Help with defence against bw legal/ countrywide parking management limited

stopthemadness23

Thanks I will make sure to add the year and number every paragraph.

I don't have a computer and have been working from my phone and the kids Ipads. How would I be able to add metadata from a photo taken from my phone? Am I right in thinking I send the whole photo files over to computer? I'm not good with computers sadly.

I'm going to my Sisters today to get it typed up on her laptop so will share the rest later on and won't submit until perfect.

Thanks again wish me luck 🙏 

stopthemadness23

I am also still not sure about my costs. 
With the witness statement taking my full attention I have not had much time to search for this. If you could point me in the right direction it would be much appreciated.
I am a mum of three, I only work 6 hours a week but feel this has taken over my life and have spent many hours researching, writing, and rewriting. 
It has been such a stressful time but I am determined to fight this.

1505grandad

A heads-up  -  para 31  - "There are two main issues ....."  -  but only mention one?

Coupon-mad

stopthemadness23 said:

Thanks I will make sure to add the year and number every paragraph.

I don't have a computer and have been working from my phone and the kids Ipads. How would I be able to add metadata from a photo taken from my phone?  

Screenshot the photo on the phone... magic!

stopthemadness23

following on from first part of witness statement uploaded couple of days ago.....

 

 

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

(i). Concealed Pitfall or Trap 

With a mixture of lack of entrance signs, lack of prominent signage in the carpark containing Terms & Conditions and other misleading signs, the claimant placed the defendant in a trap.  How can the driver accept a contractual license when the Terms & Conditions were never offered.  I also wish to highlight the presence of a sign in the parking area that mentioned clamping.  The use of clamping as a penalty for parking violations was made illegal under the Protection of Freedom Act 2012.  The inclusion of such outdated language on parking sign raises questions about the relevance and validity of the signage in the parking area.  This sign which suggested ‘clamping in operation,’ directly contradicts current parking regulations and creates further confusion regarding the penalties associated with parking violations.  It is reasonable to assume that the parking operators responsible for the signage failed to update their notices to reflect the changes in the law.  Given this discrepancy and the fact that clamping is no longer a legally permissible penalty, it further underscores the uncertainty surrounding the parking terms at the location in question.  I believe this is another critical factor that should be considered by the court when evaluating the legitimacy of this case. 

(ii). Hidden Terms: 

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence. The purported added (false) 'costs' are even more hidden and are also unspecified as a sum. Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top. None of this was agreed by me, let alone known or even seen as I attempted to gain entry to the store. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include: 

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

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and 

(iii) 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, due to "the absence of any notice on the wall opposite the parking space". 

 

Defence 

 

32. I had parked in the Little Subs customer car park like many times previously.  I went in to enquire about a party then left.  The entrance to the car park had no signs.  There were no prominent signs with new Terms & Conditions.  As a regular customer for 8 years the car park looked the same as all previous years (with some extra bollards in exception).  After going back to the car park after receiving the PCN it was found to have three contradictive signs, the most small and illegible one being Countrywide Parking Management Limited sign.  This contained the minuscule Terms & Conditions which were illegible when entering in a vehicle and then walking to the premises.  Please note the largest sign visible on approach read – ‘Little Subs – Play and bounce – Strictly Customers Only – Clamping in Operation’.  The far more prominent sign (compared to Countrywides sign) did not have any Terms & Conditions and contradicted the other sign with threat of clamping, not a parking charge, which was made illegal under the Protection of Freedoms Act.   

 

33. Another sign in the car park states ‘free parking whilst in premises’ this contradicts the claimants Terms & Conditions and undermines their whole claim.   

 

34. The claimant is still yet to prove the kiosk at reception was still working at the time I could have registered (10am) had I been made aware at the time of any Terms & Conditions, as the Landowner states it wasn’t working. 

 

35. The claimant's ignorance to emails sent from me allowing the landowner permission to speak and cancel the PCN and their disregard to comply with their own minimal self-serving IPC Code of Practise shows the true character of Countrywide Parking Management Limited and their unwillingness to settle this claim before court proceedings.  

 

36.  Therefore, I maintain that no contractual agreement existed between myself and Countrywide Parking Management Limited and the claimant will concede that no financial loss has arisen.  The charge imposed in all circumstances is a penalty (not saved by the Parking Eye v Beavis case, which is fully distinguished).  In addition to the fact that the sum claimed under purported ‘contract’ is disproportionately exaggerated, additionally the interest appears to be mis calculated on the whole enhanced sum from day one as if £160 or £170 was ‘overdue’ on the day of parking. 

 

Conclusion 

 

37. 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. 

38. There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case. 

39. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale. 

40.  In the matter of costs, the Defendant asks: 

a) Standard witness costs for attendance at court, pursuant to CPR 27.14 and  

b) For finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5  

41. Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))." 

 

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;

Date: 24th May 2024 

 

 

Exhibits 1, 2 and 3 (Entrance and upon arrival)

 

 

 

 

 

 

 

 

 

Exhibit 4 (google street view 2022) 

 

 

Exhibit 5 (Little Subs clamping sign) 

 
 

 

Exhibit 6 (free parking whilst in the premises sign) 

 
 

 

Exhibit 7 (countrywide parking management limited sign) 
 

 

Exhibit 8 (small illegible sign in comparison) 
 

 

Exhibit 9 (appeal denial) 

 

 

Exhibit 10 (email from landowner stating kiosk broken) 

 
 

 

Exhibit 11 (company house proof of landowner) 

 
 

 

Exhibit 12 (my email sent to claimant and bw legal giving landowner permission to speak about PCN) 

 
 

Exhibit 13 (confirmation email received from claimant) 

 
 

 

Exhibit 14 (BW legal letter) 

 
 

 

Exhibit 15 (IPC code of conduct version 8) 

 

 

 

 

Exhibit 16 (Excel v Wilkinson) 

 

 

Exhibit 17 (Beavis sign) 
 

 

Exhibit 18 – ParkingEye Limited v Beavis – Paragraphs 98, 193 and 198. 

 

98. Against the background, it can be seen 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 43 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 overstays 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 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 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 Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye’s costs of the operation and gave the shareholders a healthy annual profit. 

 

198. The £85 charge for overstaying is certainly set at a level which no ordinary customer (as 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 (par 7.14). Otherwise, a significant number of customers could all to easily decide to overstay, limiting the shopping possibilities of other customers. Turnover of customers 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 88 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 a higher level to cover its costs without a profit, since ParkingEye is evidently a specialist in the area.   

 

stopthemadness23

Exhibits 1,2 and 3

stopthemadness23

Exhibit 4 

stopthemadness23

Exhibit 5 

Coupon-mad

Good evidence photos.

stopthemadness23

Exhibit 6 i am sorry im struggling to upload the pictures