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

[Digital_2012]

@FTMDavethanks for guiding me step by step. I have captured the photos night time as well if you see they are not visible even in day time how can anyone see in the night

[brassnecked]

They also show the signs are in the main 6 feet up on poles so not directly readable without craning your neck to look up, notwithstanding they would be practically illegible at night as not illuminated especially the small print at the bottom  maybe give the signage some special treatment in WS for its inadequacy and illegibility at night.

[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

[Digital_2012]

@FTMDave  Those pics taken while in the McDonald's car park, this is the same place where I parked my car night time when i went to McDonald's . One thing to be noted that its a big car park where there are many shops and cinema in there

Edited May 24 by Digital_2012

[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

[Digital_2012]

@FTMDave ok i attached the fleecers WS again. Also i am working on photographs to make separate day and night one

Hx parking- Witness Statement (D)(1)-Reduced.pdf

[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

[Digital_2012]

@FTMDave okay so what next we need to do apart from sorting photographs or is it just wait till 14 days left then submit WS

[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.

[brassnecked]

The fishing for Liability at 4  holds good  looking at the POC, not specifying in what capacity being sued, so that should be strike 1 against them

[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.

 

 

[Digital_2012]

@FTMDave thanks i am sorting out photographs with headings so judge can see in detail how the entrance look like and how visible entrance borads are. Also giving headings while in McDonald's car park in night time so judge will see how clear and visible they are with naked eye. Also i would like add in WS that the recent photographs taken in good weather conditions and when i went first time in August 2020 it was cloudy and bit rainy as well.

[Digital_2012]

@FTMDave ok i have attached new pics with detail headings could you please align with correct exhibit so WS can be more accurate. Thanks

Alma Park 24th May 2022.pdf

[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.

[Digital_2012]

@FTMDave right the previous pictures taken by my mrs with her iPhone yesterday i have taken with my Samsung so maybe picture quality difference but one thing for sure that the picture taken by iphone match with when u see with your eyes

[lookinforinfo]

I would like to make a couple of comments on their Ws.

First as Dave says the PCN is not PoFA compliant. The PCN has to include the period of parking which is obviously not the arrival and leaving times on the ANPR cameras. Several minutes must elapse between finding a parking spot and then leaving the parking spot and getting to the exit.  Therefore the keeper cannot be held responsible for the alleged debt by the driver. And HX should be put to strict proof that the driver and the keeper are the same.

Second this could prove difficult for them since in the contract  [s8 Declaration ]they are unable to distinguish whether the Client is the land owner, the Legal occupier or the managing agent  in the signed declaration despite the fact that they have a signed  contract signed by someone not in their presence  4 days later whose name  has been redacted. This really is not good enough to qualify as a valid contract as there is only a signature without naming the company they are working for as well as only being a manager, not a director. So we need strict proof of the company  who signed as the Client and if it was not Canada Life then we need strict proof that the signee had permission to sign on behalf of CL.

 

third the Entrance sign indicates that the T&Cs are inside the car park so it cannot said to offer a contract, just an offer to treat.

Fourth [though Dave may have covered this] the contract allows HX tth right to recover parking charges but stops short of permitting them to pursue through the Court which usually occurs in contracts relating to parking.

 

Fifth the contract is governed by the law of England and Wales so their PCN is unlawful since it contains a notification that extra charges of £160 can be charged. This is contra to the law yet permitted by the ISC. As the PCN is an unlawful instrument it follows that any charges from the PCN cannot be permitted and the case should not have been issued.

 

Sixth put the ANPR cameras to strict proof of their accuracy with GMT on the day of the alleged offence .

 

That's all I can see at the moment. Hopefully Ethel Street will confirm the position on the lawfulness of the added charges included in the PCN.

[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.

 

 

[Digital_2012]

@FTMDavei would go with the previous photographs they also captured recently i am giving them headings so will upload again here so far i have

 

Bank statement

Day photos and night photos 

 

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

 

 

 

[brassnecked]

here is the PCN and Gladdys letters from original threat, might be useful for reference now regarding PCN

 

Digital_2012 Image to PDF 20211003 18.07.00-compressed.pdf

[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

[Digital_2012]

@FTMDave thanks almost everything ready now i will post pics soon with headings soon

[Digital_2012]

Ok i have combined day and night view please have a look

Alma leisure centre.pdf