PCM Heath Parade WS help

I'm sorry that the format's all over the place. I couldn't work out how to attach a PDF and time is of the essence. This is PCM's Witness Statement.

Parking Control Management (Uk) Limited
-AND-
xxxxxxxxx
WITNESS STATEMENT OF Georglna Phllpot
CLAIM NO:

I, Georglna Phllpot, of The Courtyard, lA Cranbourne Road, SLl 2XF WILL SAY AS FOLLOWS:

1. I am the Employee of the Claimant Company ('my Company') and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the
best of my knowledge and belief.

2. Exhibited to this Witness Statement at 'GSLl' are following documents which my Company wishes to rely upon;

i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as 'the Relevant Land')
ii) The Sign (i.e. the Contract) iii) The Site Plan
iv) Notices
v) Photographs of the incident

3. The Defendant is liable for parking charges relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charges;
PCN NUMBER xxxxx and xxxxx
DATE OF CHARGE
15th October 2015, 19th October 2015
LOCATION
Heath Parade - NW9 Heath Parade - NW9
DESCRIPTION
Parked In a restricted area Parked in a restricted area
1
The Defence

The Relevant Land

4. The Relevant Land is privately owned and therefore not a public highway and managed by my Company. The photographs evidence there are clear markings on the road which reads "loading only". If the
Defendant was not loading and unloading she should not have parked there.

5. The signs and the site plan are independently audited by the IPC which is an accredited trade association within the parking sector. The photographs evidence the Defendant's vehicle was parked adjacent to one of my Company's signs and the photographs of the Relevant Land show that there are sufficient (at least 5) signs on the Relevant Land. As such, I can think of no reasonable explanation as to why they would not have been seen.

6. What is more, without concession, even in the unlikely event the Defendant didn't see the signs I submit
they ought to have done so. As Lord Justice Roch observed in the Court of Appeal case of Vine v London Borough of Waltham Forrest 2000,
"Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property"
)eal Response

7. The appeal response did not use the same photograph for each parking charge notice. The Defendant
parked in the same area on both dates. The Notices to Keeper also contain different photographs taken of the vehicle.

8. The IPC and the IAS are separate. The IAS is a certified Alternative Dispute Resolution entity and the appeals are considered by independent adjudicators not by Will Hurley and John Davies.

The Contract

9. The Defendant suggests there was no contract as there was no offer to park.

10. The rules of interpretation require simply that the parties knew of their obligations to one-another. The Defendant was offered to use the Land and thereafter either follow the rules and park for free or in breach of the rules agree to pay £100. The rules here just so happen to be that to park, they need to be
an authorised vehicle actively loading and unloading to commercial tenants of Heath Parade.

11. The case law demonstrates that the precise terminology used on the signs is not necessarily of importance and it should be interpreted in such a way that gives efficacy to the agreement.

12. In Alder v Moore (1961). the defendant was a footballer who suffered an injury. The insurer who was the claimant paid out £500 under the defendant's policy. Upon receipt of the money the defendant agreed that in consideration he would "agree [to] take no part as a playing member of any form of professional football and that in the event of infringement of this condition [he] will be subject to a penalty of £500." The defendant later resumed a professional playing career and the insurers sought to recover the alleged 'penalty' sum.

13. The Court of Appeal concluded that the defendant had not promised to not play
football again and the amount was therefore recoverable because there was no breach of contract. The use of the term, 'Penalty', was not therefore definitive of the legal nature of the sum payable. As Lord Justice Sellers observed.
2
'7he sole concern of the underwriters, for whose protection the document alone came Into existence, was not to stop the defendant from playing professional football again but to recover their £500 if he did so and thereby established conclusively that he had never at any time been oermanentlv totally disabled
from doing so.
It seems to me quite unrealistic to construe the document as imposing a contractual ban upon the
defendant from playing professional football again. I should have thought that the underwriters would welcome his doing so, since that was their only hope of recovering their £500. They certainly not recover
it, however fit the defendant became to play professional football again, if he retired from playing it or if he played football again but confined himself to the amateur game."
The Court held that;
"notwithstanding the word "penalty" used in the declaration, the obligation imposed on the defendant was to reimburse the underwriters that which they had paid on a basis proved to be false by events; the
payment was neither an imposition of a fine nor a penal payment and, accordingly, was recoverable from the defendant".

14. The court concluded that one should consider the obligations Imposed by the agreement, not the terminology used I.e. the agreement's substance, not form.

15. The principles In this case are the same as In the Parking Eye case, save that In the Parking Eye case, as the particular parking rules were different, the rule breached was that motorists must leave the site within 2
hours, whereas here, as set out above, the rule was to be an "authorised vehicle..."

16. The Court may conclude that the Land Is managed as follows; the Claimant grants a contractual license to
all; this license allows anyone permission to be on the Land. This Is Inferred by the nature of the land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all the
motorists) was offered to comply with the normal conditions (as clear on the sign), or park otherwise than In accordance with the normal conditions and Incur a £100 charge. The acceptance was at the point the Defendant decided to park, having read the sign, and his consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. The Claimant's consideration Is the provision of parking services.

17. I refer to the Court to Judge Hegarty's comments In ParklngEye v Somerfleld (2011) that "If this Is the
price payable for the privilege. It does not seem to me that It can be regarded as a penalty, even though It Is substantial and obviously Intended to discourage motorists from leaving their cars on the car park".
18. Alternatively; It could be concluded that, any person can use the Land provided they do not exceed the licensed activity as set out on the sign and In falling to comply with the license granted to them, they In turn agree to the Claimant's entirely distinct offer from that license which Is 'to park otherwise than In accordance with the license for a charge of £100'.
The Consumer Contracts (Information. Cancellation and Additional Charges) Regulations 2013
19. It Is denied that the contract constitutes a 'distance contracf within the meaning of the Consumer Contracts Information, Cancellation and Additional Charge) Regulates 2013 ("the 2013 Regulations"). In particular:-
I. It Is denied that the Defendant was acting as 'consumers'. The Defendant parked on the Land wholly or mainly for the purpose of their trade, business, craft or profession;
II. It Is denied that the contract was concluded by 'means of distance communication'. The Claimant maintained a physical presence on the Land.
3

Grace Period

20. The notes from the parking attendant who Issued the parking charge notice suggest the Defendant
parked her vehicle and went Into Salnsbury's and after that she drove away. It does not state that the Defendant parked her vehicle, read the signs, and then got back In her vehicle and drove away. Further,
despite receiving a parking charge notice on 15**' October she decided to park again, not In accordance with the signs, on 19*^ October.
Charge Is excessive/ no loss suffered

21. The charge sought Is Industry standard and Is set at a rate so as to suitably satisfy my Company's
legitimate Interest. In the case of ParklngEye v Beavis 2015 It was held that an £85.00 charge was neither
extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member In order to apply for DVLA data prescribe a maximum charge of £100. My Company's charges are
within this level. The charge Is not, therefore, excessive. Unfalr/lmmoral/unethlcal

22. The Defendant's opinion on the fairness of the parking charge cannot Impact their liability to pay. Quite
simply. In parking In the manner they did, they understood a charge would apply. My Company's charges are Issued In accordance with the guidelines set out by Its trade association and are Industry standard.

23. Paragraph 108 of the Judgment In the recent Supreme Court case of Parking Eye and Beavis (2015) said "the concept of a negotiated agreement to enter a car park Is somewhat artificial but It Is perfectly workable provided one bears In mind It Is objective..." ... "In our view a reasonable motorist would have agreed to the term." I submit that the term In my Company's contract was no more, or no less unreasonable than that In the ParklngEye case.

No authorltv to enforce charges

24. As the contract Is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v MM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made It clear that a contracting party need not show they have a right to do what they have promised In the performance of a contract, nor Is (In the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company's authorisation to operate / manage the Relevant Land on behalf of the Landowner.

25. Lord Justice Lewlson commented In VCS v MM Revenue & Customs [2013] EWCA Civ 186
1. "The Upper TribunaTs reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right In my judgment there is a serious flaw in this reasoning.
2. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party
may not only be able to contract to confer rights over property that he does not own, but may aiso be able to perform the contract without acquiring any such right. Thus in Bruton v London and
4

Thanks for your reply.

I was already aware of the Parking Prankster, and whilst it would be nice for the case to be discontinued, I was hoping for some help with my WS. I've tried to include the salient points that helped previous cases get thrown out/discontinued. Hopefully I've done enough.

Regards,

JC