Claim for DBL (UKPC) for parking in unmarked bays

Coupon-mad

Remove stuff that repeats what's already in the Template defence, if you used it. Don't repeat whole swathes of blurb about the DLUHC.

LunaraEcho86

Coupon-mad said:

Remove stuff that repeats what's already in the Template defence, if you used it. Don't repeat whole swathes of blurb about the DLUHC.

I updated the WS with your comments @Coupon-mad In terms of removing the stuff that are already in the defence - would that include the paragraphs 5-8? the defence mentioned that the Jopson v Homeguard will be referred to in the WS so I thought that this would need to be built into the WS? thanks again for any help on this

TABLE OF CONTENTS

 

WITNESS STATEMENT OF DEFENDANT ..............................................................................2

Exhibit 01: Excerpt from Jopson v Homeguard Judgment (paras 19-21) ……………………..…….6

Exhibit 02: Bay in Question ...............................................................................................8

Exhibit 03: Entrance Signage………………............................................................................9

Exhibit 04: Signage with Terms and Conditions……………………………..................................10

Exhibit 05: Signage seen in ParkingEye v Beavis.................................................................11

Exhibit 06: Excel v Wilkinson Judgment .............................................................................12

Exhibit 07: Excerpt from ParkingEye Ltd. v Beavis (paras 98, 193, 198) .................................21

 

 

 

WITNESS STATEMENT OF DEFENDANT

 

1.      I, [NAME], of [Address], 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 on my

own knowledge.

2.      In my Statement I shall refer to Exhibits 01-07 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 Incidents: It is admitted that on 25/11/23, 09/12/23 and 16/12/23 I was the registered keeper of the vehicle XXXXX, and I was driving on these occasions.

4.      Parking Notice: The Claimant pursues a claim for vehicle not parked correctly within the markings of the bay or space on two occasions and vehicle parked on yellow lines on one occasion. I do recognise the location of the alleged parking violations as a car park of Stoneham Lane Football Complex. On both occasions when I stopped the vehicle in the alleged unmarked bay, I did so in good faith, believing that the space was legitimate parking area. The bay in question did not have clear or distinguishable markings indicating that it was not a designated parking spot. The absence of clear lines or signs led me to reasonably assume the space was available for parking. The bay in question did not have sufficient markings or visual indicators to indicate that it was unmarked or not compliant (See Exhibit 02), the markings must be easily recognisable and visible to any reasonable person. I submit that the lack of clarity in the markings could have led to confusion, which is why I stopped my vehicle there without any intention to violate parking rules.

5.      On the occasion when I stopped my vehicle on the yellow lines, I did so in order to set down and safely escort my child and carry his football kit to the safe place with other adults at the football field. I draw to the attention of the Judge a persuasive Appeal judgment which called into question the definition of “parking”. In Jopson v Homeguard [2016] (Ref. B9GF0A9E), paras 19-21, HHJ Harris points out that “The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it [...]. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars”.

6.      Parliament agrees. The Claimant has ignored the Parking (Code of Practice) Act 2019 first published in February 2022, due to be finalised after a Judicial Review delay engineered by the parking industry, who did not object to the following clause which remains unchanged:

7.      The definition of a “parking period” specifically excludes dropping off/picking up passengers. Clause 2.24 defines a parking period as: "the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). This is not the period between a vehicle being recorded as entering and departing controlled land."

8.      Inadequate signage: I have observed poor signage regarding parking regulations. The signage present at the car park was positioned too high and the text is too small and cannot be easily read from inside a moving vehicle (see Exhibit 03-04) . Signs that set out parking restrictions must be placed in a location that is clearly visible to motorists at a reasonable height and angle. In this instance, the height of the signage made it difficult – if not impossible – to read without exiting the vehicle. This creates an unfair situation where a motorist is expected to comply with rules that they may not have had a reasonable opportunity to read. Similar cases have previously been dismissed where inadequate signage was a key issue, as clear, well-positioned signage is essential for enforceability. This is highly visible, clear and legible signs seen in ParkingEye v Beavis [2015] UKSC67 (“the Beavis case”). (See Exhibit 05)

 CRA breaches

 9.      Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms

Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which

introduced new requirements for “prominence” of both contract terms and “consumer

notices”. In a parking context, this includes a test of fairness and clarity of signage,

and all notices, letters and other communications intended to be read by the consumer.

10.  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. Signage must be prominent, plentiful, well-

placed (and lit in hours of dusk/darkness) and all terms must be unambiguous and contractual obligations clear.

11.  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/open dealing and good faith (NB: this does not necessarily mean that there has

to be a finding of bad faith).

12.  Now for the first time, the DLUHC’s draft IA exposes that the template “debt chaser”

stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v

Wilkinson. (See Exhibit 06)

 The Beavis case is against this Claim

 

13.  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 charges in the

largest/boldest text. Rather than causing other parking charges to be automatically

justified, that case, particularly the brief, conspicuous yellow and black warning signs

– (See Exhibit 05) – set a high bar that this Claimant has failed to reach.

14.  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. The intention cannot be to

punish a driver, nor to present them with hidden terms, unexpected/cumbersome

obligations not “concealed pitfalls or traps”. (See Exhibit 07 for paragraphs from the

Beavis case.)

15.  In the present case, the Claimant has fallen foul of these tests. There is one main issue

that renders this parking charge to be purely penal (i.e. no legitimate interest saves it)

and thus, it is unenforceable:

i)             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 Government bans it. The driver

thus has no idea about any risk, nor even how much may be added on top.

Court of Appeal authorities which are on all fours with a case involving a lack

of “adequate notice” of a charge include:

ii)            Spurling v Bradshaw [1956] 1 WLR 461 (“red hand rule”) and

iii)           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

iv)           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”.

 

Alternative Dispute Resolution (“ADR”)

 

16.  The Claimant asserts that I was unwilling to mediate and, therefore, it is unreasonable for me to suggest that they failed to offer Alternative Dispute resolution (“ADR”). I refute this claim and provide the following response:      

i)                    Contrary to Claimant’s assertion, I attended the mediation session as arranged by the court. I fully engaged in the process in good faith and was willing to explore a fair resolution.

ii)                   During the mediation, the Claimant put forward an offer that I considered unreasonable based on the circumstances of the case, including:

a.      The lack of adequate signage within the parking area.

b.      The unclear nature of the allegedly unmarked bay, making it unreasonable to expect a motorist to recognize it as a non-parking space.

c.      The presence of yellow lines on private land without proper reinforcement through signage, creating ambiguity about enforceability.

iii)                 Mediation is a process that aims to reach fair and reasonable compromise. However, I am under no obligation to accept an offer that is excessive or unjustified, particularly when the parking charges themselves are disputed on legitimate grounds

 

Conclusion

 

17.  In conclusion, the Claimant has failed to provide clear evidence that a contract was

formed, nor has it shown that the parking charge notices were validly issued. The lack

of adequate signage and the unlawful nature of the additional charges further

invalidate the Claim. The Claimant’s attempt to impose liability for these inflated

charges is unsupported by both statutory law and leading case precedents. I ask the

court to dismiss the Claim and award appropriate costs for the time and effort

expended in defending against these unjust claims.

18.  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)).”

 

 

Costs Assessment

 

Given the significant time and effort required to defend against this unjust claim, I

respectfully request that the court consider awarding costs under CPR 27.14(2)(g). I have

spent considerable time researching, preparing this Statement, and attending the hearing. My

estimated costs for this are as follows:

- Research and preparation of Defence and Witness Statement (8 hours): £80

- Travel expenses (return journey to hearing, 32 miles @ 45p/mile): £14.4

- Time away from work (7.5 hours @ £23.5/hour): £176.25

 

Totalling £270.65

 

I request that the court considers these costs in its Judgment, given the Claimant’s

unreasonable behaviour in pursuing this meritless Claim.

 

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.

 

Defendant’s Signature:

 

Date:

LunaraEcho86

is there anything else that could be added to the above WS - it looks quite a bit shorter than the other WS on the forum...or does that not really matter? the deadline for submission is tomorrow so any input will be appreciated. thank you in advance

Coupon-mad

LunaraEcho86

Were there any windscreen PCNs?

Yes for all three?

Or did you suddenly learn about it in the December with three NTKs issued later by post?

This matters and might give you another point to add because those dates are only right if there were three windscreen PCNs. You can tell from their evidence photos. So were there 3 windscreen PCNs to alert you to the issue immediately, on the spot on day one?

Your WS is long enough!

Many of them are far too long these days. It is correct to avoid defence regurgitation. Your WS should be (and is) mainly about the lack of signs & lines and the fact that DCB Legal has added £70 x 3 even though that wasn't specified in 'big' (nor quantified) on the signs and no damages arose. 

I'd suggest changing 3, 4, 5 & 6 to this (below) but keep your other paragraphs too, so that your draft para 5 onwards become para 7 onwards:

3. It is admitted that on the material dates of parking I was the registered keeper of the vehicle XXXXX, and I was driving on these occasions. IF THERE WERE NO WINDSCREEN PCNs, THEN STATE THAT YOU DENY THAT ANY PCNs WERE 'ISSUED ON' THE DATES IN THE POC.  A DELIBERATE FAILURE TO FAIRLY AFFIX A PCN THEN AND THERE 'ON THE SPOT' ON DAY ONE, UNFAIRLY CAUSED THE SECOND AND THIRD INCIDENTS BECAUSE THERE WAS NO TIMELY CONSUMER NOTICE AFFIXED TO THE CAR TO ALERT DRIVERS. THIS BREACHES THE CONSUMER RIGHTS ACT 2015 REQUIREMENT FOR TIMELY AND PROMINENT CONSUMER NOTICES (IN THIS CASE A WINDSCREEN PCN - OR EVEN BETTER, A WARNING NOTICE - AFFIXED TO THE WINDSCREEN ON DAY ONE WOULD HAVE BEEN A SUFFICIENT ALERT. THIS DID NOT HAPPEN.

REMOVE THE FIRST SENTENCE YOU HAD IN YOUR PARA 3 AND YOUR PARA 4:

4. I do recognise the location of the alleged parking violations as a car park of Stoneham Lane Football Complex. On both occasions when I stopped the vehicle in the alleged unmarked bay, I did so in good faith, believing that the space was a legitimate parking area. The bay in question did not have clear or distinguishable markings indicating that it was not a designated parking spot. The absence of clear lines or signs led me to reasonably conclude that the space was available for parking. The space was a wide tarmacked area within unmarked kerbs on three sides, right next to, and in line with, other bays. It did not have any markings or visual indicators to indicate that parking was not on offer (See Exhibit 02).

5. Just like 'PCNs', signs and surface markings are all 'consumer notices' as defined in the Consumer Rights Act 2015 ('the CRA') and they must pass the legal test of prominence. A consumer must not have to 'go looking' for terms, nor can a driver be expected to guess that one particular unmarked space -  set in an (unsigned) slightly set back corner but in line with other bays where cars were all parked in a row - is somehow out of bounds. Lines and signs (and terms) must be easily recognisable and visible to any reasonable person. I submit that the lack of clarity about any parking rules in this wide 'car sized' space beside some bins led to the confusion. I interpreted the lack of signs/lines as an invitation to park or stop to drop off my son.  The space was ambiguous at best and as such, under the CRA consumer protection 'contra proferentem' law doctrine about 'ambiguous terms and consumer notices', the meaning MUST be interpreted in the way which most favours the consumer.

6. Further, the generic allegation in the POC is "not parked correctly within the markings of the bay or space" which makes no sense for two instances of parking in a bay with no such markings and one instance of temporarily stopping on yellow lines for the legally 'exempt' activity (per the real meaning of double yellow lines on-street) of setting down and briefly escorting a child passenger safely to the care of another adult on site. In all three instances, there were no lines to park 'correctly within' so the allegation is denied and it is void for impossibility.

LunaraEcho86

Many thanks. No there were no windscreen PCN' just letters sent some few weeks after the events. For at least one of them we didn't even receive the first letter

Coupon-mad

LunaraEcho86 said:

Many thanks. No there were no windscreen PCN' just letters sent some few weeks after the events. For at least one of them we didn't even receive the first letter

Say that in para 3 then. It's important.

LunaraEcho86

So the OH attended the hearing today. The judge had his mind made up from the beginning it seemed. He said that he saw this kind of defence statement format "a 1000s of times this year already". He was familiar with complex where my OH was parked and rejected the signs being unclear claim. He rejected the two PCNs for parking in unmarked bay but awarded the one for stopping on yellow lines. He said this whole situation could have been avoided if he appealed. He also said that the parking companies are getting more persistent in taking people to court. OH also spoked to the other side lawyer after the hearing and the guy was actually nice and said that the parking companies are now taking everyone to court even though it costs them 4 times more than what would they get if they won. So sadly have to pay £352 within 2 weeks...

Coupon-mad

What an awful Judge. Totally wrong; dropping off a passenger isn't parking, and in particular: one PCN isn't £352.

fisherjim

What rubbish, if the signs were "clear" why did UKPC need to include an office master copy in their evidence pack for more clarity!

LunaraEcho86

Yes the £352 includes all the fees as well so overall would have been cheaper to pay the 3 tickets....My OH tried to explain that he stopped on yellow to escort our son to the pitch due to safeguarding where a QR code is needed to sign in a player but the judge just dismissed it and said he should have appealed earlier...