Before: DEPUTY DISTRICT JUDGE AINSWORTH PARKINGEYE LIMITED. -v- MRS CHRISTINE LEMON. -and- Solicitor for the Claimant:

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1 IN SOUTAMPTON OUNTY OURT laim No. 3QT62681 and 3QT62156 The ourts of Justice London Road Southampton SO15 2XQ riday, 6 th ecember 2013 efore: PUTY ISTRIT JU AINSWORT etween: PARKINY LIMIT -v- laimant S RISTIN LMON -and- MISS SUSAN ARRIS efendants Solicitor for the laimant: Y The efendants appeared In Person TRANSRIPT O PROINS UP TO JUMNT Transcribed from the Official Tape Recording by Apple Transcription Limited Suite 104, Kingfisher usiness entre, urnley Road, Rawtenstall, Lancashire 4 8S Telephone: ax: Number of olios: 151 Number of Words: 10,874 Apple Transcription Limited /gh v.3

2 INX TO TRANSRIPT Page S RISTIN LMON - alled ross-examined by Y...25 MISS SUSAN ARRIS - alled ross-examined by Y...26 Apple Transcription Limited /gh

3 [The quality of the recording was poor in parts; the transcriber has endeavoured to provide as accurate a transcript as possible.] PUTY ISTRIT JU: ello, you are Mrs arris? MISS ARRIS: arris. PUTY ISTRIT JU: All right. ave a sit down. Are you Mr eeby? Y: Yes, sir. PUTY ISTRIT JU: ow is it spelt? Y: ----Y. PUTY ISTRIT JU: ----Y. Solicitor? Y: Yes, sir. PUTY ISTRIT JU: All right, thank you. These are two cases involving Mrs Lemon and Mrs arris. So, you are Mrs Lemon, are you? S LMON: Yes. PUTY ISTRIT JU: They have been ordered to be heard together. I think they occurred on the same day, is that right? S LMON: Yes. PUTY ISTRIT JU: oth cases occurred on the same day. I have got all the papers in this case. rom the claimants point of view, there have been some statements by Mr Langham for Parkingye Limited. PUTY ISTRIT JU: You have seen those, have you? S LMON: Yes, sir. PUTY ISTRIT JU: You have done some statements in the case and you have got those, have you, Mr eeby? Y: Yes, I have got two witness statements from one of the defendants and one from the other. I have got two from Mrs Lemon. PUTY ISTRIT JU: Yes, the new evidence one as well. Y: One dated 26 th August and the second one dated 4 th November. S LMON: Yes. Apple Transcription Limited /gh

4 PUTY ISTRIT JU: All right and there is another one dated 19 th November. id you send those, Mrs Lemon? S LMON: Yes, an additional PUTY ISTRIT JU: ave you seen that one? S LMON: It was sent to Parkingye. Y: Was it received? S LMON: Yes and I have proof of postage. Y: Actually, I have seen that evidence. I did not realise it was a witness statement. PUTY ISTRIT JU: All right, thank you. So, the procedure we adopt at these cases, Mrs Lemon, Mrs arris, and Mr eeby will know anyway, is that I hear from the claimant first. You are entitled to ask the claimant questions in relation to his evidence. We have not got Mr Langham here so we cannot ask any questions, but we can obviously go through Mr Langham s statement. Then we hear from you. Mr eeby is entitled to ask you some questions if he likes into your case. Then the case concludes with Mr eeby making submissions to me as to why I should find in favour of Parkingye and then you have an opportunity of making submissions to me as to why I should find in your favour. Submissions at that stage are an opportunity to highlight the strong points in your case and the weak points in the other side s case. It is not an opportunity to introduce new evidence. I will then give you my decision. It is recorded on the machine over here and then if there are any implications of the decision I make, that comes out in the form of a court order. You do not get a transcript of the decision automatically, although you can apply for it if you wish to do so. All right, are you quite clear on that? S LMON: Yes. an I PUTY ISTRIT JU: Yes, of course, yes. S LMON: I am sorry, is it Mr eeby? Y: Yes. S LMON: o we interrupt or do we wait till the end? PUTY ISTRIT JU: No. Well, Mr eeby is just going to present his case. e will produce Mr Langham s statement, but obviously, other than that, he cannot any questions because he is the advocate for the claimant, he is not a witness for the claimant so he cannot give any evidence. Apple Transcription Limited /gh

5 MISS ARRIS: ut while Mr eeby is actually presenting his case, we mustn t interrupt him? PUTY ISTRIT JU: Yes, that is right. That is right. MISS ARRIS: And the same for him? PUTY ISTRIT JU: Yes, the same, he will not interrupt MISS ARRIS: Okay. PUTY ISTRIT JU: you are presenting your submissions S LMON: Right. PUTY ISTRIT JU: and equally you do not interrupt when he makes his submissions, all right? S LMON: So, are you employed by Parkingye? Sorry, am I allowed to PUTY ISTRIT JU: It does not matter whether he is employed or not. S LMON: Right. PUTY ISTRIT JU: e could be engaged as a solicitor to represent the company S LMON: Right, okay. PUTY ISTRIT JU: and so we do not need to go into that, all right. Yes, Mr eeby, you have got Mr Langham s statement. Y: Mr Langham s statement. Y: ave you also seen the witness statement of Paul Sherbrook? PUTY ISTRIT JU: Yes, I have seen that, yes. Y: Thank you, sir. So, the claimant relies on the witness statements of Jonathan Langham in each matter and the witness statement of Mr Sherbrook in both matters, together with a document that has been supplied by Rachel Ledson, who is the claimant s head of legal. PUTY ISTRIT JU: What is that document? Y: It is a copy of the contract. PUTY ISTRIT JU: I have not seen it. Apple Transcription Limited /gh

6 S LMON: I haven t seen that. PUTY ISTRIT JU: ave you seen that? S LMON: No. Y: This is a document PUTY ISTRIT JU: When was that produced? Y: It is dated quite some time ago, sir. A number of factors have been raised PUTY ISTRIT JU: When was this Y: My understanding was it was filed and served together with the reply to one of the many defences that were [inaudible] MISS ARRIS: No, we have never seen it. PUTY ISTRIT JU: I mean, I would want to see that because obviously the terms of the contract between Parkingye and the superstore is relevant. All right, well, let me have a look at that then. I mean, it is something I would have asked for today anyway. S LMON: We did actually ask to see it. Y: It is related to the statement of Mr Sherbrook Y: which effectively sets out in the round that there is an agreement between the parties. PUTY ISTRIT JU: So, it does say that [inaudible] there is to be a two hours plus ten minutes grace and they go live on 9 th Janaury Y: Sir, yes. PUTY ISTRIT JU: That was the critical point I wanted to see. Y: Indeed, sir. You will notice that the contract itself is actually an amended contract, which is signed in 2013, but it relates to and refers to the go live date, which is stated on the front sheet. PUTY ISTRIT JU: All right, let us have a look. S LMON: ormed in 2014? Apple Transcription Limited /gh

7 PUTY ISTRIT JU: Yes, it is all right, you can ask me. This is an agreement that was made in ebruary Yours are clearly 2012, are they not? S LMON: Yes. MISS ARRIS: Yes. PUTY ISTRIT JU: So, this does not relate to them. S LMON: No. Y: It does, sir, because the go live date for the contract That is an amendment to a contract, which refers to a go live date of January PUTY ISTRIT JU: I appreciate that. I appreciate that, but that could have been changed there S LMON: Yes. PUTY ISTRIT JU: between the previous contract, 9 th ecember, and that contract there. Y: Where does it appear that it has been changed, sir? PUTY ISTRIT JU: Well, it could have been. I am not saying it has been, but it is not the original contract that was in force at the time that Y: It is not, sir. That is the document I have been supplied with. PUTY ISTRIT JU: It was not in force at the time. S LMON: an I just ask, because I do not understand, what go live means? PUTY ISTRIT JU: It is when they were entitled to charge for the parking there, all right? S LMON: Okay, thank you. PUTY ISTRIT JU: So, agreement of ebruary 13 produced, but not agreement in force when incident occurred, all right. Yes? Y: Sir, I am not attempting to give evidence, but by way of background, my understanding is and my instructions are that the car park in question is a car park that is owned by a private landlord and that historically the car park is available for the use of shoppers or visitors to commercial premises at that address. PUTY ISTRIT JU: All right. Y: And historically Apple Transcription Limited /gh

8 PUTY ISTRIT JU: So, The Range or the company that owns The Range is not the company that owns the land then? Y: The company that owns The Range is the company that owns the land. PUTY ISTRIT JU: All right. When you say private landlord? Y: Well, the private owner. PUTY ISTRIT JU: It is all right, I thought you were saying somebody else other than Y: Sirs, the point is that historically there have been difficulties with people using the car park for their own purposes, not for purposes that the freeholder would like to grant them permission for. So, that is why, as I understand it, Parkingye has been contracted to manage PUTY ISTRIT JU: I understand that. I understand that. I mean, that is a national issue. It is really a question of whether, you know, you can succeed today. Y: Sir, yes indeed. PUTY ISTRIT JU: Yes, all right. Y: So, both of these claims stem from events on 26 th October It is not in my submission in dispute that both of the defendants entered the car park PUTY ISTRIT JU: Yes, yes, I understand that, yes. Y: and parked and also, referring to the admissions made in the witness statements of the defendants, left beyond the two hour stay. So, it is the claimant s position that this is a contract that is established between the parties, the terms of which are as set out on the notice PUTY ISTRIT JU: On the notice, yes. Y: which it is the claimant s contention were many and ample and that, as a result of the breach of those terms, the claimant is then entitled to make a charge, which is stated on the notice, which amounts to a forward estimate of loss in relation to the cost of recovering the charges. PUTY ISTRIT JU: So, how do they work out the 100 then? Y: Well, sir, it has to be an estimate based on the PUTY ISTRIT JU: I mean, he deals with it in his statement somewhere, does he not, I think, if I remember rightly. Y: Pardon? Apple Transcription Limited /gh

9 PUTY ISTRIT JU: e deals with it in his statement somewhere. Y: It is dealt with in the statement and in relation to PUTY ISTRIT JU: an we go to that just to have a look at that. I am not sure which statement [inaudible]. Where does it deal with Y: I think it is actually one of the replies to the PUTY ISTRIT JU: All right, all right. Y: myriad of defences. PUTY ISTRIT JU: All right. I know I saw it somewhere, but I cannot think Y: Sir, yes. In a nutshell, it is a figure that is come to by way of a review of the cost of this sort of litigation and the cost of [managing?] infringements by users of the car park. PUTY ISTRIT JU: ere we are. ere we are. I think I have found it now. It is at the end of his witness statement in the parking charge [inaudible] exhibit 10. ave you got that, ladies? S LMON: Yes. PUTY ISTRIT JU: All right. So, how does he get to the 100? I mean, I know he gives all these quotes about someone saying it [inaudible], but [inaudible]. Pre-estimate of loss, here we are. Significant costs in managing this car park. That is what he is saying. These costs include maintenance of the site [inaudible], monitoring and maintenance of [inaudible] systems, employment of the audit data [inaudible] and deal with appeals. There was some suggestion somewhere in one of the papers from the defendants that administration costs were not recoverable. Y: Well, sir, I cannot say anything about that. What I can say is that the legal basis for this charge flows from what in my submission is now settled law. I am quoting here from an ancient copy of hitty on ontracts where it refers to damages fixed by the parties. It says: Where the parties to a contract agree that in the event of a breach the contract breaker shall pay to the other a specified sum of money, the sum fixed may be classified by the courts either as a penalty, which is irrecoverable, or as liquidated damages, which are recoverable. The clause is enforceable if it does not exceed a genuine attempt to estimate in advance the loss that the claimant would be likely to suffer from a breach of the obligation in question. This is enforceable irrespective of the loss actually suffered. The purpose of the parties in fixing sums is to facilitate recovery of damages without the difficulty and expense of proving actual damage. Apple Transcription Limited /gh

10 Y: So, that really covers the proportionality argument. PUTY ISTRIT JU: Yes, I understand that, all right. There is a point that was raised, I think, by you, Mrs Lemon, in relation to that, which was a quote from somewhere else, which was S LMON: The Office of air Trading? PUTY ISTRIT JU: It may well have been. S LMON: Page 30. PUTY ISTRIT JU: Page 30. S LMON: 30 and 31. Page 31 actually. PUTY ISTRIT JU: ave you got that, Mr eeby? Y: I am not sure that I have numbered pages, but S LMON: You have numbered pages. PUTY ISTRIT JU: ottom of the page. S LMON: You had it sent with numbered pages. Y: Yes. PUTY ISTRIT JU: That does not mean to say he got them with numbered pages. S LMON: Well, I know I numbered them. PUTY ISTRIT JU: I know, but they may have been copied and not [inaudible] if you see what I mean. S LMON: Oh. MISS ARRIS: They may have been because those were numbered ones. PUTY ISTRIT JU: It is the section that deals with Oh, it is page 31. It is exhibit 15 of Mrs Lemon s statement. ave you got exhibit 15? Y: Yes, the part where it says, A parking charge cannot be used to create a loss where none exists? PUTY ISTRIT JU: Well no, it is the middle of the page 31. Apple Transcription Limited /gh

11 The OT s view was if you have an office anyway and have to pay rent, rates and insurance, this cannot be attributed to the breach and claimed as costs as these are costs of running a parking management company. To be recoverable all costs whether in contract or tort must be caused by the breach. Y: Well, sir PUTY ISTRIT JU: So, what do you say about that? Y: The whole point of a pre-estimate of loss is that it provides an estimate in the round. The claimant has set out the basis on which the losses are estimated. Y: It is not an actuarial statement and, in my submission, it is not required to be PUTY ISTRIT JU: No, no, I understand. Y: so in my submission the first point for the court really ought to be whether or not it is recoverable Y: and perhaps the second point should be by way of addressing the magnitude, but it is a very difficult one to argue from either side because we do not have an actuarial statement to refer to Y: and, equally, the defendants can offer no material evidence to contradict the point that is made by Mr Langham in his statement. PUTY ISTRIT JU: Yes, all right. Well, what he does not do in this statement is produce a document that authorises him to charge after two hours. I know you have got that document there, which is a year later, but you have not got a document authorising the charge for two hours. Y: Well sir, that is in the witness statement of Mr Sherbrook. PUTY ISTRIT JU: Let us look at that. Let us have a look at that then. Where is that? Y: [Inaudible], sir. PUTY ISTRIT JU: Thank you. I have read that. I did not think it said there as to what the Y: Well, paragraph 6, sir: Apple Transcription Limited /gh

12 The operator is authorised by the managing agent to issue parking charge notices where vehicles are parked on site in a manner not permitted under the terms and conditions of parking. Y: In my submission, that covers the point. S LMON: Who is the managing agent? Y: It is the claimant. MISS ARRIS: And also S LMON: It should be the landholder. PUTY ISTRIT JU: It is the operator by the managing agent. It says, The landholder is S Stores. Y: Trading as The Range. PUTY ISTRIT JU: Yes, but it does not say who the managing agent is, do you see what I mean, in that statement? Y: Well, except paragraph 4 says, The operator has written authority from the managing agent to undertake parking PUTY ISTRIT JU: Yes, who is the managing agent? Y: Well, you make an interesting point, sir, but I am not able to assist. PUTY ISTRIT JU: All right. MISS ARRIS: LMON: ould I MISS ARRIS: Will I be allowed to ask something? PUTY ISTRIT JU: Well, you can raise a topic. You cannot ask him a question, as such, in terms about his evidence. S ARRIS: No, no. PUTY ISTRIT JU: You can raise a topic, yes. S ARRIS: It was a point actually. PUTY ISTRIT JU: Yes, all right. Apple Transcription Limited /gh

13 S ARRIS: This is paragraph 4. I think both myself and Mrs Lemon, we were confused because we appreciate this is Paul Sherbrook s signed statement saying MISS ARRIS: that the operator has written authority, but we weren t sure what the managing agent meant either, but also we still feel we haven t ever been shown the written authority, i.e. the contract PUTY ISTRIT JU: Yes, I understand that. MISS ARRIS: that you have just now been given, we have never seen that. PUTY ISTRIT JU: No, but that was dated after your MISS ARRIS: Yes, but we ve never seen it at any point and I would raise a point now, if I may, that if that contract existed and wasn t amended until ebruary 13, why have we never been given the chance to see the pre-amended one? PUTY ISTRIT JU: No, of course [inaudible]. I have got your point on that. S LMON: There is one more point. There are actually two Ranges in Southampton and this doesn t give the address. It doesn t specify which Range this refers to. There s one at ursledon S LMON: and the car park we are concerned with is at Shirley, so it hasn t specified which PUTY ISTRIT JU: They are both Southampton addresses, are they not? S LMON: oth Southampton addresses. Y: They are both Southampton postcodes, sir, but having been an undergraduate in Southampton an eon ago, I would submit that the court ought to take judicial notice that Shirley is really in the body of Southampton and ursledon is halfway between here and Portsmouth. S LMON: Would you agree? Y: aving regularly visited the Jolly Sailor--- PUTY ISTRIT JU: I know exactly what you are getting at. I know exactly what you are getting at. Y: It is quite clearly outside the curtilage of the ity of Southampton, whereas Shirley is quite clearly within it. Apple Transcription Limited /gh

14 PUTY ISTRIT JU: Yes, but if you posted a letter to ursledon, it would be ursledon, Southampton. MISS ARRIS: Yes. I could beg to differ because I m Southampton born and bred and I m 54 and I ve been here woman and girl and that s kind of PUTY ISTRIT JU: All right. MISS ARRIS: We re never going to agree on that one. PUTY ISTRIT JU: I do not think that is going to MISS ARRIS: No. PUTY ISTRIT JU: affect matters too much. I mean, it is another nail in the coffin and it may not get there, but we will see. All right, so we have dealt with your point on the damages. You are saying that by accepting that it says 100 they are bound by that as a contract, are you not? Y: Sir, yes. PUTY ISTRIT JU: Yes, but also you are saying that if I decide that it is recoverable, then it is liquidated damages rather than a penalty? Y: Sir, yes. PUTY ISTRIT JU: Yes, all right, I understand that. Are there other issues raised for you in the case? Oh, what about the notice for the camera, you have raised a point about the notice for the camera. S LMON: Notice of the camera? PUTY ISTRIT JU: Yes, in other words, under the regulation S LMON: What, the fact that they are using cameras? PUTY ISTRIT JU: No, the fact that there is insufficient notice of the display MISS ARRIS: You didn t feel that S LMON: No, I didn t feel that that was It is meant to be clear communication PUTY ISTRIT JU: That is right. S LMON: that cameras are being used and, I ll be honest, I wrote to the Information ommissioners Office about that PUTY ISTRIT JU: You did. Apple Transcription Limited /gh

15 S LMON: and they said that s fine, so I had to accept it. PUTY ISTRIT JU: So, you accept that the little thing S LMON: Well, I had to. I don t personally accept it. PUTY ISTRIT JU: at the bottom is S LMON: I don t personally, but I have to. The Information ommissioners Office considered PUTY ISTRIT JU: All right. S LMON: it is PUTY ISTRIT JU: That is fine. All right. S LMON: Which is why it is not in my second witness statement. PUTY ISTRIT JU: All right, all right. You say the little notice is fine, all right. Any other technical points that we need to deal with? S LMON: Loads. PUTY ISTRIT JU: arry on then. What are the other points? S LMON: o you want to [inaudible] about the Paul Sherbrook s witness statement again? S LMON: In number 7 S LMON: he states, amongst other things, that the signage plan and documents and so on were accurate for the date 26 th October. S LMON: Well, I had actually sent Parkingye in my first witness statement dated the end of August S LMON: a clear demonstration of how their signage plan is very, very inaccurate. PUTY ISTRIT JU: All right, let us have a look at your statement in August then please. Apple Transcription Limited /gh

16 S LMON: It is in my addendum one. MISS ARRIS: It is my photo pack. S LMON: It is in my latest one as well. PUTY ISTRIT JU: All right. Let us just have a look. You [inaudible] defence [inaudible] in August. Is that the one you are referring to? S LMON: It is in both of them actually. PUTY ISTRIT JU: All right, well, let us have a look. S LMON: If you look in my November one, I can tell you. PUTY ISTRIT JU: All right. MISS ARRIS: It is also in my defendant s photo pack, photo 31. PUTY ISTRIT JU: I have only got one file open at any one time, I am afraid. S LMON: In mine, it is page 16, in the new one. PUTY ISTRIT JU: All right. S LMON: I think that s Parkingye s [pictures?] there. PUTY ISTRIT JU: It is this one, yes. [Inaudible] Yes, [there it is?] S LMON: [Inaudible] is page 16. That is the November PUTY ISTRIT JU: 16. S LMON: version. PUTY ISTRIT JU: This one here? S LMON: Yes, that is the signage plan, which is S LMON: The black crosses are mine. S LMON: There are no signs where Parkingye are claiming that there are and my red boxes, they have actually got signs where they don t indicate they have. There are quite a few. Apple Transcription Limited /gh

17 PUTY ISTRIT JU: Whereabouts did you park on this plan? S LMON: If you look at the two yellow boxes crossed out MISS ARRIS: Yes. S LMON: I was parked facing them, there. PUTY ISTRIT JU: acing the signs that were not there? S LMON: Yes. Y: Perhaps the witness, as it were, could show the court where on the diagram she is pointing to. S LMON: I was actually facing the store and I was just the other side of that tree. I can t say the exact space, but I know it was in that region. PUTY ISTRIT JU: All right and which way did you drive in? S LMON: You have to come in the entrance here, you have to do a sharp left turn S LMON: and a sharp right turn. You can see the arrow in the road. PUTY ISTRIT JU: So, a sharp left turn. You come in here, turn left there, go down this lane here, is that right? S LMON: Yes. PUTY ISTRIT JU: Then you turn there, all right? S LMON: And I parked in one of those bays. PUTY ISTRIT JU: So, there was one notice there and a notice when you came in? S LMON: Well, I personally discount all of the signs if you re driving because they re so high. MISS ARRIS: an I just show photographically why [we are saying?] PUTY ISTRIT JU: Yes, certainly. Apple Transcription Limited /gh

18 MISS ARRIS: discount them and I will show you as well, Mr eeby. The sign at the entrance I m standing next to, this is the entrance sign. If I flick to the next photograph, which refers to this blue Range sign, which is actually at drivers eye level, when a driver approaches the car park, you also, as I imagine, cars are coming out, we are driving in here MISS ARRIS: your focus With respect, a driver doesn t drive in looking up in the air. PUTY ISTRIT JU: No, I know. Yes, carry on. MISS ARRIS: You will see here if you re in a car here and the driver s side is here, the entrance sign is to this side of this blue Range side MISS ARRIS: so this is at the driver s side MISS ARRIS: and it s up here. So, myself and Mrs Lemon and everybody, we drive in here. The next signage that you referred to, sir, is this one, I believe, where you have to make a 90-degree left hand turn. Again, I m standing underneath the sign and I m about five foot seven. As you do your 90 degree turn you pass this sign to your right and up here and again you re looking at cars exiting, pedestrians and the third sign where Mrs Lemon is saying she did the right turn is where you pointed out you have got to PUTY ISTRIT JU: o a right turn here? MISS ARRIS: Yes, so PUTY ISTRIT JU: It is the same on there, is it not? MISS ARRIS: you come in the entrance. S LMON: It s amongst the tree. PUTY ISTRIT JU: Pardon? S LMON: It s Amongst the tree. MISS ARRIS: It s in the tree. So, Mrs Lemon comes in, does a left turn, does a right turn and as you do the right turn you can see the cars come past these cars and a right turn here. Again, this is to your right and up PUTY ISTRIT JU: All right. Apple Transcription Limited /gh

19 MISS ARRIS: and it s among trees and basically, this is our contention, this is what we were faced with. This is basically our way of saying the signs are not sufficient PUTY ISTRIT JU: All right. MISS ARRIS: we didn t see them and this is my own personal parking space here, this is my defendant s photo pack photo 5. Again, later on I ve done a trail of my walk from my car to the store and Parkingye are contending that their signage is ample and so on. Mr Sherbrook is confirming the signage is We ve got photographic proof that it isn t. We re contending that neither of us, for good reason, saw the signs, which is why we re also contending that we don t feel we entered into a contract PUTY ISTRIT JU: All right. MISS ARRIS: because we were not aware of the contract. PUTY ISTRIT JU: I understand. I understand. I understand. Are there any other points that S LMON: The other point is the fact that he has claimed the signage plan is accurate means that actually is not a statement of truth. PUTY ISTRIT JU: All right. S LMON: This is clearly something which was not accurate at the time and still isn t accurate. PUTY ISTRIT JU: All right, I understand. Anything else that you want to raise that Mr eeby can deal with in terms of technical points at this stage? MISS ARRIS: Technical points regarding the Well, this is kind of and I don t know whether you ll find this inadmissible, sir, because our main contention is we did not see the signs. We are not the sort of people who would PUTY ISTRIT JU: No. MISS ARRIS: deliberately ignore parking signs, especially not with a 100 charge on it, but I am arguing or contending as well that even had we seen the signs, the PA code of practice says that signs must be absolutely clear in meaning, plain language and I don t agree with I mean, I m an nglish specialist and if we refer to my defendant s photo pack PUTY ISTRIT JU: Yes, I saw that. MISS ARRIS: sir, exhibit 6 PUTY ISTRIT JU: You are taking a point on the sign MISS ARRIS: Yes, I am because Apple Transcription Limited /gh

20 PUTY ISTRIT JU: you are only penalised if you park MISS ARRIS: Yes PUTY ISTRIT JU: outside the parking hours. MISS ARRIS: because I notice Parkingye in their defence statement, the Jonathan Langham one, I think it was, have quoted the words on this sign, but they have very significantly actually only quoted partial wording. They have left out an you find Jonathan Langham s statement please? PUTY ISTRIT JU: o you want the parking thing itself? I have got that. MISS ARRIS: Yes, that s this one MISS ARRIS: for Mr eeby s reference. S LMON: Yes. MISS ARRIS: I know it is semantics, but the PA code does say it must be clear and plain language. MISS ARRIS: Parkingye in their own statement on page 1, paragraph 4 say: These terms and conditions are clearly set out on the signage. ere it states two hour maximum stay, customer only car park, for use only whilst shopping in the store. ailure to comply with this will result in a parking charge of 100 Well, that is not actually what their sign says because after it says, ustomer only car park for use only whilst shopping in the store, it then gives times Monday to Saturday and Sunday and only after that does it say, No parking allowed outside these times MISS ARRIS: after which it says, ailure to comply with this will result in a So, I don t know why Parkingye would have omitted the other wording in their statement, but I would argue that it isn t completely plain and clear what you actually get the charge for. PUTY ISTRIT JU: Yes, I understand that point. o you want to deal with that at all, Mr eeby? Apple Transcription Limited /gh

21 Y: Well, I take the point on the nglish language. It is, in my submission, clear enough. It is clear enough that if there was any concern at the time by somebody looking at this sign, that they could have either paid it more attention or gone and parked somewhere else. They did not do so and, therefore, in my submission by parking and by now taking a point on this, they are accepting that there is a difficulty that they now find themselves in. If it were me and I did not understand the wording, I would go and park somewhere else. They did not do that. In fact, what they say in their own evidence is they did not even look at the signs, they got out of the car and made a beeline for PUTY ISTRIT JU: I understand that. I understand that. All right. All right, so I mean [inaudible] bizarre answer to that is that your case is you did not even see the signs MISS ARRIS: No, I didn t and to be fair, with respect, I did make that point before I picked up on this ambiguity and I said we didn t see the signs. an I also just refer to the actual contract itself, sir? MISS ARRIS: Now, Parkingye manage a car park near where I live at Whiteley, the Tesco car park MISS ARRIS: and similar signs for parking [inaudible] and I ve actually stood under those signs with my glasses on and even standing under those signs with my glasses on I cannot read that contract, the print is so small. Obviously it s bigger than this because this [inaudible]reduced, but, again, it s kind of irrelevant because we didn t see the signs, but PUTY ISTRIT JU: All right. Y: Sir, if I could just reply on that point specifically. Y: I do not wish to take anyone through the terms of the contract, which I certainly cannot read even with my plus ones. What I would say is that the words underneath are entirely clear and they make the whole point: This car park is private property and for the use of customers only whilst shopping in store. MISS ARRIS: old on a minute. We were customers S LMON: Yes, we were. MISS ARRIS: and we were shopping in store. Y: Parking limited to two hours and no return within two hours is also in my submission entirely clear. Apple Transcription Limited /gh

22 S LMON: It doesn t say there s a 100 charge for that though. PUTY ISTRIT JU: Yes, all right. Any other technical points that you want to take Mrs Lemon and Mrs arris? MISS ARRIS: Yes, can I refer to my exhibit 12 and it is, er Majesty s Revenue and ustoms. I appreciate this is not a case with or for or against, but I would argue that this is relevant because this is a government department and this is their definition of what constitutes a penalty as opposed to a charge [inaudible] penalty. PUTY ISTRIT JU: Yes, just let me get there. I have got your file. MISS ARRIS: Yes, it is my exhibit 12. MISS ARRIS: Yes, we are contending, as well as we did not see the signs so we don t believe the contract is a fair one and we believe that the siting and the plentitude, which we are saying is not as Parkingye say, is not sufficient, therefore the contract is unfair; we are also contending that this parking charge of 100 is a penalty PUTY ISTRIT JU: Yes, I understand that. MISS ARRIS: it s not for liquidated [inaudible] PUTY ISTRIT JU: We dealt with that earlier. MISS ARRIS: Yes, but I d like to just bring this in. This is separate from the amount of, the amount of it is [inaudible] PUTY ISTRIT JU: What are you MISS ARRIS: The point is that the definition of a penalty is a separate payment from the standard charge for a supply, i.e. I presume the supply was the parking, it s usually a sum of money levied as a consequence for a contravention of the terms of contract PUTY ISTRIT JU: I see, yes. MISS ARRIS: which is what Mr eeby is saying this is and Parkingye are saying that we are being charged because we ve breached the contract. s view on that is this type of charge is a fine or a penalty PUTY ISTRIT JU: Yes, I understand that, yes. MISS ARRIS: and doesn t form part of the consideration for a supply. Y: Sir Apple Transcription Limited /gh

23 Y: with the greatest respect, I have to say that any decision in relation to a tax case must be distinguished from this. Tax cases are not a matter of contract law. They are a matter of taxation legislation--- Y: and it is widely understood by lawyers, in my submission, that, for example, even use the term employee differently to the way, for example, that solicitors would use it or employers would use it. PUTY ISTRIT JU: All right. All right, any other points that you want to raise in terms of your technical defence? MISS ARRIS: I know you have quoted it yourself, sir, but I am quite unhappy today as the defendant that again I m still insisting the contract is not fair, even more so now that we suddenly are aware of this contract. We weren t aware of it and we now find, even though we ve now suddenly been made aware of it, it was amended after our alleged parking offence PUTY ISTRIT JU: Yes, I understand that, yes. MISS ARRIS: You know, so, again, I am contending there the contract is not fair. PUTY ISTRIT JU: All right. Any other points, Mrs Lemon? S LMON: Only about the epartment for Transport s traffic sign manual that the signs are supposed to comply with. MISS ARRIS: Yes. S LMON: I think in PUTY ISTRIT JU: In what ways did these breach that? S LMON: About the should not have to divert their eyes more than ten degrees away from the road ahead. Now, in Mr Langham s defence statement he says, The epartment for Transport s traffic sign manual doesn t apply to private parking, but the PA s code of practice says it does have to comply. PUTY ISTRIT JU: All right. Where is that then? ave you got the PA code of practice? S LMON: ode of practice PUTY ISTRIT JU: Which exhibit is that? MISS ARRIS: It s my exhibit 4, sir. Apple Transcription Limited /gh

24 PUTY ISTRIT JU: All right, thank you. MISS ARRIS: Is it that? [Inaudible] S LMON: Yes. MISS ARRIS: Yes. PUTY ISTRIT JU: xhibit 4 and that says, recommend you follow the This is at 18.2, is it not S LMON: Yes. PUTY ISTRIT JU: the epartment for Transport guidance, all right. All right, so what do you say about that, Mr eeby? Y: Well, sir, the epartment of Transport guidance refers to road signage produced by drivers and there is a distinction in my submission between parking notices that direct drivers as to where to park and, for example, where not to park, and notices such as the terms and conditions of parking, which it is not expected in my respectful submission that drivers will pick up on the fly. It is all very well drivers being aware of notices. or example, when one goes into a pay and display car park, one has the opportunity when pausing for the barrier very often to see the charges, but it is not expected that the terms and conditions will be read whilst holding up the queue at the barrier. Y: The terms and conditions are there to be read afterwards if they are a matter of concern. PUTY ISTRIT JU: All right. Y: It is by remaining in the car park that the driver accepts those terms and conditions. I mean, in this case, it cannot have been expected by anybody putting this sign up that the detail of the sign would be read on the fly. Its presence is [inaudible] by the fact that it is bright and yellow and it is located at a reasonable height above the typical vehicle. Of course, [inaudible] obscure it, but it is clearly by the photograph that is by the defendants themselves above the height of the average vehicle and, therefore, it is less likely to be obscured by somebody turning up in an over-height vehicle. PUTY ISTRIT JU: All right. S LMON: xcuse me. There is no way lorries could turn into that car park. PUTY ISTRIT JU: No, no, no, he was just taking it as an analogy. S LMON: Parkingye has to comply with the PA code of practice and it states there, It is recommended you follow epartment for Transport uidance. Apple Transcription Limited /gh

25 Y: So, it is a code of practice. It is not a S LMON: No, if you Y: It is not statute. It is not [inaudible] in that sense. S LMON: It is. Y: It is a code of practice. MISS ARRIS: Parkingye say that they follow and comply with the PA code of practice though. S LMON: They have to in order to access the VLA records and if they don t comply with this code of practice they can be sanctioned and stopped from accessing VLA records. PUTY ISTRIT JU: All right. S LMON: I am not saying just for that one [inaudible] they are awarded different levels of points that are PUTY ISTRIT JU: All right. Any other points? MISS ARRIS: an I just MISS ARRIS: On the same relevance of this discussion which has taken place, I mean I would accept as a driver and as a person that it wouldn t be reasonable to expect everyone to be able to read everything on a flyer. owever, again referring to the PA code of practice, this is my exhibit 5, their appendix, it actually says specifically regarding entrance signs, because Mr eeby has said we shouldn t need to be able to read the whole of the flyer, but we should be able to see and be aware there are signs. Regardless of whether the signs are big and yellow, yes, they re big and yellow, however, as a driver you don t see them because the entrance sign The PA code of practice, my exhibit 5, says, The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. If you look at my defendant s photo pack again PUTY ISTRIT JU: It goes on to say, Any text on the sign not intended to be read from a moving vehicle can be of a much smaller size. S LMON: Yes. Y: Sir, just to clarify, the words I used were actually it was not intended that the sign was to be read in detail on the fly Apple Transcription Limited /gh

26 Y: meaning on the fly, whilst MISS ARRIS: Okay on the fly. Sorry, okay, on the fly. Y: driving, looking for a space and trying to avoid knocking over MISS ARRIS: Yes, okay, I appreciate that. I take that point. S LMON: That is fine if you have an adequate entrance sign, but this entrance sign is inadequate. MISS ARRIS: Yes, we re contending again it doesn t comply because you cannot, as proven again by my exhibit 6, photographs 2 and particularly photograph 3, the entrance sign is the side of the blue Range sign, you re driving looking forward, being aware of other cars and pedestrians and about to negotiate a left hand turn. You do not see that entrance sign and that is the key one. You don t actually see the sign at the entrance. PUTY ISTRIT JU: Yes, I take the point. Thank you. All right, any other points? S LMON: Only that there are no signs up for the disabled parking bays and the code of practice at section 18.9 says that there should be at least one sign containing the terms and conditions for parking that can be viewed without [inaudible] vehicle at the disabled notice bays. PUTY ISTRIT JU: Are there any disabled [notice?] bays? S LMON: Now, we contend that there are no disabled bay signs because they would be right at the entrance to the store and everybody would see them. MISS ARRIS: That s my exhibit 6, photographs 21 and 22, sir. S LMON: Yes. id you park in a disabled bay? S LMON: No. MISS ARRIS: therefore No, but everyone has to walk past them to get to the entrance and, PUTY ISTRIT JU: This is numbered what photograph, 6? MISS ARRIS: xhibit 6, page PUTY ISTRIT JU: xhibit 6, is it? MISS ARRIS: My defendant photo pack. Apple Transcription Limited /gh

27 PUTY ISTRIT JU: Yes, I have got that. MISS ARRIS: Photo s 21 and 22. PUTY ISTRIT JU: Photo s 21 and 22, sorry. MISS ARRIS: That shows, where it says entrance, they are the disabled bays and you can see a couple of people getting out of one of the cars in one instance. PUTY ISTRIT JU: 21 and 22. MISS ARRIS: We are contending that had they had a sign there where they should have done, you almost couldn t have failed to see the sign as you approached the store. PUTY ISTRIT JU: Yes, but I mean, they may be in breach of that, but that is not relevant to today, is it, because you were not parking in either of those bays? MISS ARRIS: No, we re only saying it s relevant because we re contending that the signage generally is not as plentiful as they say it is sand it s not visible to drivers easily PUTY ISTRIT JU: All right. MISS ARRIS: and had they had one here, you have to walk past that to actually approach the store so at least that would have helped all drivers, not just disabled drivers. rivers leaving their cars further back in the car park and approaching the store entrance may have had a fighting chance of 0 PUTY ISTRIT JU: All right. MISS ARRIS: actually being able to see that. PUTY ISTRIT JU: All right, any other points? S LMON: There are no more technical points. PUTY ISTRIT JU: All right. Are there any questions you want to ask these ladies in relation to their evidence? Y: There are, sir. Perhaps I could start with Mrs Lemon. S LMON alled xamined by Y Q. Mrs Lemon, you accept, do you not, that this car park is on private land? A. Yes. Q. And you accept, do you not, that it is the right of the private landholder to decide how that land is going to be used? Apple Transcription Limited /gh

28 A. Yes. Q. And if you had a drive at home, you would take exception, would you not, to someone just turning up and parking a vehicle or putting any obstacle on your drive without permission? A. Without permission, yes. Q. So, you accept, therefore, do you not, the right of the landowner to deal with parking in such a way as they see fit? A. Yes. Q. And it is right, is it not, that the public purpose that the landowner uses this car park for is for people to park while they are shopping? A. Yes, which I did. Q. And you admit, do you not, that you parked longer than the two hours that is normally allowed? A. Yes, I haven t denied that, but I didn t know that two hours was allowed because I can assure you if I d known neither of us would have been in there longer than two hours. I have been driving for over 40 years. I have never had a parking ticket. So, I do reading parking signs. Q. I have no further questions. PUTY ISTRIT JU: All right. What about Mrs arris, do you want to ask her some questions? Y: I will ask Mrs arris the same questions. MISS ARRIS alled xamined by Y Q. Mrs arris, you accept, do you not, that it was private land? A. Yes. Q. And that the landowner has a right to allow that land to be used for whatever purpose he sees fit? A. Yes. Q. And in just the same way, if you had a drive at home and someone turned up and put something on it, you would take exception? A. Yes, of course. Q. You accept, do you not, that you did not respond to any of the written communications from Parkingye? A. Yes, but I would make the point Q. [Inaudible] PUTY ISTRIT JU: Let her finish. Let her finish. Apple Transcription Limited /gh

29 A. an I just answer the question please? Q. Yes. A. [redacted] Y: Perhaps I can just stop you there, Mrs arris. A. Yes. So no, I didn t respond to any of your communications. Q. The simple answer is you did not respond, did you? A. No, not initially. Q. You did not respond. You accept, do you not, that if you had responded you would then have had the opportunity to go through the POPLA appeals process if you had not been satisfied with any appeal that you did not make to Parkingye. A. I don t [inaudible] I don t accept that, but as you ve asked me a question, I wouldn t have had the confidence and I still wouldn t now and I m better now; I wouldn t have the confidence to believe that would have helped me because POPLA are I don t know if they re for the parking [inaudible], but I know POPLA run seminars for the likes of Parkingye to help them do these things so they can trawl in the parking charges. So, I wouldn t have had any confidence, rightly or wrongly, and also Mrs Lemon the day after we got the charges, Mrs Lemon actually went into the Range - okay, ignorance, I accept this, but we thought at that point we were appealing - showed them the receipt and the Range s response was, No, if you had bought a three piece suite or something we could help, but we can t. Naively or not, yes, I accept your paperwork in hindsight did say oh you can do this to appeal, that to appeal, but we weren t confident that we would get anywhere with an appeal. In fact in Parkingye s witness statement it actually says somewhere that I didn t respond, but then it goes on to say, Regardless the defendants still overstayed So, this regardless an you find that for me? You know, The defendant didn t respond or appeal, but regardless of this the defendant overstayed the maximum time. So, that regardless would intimate to me that even had I appealed this would always have gone to court because as far as Parkingye were concerned I d overstayed the maximum time, nothing I said was going to make any difference. So, no, I didn t go through the POPLA appeal. S LMON: You didn t ask me that question. Y: Well PUTY ISTRIT JU: Would you like to answer that? o on, you answer that. S LMON: I will answer that. All right, I didn t appeal because this was in October 2012, POPLA had just been started that month so not much was known about it. It is funded by the PA, which in turn is funded by the parking companies, so that made it suspect in my eyes to start with. As Sue said, I understand that they have run workshops for the parking companies Apple Transcription Limited /gh

30 Y: So, Mrs Lemon, it is your contention, is it then, that because of your understanding of the make-up of Popular that it is, therefore, entirely pointless you going through any alternative appeal process S LMON: I didn t appeal it Y: but rather you would wait for the matter to go to court. S LMON: I didn t think they would be unbiased. owever, can I just say, in hindsight, if I knew then what I know now I would definitely appeal to POPLA because - see if you agree with this - every single case that s gone to POPLA where the pre-estimate of loss calculations have been challenged, Parkingye have lost. Y: That is entirely a separate matter. S LMON: That is what I am saying. In hindsight Y: ut you did not at the time. You seem to have taken the view that you were being victimised. S LMON: No. MISS ARRIS: That is a subjective argument. That is your words. S LMON: I said I didn t think they d be unbiased because POPLA is funded by the parking companies. PUTY ISTRIT JU: All right. Any other questions? Y: No. PUTY ISTRIT JU: All right. So, are there any submissions you want to make, Mrs Lemon and Mrs arris, in addition to the points you have made or do you want to highlight the strong points in your case and the weak points in the claimant s case? S LMON: Yes. PUTY ISTRIT JU: I mean, one could speak for both if you like. MISS ARRIS: So, I mean, basically to bullet points so it s more concise, firstly, we didn t see the signs because they re not ample or clear so they re not sufficient, so we re saying the contract isn t fair. The wording, had we seen them, we don t agree is clear and plain nglish, it s ambiguous. We re still contending the fine is actually a penalty and, therefore, cannot be enforced by law by Parkingye. If the charge is accepted as a charge and not a penalty, we re still contending it s excessive. or example, at the Whiteley one, it says, Three hours free parking. If you require extra it is 1 an hour, which is fair enough as a driver, I think. inally, we are still not happy as defendants and not agreeing as defendants to saying that Parkingye are entitled to take Apple Transcription Limited /gh

31 proceedings against us because we still don t feel it s been proven that the contract was in force at the time of the offence. PUTY ISTRIT JU: All right. Yes. S LMON: an I just say something about this 100? PUTY ISTRIT JU: Yes, yes. S LMON: It states in the pre-estimate of loss, I think that it is exhibit 10 of yours, it says that circa 55 covers Parkingye s costs. PUTY ISTRIT JU: Which page are you looking at, the second page of 10? The second page of 10, is it? S LMON: Two, three, four, five. No, five, the second paragraph. PUTY ISTRIT JU: Page 5. S LMON: The second paragraph down. PUTY ISTRIT JU: ang on. S LMON: Starting [inaudible] PUTY ISTRIT JU: [Inaudible] reduced amount [inaudible] 55 [inaudible] for Parkingye to operate a business. Is that what you are saying? S LMON: It covers Parkingye s costs, yes. PUTY ISTRIT JU: Oh, they are required to offer a 40 per cent reduction for early payment, so they are obliged S LMON: Yes, it s the average payment. That s paragraph 1 that you re looking at and that begins, The average payment PUTY ISTRIT JU: Oh yes, yes. S LMON: circa 55 covers Parkingye s costs. In our case, the charge is 100 S LMON: so 45 of that is clearly profit and that cannot figure in any pre-estimate of loss calculations PUTY ISTRIT JU: All right. S LMON: and that 55 actually contains many elements which are not part of the loss calculation, such as installing signage and Apple Transcription Limited /gh