Witness statement stage court 4th July HELP re: decision to appeal full/partial EURO Car parks fine

Bellatrix42

Latest draft WS- just a little unclear on the highlighted yellow bits?

Car1980

I'd stick in frustration of contract:

6. As a result of this professional, and moral,  obligation, I also submit that the contract was frustrated. A contract is frustrated when it becomes impossible to perform due to a “supervening event” – one that isn't the fault of any of the parties.

I'd also add a conclusion since this is such an absolutely appalling claim:

17. In conclusion, I would like to say that I am completely exasperated that this case has been brought. I told the claimant the circumstances, believing they had a genuine appeals process, but it is obviously not the case. I have suffered a barrage of threatening letter from debt collectors. I have had to spend a lot of time in obtaining advice and working on the paperwork and attending mediation in the middle of my working day. And all because a parking company maintains they have somehow suffered "damages" due to a nurse spending 12 minutes tending to a potential heart attack victim. This claim is the very definition of unreasonable.

Bellatrix42

Brilliant thanks @Car1980 and others. I will submit shortly. Wish me luck for 4th July! I will keep you posted.

Coupon-mad

Wait!

There is more. Stop!

Bellatrix42

Ok, I thought the deadline was 3.30pm? 

Coupon-mad

Bellatrix42 said:

Morning, I have been and taken photos. The signs are new as the prices have changed. I’m not sure if this matters but I do have a copy of the original sign which QDR sent me last week with the details of the landownersv that I have attached as the last photo. Interestingly from the ticket machine the signs are hidden (see pictures). The £100 does seem to appear in larger font but again I don’t know if this was the case when I park there over 3 years ago! 

OK that helps!

Do not use your photo of the new sign.

Use their photo from 2022 plus your three pics of the machines (add the metadata by doing a screenshot to add time/date).


Put this after your story re the lady:

ADD PARAGRAPH NUMBERS OF COURSE:


- my exhibit X (images of the P&D area) show that a single sign is hidden on a wall behind the pay point and there is no lighting on the wall nor arrows pointing to these terms and the £100 is illegible, and any possibility of adding and extra £70 and calling it all 'damages' is simply not on the contract (sign) in 2022.

- In any event the Claimants cannot use this exhibit because it did not accompany the detailed POC. They supplied it this week only.

- As was stated in the defence, Re: Contract - CPR PD16 7.3(1) when serving a separate PoC the full written terms of the contract are required to be appended. There is an exemption for MCOL claims, but that is expressly DISAPPLIED in CPR 7C when the PoC are served separately. I did not receive full terms of contract with the subsequent 'detailed PoC' and the first time I saw this signage picture was this past week.

- Further, and again as pointed out in defence, statutory interest is discretionary and the PoC do not set out full details of the calculation as required by CPR 16.4(2). It looks like they have calculated interest on £170 which was not even arguably the sum in contract (and certainly not in 'loss' as was pleaded). The claimant appears to contradict themselves in regard to whether the claim is for loss or damages.

- The court's attention is drawn to paragraphs 6 and 8 of the 'detailed POC' which oddly attempt to plead the sum as if it was a loss, which was not how the Supreme Court case of ParkingEye v Beavis was pleaded.

- Further and in the alternative, there's nothing to explain where that sign even is because it's plainly not at the P&D machine area. Their image shows the edge of a yellow sign on the left and a black/white sign on the right of the view which must mean it is on a long wall but that's not the case at the machines. My evidence shows there us a single sign there (not supplied in close up because the Claimants tariffs have changed and I don't wish to mislead the court).

- Even more damning, none of the three terms on the 2022 sign were breached. The sign only creates for a £100 PCN if there was a 'failure to display' not a failure to PAY (in full or otherwise). Therefore, the sign as drafted doesn't match the POC allegation and there is no evidence if a failure to DISPLAY. The contra proferentum rule applies (ref Consumer Rights Act 2015) and the term must be interpreted as best favours the consumer.

- Further and in the alternative, the Beavis case depended upon the clarity of the notices which their Lordships held were 'bound to be seen'. The signage at the car park was not compliant with the British Parking Association (BPA) standards and there was no valid contract known, let alone agreed. I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of terms and the risk of a quantified parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.
Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use and this car park fell short of the legal requirement for prominence, set in the Consumer Rights Act 2015.

- The Supreme Court considered the application of the rule against penalties in precisely this situation in the leading case of  ParkingEye Limited v Beavis ([2015] UKSC67):

The true test [of whether a term is a penalty] is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (per Lords Neuberger and Sumption at paragraph 32).

- The Supreme Court held that the £85 parking charge in Beavis was a secondary obligation that engaged the penalty rule but was saved by the special circumstance of the parking arrangements in that case.

[T]he £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 Parking Eye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. (Lord Neuberger and Lord Sumption at paragraph 98).

In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.

The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. (ibid at paragraph 99)

- Those purposes are not served by the secondary term in this case. The Claimant charges motorists for parking at this car park, from which it receives an income stream. There is no purpose of deterring motorists from occupying parking spaces for long periods.  On the contrary, the legitimate commercial interests of the operator are served by encouraging motorists to stay, and pay, for long periods. In short, the Beavis exception cannot apply to failure to pay the tariff in a pay-to-park car park and the secondary obligation in the present case is, therefore, a penalty and unenforceable.

Coupon-mad

Bellatrix42 said:

Ok, I thought the deadline was 3.30pm? 

Up to 4pm (unless your Court order says 3.30?).

You have time: It's just copy & paste and add para numbers.

Add my paragraphs!

Make sure the Beavis quotes are in italics and DO NOT supply your close up yellow sign image only theirs plus your three P&D machine images. Plus Jopson and your exhibit about being a nurse.

Coupon-mad

Don't show us another draft. No time.

Just add what I said above and sign & date it and save as a PDF, then get it emailed to the LOCAL court (not the CNBC ) and also cc in QDR.

Bellatrix42

Do I delete my paragraphs 8-13?

Coupon-mad

I don't even know what they are but I didn't tell you to delete anything.

Just get it done! No more drafts.

What I told you to add are words bringing in two or three potentially winning legal points (which mitigation is not).