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  • FIRST POST
    • Soddingtypical
    • By Soddingtypical 28th Jun 17, 1:47 PM
    • 26Posts
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    Soddingtypical
    Witness Statement
    • #1
    • 28th Jun 17, 1:47 PM
    Witness Statement 28th Jun 17 at 1:47 PM
    Hi all,
    I was hoping someone might have a check over my witness statement. I've deleted the thread with my comprehensive Defence Statement as was advised the claimant may use information from the thread. I will, however, put all the information back on (to hopefully help others) once the court appearance has passed which will be in about three weeks.
    This is the witness statement:

    1. I, xxx xxxxxx (nee xxxxxx) live at 1xxxxxxxx, xxxxxxxx and am the Defendent in this case. I make this statement in support of my defence and refute Excel Parking Services’ claim that I should pay a Parking Charge Notice (and ensuing costs) for parking in xxxxx in xxxxx on xxx xxxxxxx 2011. This statement is true to the best of my knowledge and belief.

    2. On xxxxxx 2011 at approximately 5pm, my car was parked on xxxxxxx, xxxxxxx ; I was not the driver of the vehicle but was a passenger, along with my 1 year old son.

    3. On entering the car park, I witnessed the driver of the vehicle purchasing a ticket for £1 which the signage indicated would cover the parking charges for a period of 2 hours (please see attached document A that shows the signage in 2013 – the only evidence available as the alleged contravention took place so long ago). It was the evening of one of the shortest days of the year and any small print on the signage that may or may not have indicated otherwise was poorly lit by insufficient lighting (please see attached document B).

    4. The driver left the car park within the two hour paid for period (18: xx:48 according to Excel) in good faith that all parking charges had been adhered to.

    5. I was sent a PCN several weeks later but was advised not to respond as the PCN was unenforceable and all relevant parking charges had been paid.

    6. I heard nothing further for a number of years until the occupant of my previous address, which I hadn’t lived at for several years, managed to contact me to inform me that they had in inadvertently opened post that indicated that proceedings were being threatened against me by BW Legal.

    7. I immediately emailed and called BW Legal (see attached document C). On the phone call I was told that it was too late and that I should either pay the full amount or wait for further correspondence regarding a court appearance. I never received a response from the email.

    8. I believe the facts stated in this witness statement are true.


    Thanks everyone!
    Last edited by Soddingtypical; 28-06-2017 at 1:53 PM.
Page 1
    • Umkomaas
    • By Umkomaas 28th Jun 17, 1:52 PM
    • 14,500 Posts
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    Umkomaas
    • #2
    • 28th Jun 17, 1:52 PM
    • #2
    • 28th Jun 17, 1:52 PM
    Please paragraph more clearly. It's just a wall of text right now, very difficult to read.

    There's no context in what, why, where, how this case came about. So trying to advise in a vacuum is difficult, possibly even dangerous if incorrect advice is given in ignorance of the actual facts.
    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.
    • Soddingtypical
    • By Soddingtypical 28th Jun 17, 1:59 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    • #3
    • 28th Jun 17, 1:59 PM
    • #3
    • 28th Jun 17, 1:59 PM
    Ok, I was reluctant to repost the Defence Statement that I sent. I was previously advised (absolutely brilliantly) by Lamilad and Coupon-Mad. I can repost if that's helpful, but just wanted to know if it's set out okay and if it's too brief. The Defence Statement was 1600 words long and I think covered all bases so wasn't sure if I needed to revisit all the points made on there, bearing in mind the judge will have both documents. Thanks for help!!
    • Coupon-mad
    • By Coupon-mad 28th Jun 17, 2:45 PM
    • 49,944 Posts
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    Coupon-mad
    • #4
    • 28th Jun 17, 2:45 PM
    • #4
    • 28th Jun 17, 2:45 PM
    Yes that's fine as long as you are planning to also create a skeleton argument attaching your exhibits. I would be showing as exhibits, Excel v Lamoureux (Lamilad's transcript) and Henry Greenslade's wording from the POPLA Annual report 2015 about 'Understanding Keeper liability' which Lamilad himself used. It helpfully states that a keeper does not have to name the driver and can't be judged for not doing so, and can't be presumed to be the driver either.

    I would also print out as evidence, the FOI from the DVLA (Google it) which says why some parking firms, including Excel, were banned for 3 months in early 2012 (pre-POFA), as it states clearly that Excel were banned for signs or statements alleging that a keeper has a legal responsibility to name the driver (same as they are trying to say now, years later), and they were also picked up for stating that a keeper could be liable, when pre-POFA, they simply could not. It's a useful FOI as it sets out the DVLA's reasons for banning Excel, for a 'serious breach' of the BPA CoP at the time, pre-POFA.

    It is disingenuous (in fact questionably fraudulent) for Excel to now try to re-run that DVLA-banned argument that you are at fault for refusing to name the driver and that you can somehow be held liable, when you simply cannot.

    I would also print out the blog called 'Motorist wins Appeal about CPS v AJH Films' hosted by the Parking Prankster blogger earlier in June. Although there is no transcript (yet) the case was on appeal and shot down 'agency' as an argument.
    Last edited by Coupon-mad; 28-06-2017 at 2:47 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Soddingtypical
    • By Soddingtypical 28th Jun 17, 2:47 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    • #5
    • 28th Jun 17, 2:47 PM
    • #5
    • 28th Jun 17, 2:47 PM
    Sorry to be thick but what form does a skeleton argument take and do I have to send that 14 days ahead also?
    I've spent ages trawling through old threads and can't find anything appropriate.

    Thanks once again Coupon-mad
    • Soddingtypical
    • By Soddingtypical 28th Jun 17, 2:47 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    • #6
    • 28th Jun 17, 2:47 PM
    • #6
    • 28th Jun 17, 2:47 PM
    Also, am I okay to admit that I was in the car?
    • Coupon-mad
    • By Coupon-mad 28th Jun 17, 2:48 PM
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    Coupon-mad
    • #7
    • 28th Jun 17, 2:48 PM
    • #7
    • 28th Jun 17, 2:48 PM
    You don't need old threads, you need the NEWBIES thread and current nes at the same stage as you.

    'Skeletons' are explained in post #2 of the NEWBIES thread - examples are there - and can be filed with 2 or 3 days to go. It's a bullet point summary to help the Judge see your defence points clearly, and to file the exhibits/legal arguments (also a copy to BW Legal).

    You also need to file a costs schedule (to get YOUR costs if you win) at the same time, a couple of days before the hearing. Again, a linked example template is in the NEWBIES thread post #2 and that's easy - and does not have to be filed 14 days in advance.

    LoadsofChildren123 also explained this on MadHatter's thread only yesterday, so read other threads!

    Also, am I okay to admit that I was in the car?
    Originally posted by Soddingtypical
    Yes, no problem at all.
    Last edited by Coupon-mad; 28-06-2017 at 11:31 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Soddingtypical
    • By Soddingtypical 28th Jun 17, 2:49 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    • #8
    • 28th Jun 17, 2:49 PM
    • #8
    • 28th Jun 17, 2:49 PM
    sorry, last thing. All those things to print out - do they need to be sent 14 days ahead of the hearing also?

    Thanks SO much!!
    • Soddingtypical
    • By Soddingtypical 28th Jun 17, 2:50 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    • #9
    • 28th Jun 17, 2:50 PM
    • #9
    • 28th Jun 17, 2:50 PM
    Thank you!!
    • Coupon-mad
    • By Coupon-mad 28th Jun 17, 2:52 PM
    • 49,944 Posts
    • 63,353 Thanks
    Coupon-mad
    sorry, last thing. All those things to print out - do they need to be sent 14 days ahead of the hearing also?

    Thanks SO much!!
    Originally posted by Soddingtypical
    No, only your WS and evidence that attaches to that, have to reach the other side & the court not later than 14 days before.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Soddingtypical
    • By Soddingtypical 28th Jun 17, 9:59 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    So, just to confirm... I;m going to send, via email to both (?), a copy of the witness statement that is very short in comparison to the Defence statement along with the exhibits (2 photos and a copy of an email). I'm then going to wait a week or so before sending the skeleton defence and the additional information suggested by Coupon-Mad.

    Thanks again for all help. Getting nervous now ...
    • Coupon-mad
    • By Coupon-mad 28th Jun 17, 11:31 PM
    • 49,944 Posts
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    Coupon-mad
    Yep. You got it.

    Claretmad was nervous as Heck, and won this week, like almost everyone does!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Soddingtypical
    • By Soddingtypical 10th Jul 17, 11:17 AM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    So, the hearing is in a week. I've received their witness statement - a day late!

    There are several mistakes in it, including giving details of car park ownership for the wrong car park - the actual certificate in evidence is for the correct one
    Also, they've got the date right sometimes and wrong elsewhere. So clearly a cut and paste job!

    Anyway, a few questions if anyone would be good enough to answer. I'm just putting together my skeleton defence.
    They have stated that my POFA isn't applicable defence in invalid because they're not relying on it. "The Claim is not reliant upon POFA and so that act is irrelevant". How do I argue against that?

    Also, they're using all the examples that were anticipated and that I included in my original defence. Do I just copy and paste what I wrote there in rebuttal or should I abbreviate it? Or just refer to the original defence.

    Thank you! All help VERY much appreciated.
    • Soddingtypical
    • By Soddingtypical 10th Jul 17, 11:28 AM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    Also, is there anything new I need to say about Elliot v Loake or CPS v AJH Films? Has anything major happened in any recent court cases?
    • Soddingtypical
    • By Soddingtypical 10th Jul 17, 12:54 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    Can anyone help?
    • Coupon-mad
    • By Coupon-mad 10th Jul 17, 12:55 PM
    • 49,944 Posts
    • 63,353 Thanks
    Coupon-mad
    They have stated that my POFA isn't applicable defence in invalid because they're not relying on it. "The Claim is not reliant upon POFA and so that act is irrelevant". How do I argue against that?
    Originally posted by Soddingtypical
    Put in with your skeleton, some case transcripts, to show their argument about the POFA being irrelevant is b@ll'cks and has everything to do with your defence as keeper (no POFA = no keeper liability possible):

    http://www.parking-prankster.com/more-case-law.html

    Excel v Lamoureux and VCS v Quayle would be my choice. And file Henry Greenslade's words about 'understanding keeper liability' from the POPLA Annual Report 2015.


    anything new I need to say about Elliot v Loake or CPS v AJH Films? Has anything major happened in any recent court cases?
    Yes, CPS v AJH Films was thrown out as irrelevant in an Appeal case (i.e. higher than County court first hearing/small claims level). No transcript but this Blog explains the Appeal outcome, which being an Excel case, they can hardly deny it happened as reported:

    http://parking-prankster.blogspot.co.uk/2017/06/motorist-wins-appeal-cps-vs-ajh-films.html

    You could also throw in this blog (no transcript):

    http://parking-prankster.blogspot.co.uk/2017/06/excel-lose-in-cardiff-judge-explains.html

    ''Judge explains why Elliott v Loake and CPS v AJH films not relevant''
    Excel Parking Services Ltd v Mrs. Lynzi Evans
    Judge: DJ McKay
    Claim no: C8DP79CC in the Cardiff Civil Justice Centre.

    I realise I am repeating myself but don't forget to also file:

    ...the FOI from the DVLA (Google it) which says why some parking firms, including Excel, were banned for 3 months in early 2012 (pre-POFA), as it states clearly that Excel were banned for signs or statements alleging that a keeper has a legal responsibility to name the driver (same as they are trying to say now, years later), and they were also picked up for stating that a keeper could be liable, when pre-POFA, they simply could not. It's a useful FOI as it sets out the DVLA's reasons for banning Excel, for a 'serious breach' of the BPA CoP at the time, pre-POFA.

    It is disingenuous (in fact questionably fraudulent) for Excel to now try to re-run that DVLA-banned argument that you are at fault or have 'failed' to name the driver and that you can somehow be held liable, when you simply cannot.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Soddingtypical
    • By Soddingtypical 10th Jul 17, 7:37 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    That's great Coupon-Mad. Thank you. Does it matter that they have stated the wrong car park in the witness statement? Or that I received it only 13 days before the hearing?
    • Soddingtypical
    • By Soddingtypical 12th Jul 17, 8:58 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    Any chance someone could look over my skeleton argument? I've focused on two main areas as I'm short of time and need to get it sent and honestly believe there can't be any argument against them (fingers crossed!)
    I've put a few digs at Excel in there. Please can you let me know if they're appropriate?
    All help, as always, very much appreciated,

    A valid PDT ticket was purchased

    1. Please refer to the claimant’s evidence File A, Visual C (Defendant’s evidence A), which shows that the signage clearly states that a £1 ticket entitles the driver to 2 hours parking. Please also refer to the claimant’s evidence page 10 (Defendant’s evidence B) which shows the PDT log which states that a ticket was purchased at 17.01 and inexplicably expired at 17.59 - 58 minutes later.

    2. The driver left the car park at 18:58 as stated in the Claimant’s witness statement (paragraph 42), 1 hr 57 minutes after arriving and within the two hours paid for.

    3. The log (evidence B) also shows that 4 other vehicles were also in the same position with one vehicle (WDO4 ***) purchasing a ticket for £1.50 two minutes earlier. The driver of that vehicle would not have paid an extra 50p if they knew the ticket would expire at 17.59. One can only assume that they were under the impression that they were purchasing a 3 hour ticket, as indicated by the signage and this, therefore, further reinforces the misleading nature of the signage and raises the question of whether this is a tactic used by Excel to issue unwarranted tickets.

    4. It was not made clear either on the signage or the ticket itself that the ticket would inexplicably expire early.

    The driver was not the defendant

    5. The claimant has no right to pursue the claimant for this alleged contravention. The alleged contravention occurred prior to the enactment of POFA (2012) and therefore can only pursue the driver and not the registered keeper, of which no evidence has been submitted.

    6. The claimant claims they are not reliant on POFA (2012) but there is no other legislation that can be used in this instance. Please refer to the transcript of Excel vs Lamoureux (17.11.2016) which states that POFA must be used but is irrelevant in this case (Evidence C)

    7. 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" (Evidence D - POPLA report 2015 page 12).

    8. The Claimant cannot claim that the keeper is liable for charges and was sanctioned by the DVLA for doing so in 2012. Please refer to the FOI request from Mr F Thorn (Evidence E) that states that the DVLA sanctioned Excel because :

    a. “ DVLA received a number of complaints where members of the British Parking Association’s (BPA) Approved Operator Scheme (AOS) were allegedly stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was. This behaviour is a significant breach of the AOS Code of Practice.”

    9. The claimant wishes to rely on Eliott vs Loake. This case irrelevant as it was a criminal case and relied on forensic evidence.

    10. Please refer to recent cases where the judge ruled Elliott vs Loake not relevant or applicable.
    a. Excel v Mrs E: C8DP79CC Cardiff 22/06/2017 (Evidence F – Observer’s report from Parking Prankster blog)
    b. Excel v Mr C C8DP37F1 Stockport 31/10/2016
    c. Excel v Mr B C7DP8F83 at Sheffield 14/12/2016

    2. The claimant wishes to rely on CPS vs AJH Films. This case too is not relevant as this case does not show that liability can be passed from driver to keeper

    3. Please refer to recent cases where the judge ruled CPS vs AJH Films was not applicable or relevant.
    a. Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062 (Evidence G- Observer’s report from Parking Prankster blog)
    • Coupon-mad
    • By Coupon-mad 12th Jul 17, 9:36 PM
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    Coupon-mad
    The driver was not the defendant
    I would switch that around = the defendant was not the driver.

    And as it was Excel in 2011, I would also throw in and include as evidence:

    - Excel v Cutts
    - Martin Cutts' article 'Dodgy signs and phoney fines take drivers for a ride' (written in 2011)

    http://www.parking-prankster.com/case-law.html

    http://s3-eu-west-1.amazonaws.com/plcdev/files/130/original/DVLA-BPA-23May2012AsPub.pdf

    ...because whether or not this event was at the Peel Centre, or not (doesn't matter), Excel's signage was all the same (and still is) = wordy blue & yellow unreadable twaddle, with the tariffs in the largest font compared with the 'parking charge' buried in unintelligible and crowded small print, with no 'white space' to draw the onerous charge to anyone's attention.

    So Martin Cutts' Plain Language Commission article is spot on.

    Also, look at any evidence adduced by BW Legal & compare it to Google Streetview:

    http://parking-prankster.blogspot.co.uk/2016/12/bw-legal-misleading-motorists-over-peel.html

    Just to add, read through Matthew87's winning WS and evidence he linked, in his OneDrive:

    http://forums.moneysavingexpert.com/showthread.php?t=5573407&page=2

    And here's one I wrote for claretmad62, who won his case the other week:

    http://forums.moneysavingexpert.com/showthread.php?p=72047642#post72047642

    HTH
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Soddingtypical
    • By Soddingtypical 16th Jul 17, 8:46 PM
    • 26 Posts
    • 19 Thanks
    Soddingtypical
    Right so all documentation has been sent and acknowledged by the court. I've done a schedule of costs. Do I send that ahead or just take it with me? I think I ready somewhere that you can only claim for three hours work on the case. Is that true? I must have spent around 50!
    Thanks again!
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