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  • FIRST POST
    • ElParque
    • By ElParque 4th Apr 17, 10:54 PM
    • 65Posts
    • 59Thanks
    ElParque
    My Witness Statement is due
    • #1
    • 4th Apr 17, 10:54 PM
    My Witness Statement is due 4th Apr 17 at 10:54 PM
    and my skeleton defence if I have to send that to the court with the WS.

    This was my defence (sent to the court earlier)

    1. It is acknowledged that the defendant, xxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle.

    2. I deny any liability in this claim, and any debt is denied in its entirety. The date of the alleged incident is [pre Oct] /2012 which is nearly 5 years ago. How can anyone be expected to remember where they may have parked a car or if they were driving on one random day five years ago? I certainly do not remember getting a 'ticket' and had I have done I certainly would remember. Further the car in question is one on which, according to my insurance policy, I was not the main driver and indeed, with access to another car, I very rarely drove this car.

    3 It is extremely unreasonable for the claimant to store DVLA data for 5 years then pounce with a claim with no due diligence nor evidence, in the hope that I do not have any paperwork relating to this alleged debt (which I don't). It is even more unreasonable that, having made no attempt whatsoever to contact me for years -and knowing that keepers could not be held liable for parking charges in early 2012 anyway - the Claimant has the audacity to try to ask the court for the right to claim statutory interest at 8% from date of incident (£35.70). The long delay is clearly the fault of the Claimant and should not be used as an excuse to effectively try double recovery.

    4. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent which amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter.

    I would bring to the courts attention two recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, (Excel v Mr C C8DP37F1 Stockport 31/10/2016) and (Excel v Mr B C7DP8F83 at Sheffield 14/12/2016)

    Furthermore The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. It can be seen the date of the alleged contravention is 20/01/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.

    PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified 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" (POPLA report 2015). It seems Excel Parking Services Ltd think they know better.

    5. The claim form itself also gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

    In the pre court stage the Claimant’s solicitor did not send me a Letter before Action so I have
    a) No summary of facts on which the claim is based.
    b) No list of the relevant documents on which the claimant intends to rely and
    c) I wasn't offered any form of possible negotiation.

    6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    7. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a Part 18 request to the claimant's solicitors on xxxxxx. Accordingly, 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. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd, and no proof has been provided.

    8. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

    9. It is submitted that (apart from properly incurred court fees) the added 'contractual costs' of £54 and the £50 legal representative's costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant. I have not been shown any evidence that the deliberately indistinct, almost illegible and unlit signs in the car park refer to these amounts.

    10. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye Ltd v. Beavis case:
    a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
    c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
    d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    e) Absent the elements of a contract, there can be no breach of contract.

    Further, this claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' £53.50 costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park. I will include in my evidence, Mr Cutts' own published article '‘Phoney fines and dodgy signs take drivers for a ride'' which is specifically about Excel's signs.

    11. It is expected that this Claimant may try to counter that article about their signs but it is worth noting that the Judge agreed with Mr Cutts, who is something of an expert on clear terms as he manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

    12. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel Parking Services, is in the public domain as having attacked the Judge’s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts'.

    13. I am aware that the only ticket-machine at this site is prone to be faulty. I therefore ask that the claimant produce evidence that no payment was made that day in relation to the incident and indeed that the ticket machine was working at the time the parking notice was issued.

    14. Excel Parking Services Ltd are not the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier 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 right to bring action regarding this claim.

    15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I request the court strike out this claim for the reasons stated above.

    Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.


    Since I posted my defence I have received their 'evidence' which consists of some slightly contradictory statements and partly illegible photos.

    A letter to me says that the parking attendant wasn't able to fix the ticket to the car because the driver drove away but the parking ticket itself says that the driver handed back the ticket to the attendant.

    The letter says that the ticket was issued at 11:05 but the photos of my car show the time as 11:06. If the ticket was issued at 11:05 then the attendant took photos, why wasn't he/she able to fix the ticket to the car? Did they make up the part about handing the ticket to the driver? Is it worth pursuing this line of defence?

    The ticket itself identifies the driver as a male so I know that the driver must have been one of my three sons (all qualified to drive) because it wasn't me (Now that they have told me what happened that day, I'd have remembered this incident). The main driver according to the insurance doc is female though I haven't been able to get a copy of the insurance.

    They claim that the driver stayed 50 minutes after the expiry of his ticket although the photo evidence they have of the displayed ticket is completely illegible.

    Anyway, all that being said... I have no evidence of the signage at the time and the car park is now run by another firm. I think my main defence is that the case is pre-2012.

    In my defence I refer to some case law. Do I have to print out transcripts/judgements in those cases as part of my WS or evidence or just state the relevant part of the case?

    Parts of my defence seem no longer relevant.

    Any advice as to how to proceed from here?
Page 2
    • Lamilad
    • By Lamilad 19th Apr 17, 9:19 AM
    • 1,162 Posts
    • 2,317 Thanks
    Lamilad
    If your case is on the 4th may then you can file and serve your WS tomorrow - and your skeleton a few days before the hearing.
    • Umkomaas
    • By Umkomaas 19th Apr 17, 9:23 AM
    • 15,427 Posts
    • 24,124 Thanks
    Umkomaas
    confirming that my wife was the main driver of the car
    I'm no expert on court stuff, but I'd be avoiding the prospect of the question 'So are we to presume that, as the main driver, it was your wife driving on the day in question?'

    Hostage to fortune....... You don't need to be on the back foot on any of this.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • ElParque
    • By ElParque 19th Apr 17, 9:31 AM
    • 65 Posts
    • 59 Thanks
    ElParque
    I was seeking to establish that the car was not the car I routinely drove. My wife, should she ever need to, can prove she wasn't the driver. Having said this, I'm changing the paragraph to the more succinct one Lamilad suggested just now!
    • Lamilad
    • By Lamilad 19th Apr 17, 9:51 AM
    • 1,162 Posts
    • 2,317 Thanks
    Lamilad
    after reading the rest of your WS I've got to be honest, it's not great. It sounds like your more bothered about misuse of your data than establishing that you are not liable. The judge won't care about this.

    And you're referring to "exhibits" that are not exhibits and are irrelevant in any case.

    Points #5 onwards are either generally irrelevant or not facts for a WS.

    Use today to do more research and sharpen this up. Have you read post #2 of the newbies sticky thread? If not read it now... If so, read it again.

    Some threads to read for research:

    http://forums.moneysavingexpert.com/showthread.php?t=5554723&highlight=jackbasta

    http://forums.moneysavingexpert.com/showthread.php?t=5516777

    http://forums.moneysavingexpert.com/showthread.php?t=5573407

    http://forums.pepipoo.com/index.php?showtopic=112366

    http://forums.pepipoo.com/index.php?showtopic=112635&hl=
    • ElParque
    • By ElParque 19th Apr 17, 10:51 AM
    • 65 Posts
    • 59 Thanks
    ElParque
    Shoot me now
    Don't know whether to laugh or cry... I was ready to go with that WS and now I'm back to square one.

    I thought the WS should be simply my version of events not legal argument. I listed some exhibits to support my defence which I intended to use in my Skeleton Argument. Other exhibits are intended to prove that several people could have been driving my car.

    I feel forced to attempt to add to my defence the defence of poor signage even though it's the fact that they can't prove I was the driver which is key.

    I'm now so confused and have (real) work to do today which will cost me far more than the £260 claim if I don't get it finished in time.

    This is another attempt at the WS

    I, xxxxxxxxxxxxxxxx, am the defendant in this claim. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

    The facts of the case are as set out in my Defence, dated xxxxxxx, filed and served in response to the original N1 Claim Form, and verified by a Statement of Truth. They do not bear further repetition here, but this document will lead the evidence to support my case.

    1. Whilst I was the Registered Keeper of the vehicle concerned, I was not the driver of the car. In fact I very rarely drove it. The claimant has provided no evidence as to who was driving at the material time.

    Exhibit 1 - Proof of main driver.

    2. As there is no evidence of who was driving, the claimant is put to strict proof on this matter.

    3. At the time in 2012, the car insurance covered more than one person and as already stated, I very rarely drove the vehicle in question and was not the driver at the material time. Between the five members of my family we owned three cars at that time and any one of us might have been driving the car that day.

    Exhibit 2 - Driving Licences of my sons.
    Exhibit 3 - Email from Admiral

    4. There was no requirement upon me as keeper to respond to what appeared to be junk mail, in early 2012, and in any event was not a matter where a registered keeper could be in any way legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

    5. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it seems they have not changed their tactics. They are attempting to prove I am liable as the keeper when I am not.

    Exhibit 5- FOI Request 139931

    6. Regarding use of Schedule 4 of POFA 2012 to allow the registered keeper to be pursued in place of the driver, this legislation did not come into force until 1st October 2012. As the date of the incident (20 January 2012) predates the enforcement of this act, there is no way this legislation can be used to pursue the registered keeper. Only the driver can be pursued, of which there is no evidence. The proof of date of enforcement of Schedule 4 of POFA 2012 (exhibit 6) can be seen on Exhibit 7. I’d also like to direct the court to the following case law

    17/11/2016 C3DP56Q5 Excel Parking Services v Ian Lamoureux. District Judge Skalskyj-Reynolds rules that as the claimant is not seeking to rely on the Protection of Freedom Act, there is no proof that the registered keeper was the driver, so dismissed the claim. (Exhibit 8).

    7. As the keeper of the car at the centre of this claim, in early August 2016 I received a letter from BW Legal threatening to pursue me for a £100 PCN and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions. Because this correspondence and subsequent claim came many years after the date of the alleged incident and because Excel Parking Services (EPS) have now been removed from control of this car park I am unable to produce anything other than a photo of the signage at the car park from 2015 (see exhibit 9) but, unless the signs were clearer in 2012 than they were in 2015 it can be seen from my evidence that no such reference to £54 legal costs is made on the signs in the car park. I think it unlikely that EPS changed their signage between 2012 and 2015 to remove the reference to the £54 costs.


    The claimant has failed to properly respond to my request made on 27 December 2016 by royal mail postal service, requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner’s behalf. My request was not answered appropriately (I received a number of indistinct colour photos of my car, a photocopy of the original PCN and copies of letters supposedly sent to me 5 years ago, without further information).

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

    I have other exhibits too which I was hoping to use on the day but they aren't referenced in my WS.
    • Lamilad
    • By Lamilad 19th Apr 17, 12:09 PM
    • 1,162 Posts
    • 2,317 Thanks
    Lamilad
    I will help you, as I'm sure others will. But it will be late afternoon/evening before i can have a proper look at this.

    Can you post your defence?
    • ElParque
    • By ElParque 19th Apr 17, 12:27 PM
    • 65 Posts
    • 59 Thanks
    ElParque
    My Defence - submitted in Jan
    Thank you. Here is my defence....

    DEFENCE

    1. It is acknowledged that the defendant, xxxxxx, residing at xxxxxxxx is the registered keeper of the vehicle.

    2. I deny any liability in this claim, and any debt is denied in its entirety. The date of the alleged incident is xxxxxxxxxwhich is nearly 5 years ago. How can anyone be expected to remember where they may have parked a car or if they were driving on one random day five years ago? I certainly do not remember getting a 'ticket' and had I have done I certainly would remember. Further the car in question is one on which, according to my insurance policy, I was not the main driver and indeed, with access to another car, I very rarely drove this car.

    3 It is extremely unreasonable for the claimant to store DVLA data for 5 years then pounce with a claim with no due diligence nor evidence, in the hope that I do not have any paperwork relating to this alleged debt (which I don't). It is even more unreasonable that, having made no attempt whatsoever to contact me for years -and knowing that keepers could not be held liable for parking charges in early 2012 anyway - the Claimant has the audacity to try to ask the court for the right to claim statutory interest at 8% from date of incident (£35.70). The long delay is clearly the fault of the Claimant and should not be used as an excuse to effectively try double recovery.

    4. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent which amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter.

    I would bring to the courts attention two recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, (Excel v Mr C C8DP37F1 Stockport 31/10/2016) and (Excel v Mr B C7DP8F83 at Sheffield 14/12/2016) I can't find transcripts of these 2 cases now but have exhibits from Cutts and Lamoureux!

    Furthermore The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. It can be seen the date of the alleged contravention is 20/01/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.

    PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified 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" (POPLA report 2015). It seems Excel Parking Services Ltd think they know better.

    5. The claim form itself also gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

    In the pre court stage the Claimant’s solicitor did not send me a Letter before Action so I have
    a) No summary of facts on which the claim is based.
    b) No list of the relevant documents on which the claimant intends to rely and
    c) I wasn't offered any form of possible negotiation.

    6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    7. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a Part 18 request to the claimant's solicitors on 18/12/2016. Accordingly, 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. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd, and no proof has been provided.

    8. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

    9. It is submitted that (apart from properly incurred court fees) the added 'contractual costs' of £54 and the £50 legal representative's costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant. I have not been shown any evidence that the deliberately indistinct, almost illegible and unlit signs in the car park refer to these amounts.

    10. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye Ltd v. Beavis case:
    a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
    c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
    d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    e) Absent the elements of a contract, there can be no breach of contract.

    Further, this claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' £53.50 costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park. I will include in my evidence, Mr Cutts' own published article '‘Phoney fines and dodgy signs take drivers for a ride'' which is specifically about Excel's signs.

    11. It is expected that this Claimant may try to counter that article about their signs but it is worth noting that the Judge agreed with Mr Cutts, who is something of an expert on clear terms as he manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

    12. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel Parking Services, is in the public domain as having attacked the Judge’s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts'.

    13. I am aware that the only ticket-machine at this site is prone to be faulty. I therefore ask that the claimant produce evidence that no payment was made that day in relation to the incident and indeed that the ticket machine was working at the time the parking notice was issued.

    14. Excel Parking Services Ltd are not the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier 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 right to bring action regarding this claim.

    15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I request the court strike out this claim for the reasons stated above.

    Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
    • Lamilad
    • By Lamilad 19th Apr 17, 6:50 PM
    • 1,162 Posts
    • 2,317 Thanks
    Lamilad
    Why have you started a new thread when you already have one about this issue?

    http://forums.moneysavingexpert.com/showthread.php?t=5618661

    Contact a board guide and ask them to merge your threads. It's hard to advise when the details of your case is posted in different places.
    • Lamilad
    • By Lamilad 19th Apr 17, 7:07 PM
    • 1,162 Posts
    • 2,317 Thanks
    Lamilad
    you mention that they have produced a photo of the car with a p&d ticket on the dashboard. Is the time stamp on the photo before or after the ticket has expired?
    • ElParque
    • By ElParque 19th Apr 17, 7:33 PM
    • 65 Posts
    • 59 Thanks
    ElParque
    The time stamp on the photo is 1 min after the ticket was supposedly issued. On the photo, one can see the shape of a P&D ticket but none of the writing. It's completely illegible.

    As for starting a new thread, in the earlier one I had only asked about the photo that I was sent by BW Legal and I asked that question for a particular reason. If I could PM someone I could tell them why I asked that question but I can't here.

    Actually I had forgotten that I had posted the question under this username. I did start this case with another username but that username was too transparent. I asked for it to be changed but got no answer so set up a new username.
    • Lamilad
    • By Lamilad 19th Apr 17, 10:46 PM
    • 1,162 Posts
    • 2,317 Thanks
    Lamilad
    Ok I've had a quick read through the last WS you posted and based on what you have stated I would suggest changing some of the wording and the latout as follows.

    NB. this is just a quick draft based on my personal opinion. Hang on as long as you can tomorrow before submitting to see if anyone has any further suggestions, or points out anything that isn't right.

    I haven't proof read it or checked for spelling mistakes.

    1. I, xxxxxxxxxxxxxxxx, am the defendant in this claim. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

    2. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

    3. The facts of the case are as set out in my Defence, dated xxxxxxx, filed and served in response to the original N1 Claim Form, and verified by a Statement of Truth. They do not bear further repetition here, but this document will lead the evidence to support my case.

    NO KEEPER LIABILITY
    4. I was the Registered Keeper of the vehicle at the time of the event in question, however, I was not the driver

    5. The claimant has produced no evidence of who was driving

    6. At the time of the event there was no law that would allow a claimant to transfer liability for an alleged private parking contravention from the driver to the registered keeper (RK). As such only the driver can be held liable in this matter, if any contravention has even occurred. This claim has nothing whatsoever to do with the RK.

    7. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person

    NO “REASONABLE PRESUMPTION”

    8. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention. For the following reasons:

    9. There is no law that allows them to do this

    10. The defendant asserts under ‘statement of truth’ that he was not the driver. This will be repeated in court should this claim proceed to a hearing.

    11. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies.

    12. The claimant will rely on the case of Elliott v Loake [1982] to argue that they can presume the RK was the driver.

    13. Elliott v Loake [1982] has no relevance whatsoever in small claims or any civil matters. It is a criminal case which turned on forensic evidence and an eye witness statement. The defendant was prosecuted for, amongst other things, offences under S172 of the Road traffic Act. There is nothing about that criminal case that is comparable or relevant to this small claims matter

    14. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant. In dismissing the claim the judge stated amongst his reasons for doing so that - Excel did not adduce evidence of the driver, and - Elliott v Loake is not persuasive, and can be distinguished.

    15. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper.

    16. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. 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 could not). 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 XXX

    17. The defendant was not the main driver of the vehicle in question, and, in fact, very rarely drove this vehicle.

    18. I adduce as evidence exhibit XXX – an email from the company who insured the vehicle at the material time, proving that the defendant was not the main driver.

    19. Several other people including friends and family members had use of the vehicle, around the time in question, though the ‘Driving Other Cars’ (DOC) extension on their own fully comprehensive car insurance policies.

    20. If the defendant’s assertion that he was not the driver was to be tested against the ‘balance of probabilities’ then it would be highly unlikely that he was the driver due to the number of other people that could have been driving and the fact he was not the main driver of the vehicle

    CLAIMANT UNREASONABLE BEHAVIOUR/ LACK OF CREDIBILITY
    21. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing.

    22. I refer to Exhibit XXX- Freedom of Information (FOI) Request, 139931

    23. As the RK, in August 2016 I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions.

    24. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question at the material time. The claimant is put to strict proof otherwise.

    25. This is an attempt by the claimant to fraudulently claim costs that, under CPR 27.14 they are not entitled to.

    26. As a serial litigant with professional legal representation the claimant knows they cannot claim these costs. Therefore, by attempting to do so they are deliberately misleading the defendant and the court.

    27. The claimant failed to adequately respond to my request made on 27th December 2016 where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf.

    28. My request was not answered appropriately - I received a number of indistinct colour photos of my car, a photocopy of the original PCN and copies of letters supposedly sent to me 5 years ago. I did not receive any of the information I requested.

    29. In this matter the defendant tried to reasonably engage with the claimant so that he could better understand the claim and how to defend it. In failing to provide an adequate response the claimant is in breach of pre-action protocols and the overriding objecting as per CPR 1.

    CONCLUSION

    30. For all of the reasons stated above, the Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant has no right in law to do so, and to submit vague, incoherent particulars, is wholly unreasonable and vexatious.


    I believe that the facts stated in this Witness Statement are true.
    • ElParque
    • By ElParque 19th Apr 17, 11:17 PM
    • 65 Posts
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    ElParque
    **** me! That is brilliant and every word is true.

    As far as exhibits go, should I still enclose the POPLA 2015, the photos of my kids driving licences, the car park sign and other items I was going to add not included in your above work or am I now, (on your advice) just going for the keeper liability and abandoning the other defence of poorly worded signs? This was my original thought, ie that this defence needed no other point except the keeper liability one but I added the other stuff when respected posters suggested I throw the kitchen sink at it!
    • Lamilad
    • By Lamilad 19th Apr 17, 11:37 PM
    • 1,162 Posts
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    Lamilad
    As far as exhibits go, should I still enclose the POPLA 2015
    Originally posted by ElParque
    Yes
    the photos of my kids driving licences,
    No
    the car park sign
    No, you're holding them to strict proof re signage

    and other items I was going to add not included in your above work or am I now, (on your advice) just going for the keeper liability and abandoning the other defence of poorly worded signs? This was my original thought, ie that this defence needed no other point except the keeper liability one but I added the other stuff when respected posters suggested I throw the kitchen sink at it!
    You have got signage in your defence but best not go into it too much in your WS as you are focussing on 'no keeper liability' and 'no reasonable presumption' which are strong arguments and should ensure you win this case.

    As an RK who was not the driver you won't know much about the signs as you weren't there to see them. Going on about non prominent signs incapable of forming a contract in a WS may invite questions from the judge along the lines of "how do you know if you weren't there?"

    You've got the Cutts case in your defence so if you feel things aren't going well on the day you can bring the signage up...

    "Sir, I'd like to discuss point #?? of my defence which highlights the woefully inept and incomprehnsible nature of the claimants signage. If the court is minded to believe that on the BoP I was the driver then the defendant submits that the claimants signage is incapable of forming a contract for the following reasons......"
    • ElParque
    • By ElParque 19th Apr 17, 11:50 PM
    • 65 Posts
    • 59 Thanks
    ElParque
    So, maybe have the photos in my exhibits but not refer to them in my WS and only on the day if the no keeper liability defence is not accepted? Can it harm to take the photo of the sign? It does show how fantastically terrible their signs were in 2015! ok, ok....

    To be honest, if I don't win on the keeper liability, I can't see me having the stomach for a fight on the signage and though I'm not complacent, how on earth can I lose on the keeper liability?
    • Umkomaas
    • By Umkomaas 19th Apr 17, 11:58 PM
    • 15,427 Posts
    • 24,124 Thanks
    Umkomaas
    To be honest, if I don't win on the keeper liability, I can't see me having the stomach for a fight on the signage and though I'm not complacent, how on earth can I lose on the keeper liability?
    By having a grumpy old codger who doesn't understand the finer points of PoFA (believing that Beavis overrides everything) and who's just got out of bed on the wrong side.

    You need one who is freshly spanked and brandied up, with a silly smile on his face!
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • ElParque
    • By ElParque 20th Apr 17, 12:15 AM
    • 65 Posts
    • 59 Thanks
    ElParque
    By having a grumpy old codger who doesn't understand the finer points of PoFA (believing that Beavis overrides everything) and who's just got out of bed on the wrong side.
    Originally posted by Umkomaas
    In which case, don't I need to have a good answer to Beavis in my defence?
    • Umkomaas
    • By Umkomaas 20th Apr 17, 12:24 AM
    • 15,427 Posts
    • 24,124 Thanks
    Umkomaas
    In which case, don't I need to have a good answer to Beavis in my defence?
    Originally posted by ElParque
    I would say so. It's standard advice in most cases, whether a POPLA appeal or a court defence. Whether you can dissuade an old grump from a set-in-stone position is all part of the lottery that is the small claims court.

    But unless its rehearsed, you're a hostage to fortune.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • ElParque
    • By ElParque 20th Apr 17, 1:03 AM
    • 65 Posts
    • 59 Thanks
    ElParque
    Well, my defence against Beavis would have to be based on the signage in the car park in question which was very poor, didn't comply with BPA recommendations and so there could be no contract between them and the driver.

    I did mention Beavis in my original defence. I can't find any documentation - it's too complicated and it's too late now - other than the judgement in the case to include as evidence. Should I include the Supreme Court judgement?
    • Lamilad
    • By Lamilad 20th Apr 17, 1:07 AM
    • 1,162 Posts
    • 2,317 Thanks
    Lamilad
    Your points on Beavis are argument not something you have witnessed. So you will address it in your skeleton.

    They'll also make some naff points about it in their ws so you'll be able to do a full hatchet job on it in your SA.

    It's mentioned in your defence so you've got it in your arsenal. I would adduce the parking eye Beavis sign with your WS.

    Btw - you have mentioned that the signs in this case we're not lit... Did the alleged contravention occur in the hours of darkness?
    • ElParque
    • By ElParque 20th Apr 17, 1:29 AM
    • 65 Posts
    • 59 Thanks
    ElParque
    Your points on Beavis are argument not something you have witnessed. So you will address it in your skeleton.

    They'll also make some naff points about it in their ws so you'll be able to do a full hatchet job on it in your SA.

    It's mentioned in your defence so you've got it in your arsenal. I would adduce the parking eye Beavis sign with your WS.

    Btw - you have mentioned that the signs in this case we're not lit... Did the alleged contravention occur in the hours of darkness?
    Originally posted by Lamilad
    It happened on a rainy day in January at 11am.

    By adduce the PE sign, do you mean include it in the exhibits or include and refer to it in the WS?
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