the ParkingEye v Beavis Supreme Court case, which is fully distinguished).  Further, in a new tactic only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £20 which was not mentioned on the signs in the car park.  I take the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

 

5.       I believe the signs that the Claimant are relying on at The Range, Southampton Shirley, were confusing and misleading, the small print is too small for anyone to read. The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B. Please refer to Exhibit xx-03. This sign displays the sign is impossible to read in its entirety. The signs are also so high that terms would only be legible if a driver got out of the car and climbed a stepladder to try to read them.

 

6.            A key factor in the leading authority from the Supreme Court, was that ParkingEye was 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 xx-4 in comparison to any alleged Claimant sign. In the alternative, if the Claimant alleges signage was present, I aver the signage fails to adhere to the standards laid out by The British Parking Association (BPA). The BPA Code of Practice says, “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand” It also states that “Signs play an important part in establishing a parking contract” with drivers.

 

Part 2

ParkingEye v Beavis

1.       In ParkingEye v Beavis, the Supreme Court accepted that ParkingEye’s £85 charge was not punitive; however, it was made clear that “the penalty rule is plainly engaged” in parking cases, which must be determined on the specific facts of each case. In Beavis, the charge met the test for commercial justification due to the particular circumstances, including the location and the presence of clear signage displaying the parking charge in the largest and most prominent text. That case, due to its unique facts—most notably the conspicuous yellow and black warning signs—set a high threshold, which the Claimant in this case has not met (Exhibit xx-4).

2.       In the absence of the Beavis ruling to support this claim, and with no alternative calculation of loss or damage presented, the claim must fail. As stated by the Supreme Court, deterrence may be considered penal where there is no legitimate interest in performance extending beyond compensation arising directly from the alleged breach.

 

3.       The purpose of such a charge cannot be to penalize a motorist, nor to impose hidden terms, unexpected or burdensome obligations, or any “concealed pitfalls or traps.” Furthermore, a firm cannot claim an unconscionable sum. In this instance, the Claimant has failed to meet these standards (See Exhibit xx-5 for relevant paragraphs of ParkingEye v Beavis).

 

Unlike the facts of Beavis, this case differs in a critical way: whereas Mr. Beavis breached the parking terms, in this case, I had explicit permission to remain for a longer period, my vehicle was exempt, and there was no breach of any "relevant obligation or contract" as required under Schedule 4. Therefore, no charge is enforceable in this instance.

 Part 3

POFA and CRA breaches

 1.       Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').

 

 2.       Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

  

3.       Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

 

 

 

 

 

Coupon-mad

Looks much better; more on point already.

This is a strong position. Your main point is you can prove you had permission!  When PEye see this evidence, I think they might discontinue.

Your new para that starts 'Unless' needs a number.  And I've just edited my earlier reply above, to add some better wording to add at the end of that 'unless' paragraph.

Remove part 4 as you've already covered the fact that PE are asking for £120 plus court fees which is not the PCN sum on the sign (and your Part 4 is a bit out of date anyway: there is no ban on debt recovery fees and the Government has changed).  So remove that.

And change this:

"I had no reason to know that the retailer failed to notify the Claimant as required and was operating under the assumption that ..."

to

I had no reason to know that there was a breakdown in the system of 'exempt' vehicles communication between the retailer and ParkingEye (a fallible system set up by this Claimant). I was operating under the reasonable belief that ... 

Diaz13

Thank you so much, I have now pasted below my final version. I assume the paragraphs around further costs and my witness costs of £95 are all ok? Do I have to include my payslip with this to prove my income? I will have to take a day off work so just want to claim some of the cost back albeit it wont be more than £95 maximum I can claim?

I have also previously sent the letter from the retailer so that they would close this matter but they have still decided to pursue this case so not sure what makes them think they will win? If this does go to court - how many PE reps usually attend?! Especially over the xmas period!

2.       In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

 

3.           I possess written confirmation from The Range Southampton (Shirley), located at 230-234 Winchester Road, Southampton, SO16 6TL, which explicitly acknowledges that the parking charge issued in September 2023, for exceeding the maximum stay period, should be rescinded. See Exhibit XX-01. This decision was based on the fact that I adhered to the store’s established protocol, which requires customers to notify staff if their shopping duration exceeds the two-hour parking limit. Please refer to Exhibit XX-02 for further details. I have therefore complied fully with the store’s rules and followed all necessary procedures. I had no reason to know that there was a breakdown in the system of 'exempt' vehicles communication between the retailer and ParkingEye (a fallible system set up by this Claimant). I was operating under the assumption that all necessary actions had been properly completed. It is therefore denied that the I entered into a legally binding contract.

 

4.           It must be common ground that the terms have been complied with or substantially complied with. The charge imposed, in all the circumstances, is a penalty (not saved by the ParkingEye v Beavis Supreme Court case, which is fully distinguished).  Further, in a new tactic only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £20 which was not mentioned on the signs in the car park.  I take the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

 

5.       I believe the signs that the Claimant are relying on at The Range, Southampton Shirley, were confusing and misleading, the small print is too small for anyone to read. The signs did not properly and clearly warn and inform the terms of this car park correctly and as such failed to comply with the British Parking Association Code of Practice Part 18 appendix B. Please refer to Exhibit xx-03. This sign displays the sign is impossible to read in its entirety. The signs are also so high that terms would only be legible if a driver got out of the car and climbed a stepladder to try to read them.

 

6.            A key factor in the leading authority from the Supreme Court, was that ParkingEye was 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 xx-4 in comparison to any alleged Claimant sign. In the alternative, if the Claimant alleges signage was present, I aver the signage fails to adhere to the standards laid out by The British Parking Association (BPA). The BPA Code of Practice says, “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand” It also states that “Signs play an important part in establishing a parking contract” with drivers.

 

Part 2

ParkingEye v Beavis

1.       In ParkingEye v Beavis, the Supreme Court accepted that ParkingEye’s £85 charge was not punitive; however, it was made clear that “the penalty rule is plainly engaged” in parking cases, which must be determined on the specific facts of each case. In Beavis, the charge met the test for commercial justification due to the particular circumstances, including the location and the presence of clear signage displaying the parking charge in the largest and most prominent text. That case, due to its unique facts—most notably the conspicuous yellow and black warning signs—set a high threshold, which the Claimant in this case has not met (Exhibit xx-4).

 

2.       In the absence of the Beavis ruling to support this claim, and with no alternative calculation of loss or damage presented, the claim must fail. As stated by the Supreme Court, deterrence may be considered penal where there is no legitimate interest in performance extending beyond compensation arising directly from the alleged breach.

 

3.       The purpose of such a charge cannot be to penalize a motorist, nor to impose hidden terms, unexpected or burdensome obligations, or any “concealed pitfalls or traps.” Furthermore, a firm cannot claim an unconscionable sum. In this instance, the Claimant has failed to meet these standards (See Exhibit xx-5 for relevant paragraphs of ParkingEye v Beavis).

 

4.       Unlike the facts of Beavis, this case differs in a critical way: whereas Mr. Beavis breached the parking terms, in this case, I had permission to stay longer, had exempted my vehicle and did not breach a 'relevant obligation or contract' (Schedule 4 prerequisite) therefore no charge can apply because the mistake or error was a breakdown in communication between this Claimant and their client. The circumstances did not arise due to any breach, negligent conduct nor mischief of the driver: there was an extended stay mechanism, and I used it correctly.

 

5.       I had explicit permission to remain for a longer period, my vehicle was exempt, and there was no breach of any "relevant obligation or contract" as required under Schedule 4. Therefore, no charge is enforceable in this instance.

 

Part 3

POFA and CRA breaches

 1.       Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').

 

 2.       Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

  

3.       Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

CPR 44.11 - further costs

4.   I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs, and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that the Claimants representative did not have reasonable cause to issue the PCN, as any signs displayed were not clear and all contradicted each other. Not only could this claim have been avoided and the Claimant has no cause of action, but it is also vexatious to pursue an inflated sum that includes more than double recovery.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

5.   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.

 

6.   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.'' 

 

Exhibit XX-01 – Attach letter and email proof of the Retailer letter

 

Exhibit XX-02

 

Exhibit xx-03

Attach photo of parking signs from car park

 

Exhibit xx-4

The ParkingEye Ltd v Beavis [2015] UKSC 67 – case sign in comparison to any alleged Claimant sign

Exhibit xx-5

The ParkingEye Ltd v Beavis [2015] UKSC 67 - Paragraphs 98, 193 and 198

98. Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those Page 42 services would not be available. These two objectives appear to us to be perfectly reasonable in themselves. Subject to the penalty rule and the Regulations, the imposition of a charge to deter overstayers is a reasonable mode of achieving them. Indeed, once it is resolved to allow up to two hours free parking, it is difficult to see how else those objectives could be achieved.

 

193. The penalty doctrine is therefore potentially applicable to the present scheme. It is necessary to identify the interests which it serves. They are in my view clear. Mr Beavis obtained an (admittedly revocable) permission to park and, importantly, agreement that if and so far as he took advantage of this it would be free of charge. ParkingEye was able to fulfil its role of providing a traffic management maximisation scheme for BAPF. The scheme met, so far as appears, BAPF’s aim of providing its retail park lessees with spaces in which their customers could park. All three conditions imposed were directed to this aim, and all were on their face reasonable. (The only comment that one might make, is that, although the signs made clear that it was a “Customer only car park”, the Parking Charge of £85 did not apply to this limitation, which might be important in central Chelmsford. The explanation is, no doubt, that, unlike a barrier operated scheme where exit can be made conditional upon showing or using a ticket or bill obtained from a local shop, a camera operated scheme allows no such control.) The scheme gave BAPF through ParkingEye’s weekly payments some income to cover the costs of providing and maintaining the car park. Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye’s costs of operation and gave their shareholders a healthy annual profit.

 

198. The £85 charge for overstaying is certainly set at a level which no ordinary customer (as opposed to someone deliberately overstaying for days) would wish to incur. It has to have, and is intended to have, a deterrent element, as Judge Moloney QC recognised in his careful judgment (para 7.14). Otherwise, a significant number of customers could all too easily decide to overstay, limiting the shopping possibilities of other customers. Turnover of customers is obviously important for a retail park. A scheme which imposed a much smaller charge for short overstaying or operated with fine gradations according to the period of overstay would be likely to be unenforceable and ineffective. It would also not be worth taking customers to Page 87 court for a few pounds. But the scheme is transparent, and the risk which the customer accepts is clear. The fact that, human nature being what it is, some customers under-estimate or over-look the time required or taken for shopping, a break or whatever else they may do, does not make the scheme excessive or unconscionable. The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit. Unless BAPF was itself prepared to pay ParkingEye, which would have meant, in effect, that it was subsidising customers to park on its own site, this was inevitable. If BAPF had attempted itself to operate such a scheme, one may speculate that the charge might even have had to be set at a higher level to cover its costs without profit, since ParkingEye is evidently a specialist in the area.

 

 

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.

 

 

SIGNATURE

 

1505grandad

FYI  -  PE are very clear about how important the signage should be - um - clear:-

https://www.parkingeye.co.uk/car-park-management/how-important-are-signs-for-car-park-management/

"Signs must be large enough, and easily understood"

"Our signage plans are always tailored to a given site, so each sign is designed by hand, and we take time to ensure that all signage accurately reflects the site’s parking terms and conditions."