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  • FIRST POST
    • zebrarose
    • By zebrarose 17th Mar 17, 1:41 AM
    • 84Posts
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    zebrarose
    CCJ and my Credit Score- All correspondence sent to address from 2013
    • #1
    • 17th Mar 17, 1:41 AM
    CCJ and my Credit Score- All correspondence sent to address from 2013 17th Mar 17 at 1:41 AM
    Apologies if this has been covered. I've tried to locate relevant threads.

    Last weekend I was to move into a new property, but failed the reference checks due to a CCJ. I was absolutely dumbfounded as to what it would be for and the landlord completing the check would not give any information.

    I contacted the CCJ Business Centre to find out what it was relating to and discovered that it was for a parking charge from a PPC. The CCJ BC said that it was relating to an address I lived at 4 years ago. Since then I have moved twice and had always had my address up to date with the DVLA. Any correspondence should have been sent to the correct address.

    The CCJBC said that the case was submitted by Gladstones. Gladstones then said that the case is out of their hands and now with DCBL (debt collectors). The CAB and debt collectors advised I apply for the CCJ to be set aside, which I understand costs £255.00? What about my credit score though? I am unable to move (repossession of rented property due to lardlord requirements) and unable to get a new lease due to this CCJ.

    The original parking charge was for not displaying a residence permit. The charge was disputed with the PPC and the landowner and both rejected it (More Information can be provided regarding the charge if required/relevant).

    The CCJ was issued in September 2016 and I have just found out about it. The time frame to appeal the CCJ has passed (as I did not receive any correspondence- due to them using address from 4 years ago). I have been reading, researching and been to the CAB ever since and have not found what the next step should be.

    Any help would be greatly appreciated. I really feel overwhelmed with this stress
    Last edited by zebrarose; 17-03-2017 at 1:44 AM.
Page 5
    • zebrarose
    • By zebrarose 9th Jun 17, 5:58 PM
    • 84 Posts
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    zebrarose
    updated WS
    Parking and property management are IPC members? , how come they have not followed the code of conduct , http://parking-prankster.blogspot.co.uk/2017/06/new-ipc-code-of-practice-weakens-data.html

    Quote:

    Before issuing court proceedings on any unpaid parking charge which is over 12 months old, the operator must first perform a suitable check of the defendant’s last known address.


    this obviously was not done , I wonder if the IPC will sanction them?
    Originally posted by pappa golf

    very good point!




    In the County Court Business Centre


    Claim Number XXXXXX






    BETWEEN:


    Parking & Property Management Limited (Claimant)


    v


    XXXXXX (Defendant)














    ________________________________




    WITNESS STATEMENT




    ________________________________











    I am xxxx and I am the Defendant in this matter.
    This my supporting Statement in support of my application dated xx/01/2017 to:
    • Set aside the Default Judgement dated August 2016 as it was not properly served at my current address;
    • Order for the original claim to be dismissed.

    1. Default Judgement
    1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in September 2016. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 10 March 2017 when I was getting a tenancy reference check on my credit file. I understand that this Claim was served at an old address (xxxxx). However, I moved to a new address in June 2016. In support of this I can provide confirmation from xxx County Council showing my updated details for the purposes of paying Council tax and driver’s licenses with each address I moved to.

    1.2. I have also never received any documentation from the Claimant in this matter regarding a Notice to Keeper.

    1.3. On the 13/03/2017 I contacted Northampton County Court to find out details of the Default Judgement. The court was not able to give any details of the alleged incident.

    1.4. On 13/03/2017 I contacted the Claimant using information given to me by Northampton County Court to establish what the alleged incident was regarding.




      1. 1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they pursued the Defendant’s correct contact details however the Claimant chose to ignore the Defendant’s vehicle details, address and email address on their system and
        chose to send all communications to the address provided by the DVLA after first completely ignoring the fact that the vehicle’s details was on their systemand people can be caught in the process of moving home and updating the DVLA records. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

        1.6. On the basis provided above I would suggest that the Claimant did not fulfil their duty
        of due diligence to use the Defendant’s current address when bringing the claim, and instead deliberately used the old address which was no longer valid when bringing the claim.

        1.7. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

        2. Order dismissing the Claim

        2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

        2.2. If the Claimant has obtained details of the vehicle for which I am the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.


    2.3. No evidence has been supplied by this claimant as to who parked the vehicle. Under the Protection of Freedoms Act 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 a driver. I choose to defend this claim as the registered keeper, as is my right.

    2.4. If the Claimant can evidence that the alleged incident relates to a vehicle for which I am the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.



    It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.




    2.5. The claimant cannot overrule the rights of way and easements of the lease or introduce any new terms or charges subsequent to the permit agreement, as made when the permit was accepted by the resident.

    2.6. Parking terms cannot be re-offered by a third party contractor on a day-to-day basis (on far more onerous and potentially, completely variable terms) because these were never incorporated into the permission to park as granted by the landowner, which was a stand-alone contract, concluded at the point in time of the provision of a permit which carried very few terms of use and no 'parking charges' nor 'indemnity costs'.

    2.7. In the event that the court finds a contract based on signage can supersede the permit terms already agreed and the lease, I put the claimant to strict proof of a chain of contracts leading from the landowner to this claimant which enable these charges to be pursued in court by this contractor, for these alleged contravention(s), whatever they may be.

    2.8. The alleged debt(s) as described in the two claims are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.




    2.9. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

    2.10. Notwithstanding the provisions of the POFA and/or the existing easements, rights of way and the permit agreement already concluded, it is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event.

    2.11. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs or even their unlawful, fixed sum card surcharge for payments - and they are put to strict proof that they have actually incurred and can lawfully add an extra sums and that those sums formed part of the permit/parking contract formed with the resident in the first instance.






    2.12. The claimant appears to have misused my VRN data by 'processing' it to obtain my address, against the DPA Principles. Misuse of personal data is a tort, the remedy for which would be a claim for damages which I may pursue separately once these claims are struck out.






    2.13. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

    2.14. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
    2.15. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.
    2.16. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.
    2.17. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the gift of parking is the landowner’s, not Parking & Property Management. The car park in question is understood to be for residents. Therefore there is no consideration from motorist to Parking & Property Management.



    2.18. This claimant may try to rely upon the case of ParkingEye v Beavis [2015] UKSC 67, regarding disproportionate charges. However, the Court of Appeal and the Supreme Court's decisions during the course of that case do not support this claim at all. Beavis was a matter concerning an unusual enforcement regime and location, offering a free licence to park followed after 2 hours, by a charge. Indeed at the Court of Appeal stage the Judges stated that the 'free licence to park' regime was the factor which made that case 'completely different' from ordinary transactional contracts where a sum of money owed can be easily quantified. I suggest, exactly as in my case, where a mere 10p has been quantified as the sum in dispute and surely any reasonable person would consider £100 (and certainly this vastly inflated claim) to be 'extravagant' and out of all proportion.




    2.19. The Supreme Court Judges did not disagree with the court of Appeal about ordinary economic contracts and found that such disputes may still be determined by using Lord Dunedin's 'four tests' for defining an unrecoverable penalty, which continues to have useful application in such cases where the facts could be distinguished from the Beavis case, where the Judges held:

    - at 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.
    In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    - and, continued Lord Neuberger: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was “unconscionable” or “extravagant”. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

    - and at 99: ''…deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract...the question whether a contractual provision is a penalty turns on the construction of the contract.’’

    - Lord Mance at 143: ''The qualification and safeguard is that the agreed sum must not have been extravagant, unconscionable or incommensurate with any possible interest in the maintenance of the system.’’

    - Lord Mance at 152: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable.''




    2.20. In ParkingEye v Cargius A0JD1405 (Wrexham County Court), transcript appended as Exhibit xx, a pay and display car park was held to be completely different from the Beavis case which was on its well-publicised journey through the courts at that time. At 13 in Cargius, the Judge distinguished a pay & display car park tariff dispute from the free car park in Beavis.


    2.21. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.


    2.22. I request the court strike out the claimfor similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.








    Statement of Truth:


    I believe that the facts stated in this Witness Statement are true.


    Full name: XXX





    Dated 08/06/2017





    Signed: __________________________________
    • pappa golf
    • By pappa golf 9th Jun 17, 6:16 PM
    • 7,149 Posts
    • 7,237 Thanks
    pappa golf
    now complain to the IPC / gladbags and get there "official" answer why checks were not done and gladstones/IPC allowed an operator to break bthe IPC code of practice , which was written by the same company that are acting in this case
    Have YOU had to walk 500 miles?
    Were you advised to walk 500 more?
    You could be entitled to compensation.
    Call the Pro Claimers NOW.
    • zebrarose
    • By zebrarose 12th Jun 17, 2:17 PM
    • 84 Posts
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    zebrarose
    I'm not sure if the IPA CoP was breached regarding the dates:
    7/11/15 Parking Charge received
    26/11/15 appeal with PPC sent
    13/12/15 rejected by PPC
    9/16 default judgement


    question about my WS. do I need point 2.20 Parking Eye v Cargius?
    Last edited by zebrarose; 17-06-2017 at 8:50 AM.
    • Coupon-mad
    • By Coupon-mad 12th Jun 17, 9:10 PM
    • 48,068 Posts
    • 61,518 Thanks
    Coupon-mad
    question about my WS. do I need point 2.20 Parking Eye v Cargius?
    Originally posted by zebrarose
    Yes, if this was a P&D car park.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • zebrarose
    • By zebrarose 12th Jun 17, 10:21 PM
    • 84 Posts
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    zebrarose
    Yes, if this was a P&D car park.
    Originally posted by Coupon-mad
    Ok, so I won't need that point. It is residents parking.

    Couponmad, would you have a chance to peruse through the WS and see if it's ok for me to send off?
    Do I need to reference cases in the WS to be able to add in relevant cases as evidence against the claimant?

    Thanks
    Last edited by zebrarose; 17-06-2017 at 8:51 AM.
    • zebrarose
    • By zebrarose 13th Jun 17, 1:27 PM
    • 84 Posts
    • 10 Thanks
    zebrarose
    Yes, if this was a P&D car park.
    Originally posted by Coupon-mad

    So far for my evidence I have:
    JOPSON V HOMEGUARD
    PACE RECOVERY AND STORAGE V MR N
    SAEED V PLUSTRAD LTD
    COPY OF REP 'RIGHT OF AUDIENCE'
    COPY OF PART 27.14 2 (G) OF THE SMALL CLAIMS TRACK
    COPY OF PoFA SCHEDULE 4 TO 9


    I cant seem to find UKPC v Mr Aziz transcript on Google. Can I just use the parking pranksters blog post?
    Shall I do copies of my drivers licences as a gesture of compliance as I didn't realise I had to change my V5?
    • zebrarose
    • By zebrarose 13th Jun 17, 3:53 PM
    • 84 Posts
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    zebrarose
    So far for my evidence I have:
    JOPSON V HOMEGUARD
    PACE RECOVERY AND STORAGE V MR N
    SAEED V PLUSTRAD LTD
    COPY OF REP 'RIGHT OF AUDIENCE'
    COPY OF PART 27.14 2 (G) OF THE SMALL CLAIMS TRACK
    COPY OF PoFA SCHEDULE 4 TO 9


    I cant seem to find UKPC v Mr Aziz transcript on Google. Can I just use the parking pranksters blog post?
    Shall I do copies of my drivers licences as a gesture of compliance as I didn't realise I had to change my V5?
    Originally posted by zebrarose

    Looking at the tenancy agreement there is no mention at all of:
    parking
    parking permits
    communal areas
    variation


    Am I right in saying that if at court I produce a COPY OF REP 'RIGHT OF AUDIENCE' and the parking company doesn't show up but Gladstones does as their representative, that means they wont be able to say a single thing?
    • Coupon-mad
    • By Coupon-mad 13th Jun 17, 6:57 PM
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    • 61,518 Thanks
    Coupon-mad
    Am I right in saying that if at court I produce a COPY OF REP 'RIGHT OF AUDIENCE' and the parking company doesn't show up but Gladstones does as their representative, that means they wont be able to say a single thing?
    Gladstones never turn up. If they did, they would have RoA.

    The RoA issue occurs due to Gladstones sending a hired gun, who has no RoA.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • zebrarose
    • By zebrarose 13th Jun 17, 8:09 PM
    • 84 Posts
    • 10 Thanks
    zebrarose
    Gladstones never turn up. If they did, they would have RoA.

    The RoA issue occurs due to Gladstones sending a hired gun, who has no RoA.
    Originally posted by Coupon-mad
    Is RoA right of appeal?
    How does everything I have look so far? Do you think it is all ready to send off? In the PoFA schedule 4, what am I adding it in to refer to? The part where they must prove who the driver is? If so anything else?
    • Coupon-mad
    • By Coupon-mad 13th Jun 17, 8:30 PM
    • 48,068 Posts
    • 61,518 Thanks
    Coupon-mad
    RoA = Rights of Audience. You need to understand this, here is is explained by LoadsofChildren123:

    http://forums.moneysavingexpert.com/showthread.php?p=72149985#post72149985

    In the PoFA schedule 4, what am I adding it in to refer to? The part where they must prove who the driver is?
    In Schedule 4 there no part that says a PPC must prove who the driver is. Henry Grenslade's words from the POPLA Annual Repoer are often used in defences, they say what you want to say.

    Search 'Greenslade defence' and 'SHOW POSTS' (NOT show threads).
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • zebrarose
    • By zebrarose 13th Jun 17, 10:18 PM
    • 84 Posts
    • 10 Thanks
    zebrarose
    RoA = Rights of Audience. You need to understand this, here is is explained by LoadsofChildren123:

    http://forums.moneysavingexpert.com/showthread.php?p=72149985#post72149985

    In Schedule 4 there no part that says a PPC must prove who the driver is. Henry Grenslade's words from the POPLA Annual Repoer are often used in defences, they say what you want to say.

    Search 'Greenslade defence' and 'SHOW POSTS' (NOT show threads).
    Originally posted by Coupon-mad
    Sorry, I didn't catch that abbreviation initially. Have you any thoughts on my witness statement coupon-mad or anybody else able to help?
    Last edited by zebrarose; 14-06-2017 at 3:01 PM.
    • zebrarose
    • By zebrarose 14th Jun 17, 3:01 PM
    • 84 Posts
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    zebrarose
    N244 set aside form
    To get the CCJ removed you need to pay £255 for a set-aside hearing.

    To win this you need to have:
    1) a reason why you failed to defend the case (not receiving post or moving house is good enough) AND
    2) a reason why you would win a rehearing

    If you win the set aside, ask for your £255 back, either immediately or held over until the final hearing.

    The process is documented here:

    https://www.gov.uk/county-court-judgments-ccj-for-debt/if-you-dont-owe-the-money


    ==
    Here is an example on how to fill in the N244 form

    Top box

    In the: Court name from particulars of claim (Usually Northampton)
    Claim No: the claim number
    Claimants name (parking company) + reference from particulars of claim
    Defendants name: your name
    Date: todays date

    1. Your name again
    2. Defendant
    3. Set-aside of claim followed by dismissal of claim.
    4. Yes
    5. At a hearing
    6. 30 minutes. Not agreed
    7. Empty
    8. DDJ
    9. The claimant
    9a Their address
    10. The attached witness statement.
    11. Dont forget to sign and date

    Fill in your name and address.

    You will need a witness statement to attach as well, and have an interim defence ready to explain why you have good prospects of successfully defending this.
    Originally posted by zebrarose

    Where do I get the 'reference from particulars of claim' to complete the N244?
    Number 4 of the N244 'Have you attached a draft of the order you are applying for?' I've ticked 'No'. Is that ok?
    Number 9a: 'give the service address'- Is that the address of Gladstone's OR Parking and Property Management?
    • zebrarose
    • By zebrarose 15th Jun 17, 2:46 PM
    • 84 Posts
    • 10 Thanks
    zebrarose


    • The contract dated 28.1.14 refers to a plan or map (paragraph 3). Please produce the said plan/map showing the area on which Millennium authorised to operate on.
    • Please produce a better plan than the one at page 4 of the exhibit showing exactly where it is claimed the car was parked and exactly where the signs were located.
    • Please produce a better resolution photograph of the permit it is claimed was invalidly displayed, on which it is clear that the wording on the permit could not be read by the Claimant’s operative who issued the Notice to Driver
    • As previously requested, produce evidence of the size of each sign, the height at which it was displayed, and the size of the font used (there are different fonts on the sign, the Defendant requires the font size of each part of the sign).
    • The contract allegedly granting rights to the Claimant dated 28.1.14 is made between “Millennium Parking Services” and “BDW South Wales Limited”. Please produce the following:
      1. Evidence of who is the landowner of the land on which the vehicle was allegedly parked, in the form of Land Registry Official Copy Register Entries and title plan
      2. If the landowner is not BDW South Wales Ltd, any contract in which the landowner gave authority to BDW South Wales Ltd to enter into the contract with Millennium Parking Services
    • What is the legal status of “Millenium Parking Services”? is it a registered company? If it is claimed that it is the “trading as” name of the Claimant please produce evidence of this.
    • Under what basis is it claimed that the Claimant is entitled to bring this claim, given that the contract was entered into between Millennium Parking Services (ie not the Claimant) and BDW South Wales Limited
    • Please produce evidence that the Claimant made a valid application for keeper’s details in accordance with paragraph 11, Schedule 4 of the Protection of Freedoms Act (and in the meantime the Defendant reserves all of his rights under the Data Protection Act)
    • On what basis is it claimed that he contract dated 28.1.14 gives the Claimant authority to issue proceedings against a keeper of a vehicle in respect of alleged unauthorised parking? Please answer with reference to the specific clauses in the contract.
    • With reference to clause 3b of the Terms and Conditions appended to the contract, please produce evidence that BD South Wales Limited informed Millennium Parking Services that the vehicle was parked without authority
    • The Defendant understands that the contract between BDW South Wales Limited and Millennium Parking Services has been terminated. Please produce evidence of the date of termination.

    Originally posted by Loadsofchildren123

    What is this part used for?
    • zebrarose
    • By zebrarose 15th Jun 17, 5:39 PM
    • 84 Posts
    • 10 Thanks
    zebrarose
    In the County Court Business Centre
    Claim Number XXXXXX
    BETWEEN: XXXXXX (Claimant)
    v
    XXXXXX (Defendant)




    ________________________________
    WITNESS STATEMENT
    ________________________________




    I am xxxx and I am the Defendant in this matter.
    This my supporting Statement in support of my application dated xx/01/2017 to:
    • Set aside the Default Judgement dated August 2016 as it was not properly served at my current address;
    • Order for the original claim to be dismissed.

    1. Default Judgement
    1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in September 2016. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 10 March 2017 when I was getting a tenancy reference check on my credit file. I understand that this Claim was served at an old address (xxxxx). However, I moved to a new address in June 2016. In support of this I can provide confirmation from xxx County Council showing my updated details for the purposes of paying Council tax and driver’s licenses with each address I moved to.

    1.2. I have also never received any documentation from the Claimant in this matter regarding a Notice to Keeper.

    1.3. On the 13/03/2017 I contacted Northampton County Court to find out details of the Default Judgement. The court was not able to give any details of the alleged incident.

    1.4. On 13/03/2017 I contacted the Claimant using information given to me by Northampton County Court to establish what the alleged incident was regarding.


    1.5. The Defendant denies liability for the entirety of the Claim for the following reasons, any one of which is fatal to the Claim:
    1.5.1 The Claimant has not identified the driver;
    1.5.2 the Defendant denies that he was the driver;
    1.5.3 The Claimant had no capacity to form a contract with the driver;
    1.5.4 If the Claimant did have such capacity, no contract was formed because the signs did not contain appropriate wording and/or were not displayed with any prominence and were not legible to motorists, and there was no clear sign at the entrance to the Relevant Land warning motorists about terms of conditions set out on signage inside the Relevant Land;
    1.5.5 If the Claimant did have such capacity, it did not offer a genuine contract and the amount claimed was intended as a penalty;
    1.5.6 Any contract is invalid and unenforceable;
    1.5.7 Even if a debt had existed, it would be owed to the landowner, not the Claimant;
    1.5.8 The Claimant has no contractual right to pursue these proceedings in its own right;
    1.5.9 The Claimant had no right to issue parking charges to the driver of the vehicle;
    1.5.10 The Particulars of Claim disclose no cause of action and are in breach of several aspects of the Civil Procedure Rules (“CPR”), so much so that they are incoherent and do not amount to any recognizable claim. They should be struck out;
    1.5.11 The Notice to Keeper is not a valid Notice to Keeper served in accordance with Schedule 4 to the Protection of Freedoms Act 2012 and therefore the Defendant cannot be held liable as the registered keeper of the vehicle in question;


    1.6. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they pursued the Defendant’s correct contact details however the Claimant chose to ignore the Defendant’s vehicle details, address and email address on their system and
    chose to send all communications to the address provided by the DVLA after first completely ignoring the fact that the vehicle’s details were on their system and people can be caught in the process of moving home and updating the DVLA records. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

    1.7. On the basis provided above I would suggest that the Claimant did not fulfil their duty
    of due diligence to use the Defendant’s current address when bringing the claim, and instead deliberately used the old address which was no longer valid when bringing the claim.

    1.8. None of the conditions in paragraphs 5, 6, 11 and 12 of Schedule 4 to the Protection of Freedoms Act 2012 have been met by the Claimant.

    1.9. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.


    1.10. The identity of the driver of the vehicle on the date in question has not been ascertained. The Claimant has not identified the driver. The Defendant does not know who the driver was. He has made reasonable enquiries of third parties who were authorized to drive the said vehicle at the time of the alleged incident. None have admitted that they were the driver because they cannot remember, and the Defendant cannot remember who used the car on the date in question (07 November 2015), a date some 18 months ago. The Defendant has no means of finding out who the driver was, and in any event is not obliged to do so by the Protection of Freedoms Act 2012 or any other legislation, or pursuant to any contractual obligation.

    Liability as Keeper

    1.11. To be liable as the “Keeper” of a vehicle under paragraph 4(1) of Schedule 4 to the Protection of Freedoms Act 2012 (“the Act” and “the Schedule” respectively), paragraph 4(2)of the Schedule clearly states that this is only if each of the four conditions set out in paragraphs 5, 6, 11 and 12 of the Schedule have been complied with. The Claimant has failed to comply with those conditions, as set out below. Having failed to comply with the conditions, there is no legal basis whatsoever to enforce the parking charge against the Defendant as the vehicle’s registered keeper. There is no other basis, at common law or by statute, for the Defendant to be held liable for the parking charges which are the subject matter of this Claim.

    1.12. The four conditions are as follows:

    1.12.1 First Condition: Paragraph 5 (1) (a): the Creditor (ie the Claimant) must firstly be entitled to enforce the charge against the driver, but cannot do so because he does not know his identity/address.
    The Claimant has not shown that it is entitled to do so:
    i. it has not shown that any contract was entered into between it and the driver or what its terms were. This is because there is no evidence what signs were displayed, where, what prominence was given to them, what size they were, what wording appeared on them and whether this was legible or obvious to motorists entering the Relevant Land or parking where the vehicle is alleged to have been parked;
    ii. it has not shown that the wording used was sufficient to have created a contract with the driver;
    iii. in any event, the Claimant does not appear to be a party to the Agreement, and even if it is, the Agreement does not grant it the right to issue or pursue legal proceedings to recover any parking charges (and no such right can be implied);
    iv. the Agreement states that the parking operator (which for the avoidance of doubt the Defendant denies is the Claimant) will issue parking charges to vehicles which the “Client” has informed them are parked without authority. It does not give any authority to issue parking charges to vehicles which it is not informed are parked without authority. There is no evidence that such a report was made by the other party to the Agreement.
    It is therefore denied that the Claimant has any right to enforce the charge against the driver because the Claimant has not satisfied this condition.

    1.12.2 Second Condition: Paragraph 6: the Creditor must have given a valid Notice to Driver followed by a valid Notice to Keeper.
    It is denied that the Notice to Driver is valid. This is because:
    1.12.1 it fails to comply with paragraph 7(b) of the Schedule because it does not provide sufficient or any information as to how the charges arose and the circumstances in which they did so, and the facts which make those charges payable);
    1.12.3 it fails to comply with paragraph 7(d) of the Schedule because it does not provide details of the right to an independent appeal or how to apply for one.
    Pursuant to paragraph 6, if the Notice to Driver is not valid pursuant to paragraph 7, then neither can the Notice to Keeper be valid. The Notice to Driver is not valid. In any event, even if the Notice to Driver is complaint with the Act, the Notice to Keeper is not valid, because it does not comply with several aspects of paragraph 8 of the Schedule:
    1.12.4. Paragraph 8 (2) (b): the Notice must “describe [the] charges, the circumstances in which the requirement [to pay them] arose…and the other facts that made those charges payable”.
    The Claimant has breached this requirement because the Notice fails to provide adequate, or any, information about this. It simply says that the vehicle “was parked in a manner where the driver attracted a parking charge as brought to the driver’s attention via signage and agreed to by the driver when the vehicle was parked” – there is no mention of what the signage was, what it said, or the basis upon which the charge was payable (eg a contract or trespass, how that contract was formed, how the charge has been calculate and so on);
    1.12.5. Paragraph 8 (2) (c): the Notice must specify the amount of unpaid parking charges. However, it does not. It states that the charges are £150, whereas the Notice to Driver states that they are £100 (disregarding the discount offered for early payment).
    1.12.6. Paragraph 8 (2) (g): the keeper should be notified of the arrangements for the resolution of complaints or disputes. However, the Notice contains no information about the right to appeal, or to whom (the Defendant did not understand at the time, but does now, that he could have appealed to the Claimant’s professional body, or to the independent parking appeals service, POPLA – this opportunity has now been denied to him).
    1.12.7. Paragraph 8 (5): there is a strict timetable for service of the Notice. It should have been received by him within 56 days of the Notice to Driver (within 28 days of an initial period of 28 days following the Notice to Driver). In this case, the Notice should have been received by 29 December 2015 (the next working day after the 56 days ended on 26 December). However, it was not posted until 11 February 2016 – paragraph 8(6) provides that it is deemed delivered two working days later, ie 15 February 2016. This is some 48 days out of time under the deadline set out in paragraph 8(5) of the Schedule. To have reached the Defendant within the deadline, it should have been posted on 23 December 2015 (two working days before 29 December, taking into account the intervening bank holidays and weekend).
    It is therefore denied that the Claimant has any right to enforce the charge against the driver because the Claimant has not satisfied this condition.

    1.13. Third Condition: Paragraph 11: the Creditor must apply for the keeper’s details within “the relevant period”.
    It is not clear whether this was done and the Claimant is put to full proof thereof. The “relevant period” is during the 28 days following 28 days after the Notice to Driver was given. The Defendant has asked the Claimant’s solicitors twice for evidence of the request but it has not replied.
    It is therefore denied that the Claimant has any right to enforce the charge against the driver because the Claimant has not satisfied this condition.

    1.14. Fourth condition: Paragraph 12: any regulations must have been complied with.
    In the absence of regulations have been issued by the Secretary of State pursuant to paragraph 10 of the Schedule, the regulations issued by the professional body governing the relevant private parking company are to be treated as binding pursuant to paragraphs 10 and 12 of the Schedule (this was established by the case of ParkingEye v Beavis referred to below). The Claimant is a member of the IPC and has breached its code of conduct in several respects. Therefore it has not complied with regulations for the purposes of paragraph 12. The Claimant has breached the Code in many respects, as follows:
    1.14.1. “Operators are required by the DVLA to be a member of an Accredited Trade Organisation in order to obtain keeper details”: it is not clear if they were at the time of the alleged parking on 31 October 2015 and the Defendant puts the Claimant to full proof thereof;
    1.14.2. “you should be able to demonstrate how such charges are calculated…as a genuine pre-estimate of loss” (paragraph 8, page 11 of the Code). There is no explanation of how the £100/£150 charge has been calculated with reference to actual loss;
    1.14.3. Details of the internal complaints procedure should be provided on the Notice to Driver (paragraph 10.2);
    1.14.4. “You must not imply that the registered keeper can be held responsible for the parking charge under [the Act] unless the relevant time limits within the Act have been met” (paragraph 1.3, Part C) – both the Notice to Keeper, the correspondence received afterwards, the Claim and the Claimant’s Statement clearly imply this, when the Claimant must know that it has not complied with the time limits set out in Paragraph 8 (5) of the Act;
    1.14.5. The Notice to Keeper must, inter alia, describe “the means by which [the charges] were brought to the attention of the driver and any other facts which made the charges payable” (paragraph 3.1(f), Part C). At no stage (until the Claimant’s Statement was served) has the Claimant ever attempted to explain how the charges are payable, in spite of the Defendant having written twice asking them for this information;
    1.14.6. The Notice to Keeper must also inform the keeper of “procedures offered by the Creditor for dealing informally with representations by the Keeper about the Notice or any matter contained in it; and the arrangement under which disputes or complaints may be referred by the keeper to the IPC” (paragraph 3.1(m), Part C). There is no such information contained in the Notice;
    1.14.7. The Notice to Keeper must be served on the keeper “between day 29 and day 57 after the day the Notice to Driver is given (which is counted as day 1)” (paragraph 3.1(q), Part C). This mirrors the time limits set out in paragraph 8 of Schedule 4 to the Act. The Notice is dated 11 February 2016 and according to the Act it is deemed received two working days later - ie 15 February 2016. This is some 48 days outside of the time limit;
    1.14.8. The Notice to Keeper must provide details of the Complaints Procedure by which the keeper can notify the Information Commissioner and the DVLA if they feel that their keeper details have been used inappropriately (paragraph 3.1(r), Part C). The Defendantwas not notified of his rights to make a formal complaint about thisand specifically reserves his position on whether there has been a breach of his rights under the Data Protection Act and whether he will issue a counterclaim or a separate claim;
    1.14.9. Where no response to the Notice is received within 28 days notifying the Creditor of the identity of the driver, the Creditor should send a letter to the keeper confirming they are now liable, the time frame for payment and how to make payment (paragraph 6.1), and paragraph 6.3 provides that the keeper should be given a minimum of a further 14 days. Neither of these were done;
    1.14.10. Signage: Part E of the code “prescribes the signage characteristics you must try to adhere to”. It provides that:
    1.14.11. 1 there should be clear signs at the entrance to the relevant land which should refer the driver of a vehicle to the signs inside which contain the full terms and conditions of parking on the land. The Defendant puts the Claimant to full proof of what signage was in place at the entrance on 31 October 2015: the current sign does not comply with this requirement because it simply states
    “Notice to Residents
    Car Park Management System is in operation on this site
    Please ensure that you display your permit at all times”
    1.14.12. 2 the signage inside the land “must be such as to be obvious to the motorist”. The appropriate text size is to be “determined by a number of factors, such as [the sign’s] position, to whom it is aimed and information it needs to convey. Text should be of such a size and in a font that can be easily read having regard to the likely position of the motorist in relation to the sign”. The Defendant notes from the photographs attached to the Claimant’s Statement that the sign apparently relied upon is small (it appears to be A4 sized), and on the photograph it can be seen displayed next to at least two other signs. It is clear from its size that it cannot be easily read and that no special attention is drawn to it by its position, size and so on, and there is nothing distinguishing it from the other signs. The sign is so small and insignificant that the font/text used must have been very small and impossible to read from any distance. Indeed, it cannot be seen on the photographs what wording appears on it – and the Claimant is put to full proof thereof;
    1.14.13. 3 there should be “repeater signs” of a sufficient number displayed throughout the site “to ensure that any parking conditions are adequately bought to the attention of the motorist”. There is no evidence of whether other signs were displayed, where they were located, their size, the size of the text/font, what special attention was drawn to them, and so on, on the relevant date.
    All that the Claimant has produced is the text of the sign it claims was displayed on the fence near to where the vehicle was allegedly parked at the time relied upon and a plan which is undated and unintelligible– however, the photographs are illegible because what purports to be the sign looks blank and the photographs do not show what the sign said, or that it was legible to a driver of a car parking there. They clearly show that no special attention was drawn to it. There is also no evidence at all that the sign displayed at the relevant time is the same as the one claimed, or that the plan was current as at 31 October 2015. The Defendant puts the Claimant to full proof of all these matters. The site plan produced by the Claimant (page 7 of the exhibit to the Claimant’s Statement) is a nonsense and it is impossible to understand what it is supposed to show. There is no evidence of where “repeater signs” were located, what they said and whether they were legible to anyone parking on the relevant land. There is no evidence of whether there was a clear sign at the entrance to the land. The Defendant refers to the wording of the sign currently at the entrance as set out above.

    Compliance with all of the above matters is required by the Claimant’s own Code of Practice which has the status of “regulations” under paragraphs 10 and 12 of the Schedule.

    It is therefore denied that the Claimant has any right to enforce the charge against the driver because the Claimant has not satisfied this condition.


    1.15. The “charge” set out in the signage is £100, and this is the amount contained on the Notice to Driver dated 31 October 2015. The Notice to Keeper, however, states that the charge is £150. There is no explanation for the increase of £50, nor is there any basis for such additional charge. The Act provides that the Claimant may only recover a sum equal to the parking charge on the day before the Notice to Keeper was issued (namely £100). The addition of £50 appears to be an added cost with no qualification and is an attempt at double recovery, which is not permitted by the Act. Should any contract exist, and andshould the Notice to Keeper be valid, then the Claimant is only contractually able to claim £100 against the keeper (should the conditions required by the Protection of Freedoms Act 2012 have been met).

    1.16. It is quite clear that the Notice to Keeper does not meet any or some of the conditions set out in Schedule 4. It cannot therefore be valid under the Act and the Claimant therefore has no right to pursue the Defendant in respect of the parking charges pursuant to paragraph 4(1) of Schedule 4 (and to that extent whether or not a contract existed at the relevant time is irrelevant). There is no cause of action against the keeper of the vehicle whatsoever.

    Relevance of ParkingEye Ltd v Beavis

    1.17. The Claim is distinguished from the facts in the case of ParkingEye Ltd v Beavis. In that case, it was agreed that there was a contract between the driver and the Claimant, formed by prominent signage at the entrance to a car park which formed a clear offer. The case turned on a unique set of facts regarding the location and interest of the landowner. Strict compliance with the Claimant’s Code of Practice was paramount. The Defendant was the driver of the vehicle. There was a free parking licence offered. There was a “legitimate interest” in the contract/parking charges being enforced so that visitors did not overstay the two hour free period in a retail park so as to ensure a turnover of visitors to the retail units, and a complex contractual arrangement. All of this together disengaged the “penalty rule”. None of those facts apply in this case and in respect of the Relevant Land: the Claimant has failed to follow its binding Code of Practice issued by the IPC; the Defendant was not the driver; it is not common ground that a contract was agreed; a contract cannot have been formed because the wording on the signage was inadequate, the signs were not clear or prominent, they were small and no attention was drawn to them; the commercial interest in ensuring a changeover of visitors to what was a retail site, and the requirement of the Claimant to meet its costs by recovering parking charges do not apply to this case. The penalty rule therefore applies to this case and the charges claimed are quite clearly a penalty and are not recoverable.

    Last edited by zebrarose; 17-06-2017 at 8:42 AM.
    • Coupon-mad
    • By Coupon-mad 15th Jun 17, 8:36 PM
    • 48,068 Posts
    • 61,518 Thanks
    Coupon-mad
    Bumping so someone can see it and answer...
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • zebrarose
    • By zebrarose 15th Jun 17, 8:39 PM
    • 84 Posts
    • 10 Thanks
    zebrarose
    I have a second half bit my IP address got blocked ;(
    • Loadsofchildren123
    • By Loadsofchildren123 16th Jun 17, 2:19 PM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    Email the forum admin and they'll unblock you. That used to happen to me when I was a newbie and posting lots of text.
    • Loadsofchildren123
    • By Loadsofchildren123 16th Jun 17, 2:27 PM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    Draft order is just this or something like this (dates to be inserted by judge):


    [court heading as you've set it out in your ws]


    then in the "tramlines" as we call them (where you've put WS in your WS)
    DRAFT ORDER


    Then under that:


    Before DJ sitting at on the day of 2017


    IT IS ORDERED THAT:-


    1. The order dated [date of default judgment] be set aside
    2. The Claimant do file full Particulars of Claim setting out the cause of action and including its authority to bring the claim, by 2pm on
    3. The Defendant do file and serve a Defence by 2pm on
    4. The parties do serve any evidence and documents on which they seek to rely by 2pm on
    5. The matter be assigned to the small claims track and transferred to [insert your home county court]
    6. The Claimant do pay the Defendant's costs of and incidental to this application in the sum of £255 within 14 days hereof




    They require a draft order saying what it is you want them to order, in the case of every application.
    • Loadsofchildren123
    • By Loadsofchildren123 16th Jun 17, 2:36 PM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    I don't think the court will dismiss the claim, it's more likely to set a timetable for you to defend it.


    1.8: add "This means that I cannot be held liable as the registered keeper of the vehicle". - but shouldn't this really be added to the end of the list at para 1.5? It doesnt' seem to be in the right place.


    Is this PPC IPC? If so the IPC CoP says that they should do a search for an up to date address before issuing proceedings and clearly they didn't so add this in (after 1.6).


    I'm on holiday after today so don't have time to comment in more detail, sorry, but you are in good hands.


    Your post 93 - this is all about the landowner contract with a PPC called Millennium - it's an odd contract and I was picking it apart. So at this stage it's not relevant to you because you don't have a copy of their contract with the landowner.


    If your tenancy says nothing about parking you MUST get your landlord to confirm in writing what parking rights he has (eg was his space included in the property demised to him by his lease) and what parking rights he has granted you (albeit they are not mentioned in the tenancy document).
    • zebrarose
    • By zebrarose 17th Jun 17, 8:36 AM
    • 84 Posts
    • 10 Thanks
    zebrarose
    I don't think the court will dismiss the claim, it's more likely to set a timetable for you to defend it.


    1.8: add "This means that I cannot be held liable as the registered keeper of the vehicle". - but shouldn't this really be added to the end of the list at para 1.5? It doesnt' seem to be in the right place.


    Is this PPC IPC? If so the IPC CoP says that they should do a search for an up to date address before issuing proceedings and clearly they didn't so add this in (after 1.6).


    I'm on holiday after today so don't have time to comment in more detail, sorry, but you are in good hands.


    Your post 93 - this is all about the landowner contract with a PPC called Millennium - it's an odd contract and I was picking it apart. So at this stage it's not relevant to you because you don't have a copy of their contract with the landowner.


    If your tenancy says nothing about parking you MUST get your landlord to confirm in writing what parking rights he has (eg was his space included in the property demised to him by his lease) and what parking rights he has granted you (albeit they are not mentioned in the tenancy document).
    Originally posted by Loadsofchildren123

    Thanks Loadsofchildren.
    I will do the draft order. I no longer live at the property so I don't know if the tenancy agency will be willing to provide proof of parking rights. I will ask them though. The tenancy agency owned all/most of the flats in the block/blocks.
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