IN THE COUNTY COURT xxxxx
CLAIM No: xxxxxx
Hearing Date April 2020
BETWEEN:
Premier Park LTD (Claimant)
-and-
xxx (Defendant)
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WITNESS STATEMENT
________________________________________
I, xxxx will say as follows:
I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness Statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.
Attached to this statement are a number of Exhibits marked [EXH #x] to which I will refer in my Witness Statement.
The claim relates to a parking charge notice ('PCN') issued on xxxx March 2018 for £100.
I assert that I am not liable to the Claimant for the sum claimed, nor any amount at all, for the following reasons.
On the date in question, xxx, I can confirm I was the registered keeper of the car in question, however I respectfully deny liability for any parking charge levied by the Claimant.
The Claimant, in response to my defence, specifically claims that I have breached their terms and conditions whilst referring to timings of the car of which I am the registered keeper. I neither deny nor confirm being the driver at the time of the supposed event, and therefore puts Premier Park LTD to strict proof that any contract can exist between the Claimant and myself.
The claim appears to be based upon damages for a breach of contract. However, it is denied that any contract existed.
Subsequent to the notice of claim I have visited the xxxxx car park in xxxxx (the ‘car park’) to examine the signage. Photographs are supplied in exhibits [EXH 1–3] which are stills taken from a video recorded by a dashboard camera mounted on the passenger side of the rear-view mirror of my car. This camera records at 1440p resolution.
EXH 1 shows the first sign noted upon entry to the car park. The frame that has been chosen from the video is the one that most clearly shows the signs content, “Warning” and a large capital letter P. This sign is displayed as a driver is undertaking a sharp left-hand turn encompassing a full 180° to enter the car park.
EXH 2 shows the second sign noted upon entry to the car park. This is displayed at the apex of the turn to the drivers right-hand side at a height of around 2·5 metres. Again the frame is chosen to make it most clear and only the same content as EXH 1 is visible.
EXH 3 shows the second sign noted upon entry to the car park. At all frames of the video the content is mostly obscured by reflected sunlight only allowing the capital letter P to be seen.
At the time of the alleged contract, the Claimant was a member of the British Parking Association (BPA) and displayed its logo on signs to assert such membership and a following of the BPA Code of Practice (‘the Code’).
Entrance signage did not follow the Code as outlined in Section B 18 pertaining to signs [EXH 4] in that the entrance signage was not of the specified standard form. Standard entrance signage specifications are explained in the Code Appendix B [EXH 5]. Therein it is stated that “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead”. This would not have been possible for these signs.
The Claimant has stated that their signage, upon which the offer of a contract is based, is clear and unambiguous. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.!
In pursuit of clear and unambiguous signage I have photographed the nearest sign to where I parked on the day I visited to investigate signage in the car park [EXH 6–8] .
The signs are placed at a height of ~2.5m. The signs are far below the standard of clarity set by the Parking Eye Ltd v Beavis judgement (‘Beavis’) (EXH 9–10). This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
Under Lord Denning's!Red!Hand!Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in!red!letters with a!red!hand!pointing to it’, i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in ‘Beavis'.
A reasonable interpretation of the 'red!hand!rule', taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast.
Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency’:
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this case at all, I submit that the persuasive case law is in fact!'Vine v London Borough of Waltham Forest![2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This!judgment!is binding case law from the Court of Appeal and supports my argument, not the Claimant’s case. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.
In summary, the signage displayed is unclear and forms no offer of contract.
The Court is therefore invited to dismiss the claim as being without merit and to award my!costs!of dealing with the claim and attendance at the hearing (attached as EXH 12), such as are allowable pursuant to CPR 27.14.
The Court is additionally invited to examine my supplementary witness statement.
Statement of Truth:
"I believe the facts contained in this Defence are true."
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SUPPLEMENTARY WITNESS STATEMENT
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I, xxxxxx will say as follows:
The purported added 'costs' to the original PCN are disproportionate, a disingenuous double recovery attempt, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair’.
The arbitrary addition of a fixed sum purporting to cover 'administration/recovery costs' in a case involving a PCN issued on private land, is an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website!- ''no recovery/no fee'',!thus establishing an argument that the Claimant is claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.
Whilst quantified costs can be considered on a standard basis, this Claimant's purported added 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, case law and two statute laws hold that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
The!Beavis!case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.
At para 98:{re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves}!''Against this background, it can be seen that the £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 [...]!The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme!and make a profit from its services…''
At para 193:!''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary,!the scheme also covered ParkingEye's costs of operation!and gave their shareholders a healthy annual profit''!and at para 198:!''The charge has to be and is set at a level!which enables the managers!to recover the costs of operating the scheme.!It is here also set at a level enabling ParkingEye to make a profit.’'
In the Protection of Freedoms Act 2012, Schedule 4 ('the POFA') POFA paras 4(5) and 4(6) it is made clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper’.![EXH 13]
I have discovered that a growing number of Judges have disallowed all added parking firm 'costs' in County courts in England and Wales recently.
In the Caernarfon Court in Case number FTQZ4W28!(Vehicle Control Services v Davies)!on 4th September 2019, District Judge Jones-Evans stated:!''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which!inter alia!decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of los and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''![EXH 13 - JUDGMENT OR ORDER from Caernarfon]
In Claim numbers F0DP806M and F0DP201T -!BRITANNIA PARKING -v- Mr C and another,!the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.
An N244 application from BW Legal led to a Southampton hearing regarding those claims (effectively being treated as test cases for that court circuit regarding the single fact that the claims were inflated, and thus tainted and an abuse of process). The parking firm sought to oppose the striking out of £160 PCN claims, but their barrister's arguments failed and the Defendants successfully cited the Consumer Rights Act 2015 and the paragraph 71 duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that courts must consider in all consumer contract cases, whether a consumer raises the issue earlier or even if not raised at all).
All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair - see my exhibit 3 already adduced above).
The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.
My case is the same and the costs are an abuse of process, whether or not they were in the signage small print, because the Claimant cannot count the operational costs twice. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance says:!''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).''![EXHIBIT 10]
Statement of Truth:
In the many hours of reading these forums I wonder if anything is amiss of course, either in what I have put, or indeed what I have left out. I wondered if my photo/video exhibits are too much, or not enough!
I am not sure how to handle how they refer to me having done things, whilst there is no proof that it is me.
I am not sure quite how to reference more to POFA, as I think it may be compliant (???)
Whilst my WS must be filed this week I have 3 months until hearing.
Thank you so much in advance. I have learned so much, albeit about a very specific area.
With many postgraduate postnomials I am not stupid, but still feel pretty ignorant!
