Witness Statement for Overstay - Bad Signage

rainymarkettown

Hi Everyone

I’ve been reading the threads following the really helpful advice to challenge a Parking Invoice and claim from UKPC (with extended harassment and threats from DCB Legal) which has been ongoing since Spring 2019.

I’ve not asked for help before however I have now have been given a court date (see attached doc) and need to submit a witness statement in the next 10 days and am looking for some guidance as I want to make sure I submit a solid witness statement even if it seems likley UKPC/DCB would withdraw. (NB - I never got copy of a ‘Small Claims order dated XXX’ as mentioned in the attached doc)

My hearing is scheduled for February 6th, and I need to submit the witness statement by December 13th while the claimant has to pay the trial fee by January 9th.

I overstayed the allowed time and received an invoice. My main argument is that the parking conditions had changed, and the signage was inadequate.

The car park is some distance from my home, and I only visit it infrequently. The length of stay permitted had been reduced from 5 hours to 2 hours and ANPR had been introduced. Apparently, this reduction was to stop people using the car park when visiting a nearby sports ground and leaving their cars there all day.

While shopping I moved my car three times around the car park and had set off to leave when my daughter asked to stop to visit the recently opened Subway concession, and this is how I came to overstay.

I have receipts from the shops proving I was shopping there. I revisited, took photos showing the signage and the managers of two of the stores showed sympathy and told me that since the wardens had been replaced by ANPR their workers were constantly getting parking invoices and that the 2-hour limit had reduced custom but they couldn’t help me challenge it or offer advice. I now know I should have contacted the landowner at the time, but I didn’t find your advice until later.

My argument is -

The ANPR system only registered my arrival and departure times not my actual parking time which was quite a bit less.

The signage is inadequate, text very small, length of stay hard to see, even when directly in front of sign. I have numerous photos showing this.

At the time I visited the signage showing duration at entrance was damaged and not visible (dropped to bottom of pole).

Two hours parking is inadequate for a retail park with 6 large stores and two food outlets – the store managers complained about this, and the length of stay has subsequently been increased to 3 hours as a result.

I’ve read the advice in the NEWBIES thread (WITNESS STATEMENT - EASY STAGE - YOUR 'STORY' & EVIDENCE) and wondered if you had any suggestions of how to write and structure my WS for bad signage and overstay along with any suggestions of recent cases to quote. Any help would be really appreciated.

Also I’m assuming I should have had a ‘Small Claims order dated XXX’ – this never arrived??

Thanks

Nellymoser

You should phone the court tell them you didn't receive the Claim Letter ask them to email you a copy and ensure they have your correct address for service.
There's usually steps to complete before your witness statement, have any of these been done? 

1505grandad

As above.

"I’ve not asked for help before however I have now have been given a court date...."  did you use the Template Defence?  -  if so please post the paras you have written/amended (not the whole Template).

Also post a copy of the PoC (VRM redacted) from the claim form.

rainymarkettown

Thnaks for your responses - 1505grandad - yes I used the Template defence - here's a redacted version of the paras I changed with headers for the others I included.

3 – DEFENCE

3.1 PARKING DURATION NOT PROVEN

The PCN was originally issued due to an alleged overstay of XX minutes.  It is denied that the vehicle was in fact 'Parked for Longer Than the Maximum Period Permitted'. The claimant has not provided any evidence to demonstrate what the actual parking period actually was. On the balance of probabilities, the actual 'parking period' was considerably less than that suggested by the claimant.  

According to the British Parking Association (BPA) Code of Practice (2020) consideration should be given for the time taken to park which is not the same as the time between entry and exit:

’13.1 The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before a driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes.’

‘13.3 Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.’

Kelvin Reynolds, Head of Public Affairs and Policy at the BPA  has also stated that ‘No time limit is specified. This is because it might take one person 5 minutes, but another person 10 minutes depending on various factors, not limited to disability.’ The retail park in question is large at the time included 8 retail outlets would suggest more than the minimum suggested grace periods.

The Parking period is measured by the claimant on the basis of ANPR data which only measures the time of entry and exit from car park. This is NOT an accurate measure of the actual parking time. On the day concerned the car park was busy and it took the defendant time to find a space. EXPLANATION OF TIME SPENT ON SITE MOVING CAR FROM ONE AREA TO ANOTHER TO LOAD AND VISIT FOOD OUTLET.

As can be seen, on probability, the period of parking (car stationary and occupying a parking space) would be considerably shorter than the time between entry and exit and as such the defendant cannot conclusively be shown to have exceed the parking time allowed.

The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a Private Parking Code of Practice (currently blocked due to objections about an unrelated clause -  but being reintroduced this year).  That statutory Code stated in the definitions in point 2.24: "parking period : - 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. [...] This is not the period between a vehicle being recorded as entering and departing controlled land."

3.2 SIGNAGE INADEQUATE

The claimant has stated in correspondence with the defendant that this parking charge was “correctly issued because there are sufficient signs at XXXX Retail Park advising drivers that a maximum stay of 2 hours applies”. The claimant’s position is that there is an agreement by contract established by the bringing of the car onto land where signs are sufficiently displayed and that this amounts to conduct accepting those terms and conditions. However the signage present at the time of the visit concerned in this case failed to adequately display the duration of parking available, the parking charge and the other terms and conditions in a prominent, clear and legible manner clearly visible from all parking spaces.

The defendant was an occasional user of the car park at XXXX Retail Park and had not visited for some time. The duration of stay had been reduced from 5 hours to 2 hours since the defendant’s last visit apparently to prevent the Car Park being used by visitors to the nearby football ground on match days. Adequate signage was not present to clearly indicate either this change in duration nor the new terms and conditions nor the parking charge relating to the use of the car park.

The Protection of Freedoms Act (POFA) 2012 requires that the driver is given 'adequate notice' of the charge. Which it defines 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''.

The signage at XXX Retail Park was NOT sufficient to bring the terms to the attention of the motorist. Thus, there was no contract nor agreement on the parking duration, penalty charge or terms. It is submitted that the driver did not have a fair opportunity to read about any terms involving the large penalty charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' (2015) UKSC 67 case. The justification of the decision in this case for their private PCN of £85 was based on prominent and clear signage with the parking charge itself in the largest/ boldest text. The Supreme Court were keen to point out the decision related to that car park and those facts only: XXXX

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

XXXX Retail Park does not demonstrate an example of the 'large lettering' and 'prominent signage' similar to that which impressed the Supreme Court Judges in the Beavis case.  Signs providing terms and conditions (including duration and parking charge) were placed at height on walls and poles in only limited locations around a car park of considerable size. Text is reproduced in a small typeface, crowded closely together with little spacing, positioned high on a wall or pole where the angle of view renders the wording mostly illegible even from close by let alone from within a car in a parking space. Placement of small letters too close together can drastically reduce the legibility of a sign, problematic for one which must be read BEFORE the action of parking and leaving the car. The sign at the car park entrance includes only partial information and at the time the defendant visited was loose on its fittings had dropped down and been turned around so it was not visible to drivers when entering the car park.

Guidance from the Department of Transport…..

Exaggerated Claim and 'market failure' currently being addressed by UK Government

CRA breaches

ParkingEye v Beavis is distinguished

Lack of standing or landowner authority, and lack of ADR

Conclusion  

Statement of Truth

rainymarkettown

1505grandad - Re the POC from the Claim Form - not quite sure what this is but please see attached original claim against me - is this what you mean..?

Was passed from UKPC to DRP to Zenith to DCB Legal

rainymarkettown

Thanks Nellymoser - I will phone court today (tied yesterday but couldn't get through) - yes I completed steps as per guidance under Newbies Thread - Defence / N180 / Mediation....

rainymarkettown

UPDATE -  I've found the Claim Form with the POC - I'll copy and upload shortly...

rainymarkettown

Here is the Letter of Claim with the POC - thnaks for your help!

rainymarkettown

UPDATE - I phoned the number provided on the 'reminder to submit statements' to request that they send me the missing letters ('Allocation of Small Claim Track Hearing' and 'Notice of Trail Date') that should have been sent before this reminder. 

After a 30 min wait (42nd in queue...) I was told I would have to email the court and request they send PDF versions. I have done this and recieved a reply saying...

"Please be advised that it can take up to a total of 7 weeks from receiving your email to processing your case, application, or correspondence.  The Court will contact you if any further information is required."

QUEST - Would there be any key info on these documents that I would need or do I know enough to prepare my Statements and meet the 13th December deadline for these...?

Coupon-mad

I don't understand; am I missing something here? You have had your hearing Order because you know this:

My hearing is scheduled for February 6th, and I need to submit the witness statement by December 13th while the claimant has to pay the trial fee by January 9th.

Surely the Hearing date Order was the Order that the (unusual but helpful) reminder is talking about?

rainymarkettown

Hi Coupon-mad - I have the 'reminder' in my first post above which contained that basic info however apparently I should has previously recieved two other documents with further more detailed info - 'Allocation of Small Claim Track Hearing' and 'Notice of Trial Date' - according to the court they were sent the day before the reminder but they haven't arrived yet. I've requested PDF versions....