Gladstones CCC - UKCPM

richy4 · 24 March 2017 at 3:33PM

Hi, sorry to hijack the thread briefly, I'm in almost an identical situation to the original poster.

(I'll shortly start my own thread separately).

For now, I would just like to ask who/where you addressed your Subject Access Request to at UK CPM? I've tried calling them twice on their dodgy 0845 number but always get some voicemail. I don't want to end up wasting any more time or money(!) on this phone number, so did you simply use the address on their website, the Brighton one or the London one?

Thanks

AOneVS · 24 March 2017 at 3:58PM

Hi richy4, try the address for their data controller here - https://ico.org.uk/ESDWebPages/Entry/Z3245704

Good luck!

richy4 · 24 March 2017 at 4:06PM

That's great, thank you. I had the Brighton address in mind as that was also what was on the court claim, but will readdress it to Lancing! Thanks again and good luck too, I'm rooting for you!

AOneVS · 25 April 2017 at 9:42PM

Wow, seems like a while since I posted here. It's been nice to not have to think about this for a while! I had to search for my thread and it seems UKCPM have been busy based on the search results. May is fast approaching which means I need to get my WS in shortly.

I'm posting this almost final draft, but just need some feedback on some of the wording. Specifically points 7 and 8.

Also, where would I reference the cases included in the defense statement?

I've created a schedule of costs, can I include this when sending the witness statement?

__________________________________________________________________________

In the County Court at xxxxxx

Claim No.: XXXXXXX
Between

UK CAR PARK MANAGEMENT LIMITED
(Claimant)

-v-

Me
(Defendant)

WITNESS STATEMENT OF THE DEFENDANT

The exhibits which the defendant intends to rely upon are as follows:

Ex. 1. Defence statement
Ex. 2. Notice to Driver
Ex. 3a. Image of parking sign at entrance to xxxxx from car
Ex. 3b. Image of parking sign at entrance to xxxxx version 1
Ex. 3c. Image of parking sign at entrance to xxxxx version 2
Ex. 3d. Image of parking sign at entrance to xxxxx version 3
Ex. 4a. Image of parking area from Google Street View
Ex. 4b. Image of parking area wooden fence version 1
Ex. 4c. Image of parking area wooden fence version 2
Ex. 4d. Image of parking area sign version 1
Ex. 4e Image of parking area sign version 2
Ex. 4f. Image of parking sign within the estate
Ex. 5. Email from BPA
Ex. 6. Parking sign by Private Eye in Beavis case to demonstrate clear signage
Ex. 7. Notice to Keeper Letter from Claimant to registered keeper
Ex. 8. Protection of Freedoms Act, 2014, schedule 4
Ex. 9. Excerpt from Barrister Henry Greenslade on ‘Keeper Liability’ POLPA annual report, 2015
Ex. 10. Letter before Claim letter from Gladstones solicitors
Ex. 11. Particulars of Claim letter from Gladstones solicitors
Ex. 12. IPC Code of Practice
Ex. 13. Part 18 Request to Gladstones solicitors
Ex. 14. Subject Access Request letter
Ex. 15. Subject Access Request follow up letter

1. My name is xxxxx I live at xxx xxxxxx. I am the defendant in this matter. I make this statement from my own knowledge and personal experience.

2. The facts of the case are as set out in my Statement of Defence, filed in response to the original claim and verified by a statement of truth. They do not bear further repetition here, but by this statement I now adduce evidence in order to prove my case. A copy of the statement of defence can be seen in Exhibit 1.

3. It is admitted that the defendant was the registered keeper of the vehicle at the time in question, but the defendant does not admit he was the driver.

4. I received a Notice to Driver on 6th March 2016 (Exhibit 2). The vehicle was parked on a private estate within the terms of the lease.

5. The parking area is shown by Google Street View (Exhibit 4a). The same wooden fence can be shown in Exhibits 4b and 4c, all showing no sign in place.

6. The parking sign was added to the wooden fence sometime in September 2016 (Exhibit 4d) and updated in February 2017 (Exhibit 4e).

7. There were no parking terms mentioning visitor parking on the sign at the entrance to xxxxx (Exhibit 3b) until the sign was changed in September 2016 (Exhibit 3c). The terms were changed again in February 2017 (Exhibit 3d). Exhibit. 12 - The Independent Parking Committee Code of Practice (Schedule 1 - Signage).

8. Exhibit 3a shows the view of the sign from a car entering xxxxx. Please refer to (Exhibit. 6) for the parking sign in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 to demonstrate clear signage.

9. All signs around the estate showed the BPA Approved Operator logo. (Exhibits 3b, 4d, 4f) The BPA confirmed that the Claimant was not an Approved Operator (Exhibit 5). They have been an IPC Approved Operator since 1st October 2015.

10. I received a Notice to Keeper dated xxth xxx 2016 (Exhibit 7) for PCN number 111111 (dated 6th March 2016).

11. At the time I did not respond to any of the above as I had done some research into the IAS (Independent Appeals Service). My research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. This set-up is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. This claimant's Solicitors appear to pay little regard to the 'overriding objective' within pre-court protocols, issuing incoherent copy & paste claims with no due diligence.

12. No evidence has been supplied by this Claimant as to who parked the vehicle. Under POFA 2012, there is no presumption in law as to who parked a vehicle on private land, nor does there exist any obligation for a keeper to name the driver.

13. I wish to draw your attention to Barrister and POPLA (Parking on Private Land Appeals) Lead Adjudicator’s Henry Greenslade’s words in the 2015 POPLA Annual report. - “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort” (Exhibit 9)

14. I received a Letter Before Claim dated the xxth xxx 2016 from Gladstones (Exhibit 10) regarding the outstanding PCN, number 111111

15. I received a letter dated xxth xxx 2016 from Gladstones with Particulars of Claim enclosed. (Exhibit 11).

16. On the xxth xxx 2017 I submitted a Part 18 request for further and better particulars to Gladstones via email (Exhibit 13). This has not been responded to.

17. On the xxth xxx 2017 I submitted a Subject Access Request to the Claimant requesting any data held about me. (Exhibit 12)

18. On the xxth xxx 2017 I submitted my initial defense so as to comply with the time constraints.

20. I filed my directions questionnaire on the County Court business Centre (CCBC) and Gladstones on the **nd xxx 2017.

21. On the xxth xxx 2017 I received a Notice of Allocation to the Small Claims Track.

22. On the xxth xxx 2017 I sent a letter to the Claimant requesting a response to the Subject Access Request as the 40 day deadline had passed. (Exhibit 13). No response was received.

23. On the xxth xxx 2017 I made a complaint to the ICO about the lack of response from the claimant to my Subject Access Request.

I believe that the facts stated in this witness statement are true

Loadsofchildren123 · 26 April 2017 at 12:55PM

Some preliminary general comments:

1. In March you said "Yesterday was also the deadline for them to reply to my SAR chaser. Nothing. Cheque still not cashed. Shows they've got their priorities in order. I'll be making a complaint to the ICO post haste." - you should make more of this, it makes them look bad.

2. The Defence is written in the 3rd person. this statement should be in the first person, so you need to tweak it a bit in that regard.

3. I haven't gone back over the full thread, so am reading this like the judge would. The chronology and points about signage are not coming across clearly. I can see all the dates of different signs etc, but don't understand the relevance or the context of these. What issue do the different signs relate to? Are you saying they can't prove what signs were displayed at the time, or are they relying on the wrong signs? I think you are saying the sign they rely on was not there in March 2016 and you have evidence of this and that they put it up in September 16, in which case start para 6 by saying exactly that: "the Claimant relies on there having been a sign on the fence in March 2016. However, it is clear from Exhibit 4a that it was not. The sign on the fence was only put there in Sept 2016" [I know you've exhibited a picture, but expressly say how you know this is true].

4. Again in 7, make it clear that at the time of the parking event, there was no entrance sign which stated anything about visitor parking and that the Claimant's evidence to the contrary is inaccurate. Perhaps you should put a simple para in before these points saying "The C relies on signage at the entrance to, and inside, the site which was not in fact there on the date of the parking (x March 2016) but was put there later. I know this because.......)

5. I'd also add somewhere about their record-keeping obligations according to the BPA/IPC Code of Practice (whichever one they're a member of) so you can say that they are obliged to keep proper records and must therefore know that what they are saying about the signs is inaccurate and misleading.

6. I don't understand the reference to "the lease" in para 4. What do you mean? is this a tenant case so you are saying you were parked according to the rights/obligations in your tenancy? If so, expand on this as it's a really important part of your defence.

7. para 8 "the sign" - what sign? At this point it's become confusing because you are referring to so many signs. do you see what I mean about the chronology not being clear?

8. Para 9 - signs around the estate WHEN?

9. Para 12 - If they have mentioned Elliott v Loake, refute it here as containing no presumption that RK is the driver of a vehicle, and that in that case there was convincing forensic and other evidence that the RK had been driving. Neither does the case act as a precedent for claiming that it is up to a Defendant to rebut the presumption.

10. Para 16. Make more of this. Say that the request was designed to obtain the sort of information that should have been provided at the pre-action phase under paragraphs 6(a) and 6(c) of the Practice Direction - Pre-Action Conduct, and which should have been contained in the Particulars of Claim - its purpose was so that you could understand the claim, try to narrow the issues, to take stock of your position and defend it appropriately. Instead, you have had to second guess how the claim is being pursued and what it is based on, whereas you should have known this and had sight of the core documents well before now.

AOneVS · 26 April 2017 at 2:58PM

Thanks for the comprehensive critique LoC. It's very helpful. It can be difficult to read it as a third party would, when you're so deeply involved in it.

Regarding the signage, I think it's the main point that they will lose on, as it's such a fiasco. At the time of the PCN there was no sign on the wooden fence (where the cars park). The sign on the entrance to the parking area had no terms regarding visitors (I have a photo of this from 11th March 2016). This sign and all others on the estate, at the time of the PCN, had the BPA logo when they were IPC. They only rectified this in January, with an IPC sticker placed over the BPA logo :rotfl:

Point 8 refers to this sign, but viewed from a car. The sign is on the RHS of the road and at a height which makes it barely legible. I wanted to draw comparison to the legible sign used in the Beavis case.

I'm not sure whether to include reference to the lease in the WS or make more of it. There was some contention over one of the covenants of the lease starting at post 13 on this thread.

Thanks again.

Loadsofchildren123 · 27 April 2017 at 12:16PM

OK, have read the full thread now.
There are some contradictions here and you need to think carefully about how to get around them. I'm coming to this with a fresh pair of eyes and these discrepancies may well trouble the judge.

I can see you initially defended on the basis that the car was validly parked in your leaseholder space. But it turned out that it was parked in a visitor space. Is this right? And that the signage in the visitors area didn't say anything prohibiting parking there. Right so far?

If the car was driven by you, which the judge might find it was, then if you produce your lease, they will say that you weren't parked according to the lease because this prohibits parking in a V space. On the other hand, as has already been discussed, the lease contains no penalties and it would be for the freeholder to pursue you for damages for a breach of the lease terms. but I don't think you can claim you were parked according to your lease.

If the car was driven by someone else, then there is no breach of your lease terms because, while the car was theirs, they were a visitor. But isn't this stretching things a bit far? If you'd lent a non-resident your car, why would they have been parked at your address, in a visitor space? Unless of course you tend to lend out your car to relatives/friends who live elsewhere. I suppose if they were coming to return the car to you then they would at that point be a visitor, but at the point the car is handed back to you it's back in your control.

Maybe I am overthinking this.

I think you need to play down the lease, just say you are a leaseholder at the location and you have parking rights in your lease which do not contain any right for the freeholder to recover any set penalty if they are breached.

You need to provide some sort of reasonable evidence that others drive your car, otherwise the judge is likely to make a finding that you were driving - the car was parked at your home!!!!

Bringing the focus back to the signage, you need to simplify how you are putting it because the points about it being a fiasco aren't coming across. Set the scene, with something like:

"Regarding the signage, I am afraid this is nothing short of a fiasco. Since the pcn was issued to my vehicle on x, the Claimant has changed its signage [several times?]. Chronologically, this is what has occurred:

a. Firstly, to put matters in context, I should make it clear that on the site, there are distinct areas set aside for residents' parking and for visitors' parking [might it be a good idea to do a plan at this stage and refer to it?].

b. at the time of the parking event: there was an entrance sign, but this contained no terms at all about parking for visitors and there was no sign at all in the visitors' area. The entrance sign referred to [what?] and there were signs in the residents' area about the need to have and display permits. Exhibited hereto at X are photographs of the entrance sign and the visitors' area at the relevant date.

c. On x date, a sign was put up in the visitors' area, on the fence which is marked X on the plan referred to at a above.

and so on.

You'd then put in a section about your lease, what it says about parking and that you signed it and entered into it before you moved in, and you were told nothing about permits and neither does your lease mention them. Followed by the primacy of contract legal arguments and cases. Although of course you're in trouble if you were driving because you didnt' park according to your lease - BUT the lease doesn't contain any rights for a ppc to issue you with a charge and as a leaseholder the "contract" offered by the signage can't bind you.

But I just want you to stop and think this through. Do you try to show you weren't driving? What happens if the judge finds you were - do you just say well it doesn't matter, because my lease had nothing in it that said if I parked incorrectly then I wouldn't have to pay a charge?

AOneVS · 27 April 2017 at 12:54PM

You are a legend LoC! Thank you for getting up to speed on this one. I appreciate there are some things to overcome with this one as it's not as cut and dry as some other cases.

There are no permits required to park on the estate. There are 3 spaces for 'visitors' (woefully inadequate for an estate of 100 houses, but that's another story). My wife and I are both named on the insurance. I'll add something about that to point 3 of the WS.

Thanks for the signage example. I agree that it is key to this case. I'll endeavor to expand upon that.

I recall on that weekend that my car was being fixed by someone. I have a receipt for the parts being used from the day before. They would've had permission from me to move the car. Is it worth expanding on that?

Loadsofchildren123 · 27 April 2017 at 1:09PM

AOneVS wrote: »

I recall on that weekend that my car was being fixed by someone. I have a receipt for the parts being used from the day before. They would've had permission from me to move the car. Is it worth expanding on that?

Definitely. You could say that your arrangement with the repair garage is that they collect and drop off the car, or it might have been a family member who is permitted to drive the car. Say that as non-residents, these people would have parked it in the V spot and you would have gone to move the car afterwards into your residents' parking spot, by which time the pcn had been put on the windscreen. You could also say that several people are allowed to drive your car, including your wife (who is a named driver) and other family members (whose own insurance policies permit this). Put in the normal gumph about not being obliged to name the driver and there being no presumption that the RK is the driver, and that they have produced no evidence at all of who was driving.

I think this makes it better. You just need to sit back and think about what problems you might have and think through how to deal with them.

AOneVS · 27 April 2017 at 2:10PM

It's still work in progress, but I've made these edits:

3. It is admitted that I was the registered keeper of the vehicle at the time in question, but I do not admit that I was the driver. My insurance certificate shows myself and one other named driver (Exhibit 2).

4. I received a Notice to Driver on 6th March 2016 for PCN number 972126 (Exhibit 3). The vehicle was parked on a private estate within the terms of the lease (Exhibit 4). The lease does not contain any right for the freeholder to recover any set penalty if the leaseholder parking terms are breached.

And in relation to the signage:

5. Regarding the signage, I am afraid this is nothing short of a fiasco. Since the PCN was issued to my vehicle on 6th March 2016, the Claimant has changed its signage several times. Chronologically, this is what has occurred:

a. The parking area is shown by Google Street View (Exhibit 5a) and a plan showing the parking bays and entrance to the parking area (Exhibit 5b).

b. at the time of the parking event: there was an entrance sign (Exhibit 6a) marked as X on the plan referred to above. This contained no terms at all about parking for visitors and there was no sign at all in the visitors' area. The entrance sign referred to general parking terms only. A view of the parking area with no sign is shown in Exhibit 7a (1st May 2016) and Exhibit 7b (18th September 2016).

c. Sometime in September 2016, a sign (Exhibit 7c) was put up in the visitors' area, on the fence which is marked Y on the plan referred to at a. above.

d. The sign at the entrance to the visitors’ area was changed in September 2016 (Exhibit 6b) and again in January 2017 (Exhibit 6c).

e. At the time of the parking event, all signs on the estate showed the BPA Approved Operator logo. The BPA confirmed that the Claimant was not an Approved Operator (Exhibit 5). They have been an IPC Approved Operator since 1st October 2015.

6. Exhibit 8 shows the view of the sign from a car entering XXX. Being on the right hand side of the road and at height, it is far from clear as to what the parking terms are when viewed from the driver’s point of view. Please refer to (Exhibit. 6) Parking sign in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 to demonstrate clear signage.

Gladstones CCC - UKCPM

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