Hx Parking/gladstones CCJ - Exceeded 1hrs Free - McDonald's Alma Leisure Park Chesterfield CCJ issued thanks to useless parking fines ltd - continued.

[FTMDave]

Well done  

 

Good to see that the unemployed law graduate reduced to ekeing a living with Gladdy's completely wasted their time writing that stupid WS.

[FTMDave]

Hang on.  Have you actually read the order from the court?

 

The first deadline is 15 June.  The court wants to consider the case only on the papers.  15 June is the deadline to object.  And you need to object.  If the case is heard on the papers you will have no way of countering the lies that the fleecers are bound to include.  Also a hearing forces the fleecers to travel to your local court and makes it more likely they will discontinue.

 

The deadline for Witness Statements is 29 June.

[FTMDave]

OK, well done.

 

So the next step is to prepare your Witness Statement.  You've mentioned several times on your thread about their rubbish signage, LFI has pointed out how they don't respect POFA, etc.  So when you have time post a draft.

 

Have you looked up planning permission?  Both for HX Parking's signs, and for Alma Leisure Park itself as it's unlikely the original PP was for just one hour's parking.

[FTMDave]

I googled the leisure park & planning permission, and PP being granted for some of the businesses popped up.  But HX Parking were conspicuous by their absence.  I think that's a good indicator. 

 

When you were with useless Parking Fines do you know if they sent the fleecers a CPR request?

 

Now - have a look at this story from 2020 and especially the photo  https://www.derbyshiretimes.co.uk/news/people/warning-over-chesterfield-cinema-car-park-limit-1356667

 

It turns out the limit for parking is five hours - but that drops to one hour after midnight.  And you got there two minutes after midnight.

 

This begs two questions.  Isn't such a drastic change after midnight an unfair term when the cinemas and eateries are still open?  Indeed you went there to go to MacDonalds.

 

Secondly the idiots have described 00:02:05 as the start of the period of parking, so if that really is the period of parking then logically you could easily have entered the complex before midnight and taken two minutes to find McDonald's and a parking spot.  The signage is unclear.  What happens if you arrive at 22:00? - can you stay till 03:00?

 

That's aside from the signage being carp and non-illuminated and mention of the £100 charge being in the very last line.

 

If you get the chance go back after midnight and take photos of the signs.  It doesn't matter what they say if you can't read them.

[FTMDave]

More stuff from the local rag where the fleecers are actually interviewed  https://www.derbyshiretimes.co.uk/news/people/chesterfield-leisure-park-car-park-bosses-defend-five-hour-limit-1368045

 

Ellie Berkeley, HX PCN administration team leader, said: “The five-hour maximum stay prevents workers from close by abusing the land and parking there for free, without using the shops on site.

 

OK, fair enough.  So why does the limit drop to one hour after midnight then?  Are there loads of local workers working night shifts of an hour and a half?

 

five hours is sufficient time to visit the cinema and also eat at a restaurant.

 

Well one hour isn't sufficient to come out after a long film that finishes after midnight and then eat in a restaurant.

 

There don't' seem to be many signs about in the photo at the end of the article either.

 

[FTMDave]

Have a look at Doomtrooper's WS  https://www.consumeractiongroup.co.uk/topic/441307-vcs-spycar-pcn-claimform-no-stopping-jla-liverpool-airport/page/4/#comments

 

It should be at post 94, but it may be a couple of posts above or below as the post count goes wonky sometimes.

 

Doomtrooper's case is very, very different from yours, so I'm not saying to copy the legal arguments, just to set it out as they did.

 

Mind you, you can use huge chunks of Doomtrooper's sections 8 and 9 as these antics are common to all the PPCs.

[FTMDave]

No, don't bother with the defence.

 

It's unclear what you want when you mention a draft?

 

 

[FTMDave]

As dx says, parking cases vary so much that it is impossible to design a template.

 

You can get an initial draft together now, which will obviously have to be tweaked when you get photos and when the fleecers' WS turns up.  However, your WS needs to be structured, more or less, like this -

 

SEQUENCE OF EVENTS - do something similar to Doomtrooper.

 

INADEQUATE & CONFUSING SIGNAGE - you never saw a sign, there is a paucity of signage, the signs aren't illuminated and you went at night, etc.  Even if you had seen a sign, which you didn't, it's confusing as to what someone who arrives before midnight should do.  The fleecers describe the period of parking as starting at 00:02:05 so logically you must have entered the complex before midnight.  The £100 charge is mentioned in the very last line of a long sheet of text.

 

UNFAIR TERM - the normal parking limit is five hours which you respected, quote what the fleecers say in the local rag are the reasons for the 5-hour limit, yet after midnight this is reduced by 80% which is bound to catch out users of late-night films at the cinema or eateries which are still open, add proof you were a MacDonald's customer.

 

ILLEGAL SIGNAGE - no PP, again Doomtrooper's is an example.

 

LOCUS STANDI - HX are not the landowner, you do not believe they have the authority to bring the claim.

 

NO KEEPER LIABILITY - use LFI's ideas about how they have not followed POFA.

 

ABUSE OF PROCESS - you can use all of Doomtrooper's.section up to point 9.6 (don't use 9.7 or 9.8 or anything afterwards).

[FTMDave]

Bits are good, bits are not so good, as is normal with a draft.

 

I have a full day of work now but promise to look in late this evening.

[FTMDave]

I've put some headers in like in Doomtropper's WS so we, and the judge, can quickly see the arguments you're making.  More later this evening.

 

IN THE COUNTY COURT SHEFFIELD 

 

CLAIM NO: XXXX

 

HX PARKING LTD  (CLAIMANT)

VS

XXX (DEFENDANT)

 

Date: 3^rd May 2022

 

Witness Statement

 

1. I Mr XXX, of xxx and I am the Defendant against whom this claim is made.

1.1. I was the registered keeper of the vehicle XXX.

1.2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

 

INSUFFICIENT & CONFUSING SIGNAGE

 

2. I confirm that i was the registered Keeper of the vehicle which is in question in this case and the vehicle was parked in Alma leisure centre Chesterfield. The vehicle was parked there because the driver went to McDonald’s for eat in ( the bank statement proof exhibit 1).

 

3. There were no clear signs at the entrance nor in the car park, it was night time and weather was not clear as well.

 

3.1. The photographs of the  NTK letter shows that the car entering the car park at 00.02.00 midnight but the fact is that the car entered before midnight and it took time for the driver to find the suitable parking bay so it allows driver to park the car there for five hours.

 

4. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.  

 

NO KEEPER LIABILITY

 

5. The Particulars of Claim do not clarify in what capacity they believe I am liable but state that the Defendant is “liable as the driver or keeper” of the vehicle. This appears to be “fishing” for liability. 

 

5.1. Schedule 4 of Protection of Freedom Act 2012 (PoFA) allows recovery of unpaid parking charges from the keeper of the vehicle but the first paragraph 1 (1) (a) states that it only applies “in respect of parking of the vehicle on relevant land:”. The definition of “relevant land” is given in paragraph 3 (1) where subsection (c) excludes Any land … on which the parking of a vehicle is subject to statutory control” 11. The road on which the alleged contravention took place is subject to the Road Traffic Act 1988 (RTA), by virtue of Section 192(1) of RTA and it being a road “to which the public has access”, It is also subject to the Liverpool Airport Byelaws 2019, Schedule 4 of PoFA therefore, does not apply, and the Claimant is unable to hold the keeper of the vehicle liable for the charges.

 

5.2. As part of the KADOE contract, it states under paragraph B2.1(a) seek recovery of unpaid Parking Charges in accordance with the Accredited Trade Association Code of Practice, and using the procedure in Schedule 4 to the Protection of Freedoms Act 2012 (where the vehicle was parked on private land in England or Wales on a particular date). 

 

5.3. the only basis in the DVLA KADOE contract for obtaining the Keeper details is for using POFA. Of course, POFA can’t apply on airport land where byelaws apply – plus POFA is only relevant for parking.

 

PROHIBITION

 

6. It is also my position that the Claimant has no standing, or cause of action, to litigate in this matter. I base this on the case PCM vs Bull, Claim No. B4GF26K6 (page 79, Exhibit 10), where the Defendant was issued parking tickets for parking on private roads with signage stating “no parking at any time”. District Judge Glen in his final statement mentioned that: “the notice was prohibitive and didn’t communicate any offer of parking and that landowners may have claim in trespass, but that was not under consideration”. 

 

6.1. I question the existence of the alleged contract which the Claimant claims to have been breached by “stopping in a zone where stopping is prohibited”. The signage is wholly prohibitive and makes no offer of consideration. In the absence of consideration, no contract exists 

 

6.2. In case Ransomes vs Anderson, Claim No. 3YS16797, the Defendant went to the industrial estate and after not being able to get into their designated parking area, parked on the road, on a double yellow line, for which he was issued a parking ticket. In his judgment the district judge rejected the contract claim on the basis that the noticed was too vague and uncertain to generate contractual liability. The sign, in question, started with: “Warning: Private property. Not Trespassing. No Parking. No Stopping. No Waiting.

You have entered this private property. You are now subject to the terms and conditions of the landowner listed below”. District Judge accepted in principle that Mr. Anderson committed a trespass and that trespass must have caused some loss to the claimant, in terms of expenses incurred, but made no award of damages in relation to it and dismissed the claim

 

LOCUS STANDI

 

The Service Agreement between Vehicle Control Services (hereby known as VCS) and Liverpool Airport dated 08/07/2013 clearly states “for a fixed period of 24 months” (Exibit C), therefore this contract expired in July 2015.

 

It is contended that no legal contract existed between VCS and Liverpool Airport, at the time of the alleged breach of contract. 

 

7.1. Definition of “Relevant contract” from PoFA 2 [1] means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is— (a)the owner or occupier of the land; or (b) authorized, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land.

 

7.2. According to Companies Act 2006, Section 44, a contract to be valid requires a director from each company to sign and then two independent witnesses must confirm those signatures. The fact that no witness signatures are present means the deed has not been validly executed. Therefore, there can be no contract established between VCS and the motorist. And even if “no stopping” could form a contract [which it cannot], it is immaterial. There is no valid contract.

 

7.3. According to information on John Lennon Liverpool Airport website (https://www.liverpoolairport.com/ ). Peel Group/Ancala are the land owners NOT Liverpool Airport. More recently, Ancala Partners LLP, the independent infrastructure Investment Manager completed the acquisition of a 45% interest in the Airport in September 2019, with Peel and Liverpool City Council retaining 45% and 10% interests respectively. 

 

7.4. Surely VCS a company that signs innumerable contracts must be aware that no contract exists at the Liverpool Airport. Two points arise from that. 

 

7.4.1. 7.4.2. The first is that by issuing many PCNs at Liverpool Airport with knowingly not having a valid contract is bordering on fraudulent. Second, VCS in order to gain access to DVLA data VCS have averred that they have complied in their CoP that they have complied with all the legal necessities, which appears patently untrue.

 

7.5. Claimant contract contains logo of BPA (British Parking Association) which implies that VCS operates under BPA code of practice which is false. According to information on BPA website (https://www.britishparking.co.uk/bpa-approved-operators ) VCS is not a member of BPA. (Exhibit C)

 

ILLEGAL SIGNAGE

 

8. After receiving the claim form I subsequently submitted my CPR 31.14 request (Exhibit D), in which I requested copies of the claimant’s planning permission for the signage at the site in question. The claimant failed to produce any, and after checking this myself, I found out that there in NO planning permission granted for said signs, therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.

 

8.1. Planning application for the relevant signage (ref: 15A/0657) was made on 11/03/2015 which expired on 24/08/2015, however without permission being granted this application was later withdrawn by the applicant on 16/06/2021.

 

ABUSE OF PROCESS

 

9. The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs and interest” or “debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4. 

 

9.1. As part of the provisions of the Parking (Code of Practice) Act 2019, on 07/02/2022 a new Code of Practice was published by the government, designed to prevent these “rogue” traders from "ripping people off" (the minister's words) with extra charges, which have been deemed unfair (https://www.gov.uk/government/publications/privateparking-code-of-practice/private-parking-code-of-practice). 

 

9.1.1. 9.1.2. 9.1.3. Section 5.3 of the new Code of Practice states the following: “The provisions of Schedule of the Protection of Freedoms Act 2012 relate specifically to the parking of vehicles on relevant land and the recovery of parking charges – they arose from the need to respect landowners’ interests given the introduction of the prohibition on wheelclamping, and so largely envisage circumstances where a wheel-clamp may otherwise have been applied i.e. to a stationary, generally unoccupied, vehicle. However, this Code also applies to instances where the prohibition on stopping arises from a clear security concern e.g. within airports. Parking operators must only pursue parking charges in instances that could be interpreted as stopping if they have explicit consent to do so on evidenced security or safety grounds from their conformity assessment body, following audit of the adequacy of the signs and surface markings in place to inform drivers of the restrictions in place.” Section 7.2 of the new CoP, defines explicitly, when photographic evidence should be used to serve notice: “Care must be taken to ensure that photographic evidence from camera vehicles is only used to serve a notice of parking charge in respect of parked vehicles, not vehicles whose drivers have momentarily stopped e.g. to check directions or an address within a business park.” The Minister Neil O’Brien, who’s foreword I have attached (Exhibits E) also goes on to state “And there will be no wriggle-room for rogue companies who continue to flout the rules. If they fail to follow this Code, they will effectively be banned from issuing parking charges indefinitely”

 

9.1.4. The publication of this Code therefore marks the start of an adjustment period in which parking companies will be expected to follow as many of these new rules as possible. The Code will then come into full force before 2024, when the single appeals service is expected to be in operation. This indicates that the new CoP should be adhered to now, where possible, but clearly VCS are choosing to ignore these new rules, and continuing to go about their business as normal, regardless of the law.

 

9.2. Even before publication of the government’s Code of Practice, Parliament intended that private parking companies could not invent extra charges. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100. 

 

9.3. Section 9 of the new Code of Practice, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued.”

 

9.4. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4^th 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 v 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 loss 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.’’

 

 9.5. In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain HamiltonDouglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ‘’It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...'' 

 

9.6. The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14They have no planning permission for their signs and ANPR cameras which means that in addition to them being unlawful because of the extra charges they are also illegal because they have not been given permission to be there under  the Town and Country [Advertisements} Regulations  1969. They are supposed to comply with the Law and the IPC code of Conduct and they have done neither. The new Private Parking Code of Practice  draws attention to it as well  s14.1 [g]  “g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs.”

 

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.

[FTMDave]

Before we go any further, when you were with Parking Fines, around the time you filed your defence,  did you or them send the fleecers a CPR request?

[FTMDave]

I had forgotten that the fleecers had already played a lot of their cards in the WS they made opposing your set aside application (post 12 for anyone looking in) so that means we can already tighten things up.

 

Obviously the paragraph numbering will now take one hell of a beating, but that can be sorted out later.

 

Observations in blue, changes in red.

 

 

IN THE COUNTY COURT SHEFFIELD 

 

CLAIM NO: XXXX

 

HX PARKING LTD  (CLAIMANT)

VS

XXX (DEFENDANT)

 

Date: 3^rd May 2022

 

Witness Statement

 

1. I Mr XXX, of xxx and I am the Defendant against whom this claim is made.

1.1. I was the registered keeper of the vehicle XXX.

1.2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

 

INSUFFICIENT & CONFUSING SIGNAGE  This is likely to be one of your aces so will need a lot of work once you get photos.  The fleecers have also shown a plan where they claim there are signs (their WS post 12, PDF page 15 which you need to confront).

 

2. I confirm that i was the registered Keeper of the vehicle which is in question in this case and the vehicle was parked in Alma leisure centre Chesterfield. The vehicle was parked there because the driver went to McDonald’s for eat in (the bank statement proof exhibit 1).

 

3. There were no clear signs at the entrance nor in the car park, it was night time and weather was not clear as well.

 

3.  Even if the driver had seen the signs, they would have been extremely confusing.  A car is normally allowed to be parked for five hours, yet after midnight this is changed to one hour.  This begs the question for how long a motorist entering at 10pm for example is allowed to stay.  Is it for five hours until 3am or until 1am?

 

3.1. The PCN/NTK states "period of parking 00:02:05".  It is common sense that a couple of minutes was needed to enter the complex, find McDonald's and find a parking space, before the period of parking began, so it was likely the car entered the car park before midnight allowing the driver to park the car there for five hours.

 

4.  Even if the driver had seen the signage - they did not - the mention of a £100 charge is literally the last word on the last line of a long board of text.

 

4. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.  

 

UNFAIR TERM

 

4.  In an interview with the local newspaper (exhibit XXX) Ms Ellie Berkeley, HX PCN administration team leader, said: “The five-hour maximum stay prevents workers from close by abusing the land and parking there for free, without using the shops on site" which makes sense.

 

5.  This therefore begs the question of why this limit is cut by a massive 80% after midnight when the cinema and eateries are still open.  The driver indeed ate at McDonald's.

 

6.  Ms Berkeley continued: "Five hours is sufficient time to visit the cinema and also eat at a restaurant".  Certainly five hours are sufficient.  One hour is not. 

 

7.  I would maintain this is an unfair term under the Consumer Rights Act 2015 part 2 section 62 (6) ""A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer".  Such a term has absolutely nothing to do with efficient management of a car park and everything to do with trying to catch diners or cinema-goers out and thus have an excuse to issue PCNs.

 

NO KEEPER LIABILITY

 

5. The Particulars of Claim do not clarify in what capacity they believe I am liable but state that the Defendant is “liable as the driver or keeper” of the vehicle. This appears to be “fishing” for liability.  Is this really in the PoCs? - you need to look and find out. 

 

The rest of your section is about the use of POFA at airports which is completely irrelevant. 

 

Adapt LFI's suggestions re POFA and keeper liability -

 

First is the fact that they must have a parking period and it is quite clear that entering and leaving the car park does not constitute a parking period since some of the time the motorist is either driving around looking for a parking spot then leaving the spot and driving to the exit. All that takes time so that is one fail.

 

The other fail is in their wording when they are trying to transfer the liability of the alleged debt from the driver to the keeper. They are supposed to include at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)". That in itself makes it non compliant but the fact that they haven't got a parking period means they haven't met the applicable conditions.

 

PROHIBITION  This deals with no stopping cases.  Yours in not no stopping so it is completely irrelevant.

 

LOCUS STANDI

 

You have quoted a different contract in a different place with a different PPC.  You need to read and try to find holes in the contract they produced (post 12, page 15 of the PDF for anyone looking in).

 

Adapt LFI's suggestions -

 

Looking at their contract, the names of the signatories and their positions in their respective  companies have been redacted. You do need strict proof of who actually signed. There is no specific authorisation from the Client to allow Court action in pursuit of non payers. In section 11 which is like an addendum it states" the Company shall provide parking control" but doesn't state if that includes legal pursuit as well and it does not appear to be signed.

 

ILLEGAL SIGNAGE

 

8. After checking, I have found out that there in NO planning permission granted for said signs, therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.

 

LFI's suggestion -

 

They are supposed to comply with the Law and the IPC code of Conduct and they have done neither. The new Private Parking Code of Practice  draws attention to it as well  s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."

 

ABUSE OF PROCESS  I've cut some bits out as the CoP hadn't been published when the fleecers went after you.  Are you sure the Unicorn Food Tax in the PoCs is £60?

 

9. The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs and interest” or “debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4. 

 

9.1. As part of the provisions of the Parking (Code of Practice) Act 2019, on 07/02/2022 a new Code of Practice was published by the government, designed to prevent these “rogue” traders from "ripping people off" (the minister's words) with extra charges, which have been deemed unfair (https://www.gov.uk/government/publications/privateparking-code-of-practice/private-parking-code-of-practice). 

 

9.3. Section 9 of the new Code of Practice, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued.”

 

9.2. Even before publication of the government’s Code of Practice, Parliament intended that private parking companies could not invent extra charges. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100. 

 

9.4. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4^th 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 v 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 loss 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.’’

 

 9.5. In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain HamiltonDouglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ‘’It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...'' 

 

9.6. The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

 

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.

[FTMDave]

Don't worry, we're getting there bit by bit.

 

Tomorrow evening I'll try to deal with your questions.

 

The photos you've taken are superb - they show the signs as tiny and not illuminated.

 

 

[FTMDave]

The rubbish signage may well prove fatal for the fleecers.

 

I have some time this evening and will try to do some more work on the WS then.  If work is done bit by bit there should be an excellent document prepared by the time of the hearing.  The fleecers scored a big own goal when they played all their cards in that stupid WS that opposed set aside.

 

I'm thinking it would be good to show the judge the photos in a kind of order that a driver would see when driving to McDonald's.  @Digital_2012 can you tell us where the four photos in the attachment were taken?

1_extracted_Alma Leisure - Copy.pdf

[FTMDave]

OK, let's get stuck into these damn fleecers.  Building on last night's version, new bits in red.

 

LFI, can you check I've understood the POFA bits properly that you suggested (4.  NO KEEPER LIABILITY)?  Thanks.

 

 

IN THE COUNTY COURT SHEFFIELD 

 

CLAIM NO: XXXX

 

HX PARKING LTD  (CLAIMANT)

VS

XXX (DEFENDANT)

 

Date: 3^rd May 2022

 

Witness Statement

 

1. I, Mr XXX, of xxx am the Defendant against whom this claim is made.

 

1.1. I was the registered keeper of the vehicle XXX.

 

1.2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

 

INSUFFICIENT & CONFUSING SIGNAGE

 

2. I confirm that i was the Registered Keeper of the vehicle which is in question in this case and the vehicle was parked in Alma Leisure Centre, Chesterfield. The vehicle was parked there because the driver went to McDonald’s for eat in (bank statement proof exhibit 1).

 

2.1. There were no clear signs at the entrance nor in the car park, it was night time and the weather was not clear as well.

 

2.2.  In their Witness Statement opposing my set aside application the Claimant includes a site plan showing the position of their signs and a close up of a sign in broad daylight to make it look like it is featured in the Guinness Book of Records as the largest billboard in world history.

 

2.3.  The reality for the motorist is completely different.  I attach photos which show what a motorist sees (exhibit 2).  I would first draw the Court's attention to the photos taken in daylight.  There is no sign at the entrance to the complex and then when parking in the car park outside McDonald's once again there is a dearth of signage. 

 

2.4  Admittedly had a murder taken place in the car park, police forensics would probably spot the two signs placed on a bricked-up building on the left of the car park.  However, a motorist walking in the opposite direction to McDonald's to have a meal would not come across these signs even in daylight.

 

2.5  Placing a small number of signs where no-one will see them shows that HX Parking's objective is not to sensibly manage a car park, but rather to find excuses to send out as many of their PCNs as possible.

 

2.6.  However, the driver visited the site around midnight.  I would respectfully ask the Court to consider the photos taken at night in the McDonald's area and I would defy whoever is representing HX Parking at the hearing to point out the signs the driver should have read.  There aren't any.  I have not doctored these photos in any way or deliberately not photographed visible signs.  There simply are no visible signs.

 

2.7.  In their Witness Statement objecting to my set aside application the Claimant provided photos of signs in broad daylight, even though they know full well the driver visited around midnight.  This was an attempt to mislead the Court.  The time limit for parking is reduced by 80% after midnight and this is a vital part of the Claimant's claim (see point 3 below).

 

2.8.  The driver had to reason to not abide by parking rules.  They would have followed what was written on any sign - but there were no signs there to read.

 

2.9.  Even if the driver had seen the signs, they would have been extremely confusing.  A car is normally allowed to be parked for five hours, yet after midnight this is changed to one hour.  This begs the question for how long a motorist entering at 10pm for example is allowed to stay.  Is it for five hours until 3am or until 1am?

 

2.10. The PCN/NTK states "period of parking 00:02:05".  It is common sense that a couple of minutes was needed to enter the complex, find McDonald's and find a parking space, before the period of parking began, so it is likely the car entered the car park before midnight allowing the driver to park the car there for five hours.

 

2.11.  The Claimant is put to strict proof of the ANPR cameras' accuracy with GMT on the day of the alleged offence .

 

2.12.  Even if the driver had seen the signage - they did not - the mention of a £100 charge is literally the last word on the last line of a long board of text.

 

UNFAIR TERM

 

3.  In an interview with the local newspaper (exhibit 4) Ms Ellie Berkeley, HX PCN administration team leader, said: “The five-hour maximum stay prevents workers from close by abusing the land and parking there for free, without using the shops on site" which makes sense.

 

3.1.  This therefore begs the question of why this limit is cut by a massive 80% after midnight when the cinema and eateries are still open.  The driver indeed ate at McDonald's.

 

3.2.  Ms Berkeley continued: "Five hours is sufficient time to visit the cinema and also eat at a restaurant".  Certainly five hours are sufficient.  One hour is not. 

 

3.3.  I would maintain this is an unfair term under the Consumer Rights Act 2015 part 2 section 62 (6) ""A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer".  Such a term has absolutely nothing to do with efficient management of a car park and everything to do with trying to catch diners or cinema-goers out and thus have an excuse to issue PCNs.

 

NO KEEPER LIABILITY

 

4.  The Particulars of Claim do not clarify in what capacity they believe I am liable but state that "The claimant claims the unpaid PCN from the defendant as the driver/keeper of the vehicle".  This appears to be “fishing” for liability.

 

4.1.  The Claimant's PCN does not comply with Section 4 of the Protection of Freedoms Act 2012.  POFA states that a parking period must be stated and it is quite clear that entering and leaving the car park does not constitute a parking period since some of the time the motorist is either driving around looking for a parking spot then leaving the spot and driving to the exit.  All that takes time.

 

4.2.  To transfer liability of the alleged debt from the driver to the keeper, in their PCN the Claimant must include the wording at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)" but they have not. That in itself makes it non-compliant.

 

LOCUS STANDI

 

5.  Looking at the contract with the landowner which the Claimant included when opposing my set aside application, the names of the signatories and their positions in their respective companies have been redacted.  The Claimant is put to strict proof of who actually signed.

 

5.1.  In the contract [s8 Declaration ] the Claimant is unable to distinguish whether the client is the land owner, the legal occupier or the managing agent.  The Claimant is put to strict proof of the company  who signed as the client and if it was not Canada Life then the Claimant is put to strict proof that the signee had permission to sign on behalf of Canada Life.

 

5.2.  There is no specific authorisation from the Client to allow court action in pursuit of non-payers.   In section 11 which is like an addendum it states "the Company shall provide parking control" but does not state if that includes legal pursuit as well and it does not appear to be signed.

 

5.3.  The contract is governed by the law of England and Wales so is unlawful since it contains a notification that extra charges of £60 can be charged.  This is contrary to Schedule 4 of the Protection of Freedoms Act 2012 and the Parking (Code of Practice) Act 2019.

 

ILLEGAL SIGNAGE

 

6.  After checking, I have found out that there in NO planning permission granted for said signs, therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.

 

6.1.  The Claimant is supposed to comply with the law and the IPC Code of Conduct and they have done neither.  The new government Private Parking Code of Practice draws attention as well to s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."

 

ABUSE OF PROCESS

 

7. The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs pursuant to the contract and PCN terms and conditions”.  No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4. 

 

7.1.  As part of the provisions of the Parking (Code of Practice) Act 2019, on 07/02/2022 a new Code of Practice was published by the government, designed to prevent these “rogue” traders from "ripping people off" (the minister's words) with extra charges, which have been deemed unfair. 

 

7.2.  Section 9 of the new Code of Practice, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued” (exhibit 5).

 

7.3.  Even before publication of the government’s Code of Practice, Parliament intended that private parking companies could not invent extra charges. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100. 

 

7.4.  Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4^th 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 v 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 loss 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.’’

 

7.5.  In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ‘’It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...'' 

 

7.6. The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

 

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.

Edited May 28 by FTMDave
Updating

[FTMDave]

@Digital_2012  Can you please post up the fleecers' particulars of claim?  Yes, i know you have already done this, but there are multiple pages over two threads and it would just make it easier if you could post it again.  You twice mention it in your WS and we need to check what you say it says is really there.

 

I suggest you split the photos into two separate exhibits - day photos & night photos.  And in both reorder the photos so they show the course of your journey to the judge.  The judge will see that you could see no signs.

 

In both don't show the close-ups of the signs - we don't want to do the fleecers' work for them!  Show the judge how you saw the signs - as unilluminated pinpricks in the distance.

Edited May 24 by FTMDave
Extra paragraph added

[FTMDave]

No, it's the Particulars of Claim we need to see.  What was written on the initial claimform you got from the court.

[FTMDave]

It's OK - found it

 

1.The driver of the vehicle with registration .... (The vehicle) parked in breach of the terms of parking stipulated on the signage (the contract) at Alma Leisure Park Derby Road chesterfield on 21/08/2020 thus incurring the parking charge (the PCN). The PCN was not paid within 28 days of issue.

 

2.The claimant claims the unpaid PCN from the defendant as the driver/keeper of the vehicle. Despite demands being made , the defendant has failed to settle their outstanding liability.

 

The claimant claims

£100 for the PCN

£60 contractual Costs pursuant to the contract and PCN terms and conditions,

 

together with statuary interest of £5.41 pursuant to s69 of the county courts act 1984 at 8.00% pet annum, continuing of £0.04 pet day

[FTMDave]

I've made some small changes to 4 and 7 of the WS draft above to make sure it accurately reflects what is in the PoCs.

[FTMDave]

Due to the great work you did in getting the photos, you have yourself a pretty damn good WS.

 

It's just a matter of getting the five exhibits together

   - 1 bank statement

   - 2 day photos in the right order

   - 3 night photos

   - 4 article from the local rag

   - 5 relevant sections of the government CoP (not the whole thing).

 

Then your WS can be tweaked if any other info comes in and then when the fleecers' WS turns up a few days before 29 June.

 

 

[FTMDave]

Hang on a minute.

 

The first lot of night signs you uploaded showed the area as pitch black and no signs to be seen anywhere.

 

You've now uploaded another batch and the lighting is much better and there are signs to be seen, albeit hidden away at the side of the street upon entrance where no driver would see them and then in McDonald's car park on a wall nowhere near the entrance.

 

The photos you show the judge have to match the description in the WS so have a proper think about which photos are the best to smash the fleecers' claim.

[FTMDave]

@Digital_2012 sorry for harping on and giving you things to do, but I think you need to have a good think about which of the photos you have would be most likely to convince a judge, choose them, and then hpload

   - a new set of daylight photos, and

   - a new set of night photos.

 

In their WS opposing your set aside application the idiots didn't even include any night photos.  There's a good chance they will be so stupid this second time around and will have nothing to counter what you put forward.

 

Then we can adjust the WS accordingly, include LFI's points, and the WS will be 99& completed.

 

 

[FTMDave]

2 hours ago, Digital_2012 said:

I did not understand your previous post regarding article from local rag and governments cops

Busy now, I'll get back to you later today.

[FTMDave]

Exhibits 4 & 5

 

   - 4 article from the local rag

 

   - 5 relevant sections of the government CoP (not the whole thing)

Exhibit 4.pdf Exhibit 5.pdf

[FTMDave]

Superb work.  Well done.  More tomorrow.