Help with defence against bw legal/ countrywide parking management limited

stopthemadness23

Hello I've been reading and learning from this great forum and I think it's time for your great insight and knowledge, thanks in advance for any help.

Claim form 
Civil National Business Centre 
Issue date 04 Dec 2023
I sent my AOS on 14th Dec 2023.

Poc:
The claim is for £170 due from the defendant for an unpaid parking charge following a contractual breach which occurred on 12/1/23 in the private car park/ land at Little Subs xxxxx by the driver of xxxxx registration mark xxxxx.
The private land was lawfully occupied by the claimant. The displayed terms and conditions offered the driver a contractual licence, which were accepted upon entry by the driver, and subsequently breached.
Drivers breach: 
Failure to register vehicle. Despite demands, the parking charge remains unpaid. The £70 recovery costs set out in the terms and conditions and in the industry code of practice.

Amount claimed £170
Court fee £35
Legal representatives cost £50
Total amount £255.

I am just starting on my defence and will type where I am so far. 

2. I have copied and added and driver at bottom.

3. The defendant has been a frequent visitor and customer to Little Subs and its customer carpark for many years and parked in this carpark for over 8 years whenever they have visited the premises.
On the day of 12/1/23 the defendant parked and waited in the car for the premises, Little Subs, to open. Went in to enquire about booking a party, and drove away.
The defendant believes that the signage was inadequate and not sufficiently prominent either in the place where the car was pulling into the carpark ( entrance), where the car was parked or when walking into Little Subs.
Having parked properly in a bay, nothing was drawn to the defendants attention, thus there were no 'relevant obligations ' and no breach.
This honest belief is based on the fact that the Defendant knew nothing about any alleged contractual terms and conditions for users of Little Subs and the PCN invoice arriving out of the blue was a huge shock. The Claimant is put to strict proof of where the car was parked in relation to signs with conspicuous terms, which they must show were visible and bound to be seen on the material date.

Defence continues with 4,5,6 ect am I right to just copy? 

After getting the PCN and going back to the carpark to collect evidence back in April, I now have *proof of inadequate signage.
*Contradictory signage( signs saying free parking whilst in the premises)
*An email from the Little Subs owner/ owner of the car park not only stating I was a customer that day but that the registration vehicles screen was broken.
Bw legal have seen all of this in the letter of claim and are still pursuing.
*The owner has also tried to ring them to cancel the PCN but they won't speak to him about my case because of data protection even though I have sent emails to give my authority, they get bounced back.
*The owner has now stopped his contract with countrywide parking management limited as I have in writing too many customers were getting fined and he was sick of ringing them up and cancelling.
Are any of my points worth mentioning in the defence and how would I word it all without ranting which I feel I have in this post. Sorry about that.
I would really any help thankyou.

KeithP

Hello and welcome.

With a Claim Issue Date of 4th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 8th January 2024 to file your Defence.

That's almost three weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

Your defence is good.

This is worth mentioning:

The owner has now stopped his contract with Countrywide parking management limited as I have in writing too many customers were getting fined and he was sick of ringing them up and cancelling.

Le_Kirk

Coupon-mad said:

Your defence is good.

This is worth mentioning:

The owner has now stopped his contract with Countrywide parking management limited as the defendant has I have in writing too many customers were getting fined and he was sick of ringing them up and cancelling

See small change above.

stopthemadness23

Thankyou I will add that to the defence.

At which stage would I attach any pictures taken of poor signage? Would this be with the defence or later on?

And what about the condradictive signage? I Feel if a judge were to see these pictures, countrywide parking wouldnt have a leg to stand on, however ive never been in this situation before and may be biased to my own situation.
I have looked into it and they have broke their own IPC code of practice schedule 1, (signage must not contradict the terms and conditions applicable to motorists or be misleading). 
The misleading signs:
There were a couple of signs stating "strictly customers only"
And a couple of signs stating " free parking whilst in the premises".

Thanks again, just trying to get as much info before Christmas with the family then planning to type everything up in the new year.

Coupon-mad

The NEWBIES thread explains what happens when. Photos go at Witness statement and evidence bundle stage, months later.

stopthemadness23

Thanks for all your help so far.
I am now putting together my witness statement and all other evidence. 
I now have a court date by telephone which is not what I hope for.

Matt138

stopthemadness23 said:

. 
I now have a court date by telephone which is not what I hope for.

I don't know your circumstances, but if you believe that a telephone hearing might impact you negatively due to a vulnerability (age, trauma, disability etc) or even a limited access to a telephone, you could attempt to contact the Court and ask for them to consider hearing it in person.

Final say is with the Court but you don't lose anything by trying. 

Coupon-mad

stopthemadness23 said:

Thanks for all your help so far.
I am now putting together my witness statement and all other evidence. 
I now have a court date by telephone which is not what I hope for.

Show us your draft WS & evidence first.

stopthemadness23

Thank you Matt 138 and Coupon-mad
This is how its going so far, I'll carry on tomorrow but the dealine ( 29th) is fast approaching would appreciate your thoughts so far.

Claim no…
hearing date…
In the county court of ….
claimant v defendant

index 
witness statement (..)
exhibit1 entrance upon arrival.
exhibit 2 google street view 2022.
exhibit 3 Little Subs clamping sign.
exhibit 4 free parking whilst in the premises sign.
exhibit 5 countrywide parking management limited sign.
exhibit 6 small illegible sign in comparison.
exhibit 7 appeal denial.
exhibit 8 email from landowner stating kiosk broken.
exhibit 9 company house proof of landowner.
exhibit 10 my email sent to claimant and bw legal giving landowner permission to speak about PCN.
exhibit 11  confirmation email received from claimant.
exhibit 12 bw legal letter.
exhibit 13 IPC code of conduct version 8.
exhibit 14 Excel v Wilkinson, County Court Bradford, Judge Jackson.
exhibit 15 Beavis sign.
exhibit 16 paras from Parking eye v Beavis.


Witness Statement of Defendant 

1. I am xxx 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 1-16 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 : 

Facts and Sequence of events.

3. Date and Time of the incident- Thursday 12th January at approximately 9:45 am. 

On the date of the alleged parking event, I parked in Little Subs car park located at xxxx.
The purpose of my brief visit was solely to enquire about booking a party in Little Subs for my daughter’s birthday which was on the 27th of January. When parked I realised it wasn’t open until 10am so I waited in my car until open, went in to enquire about the party, then left.

Upon Arrival.

4. As I approached the Little Subs car park, as I have many times previously, there were no entrance signs. There were also no prominent signs in the car park making motorists aware of any contractual terms and conditions. ( see exhibit 1).
The car park and upon arrival to the car park looked the same as the past eight years of visiting. My pictures taken in April 2023 prove minimal changes to the car park were made when compared to google street view 2022. Please note the google street view picture was before the claimant operated the car park and my photos were taken while the claimant operated the car park. Please also note the similarities and no new prominent signage. The only noticeable difference being the new yellow bollards which does not make a motorist aware of any terms and conditions, (exhibit 2).

Sorry bold print can’t be removed from this point.


Insufficient and Ambiguous Signage.

5. After receiving the PCN, which was a huge shock, I went back to the car park to gather evidence. There were three different types of misleading signs present in the car park. The first type and most noticeable features the statement “Little subs- play and bounce- strictly customer parking only- clamping in operation”.Notably, this sign does not display any specific parking conditions other than a warning ‘clamping in operation’. (Exhibit 3).
The second type features the statement “Warning, Private land, ANPR Ltd monitors all vehicles, FREE PARKING WHILST IN PREMISES”. Notably, this sign suggests you can park here on condition that you are a customer inside the premises. (Exhibit 4).
The third type, which appears to be associated with Countrywide parking management limited, is unfortunately small, illegible and certainly unreadable from within a car and could barely be found when going back to the car park on a later date to gather evidence. (Exhibit 5).
There is no clarity regarding which sign should take precedence. It is particularly problematic when two types of signs contradict each others conditions, such as one referring to ‘free parking whilst in premises’ and the other in much smaller unclear writing ‘all vehicles must have an active whitelist session by entering their VRM into the kiosk located within the reception’.
The signs also mislead and confuse motorists further in terms of potential penalties, one a parking charge and the other hinting at the possibility of clamping, which is notably inconsistent with the Protections of Freedom Act 2012, a legal framework where clamping has been unequivocally deemed illegal.

Illegible/Unclear Signage.

6. There is no signage that you are entering or exiting a parking area, no prominent signage containing terms and conditions and when looking head on, as if entering the car park in a vehicle, the fare more illegible sign is the blue “Little subs” sign. When comparing this to the sign with small print terms and conditions, the contrast in readability is quite clear. (Exhibit 6).

Particular of Claim- failure to register vehicle.

7. As I stated, the failure of sufficient and prominent signage resulted in myself, the motorist, unaware of any terms and conditions. Countywide Parking Management Limited Appeals Department stated, ‘ The terms and conditions of parking at Little subs have been “exceptionally well advertised” and are brought to the attention of the motorist by way of signage erected around the car park. The signage informs motorists of the terms and conditions of parking within Little subs which includes entering your full and correct VRM into the kiosk located within reception.’(exhibit 7).

8. After receiving the PCN and my appeal being unsuccessful I contacted the owner of Little Subs Mr Taufiq Bhana. The land owner Mr Bhana tried to cancel the PCN by contacting BW Legal for me on many occasions to tell them I was a customer and that the screen was not working at reception on the date and time of the contravention. (Exhibit 8) and (exhibit 9).

9. Please note BW Legal would not speak to Mr Bhana/ landowner because of Data Protection even after I sent them an email authorising them to speak to Mr Bhana/ land owner. (Exhibit 10) and (exhibit 11).

10. The Claimant states in a letter (exhibit 12) ‘ checks carried out, show other users of the car park were able to enter their registration into the kiosk during the time the vehicle was parked in the car park’. Please note the claimant has never proven this statement to be true. Little subs were not open until 10am. The claimant is put to strict proof that the registration kiosk was in working order between 10:00am and 10:06 am, the time in which I would have been able to provide my VRM in the kiosk when open, had I have been made aware at the time about any terms and conditions.

Claimants failure to follow International Parking Community (IPC) code of practice.

11. The claimant states at the time of the contravention they were a member of the IPC and as an established member of the IPC they had to adhere to the IPCs code of practice. They go on to say ‘ this code gives recommendations in regards to the signage and that the signs within the car park “fully comply” with recommendations outlined in the code.( exhibit 12 also).
It is my understanding from the evidence provided in this case that the claimant failed to comply with the following codes of practice;

Under schedule 1

Signage

Where a car park has a defined entrance, operators should display entrance signs. Entrance signs should-
a) make it clear that the motorist is entering onto private land.
b) refer the motorist to the signs within the car park which display the full terms and conditions.
signs should where, practicable, be placed at the entrance to a car park, otherwise the signage within the car park must be obvious to the motorist 

Additional Signage

Signage which is neither an entrance sign or a sign displaying all the terms and conditions must not contradict the terms applicable to motorists or be misleading.

Changes in Operators terms and conditions 

Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the car park and which materially affects the motorist, the operator should place additional (temporary) notices at the entrance making it clear that new terms and conditions/ charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. Notices should be in addition to the signage ordinarily required and left in place for an appropriate time. (Exhibit 13).

12. I believe it is quite clear;
(i) there were no entrance signs.
(ii) there were no prominent signs making it obvious to the motorist they were entering private land or that there were terms and conditions when entering and parking on the land.
(iii) the three different types of signage with ambiguous language in the car park contradicted not only the terms and conditions but potential penalties further misleading motorists.
(iiii) As a regular visitor to the car park, familiar with the old terms, I did inadvertently incur a parking charge. It was not immediately apparent ( or days later apparent when the PCN arrived) there were new terms, as the operator failed to place additional notices at the entrance to make it clear. 

It is my understanding that failure to comply with the IPC code of practice can result in the loss of membership, resulting in loss of privileges such as being able to carry out DVLA checks and being able to issue PCNs.
It is also my understanding that the claimants contract to operate this carpark has now been terminated as ‘so many customers were getting PCNs’. Which begs the question, why so many customers were getting PCNs if the ‘terms and conditions were exceptionally well advertised’?

I then go onto 

Exaggerated claim and ‘market failure’ currently examined by the government 

13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.

CRA Breaches

25.
26.
27.
28.
(exhibit 14)

The Beavis case is against this claim

29.
(exhibit 15)
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(Exhibit 16)

31. In the present case, the claimant has fallen foul of these tests. There are two main issues that render this parking charge to be purely penal ( ie no legitimate interest saves it) and thus, it is unenforceable;

(I) Concealed pitfall or trap.

Coupon-mad

Several paragraphs are not numbered.  They all need a paragraph number.

And this needs a year added:

3. Date and Time of the incident- Thursday 12th January at approximately 9:45 am. 

Make sure your photos have the date/time metadata showing.