Court Case - Millennium/Galdstones

WITNESS STATEMENT
INDEX
1. DEFENCE
2. WITNESS STATEMENT
3. EXHIBIT– Claimants Notice to Keeper
4. EXHIBIT – Plane ticket
5. EXHIBIT - Defendants letter to Claimant
6. EXHIBIT - Defendants email to the Claimant and the Claimants response
7. EXHIBIT - POPLA Annual Report 2015
8. EXHIBIT - email from the Claimants’ representative (PCS) confirming non compliance with POFA
9. EXHIBIT - Protection of Freedoms Act 2012 Schedule 4
10. EXHIBIT - Claimants sign on the land in question
11. EXHIBIT - transcript of the judgement the case of Excel v Ian Lamoureux, C3DP56Q5
12. EXHIBIT – Defendants acknowledgement of Claimants Letter Before Claim

I, XXX WILL SAY AS FOLLOWS:
1. I, XXX of XXX am the defendant in this case.

2. The facts in this statement come from my own personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.

3. I am not liable to the Claimant for the sum claimed, or for any amount at all and this is my Witness Statement in support of my defence already filed.

4. I am an unrepresented consumer who has never attended the County Court before and I apologise if I set things out in a less professional way than the Claimant.

5. I have no knowledge of the events or signage terms on the date in question.

6. It is admitted that I was the registered keeper of the vehicle in question at the time of the alleged incident. However, I was not the driver at the time in question.

7. As I was not the only driver of this vehicle I cannot be presumed to be the driver in the absence of any evidence. The Claimant has produced no evidence I was the driver. The Claimant just wrongly presumes that I was the driver.

I was not the driver
8. I received a Notice to Keeper dated xx/xx/16 asking for payment of £150 for parking in a disabled bay without a valid badge (Exhibit 1)

9. On the date and time in question – xx/xx/2016 at xxpm, I was on a flight and could not therefore have been driving the vehicle (Exhibit 2). The Claimant therefore has no course of action to pursue the Defendant as the driver of the vehicle.

10. I wrote to the Claimants’ representatives (Parking Collection Services) on xx/xx/l 2016 informing them that I was not the driver at the time (Exhibit 3).The response from the Claimants representative ignored the points raised in my letter.

11. On xx/xx/2016, I emailed the Claimants’ representative (PCS) an e-ticket confirming I was on a fight at the time of the alleged incident and could not therefore have been driving the vehicle. Exhibit 4).

12. On xx/xx/16, the Claimants’ representative replied to my email stating that “as the registered keeper of the vehicle, I am assuming it was driven with your consent and that you will therefore know who the driver is”. (Exhibit 4).

Presumption of the Registered Keeper as Driver
13. I received an email on x/xx/2016 from the Claimants’ representatives (PCS) in response to me email of x/xx/ 2016. The Claimants’ representative stated that they were entitled to presume I was the driver because I am the registered keeper of the vehicle and that they were relying on the case of Elliott v Loake 1983 to support this presumption (Exhibit 4).

14. I submit that there is no presumption in law that the registered keeper of a vehicle is the driver. POPLA (Parking on Private Land Appeals) Lead Adjudicator and barrister, Henry Michael Greenslade, clarified in the POPLA Annual Report 2015 that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort". (Exhibit 5 page 13)

15. The Claimant may argue that if I was not the driver, I had ample opportunity to name the driver. However, the vehicle can be driven by more than one person and a registered keeper has no legal obligation to name the driver. This was also confirmed by the POPLA Lead Adjudicator and barrister, Henry Michael Greenslade in the POPLA Annual Report 2015. (Exhibit 5 page 13)

Protection of Freedoms Act 2012
16. I was not the driver at the time of this alleged incident and as no presumption can be made that I was, the Claimant must rely on the strict provisions of the Protection of Freedoms Act 2012 Schedule 4 in order to hold me responsible for the drivers’ alleged breach.

17. On xx/xx/2016, I received an email from the Claimants’ representative (Debt Recovery Plus) stating that “this charge was not issued under POFA” (Exhibit 6).

18. Notwithstanding that the Claimant has previously stated that it is not relying on POFA, POFA Schedule 4 (S4): 8.2(f) states “the creditor will (if all the applicable conditions under this schedule are met) have the right to recover from the keeper so much of that amount that remains unpaid”. This makes it absolutely clear that if the Claimant fails to meet any one of the conditions under Section 4 – no matter how minor or trivial that failing is – then the Act cannot be relied upon to invoke keeper liability.(Exhibit 7)

19. The Claimant states on their Notice to Keeper dated that a notice to driver was affixed to the vehicle at the time of the parking incident. The Claimant has not provided any evidence that a notice was ever fixed to the vehicle or given to any driver, so adherence to this requirement of The Act has not been demonstrated.

20. The Claimant has stated that they affixed a notice to driver to the vehicle and therefore they are required to comply with Schedule 4 paragraph 8 when serving a Notice to Keeper. I submit the Claimants’ Notice to Keeper (Exhibit 1) does not comply with POFA.

a. Paragraph 8(5) specifies the time limits for serving a Notice to Keeper. The relevant period in the Act is defined as “the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given”. The Claimant must therefore serve a Notice to Keeper within 56 days of the parking incident to acquire the right to pursue the registered keeper where it cannot identify the driver.

b. This alleged incident occurred on xx/xx/2016 but the ‘Notice to Keeper’ was dated xx/xx/2016, which is 68 days after the event and significantly past the 56 days statutory limit prescribed. The POPLA Lead Adjudicator and barrister, Henry Michael Greenslade confirmed in the POPLA Annual Report 2015 that if these timescales are not complied with then keeper liability does not generally pass under Schedule 4.(Exhibit 3 page 8)

21. The Protection Of Freedoms Act 2012 Schedule 4 Paragraph 6 only allows the Claimant to pursue the Registered Keeper for parking charges where they serve a notice to driver AND a notice to keeper which contains the stipulated mandatory information outlined in Paragraph 8 of the same schedule. The Claimants Notice to Keeper dated xx/xx/2016 does not contain the mandatory information required by paragraph 8 as it does not:

a) state the period the car was parked – the Claimants Notice to Keeper states a PCN issue time of xx:xx but does not state the period that the vehicle was parked, thus POFA not complied with

b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full - Notice to Keeper omits this, thus POFA not complied with.

c) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver
Notice to Keeper omits this, thus POFA not complied with.

d) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i) the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; Notice to Keeper omits this, thus POFA not complied with.

e) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available – rather than offer a discount for prompt payment, the Claimants Notice to Keeper has increased the charge from the £70 shown on the sign to £150. The Claimants Notice to Keeper states that that “the opportunity to appeal against this charge is no longer available”, thus POFA not complied with.

22. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimants Notice to Keeper demanded £150, which is £80 greater than the amount claimed from the driver.(Exhibit 8)

23. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant through their own deliberate action choose not to comply with POFA. They cannot dispense with the statute and then ask the Court to allow them to invoke keeper liability as if they had complied with it. If the Court allowed this to happen then it would mean that there was no need to enact POFA in the first place.

24. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton. The Judge was critical of the Claimant’s attempts to hold the keeper liable without being able to rely on POFA. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they couldn’t). The Judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. I enclose the transcript of the judgement in this case as (Exhibit 9)

Authority to bring the claim
25. The Claimant is not the lawful occupant of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.

26. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract (if any such contract exists given the forbidding wording on the sign).

27. In support of this I enclose:
a. Exhibit 8 which is the Claimants sign on the land in question

Unsubstantiated Charge
28. The Claimant has failed to substantiate the amount claimed.

29. The Claimants sign on the land in question states that “unauthorised disabled badge holders must not park in the areas stipulated” and that contravention of the parking rules will result in a parking charge of £70 reduced to £35 if paid within 14 days. (Exhibit 8)

30. The Notice to Keeper I received from the Claimant on xx/xx/l 2016 demanded payment of £150. (Exhibit 5). The Claimants sign did not refer to additional charges of £80. As these additional charges were not quantified on the Claimants sign, they could not have formed part of the “alleged” contract because additional costs cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not.

31. I wrote to the Claimants’ representatives (PCS) on xx/xx/2016 asking the Claimant to substantiate what the additional £80 relates to (Exhibit 3). Despite several further requests, the Claimant has not provided any explanation of what these additional costs relate to and it is not believed that the Claimant has incurred these additional costs.

32. Paragraph 2(2) of Schedule 4 of POFA states that “the reference in the definition of “parking charge”......is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land”. The only “notice” of the charge given to the driver was the PCN, which states that the charge is £70. Under paragraph 4(1) the parking company only has the right to recover “any unpaid parking charges from the keeper”– again, £70. The notes to Schedule 4 state “The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5))”.

33. The Claimant has not provided any evidence that they have actually incurred and can lawfully add an extra £80 plus legal representatives costs plus interest to the parking charge claimed and that those sums formed part of the contract in the first instance (if such a contract actually existed where the sign is a forbidding sign). The Defendant requested strict proof of this but the Claimant has not provided any evidence.
Particulars of Claim & Civil Procedure Rules
34. The Claimant argues that their Claim issued complies with Civil Procedure Rules ‘CPR’). Section 16.4 (1a) states that particulars of the claim must include a concise statement of the facts on which the Claimant relies. Section 16.2 (1) also states that it must contain a concise statement of the nature of the claim.

35. The Defendant argues that the Claimant’s particulars of claim contain neither. The particulars of claim merely state that “the Defendant was driving the Vehicle and/or is the Keeper of the Vehicle”. The claim also states: ''parking charges/damages and indemnity costs if applicable'' which give no indication of the basis on which the Claimant has brought the claim, whether the claim is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'.

36. A similarly poorly pleased claim by Gladstones was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a their 'roboclaim' cut & paste template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

37. The Defendant disputes that the Claimant has incurred solicitors costs of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.

Claimants Conduct and Costs
38. Throughout this case the Claimant has tried to bully the Defendant into paying parking charges he is not liable for. The Claimant has refused to give the Defendant access to an independent appeals service or any alternative dispute resolution service despite repeated requests from the Defendant.

39. The Claimant has accepted that the Defendant was not the driver and that they have not complied with POFA but has avoided answering the Defendants reasonable questions to explain the basis of the claim or why they were holding the defendant liable.

40. The Claimant has also avoided answering the Defendants repeated questions as to where the amount claimed of £150 arises from as the sign on the land in question says £70.

41. The Defendant wrote to the Claimant (Parking Collection Services) on xx/xx/2016 informing them that he was not the driver at the time and that there could be no keeper liability as the Notice to Keeper was issued too late. The Defendant asked the Claimant to explain where the amount claimed of £150 arose from and for access to an independent appeals service. (Exhibit 3). The Claimants response ignored the Defendants questions.

42. The Defendant emailed the Claimant (PCS) on xx/xx/2016 with proof that confirmed he was not the driver. The Claimant accepted that the Defendant was not the driver and claimed that as the Defendant was the registered keeper, Elliot v Loake allowed them to presume that he was also the driver (Exhibit 6)

43. On xx/xx 2016, I wrote to the Claimants solicitors - Gladstones Solicitors in acknowledgement of their Letter Before Claim. I stated that as I was not the driver and the Claimant had not complied with POFA, they did not have any cause of action against me. I also requested an explanation of how the amount claimed had been calculated and access to an independent appeals service (Exhibit 10). The Claimants solicitors have not responded.

44. The general rule in Small Claims is that the court will not make a costs order. However, this assumes that the parties have behaved reasonably. If a party does not behave reasonably, then pursuant to CPR Rule 27.14(2)(g) the court has the power to award costs. The Defendant believes that the Claimant has not behaved reasonably and therefore a summary cost order should be made against the claimant.

Thanks Coupon-mad, yes there was a windscreen PCN and the NtK arrived 68 day after the incident.