These claims are usually issued by BW Legal who have never read a defence so they make one up and then answer it themselves. Too difficult for them to deal with the facts.
I, [Inset Name] of The Tannery, 91 Kirkstall Road, Leeds, West Yorkshire, LS3 1HS
SAY AS FOLLOWS:
1. I am a Solicitor in the employment of BW Legal for the Claimant, at its office at the address stated above. I have conduct of this action and the matters to which I refer are within my own knowledge save where expressly stated to the contrary and are true to the best of my knowledge, information and belief. I am duly authorised by the Claimant to make this statement on its behalf.
2. I make this witness statement in readiness for the hearing fixed for [date] at [time] and in support of the Claimant’s claim against the Defendant.
3. Within this statement I make reference to various documents. These are now produced to me in a paginated bundle marked “JG1”.
4. The Claimant is engaged in providing and managing private parking facilities nationwide.
5. The Claimant issued this claim against the Defendant for payment of an outstanding parking charge arising from a vehicle for which the Defendant was responsible, being parked on private land in breach of the Terms and Conditions of use.
6. At all material times, the Claimant has been an Accredited Member of Approved Trade Associations certified by the Driver and Vehicle Licensing Agency (‘DVLA’), and was awarded Approved Operator Status through its full compliance with their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks. This Code of Practice gives recommendations in regards to the signage within the Car Parks and the Claimant follows these recommendations.
7. The Claimant provides, manages and enforces private parking at the car park known as the Peel Centre - Stockport (the ‘Car Park’). The land is owned by Peel Investments (North) Limited (‘the Landowner’) a wholly owed subsidiary of Peel Land and Property Investments Plc. The Claimant, i.e. the landholder, is contracted by the Landowner to enforce the agreed terms and conditions (‘the Terms and Conditions’). Now shown at pages 1 to 4 of JGl is a witness statement from the Landowner’s Property Director and a copy of the agreement between the Landowner’s owners parent company and the Claimant confirming the Claimant’s entitlement to enforce the Terms and Conditions.
The Defendant’s breach of the Terms and Conditions
8. At all material times, the Defendant was the registered keeper and/or the driver of a Ford, [VRM] (the ‘Vehicle’) and used the Car Park on [Date]. On this date, the Defendant failed to purchase and display a valid Pay and Display Ticket (‘PDT’) which led to the Claimant issuing a Parking Charge Notice (the ‘PCN’) against the Defendant. A copy of the PCN and photographs of the Vehicle are now shown at pages 5-7 of JGl.
9. At the time the PCN was issued, the Car Park benefited from highly prominent information signs including:
31 x Information signs (122omm x 605mm)
5 x Entrance signs (200omm x 100omm)
17 x Tariff Boards (120omm x 100omm)
Now shown at pages 8-19 of JG1 are images of the above signs together with an overhead plan of the Car Park.
10. Amongst other things, the above signs specifically detail the Terms and Conditions of parking and the consequences of failing to comply with these Terms and Conditions. In particular the signs specifically state that the charge for breaching the Terms and Conditions is £100.00, discounted to £60.00 if paid within 14 days.
11. There was and is sufficient and adequate signage for the Terms and Conditions to have been brought to the attention of any motorist wishing to use the Car Park.
12. The Defendant, by physically entering and leaving their vehicle at the Car Park therefore accepted the Terms and Conditions in operation.
13. The Car Park operates PDT machines which are linked to an Automated Number Plate Recognition (‘ANPR’) system. This system is built of infrared cameras which are located on both entry and exit points of the Car Park. These cameras take still images per minute/second of all vehicles entering and exiting the Car Park. If a vehicle enters the Car Park on one entry point and exits on another, these cameras will capture the vehicle, regardless of whether the vehicle has entered and exited through the same entry and exit point or not. It is upon this system that the length of period of stay is recorded for each vehicle.
14. The Defendant’s contravention of the Car Park’s Terms and Conditions was captured by the Claimant’s ANPR cameras and the machine data extracted from the Claimant’s PDT. The images capturing the Defendant’s breach of the Terms and Conditions are now shown at pages 6-7 of JG1.
15. The Car Park has a 15 minute grace period to allow motorists to familiarise themselves with the Terms and Conditions enforced in the Car Park and purchase their PDT after entering the Car Park or leave the Car Park if they do not accept the Terms and Conditions enforced.
16. The Defendant’s stay at the Car Park exceeded the 15 minute grace period and as the Defendant failed to purchase a valid PDT within the grace period, or at all, the Defendant breached the Terms and Conditions. The Claimant’s right to issue a PCN is unequivocal following the Defendant’s breach above.
17. Following the PCN being issued, the Defendant emailed the Claimant at [Date], outlining the reasons for not discharging his liability under the PCN, now shown at page 20 of JG1. The Defendant asserts that he purchased a PDT but the PDT did not have a registration number on it after the Defendant had entered his registration number into the PDT machine and subsequently the PDT machine issued a ticket without a registration number on it. There have been no submissions as to whether the “blank” PDT was displayed in a visible position on the Vehicle. Further inter-party correspondence was entered into, now shown at pages 24-29 of JGl.
18. The reasons put forth by the Defendant were not accepted by the Claimant as valid grounds for withholding payment (detailed in the Claimant’s response below) and the Defendant was informed by the Claimant by way of letter on [Date] (now shown at pages 22-23 of JGl) of his option to appeal the PCN to the ‘Independent Appeals Service’ (‘IAS’), an independent body.
19. The Defendant had 28 days from the date of the Claimant’s notice of rejection i.e. [Date] to submit his appeal. As far as the Claimant is aware, the Defendant appealed and the appeal was rejected by the IAS.
[Note: They claim this is your defence even if it isn't.]
20. The Defence can be summarised as follows:
20.1 the Terms and Conditions were not prominently displayed around the Car Park;
20.2 there was no agreement to pay additional and unspecified sums;
20.3 a contract was never formed between the Claimant and Defendant in respect of an agreement to pay a parking charge;
20.4 that the Claimant did not fully comply with their obligations under", (1) the Protection of Freedoms Act 2012; and (2) the British Parking Association Code of Practice although the Defence refers to the IPC Code; and
20.5 the Defendant is not liable for the purported debt.
The Claimant’s response
[Note: Their response is to a defence you didn't write as they don't want to answer defences]
21. The signage at the Car Park clearly states that the Defendant must “purchase a valid ticket”. Furthermore, the signage goes on to state that “Parking charge notices will be issued for:- Failure to purchase a valid Pay & Display ticket within 15 minutes following entry to the Car Park”.
22. To manage parking on private land the operator, in this instance the Claimant, must belong to an Accredited Trade Association in order to access keeper details from the DVLA, but in order to do so must adhere to the DVLA’s code of practice.
23. In or around 1 January 2015, after being a member of the British Parking Association, the Claimant became a member of the International Parking Community (‘IPC’). The IPC has its own appeals service, which is called the IAS. It is available to motorists who receive parking tickets from IPC Members anywhere in the UK.
24. As the Claimant was an established member of the IPC on the Contravention Date, it was required to adhere to the IPC Code of Practice (‘the Code of Practice’). The Code of Practice gives recommendations in regards to the signage within its members’ car parks. The signs within the Car Park fully comply with the recommendations outlined in the Code of Practice (Part E Schedule 1) and are therefore deemed reasonable.
25. At the time of the contravention, there were approximately 81 x highly prominent signs on site including 5 x Entrance signs (200omm x 100omm) 31 x Information signs (122omm x 605mm) 17 x Tariff boards (120omm x 100omm), 14 x “Pay Here” signs erected at a height of approximately 2.5 metres and 14 x P&D signs situated at key locations throughout the area.
26. The signs are clearly displayed, the Defendant would have had the opportunity to read and understand them on parking at the facility. An objective observer would consider this action to have been done in acceptance of the terms as displayed.
27. On the Claimant’s Tariff Board as shown at page 8 of J G1 , it clearly states that:
“Excel Parking will be entitled to take legal proceedings to recover any outstanding charges, including interest and any additional costs incurred...
The Claimant asserts that these Terms and Conditions form part of a lawfully binding contract between the Claimant and the Defendant on the basis set out at paragraphs 10-12 and 28-31 of this witness statement.
28. It is the Claimant’s submission that the Defendant entered into a contract on the displayed terms whether on the basis that the notices are so obvious that they must have been read by the Defendant, and accepted by the Defendant by virtue of the fact that he chose to park there after reading the notices, or alternatively because the objective observer would consider that someone who has had a reasonable opportunity to read Terms and Conditions (given the multiple location of the signs) but has chosen not to, has nevertheless, has implicitly agreed to such terms and conditions if he or she continues to park his or her car on the private land operated by a car park operator.
30. The terms are neither prohibitive nor intended to forbid use of the land by ‘unauthorised’ users. The terms clearly set out when a charge for the service will apply.
31. For all intents and purposes, the PCN has been issued correctly, and that sufficient attention was brought to the Defendant with regards to the Terms and Conditions.
Protection of Freedoms Act 2012 ( ‘POFA 2012 ’)
32. For the avoidance of doubt, the Claimant does not seek to rely on POFA 2012 in respect of its claim. The Defendant’s purported reliance on POFA is misconceived, and in any case is irrelevant.
Liability of Defendant
33. The Defendant’s contractual liability is set out in paragraphs 10-12 and 28-31 of this witness statement.
Alleged Penalty Charges
34. The £100 charge is regarded as a charge for contravening the terms of the contractual licence.
35. The charge is not a penalty. The reason that although the Claimant was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.
36. In response to any claim that the charge and associated costs are unjustified the Claimant would respond thus:
“Our charges are simply an agreed sum for the services rendered. The sum payable occurs on the happening of a specific event and is therefore a core term of our contract with the Defendant. It is submitted that our charges have never been referred to as, and indeed are not, “penalty charges
[Editor Note: The main challenge is to the £50 they have added on for "costs" already. Get them to prove that the £50 has been incurred and not just double charging for "legal" service i.e. sending out a template Roboclaim. See ParkingEye v Somerfield at para #419]
37. It is the Claimant’s submission that it is irrelevant whether or not the charge as displayed bears any relation to the cost for parking (even where there is no cost involved) as it is simply a charge for a service provided. It is not a charge to dissuade motorists from using the facility. It is simply a fee for parking if a condition as displayed is satisfied.
Alleged Unfair Terms
38. The Claimant submits that the Defendant is unable to invoke the Unfair Terms in Consumer Contracts Regulations 1999 due to Reg. 6 (2)(b) which excludes the fairness test to any terms relating to ‘the adequacy of the price or remuneration, as against the goods or services supplied in exchange’. This was cemented by the supreme Court decision of Office of Fair Trading v Abbey National Plc  UKSC 6; 3 MR 1215 which held that ‘Relevant Charges’ constituted part of the price or remuneration for the services provided within the meaning of Reg.6 (2) 9b) of UTCCR 1999. As our charge forms the main content of the bargain, it must be found to be a fee for a service rendered; it cannot be an unfair term under Schedule 2 of the above list as it is specifically excluded under the legislation.
39. The Supreme Court further considered that a similar charge in ParkingEye v ParkingEye Ltd v Beavis  UKSC 67 did not infringe the 1999 Regulations. In their opinion, the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute. Motorists could hardly avoid reading the notice and were under no pressure to accept its terms.
40. The Claimant has offered to contract with the motorist as displayed, providing a limited license to the motorist to park at the location on the basis of a set of conditions. The Claimant has provided their end of the bargain permitting the parking of the Vehicle on private land. However, this was due on the understanding that the fee would be payable.