1 Big Car Park, 2 landowners, Valid parking ticket but Parking Charge Issued

Coupon-mad · 19 July 2017 at 11:10PM

Looks good to me.

claxtome · 20 July 2017 at 5:29AM

I have now uploaded all the Evidence (Exhibits) that could be easily made anonymous. I have excluded ones that would show details of which car park. The name of each file starts with the Exhibit number->
https://www.dropbox.com/sh/eyyl5crjc4g1plj/AAADzDaI3WJ90KQEwCvjiXxma?dl=0

Note: It also includes the defence statement I sent to the court.

I am wondering if anyone thinks I should expand the witness statement to include any more relevant case law and/or expand on any points made in the defence?

Also is there anything I should expand/answer on from Gladstones 2nd reply - Exhibit 25?

Final question - I understand I have to email my witness statement and evidence to the Claimant's solicitor.
Does this include all pictures, all Exhibits and all copies of case law quoted?
(Sorry can't seem to find out what exactly I need to email the Claimant)

Loadsofchildren123 · 20 July 2017 at 2:52PM

I, [name], of [address] will say as follows:

I am the Defendant in this matter. I am an unrepresented consumer who has never attended the county court before. In this statement I will refer to the documents contained in exhibit marked [your initials]1, by page number.
On the xxxx2016 I parked in [name of car park]. I was not familiar with the car park, having never used it before. A google earth image [or if you can’t get one do a sketch and say it isn’t to scale] of the car park is at page 1 of XX1. I have marked on it various points to which I will refer in this Statement.
I entered the car park…. [describe entrance with reference to the image/sketch – eg “I entered the car park at the point marked A on page 1”]. As I drove in, I saw a sign at the entrance saying that it was a pay and display car park (a photograph of the sign is at page 2 of XX1). I could see there were plenty of spaces and so before I parked I stopped my car briefly next to a machine and paid for a valid parking ticket for the day (a copy of the ticket is at page 3 of XX1 and a photograph of the machine and sign affixed to it is at page x of XX1). I then drove on and parked. I have marked on page 1 of XX1 the approximate positions of the machine (point and where I parked (point C). As I drove from the machine to the spot where I parked, I did not see any other signs and other than white lines marking out the parking spaces [add if applicable: and yellow lines marking out where cars should not park] there were no markings on the surface of the car park.
I now understand from this claim that two separate entities operate different parts of the car park – the Council operates the [northern/southern/western/eastern???] part and the Claimant the other part, and that different rules/regulations apply to each different part. I am not certain of the exact division, but have marked its approximate position with a blue line on the image[/sketch] at page 1 of XX1. However, there was nothing indicating this on the day that I parked, or where one part of the car park ended and the other began. There was no barrier, no road markings and no sign indicating a change of operator.
I also now understand that although I entered the car park via the entrance into the part of it operated by the Council, in fact I parked in the part of it operated by the Claimant. However, as stated in paragraph 4, on the day I parked there, there was nothing at all to indicate that the car park was operated by two different entities. It was simply one large car park. I refer to the photographs at pages [x to x] of XX1 which show that there were no signs or markings or barriers indicating that there were two different parts of the car park operated by different entities, or where the two different parts began/ended.
I understand that towards the end of June 2017 (x months after I parked there), a sign was erected by the Council which informs drivers that they are leaving the part of the carpark which they operate, and that some rubble has been dumped which means that cars can no longer be driven from one part of the carpark to the other. Neither that sign nor the rubble were present on the day I parked there. I refer to pages x and x of XX1 [I’ve read Kezza’s post on your thread - go and get photos of this and exhibit them – does this now mean that you can only park in the council bit if you use that entrance, and you can only park in the Claimant’s bit if you use their entrance, so effectively the rubble has made it impossible to pass from one area to the other? If so, say this]
Upon returning to the car at the end of the day, to my surprise I found a parking charge notice fixed to the windscreen (page x of XX1) asking for payment of £100 for failing to pay and display a valid parking ticket. Handwritten on the notice was the words "Council tickets not valid on this part of the car park". I was completely confused by this: I remembered seeing the sign as I drove in which said it was operated by the Council. I had a good look around - it was only then that I saw at the [northern/southern/western/eastern – choose the right one!] entrance to the car park that there was a different sign saying that the car park was operated by the Claimant. A copy of the sign is at page x of XX1. This entry point is marked on the image/sketch at page 1 of XX1 as point D. I also noticed some small signs within that area of the carpark, although none of them were near where I had parked my car and were not legible from the car (page x of XX1).

Loadsofchildren123 · 20 July 2017 at 2:53PM

I returned to the car park the following day [or on about x date] and made a short video of the exact route I drove when I entered the car park, purchased a ticket and parked. A copy of the video is on the DVD at page x of XX1. It clearly illustrates the points I have made about there being no demarcation in the car park to indicate that one part of it was operated by the Council and another by the Claimant, or where one part ended and the other began. I have marked the route in red on the [image/sketch] at page 1 of XX1. Photographs of where I believe one part of the car park ends and the other begins are at pages x and x of XX1.
It is clearly incumbent on the Claimant, if it accuses drivers of improper parking, to install and maintain clear signage informing drivers that they operate the relevant part of the car park, and about what terms apply to the parking. There was no such signage at the boundary to the part of the car park operated by the Claimant (shown by the blue line on page 1 of XX1). Having inspected the car park, there is such a sign at the [southern/northern/western/eastern] entrance, but not on the dividing line between the two parts of the car park. This lack of signage at the boundary goes against the terms of the Code of Practice of the Claimant’s Accredited Trade Organisation (ATA), which states as follows:
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.
I should emphasise that compliance with the Code is a compulsory condition of the Claimant’s membership of its ATA (and without membership the Claimant would not be allowed to request keeper details from the DVLA which allow it to pursue private parking charges). Compliance has also been held by the Supreme Court to be compulsory if a private parking company like the Claimant wishes to recover what is effectively a penalty charge (rather than a lower sum designed to reflect its actual loss) (case of Parking Eye v Beavis, paragraphs 96 and 111).The DVD shows that there is a fence at [describe location] – I can confirm that this fence was not there on [date of parking incident], but has been erected since then. The image at page 1 of XX1 shows how the land boundary prior to the fence being erected looked on the day in question. To further illustrate that the fence is new, one can clearly see on photographs (pages x, x and x of XX1) how much newer the fence is compared to the other fences in the car park.
In addition to the lack of boundary signage, the signs within the area operated by the Claimant were small and not easy to read from a car (another breach of the Code of Practice). I refer to the photographs at pages x-x of XX1. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which the Claimant is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign". The signage is not as per the code.
The signage is incapable of forming, as claimed, a contract with drivers (unlike other signs held as capable of doing so – see for example the sign in the Parking Eye v Beavis and Wardley case, a copy of which is at page x of XX1.
I did not pay the charge and on the xxx2017 I received a demand for the full amount (page x of XX1). After this, on the xxx I received a further demand with increased amount owing with no explanation for the increased amount and this letter threatened me with further debt recovery. No figure for additional charges was agreed, or communicated to me, nor could it have formed part of the ‘alleged’ contract because no such indemnity costs were quantified on the Claimant’s signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not (see page x of XX1).
On the xxx2017 I wrote to the Claimant explaining the circumstances on the day and why I felt I was not liable for the parking charge, and a copy of my appeal is at page x of XX1. On the xxx I received a letter xxx rejecting that appeal on the basis that it was too late (page x of XX1) – although of course the Claimant (in common with all litigants) is obliged to consider all reasonable forms of ADR according to the Practice Direction – Pre-Action Conduct. It chose to give no response whatsoever to the points raised in my appeal.
On the xxx I then received a Letter Before Claim (page x of XX1). Once again the sum of money demanded had increased, with no explanation. I responded on xxx, explaining that I had appealed and my reasons for disputing the charge. I sent the solicitors a copy of the ticket purchased and displayed on the day and a copy of the parking charge. Unfortunately I did not keep a copy of the letter so cannot produce it now, but the Claimant will no doubt still have its copy.

Loadsofchildren123 · 20 July 2017 at 2:54PM

On the xxx I received a reply (page x of XX1) quoting "As evident from the photographs you didn't display a ticket in accordance with the terms". However, the letter contained no photographs and to date I have still not seen any of the photographs the Claimant relies upon.
On the xxx I responded to the Claimant’s solicitors (page x of XX1) and they ignored this letter. I then I received a Claim Form on xxx [no need to exhibit this].
The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not “clear and concise” as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states “parking charges” which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). Furthermore, no indication is given as to the Claimant’s contractual authority to operate the car park, another thing that is required by the Claimant’s compulsory ATA Code of Practice - paragraph B1.1 states as follows:
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.The Claimant has simply not supplied any evidence at all that the alleged contravention ever occurred. No photographs taken of the contravention have ever been seen by me, despite a request for more detailed evidence. As the partners of the Claimant’s solicitors also run the ATA of which the Claimant is a member (the IPC) and act for several private parking companies, and therefore deal with private parking issues every single day of the working week, there can be no excuse for these omissions and the failure to comply with the court rules (which exist to ensure that litigants are on an equal footing).
I also dispute that the Claimant has incurred £50 solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable. The claimant has described the charge of £50 as ‘legal fees’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court
The Claimant has at no time provided an explanation of how the sum claimed has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to the £160 now sought.
23. On the day in question I had every intention to pay for parking, and I did so, and I genuinely thought I had complied with the terms of parking in the car park (and was justified in that belief). In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control and outside of any contractual term within their knowledge.

Loadsofchildren123 · 20 July 2017 at 2:56PM

sorry the para numbering all disappeared, but I'm sure you can see what I've done. I've just tinkered with the order of everything.

I really think you need to go and photograph the new sign/rubble that Kezza posted about. This indicates that they accept that the demarcation between the two areas of the car park was not there and needed to be there (otherwise why would they have put it there now????)

Loadsofchildren123 · 20 July 2017 at 3:00PM

claxtome wrote: »

I am wondering if anyone thinks I should expand the witness statement to include any more relevant case law and/or expand on any points made in the defence?
No, legal argument goes in your skeleton. I've expanded on some of your points in my new draft.

Final question - I understand I have to email my witness statement and evidence to the Claimant's solicitor. yes email or post (this is what is described as "serving" a document). Also send it to the court (described as "filing" a document).
Does this include all pictures, all Exhibits and all copies of case law quoted? Yes, but not case law, unless it's unreported (ie ones you've got off the forum - cases that have numbers and letters after them ARE reported so you don't need to supply those). Take the case law to court with you though. But include all other documents. You haven't exhibited the CoP to the statement but you refer to it, make sure this goes in the end of the bundle as well. You are allowed to submit documents that aren't in your WS, if they are relevant.
(Sorry can't seem to find out what exactly I need to email the Claimant)

Have answered your questions in red.

claxtome · 20 July 2017 at 4:40PM

Thanks so much for your posts LoadsofChildren123. You make it look so easy to produce 'better' wordings in such a short time. :-)

I have managed to download an image off google earth of the car park. Once again it shows the lack of boundary fence (new one isn't there).

Do you suggest I mark on the downloaded image the route taken as well as mark the map with significant points (as per your posts)?

Coupon-mad · 20 July 2017 at 10:45PM

Thanks so much for your posts LoadsofChildren123. You make it look so easy to produce 'better' wordings in such a short time. :-)

She is a solicitor and a whizz at on-point wording! Not concise, but nor am I, must be a female thing...

claxtome wrote: »

Do you suggest I mark on the downloaded image the route taken as well as mark the map with significant points (as per your posts)?

Anything that sounds like it would help clarify your position, for the Judge, is worth you doing.

Loadsofchildren123 · 21 July 2017 at 12:06PM

Where you are referring to different locations and routes on a bit of land it is so much easier to do it with reference to an aerial/google earth photo or a plan (even a hand sketched one). This makes it much easier to explain and illustrate what you are trying to say and the judge will find it helpful. It will also show things that you might not be able to otherwise illustrate adequately or at all with words on a piece of paper - eg that this was a very big car park and so entering at one end you would never have known the other end was operated by a different entity.

I think it's dynamite that they have now put up a sign and some rubble to stop cars driving between the two, effectively now making it two distinct car parks. To me this indicates an acceptance that the way it was before was misleading.

Actually, this has got me thinking. I suggest that you send a Freedom of Information Act request to your local council saying you've noticed that a new sign has been put up and asking how many complaints they had about this at that car park. Also say you've seen the makeshift barrier (ie pile of rubble) and ask whether they put that there. They will have to answer you within 21 days (I think that's working days, so 4 weeks). It will be interesting to see what the answer is. If it turns out they had lots of complaints that will help you. I'm not sure which department you'd send it to - phone them and find out. There must be a department in charge of car parks.

You can only make an FOI request of a public body, so you can't ask the same question to the PPC, just the council.

1 Big Car Park, 2 landowners, Valid parking ticket but Parking Charge Issued

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