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  • FIRST POST
    • JoeyCoco
    • By JoeyCoco 17th Jul 17, 11:10 AM
    • 11Posts
    • 21Thanks
    JoeyCoco
    PCM Heath Parade WS help
    • #1
    • 17th Jul 17, 11:10 AM
    PCM Heath Parade WS help 17th Jul 17 at 11:10 AM
    Hello all,

    I have a court case on August 1st and I need to file the WS by tomorrow. I will post my WS separately in a moment for your thoughts, but I have a story and then a question:

    I filmed the Heath Parade area last week to help with my case (Ms Sunglasses helpfully popped out of a doorway when a car came along). There was a blue Toyota parked on the end of the strip. Another car came along as I filmed, so I politely told them to move along before Ms Sunglasses got to them. The passenger said "why's that car there, then?". I didn't know, but they left anyway. JoeyCoco 1, Ms Sunglasses nil.

    While compiling the WS, I'm browsing through PCM's WS, and found a photo where they've marked their sign locations with x's. Up front and centre is the same blue Toyota. The photo is at least 4 months old - it was taken before the gym opened.

    Honeytrap, anyone? Or am I just being cynical? Is it even worth mentioning in court?

    Thanks in advance for any responses.

    JC
Page 1
    • JoeyCoco
    • By JoeyCoco 17th Jul 17, 12:01 PM
    • 11 Posts
    • 21 Thanks
    JoeyCoco
    • #2
    • 17th Jul 17, 12:01 PM
    • #2
    • 17th Jul 17, 12:01 PM
    I'm sorry that the format's all over the place. I couldn't work out how to attach a PDF and time is of the essence. This is PCM's Witness Statement.

    Parking Control Management (Uk) Limited
    -AND-
    xxxxxxxxx
    WITNESS STATEMENT OF Georglna Phllpot
    CLAIM NO:

    I, Georglna Phllpot, of The Courtyard, lA Cranbourne Road, SLl 2XF WILL SAY AS FOLLOWS:

    1. I am the Employee of the Claimant Company ('my Company') and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the
    best of my knowledge and belief.

    2. Exhibited to this Witness Statement at 'GSLl' are following documents which my Company wishes to rely upon;

    i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as 'the Relevant Land')
    ii) The Sign (i.e. the Contract) iii) The Site Plan
    iv) Notices
    v) Photographs of the incident

    3. The Defendant is liable for parking charges relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charges;
    PCN NUMBER xxxxx and xxxxx
    DATE OF CHARGE
    15th October 2015, 19th October 2015
    LOCATION
    Heath Parade - NW9 Heath Parade - NW9
    DESCRIPTION
    Parked In a restricted area Parked in a restricted area
    1
    The Defence

    The Relevant Land

    4. The Relevant Land is privately owned and therefore not a public highway and managed by my Company. The photographs evidence there are clear markings on the road which reads "loading only". If the
    Defendant was not loading and unloading she should not have parked there.

    5. The signs and the site plan are independently audited by the IPC which is an accredited trade association within the parking sector. The photographs evidence the Defendant's vehicle was parked adjacent to one of my Company's signs and the photographs of the Relevant Land show that there are sufficient (at least 5) signs on the Relevant Land. As such, I can think of no reasonable explanation as to why they would not have been seen.

    6. What is more, without concession, even in the unlikely event the Defendant didn't see the signs I submit
    they ought to have done so. As Lord Justice Roch observed in the Court of Appeal case of Vine v London Borough of Waltham Forrest 2000,
    "Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property"
    )eal Response

    7. The appeal response did not use the same photograph for each parking charge notice. The Defendant
    parked in the same area on both dates. The Notices to Keeper also contain different photographs taken of the vehicle.

    8. The IPC and the IAS are separate. The IAS is a certified Alternative Dispute Resolution entity and the appeals are considered by independent adjudicators not by Will Hurley and John Davies.

    The Contract

    9. The Defendant suggests there was no contract as there was no offer to park.

    10. The rules of interpretation require simply that the parties knew of their obligations to one-another. The Defendant was offered to use the Land and thereafter either follow the rules and park for free or in breach of the rules agree to pay £100. The rules here just so happen to be that to park, they need to be
    an authorised vehicle actively loading and unloading to commercial tenants of Heath Parade.

    11. The case law demonstrates that the precise terminology used on the signs is not necessarily of importance and it should be interpreted in such a way that gives efficacy to the agreement.

    12. In Alder v Moore (1961). the defendant was a footballer who suffered an injury. The insurer who was the claimant paid out £500 under the defendant's policy. Upon receipt of the money the defendant agreed that in consideration he would "agree [to] take no part as a playing member of any form of professional football and that in the event of infringement of this condition [he] will be subject to a penalty of £500." The defendant later resumed a professional playing career and the insurers sought to recover the alleged 'penalty' sum.

    13. The Court of Appeal concluded that the defendant had not promised to not play
    football again and the amount was therefore recoverable because there was no breach of contract. The use of the term, 'Penalty', was not therefore definitive of the legal nature of the sum payable. As Lord Justice Sellers observed.
    2
    '7he sole concern of the underwriters, for whose protection the document alone came Into existence, was not to stop the defendant from playing professional football again but to recover their £500 if he did so and thereby established conclusively that he had never at any time been oermanentlv totally disabled
    from doing so.
    It seems to me quite unrealistic to construe the document as imposing a contractual ban upon the
    defendant from playing professional football again. I should have thought that the underwriters would welcome his doing so, since that was their only hope of recovering their £500. They certainly not recover
    it, however fit the defendant became to play professional football again, if he retired from playing it or if he played football again but confined himself to the amateur game."
    The Court held that;
    "notwithstanding the word "penalty" used in the declaration, the obligation imposed on the defendant was to reimburse the underwriters that which they had paid on a basis proved to be false by events; the
    payment was neither an imposition of a fine nor a penal payment and, accordingly, was recoverable from the defendant".

    14. The court concluded that one should consider the obligations Imposed by the agreement, not the terminology used I.e. the agreement's substance, not form.

    15. The principles In this case are the same as In the Parking Eye case, save that In the Parking Eye case, as the particular parking rules were different, the rule breached was that motorists must leave the site within 2
    hours, whereas here, as set out above, the rule was to be an "authorised vehicle..."

    16. The Court may conclude that the Land Is managed as follows; the Claimant grants a contractual license to
    all; this license allows anyone permission to be on the Land. This Is Inferred by the nature of the land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all the
    motorists) was offered to comply with the normal conditions (as clear on the sign), or park otherwise than In accordance with the normal conditions and Incur a £100 charge. The acceptance was at the point the Defendant decided to park, having read the sign, and his consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. The Claimant's consideration Is the provision of parking services.

    17. I refer to the Court to Judge Hegarty's comments In ParklngEye v Somerfleld (2011) that "If this Is the
    price payable for the privilege. It does not seem to me that It can be regarded as a penalty, even though It Is substantial and obviously Intended to discourage motorists from leaving their cars on the car park".
    18. Alternatively; It could be concluded that, any person can use the Land provided they do not exceed the licensed activity as set out on the sign and In falling to comply with the license granted to them, they In turn agree to the Claimant's entirely distinct offer from that license which Is 'to park otherwise than In accordance with the license for a charge of £100'.
    The Consumer Contracts (Information. Cancellation and Additional Charges) Regulations 2013
    19. It Is denied that the contract constitutes a 'distance contracf within the meaning of the Consumer Contracts Information, Cancellation and Additional Charge) Regulates 2013 ("the 2013 Regulations"). In particular:-
    I. It Is denied that the Defendant was acting as 'consumers'. The Defendant parked on the Land wholly or mainly for the purpose of their trade, business, craft or profession;
    II. It Is denied that the contract was concluded by 'means of distance communication'. The Claimant maintained a physical presence on the Land.
    3

    Grace Period

    20. The notes from the parking attendant who Issued the parking charge notice suggest the Defendant
    parked her vehicle and went Into Salnsbury's and after that she drove away. It does not state that the Defendant parked her vehicle, read the signs, and then got back In her vehicle and drove away. Further,
    despite receiving a parking charge notice on 15**' October she decided to park again, not In accordance with the signs, on 19*^ October.
    Charge Is excessive/ no loss suffered

    21. The charge sought Is Industry standard and Is set at a rate so as to suitably satisfy my Company's
    legitimate Interest. In the case of ParklngEye v Beavis 2015 It was held that an £85.00 charge was neither
    extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member In order to apply for DVLA data prescribe a maximum charge of £100. My Company's charges are
    within this level. The charge Is not, therefore, excessive. Unfalr/lmmoral/unethlcal

    22. The Defendant's opinion on the fairness of the parking charge cannot Impact their liability to pay. Quite
    simply. In parking In the manner they did, they understood a charge would apply. My Company's charges are Issued In accordance with the guidelines set out by Its trade association and are Industry standard.

    23. Paragraph 108 of the Judgment In the recent Supreme Court case of Parking Eye and Beavis (2015) said "the concept of a negotiated agreement to enter a car park Is somewhat artificial but It Is perfectly workable provided one bears In mind It Is objective..." ... "In our view a reasonable motorist would have agreed to the term." I submit that the term In my Company's contract was no more, or no less unreasonable than that In the ParklngEye case.

    No authorltv to enforce charges

    24. As the contract Is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v MM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made It clear that a contracting party need not show they have a right to do what they have promised In the performance of a contract, nor Is (In the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company's authorisation to operate / manage the Relevant Land on behalf of the Landowner.

    25. Lord Justice Lewlson commented In VCS v MM Revenue & Customs [2013] EWCA Civ 186
    1. "The Upper TribunaTs reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right In my judgment there is a serious flaw in this reasoning.
    2. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party
    may not only be able to contract to confer rights over property that he does not own, but may aiso be able to perform the contract without acquiring any such right. Thus in Bruton v London and
    4
    • JoeyCoco
    • By JoeyCoco 17th Jul 17, 12:23 PM
    • 11 Posts
    • 21 Thanks
    JoeyCoco
    • #3
    • 17th Jul 17, 12:23 PM
    • #3
    • 17th Jul 17, 12:23 PM
    This is my witness statement. I'm finding it hard to add to it without repeating the defence statement I sent months ago. I assume the Judge is given a copy of my defence statement - am I correct? Any thoughts are much appreciated.

    IN THE COUNTY COURT - Claim No.:

    Between

    Parking Control Management (UK) Ltd (Claimant)

    -and-

    ************ (Defendant)
    ____________________________
    WITNESS STATEMENT
    __________________________

    I, ****************** of **************, *********, ***********, **** *** am the defendant in this case.

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

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

    3. I assert that I am the registered keeper of the vehicle in question in this case.

    4. The Claimant has asserted that the Defendant, for the sole reason that I am keeper of the vehicle, must be presumed to be the driver unless I prove otherwise, and it relies on Elliott v Loake 1983 Crim LR 36 in support of that assertion. The Defendant believes that the Claimant is attempting to deliberately mislead vehicle owners (and the court) in citing this case because they know or must know that this assessment of the case is entirely wrong.

    5. In fact, Elliott v Loake does not provide for any such presumption to be made, nor that it is for the Defendant to rebut it. This claim, like any other, is for the Claimant to prove. There is nothing unique about parking charges which reverses the burden of proof.

    6. Furthermore, Parking on Private Lands Appeal (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, has stated publicly that: “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.” (POPLA annual review 2015).

    7. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant’s employee, Georgina Philpot:

    8. Re #4: The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in Ms Philpot’s witness statement.

    6. This is denied and Ms Philpot was not there and has no knowledge of who was driving on any occasion.


    7. Re: #5: Ms Philpot states that she can think of no reasonable explanation as to why they (the signs) would not have been seen. (Exhibit x) shows the height and size of the signs in relation to a person (in this case the attendant), and (exhibit x) the height and size in relation to a car. They are too high and have too small a font to be seen. Even if they could be read, the signs are forbidding in their nature.

    8. Re #5: The claimant states that the signs and site plan are independently audited by the IPC. However, District Judge Glen in Parking Control Management (UK) v Bull (2016) had previously concluded that the signs were forbidding.


    9. It can be seen that the notice disputed in PCM(UK) v Bull is the same as the ones found in Heath Parade, and are equally as forbidding. (Exhibit no.x)


    10. re #7 (Exhibit nos x) clearly shows that the same photograph was used for both appeal responses.


    11. Re #20 Ms Philpot states that the notes from parking attendant “suggest the Defendant parked her vehicle and went into Sainsbury’s and after that she drove away”.

    12. The actual wording of the note says “She parked the car and went to Sainsburys after the driver drove away”. The note is contradictory. The note would suggest that a person was dropped off at the location and that the driver then drove away, i.e. did not park, but also that the person who went to Sainsbury’s parked the car. The note does not say that the sign was read and ignored. The sign was not noticed due to its location, high up on a wall in small font. The sign was not brought to the driver’s attention by the attendant, who did know the sign was there.

    13. Re #20 Ms Philpot states that a parking charge notice was received on the 15th October and that despite this “she decided to park again…on the 19th October”.

    14. PCM issued these parking charge notices by post. It is not possible to be aware of receiving them until it arrives in the post. Their parking attendant at the site does not warn of her actions; in fact she generally makes herself as inconspicuous as possible.

    15. The notice was dated 20th October 2015, and received on or after 22nd October. The second parking notice was for an event on the 19th October, prior to receiving any notice.






    I believe the facts stated in this Defence Statement are true.


    ……………………………………………………………………
    …. (add name and sign)
    ………………………
    (add Date)
    • Grimble
    • By Grimble 17th Jul 17, 2:30 PM
    • 390 Posts
    • 472 Thanks
    Grimble
    • #4
    • 17th Jul 17, 2:30 PM
    • #4
    • 17th Jul 17, 2:30 PM
    http://parking-prankster.blogspot.gr/2017/05/pcm-lose-heath-parade-claim.html
    • Grimble
    • By Grimble 17th Jul 17, 2:33 PM
    • 390 Posts
    • 472 Thanks
    Grimble
    • #5
    • 17th Jul 17, 2:33 PM
    • #5
    • 17th Jul 17, 2:33 PM
    http://parking-prankster.blogspot.gr/2017/07/gladstones-discontinue-heath-parade.html
    • JoeyCoco
    • By JoeyCoco 17th Jul 17, 4:27 PM
    • 11 Posts
    • 21 Thanks
    JoeyCoco
    • #6
    • 17th Jul 17, 4:27 PM
    • #6
    • 17th Jul 17, 4:27 PM
    Thanks for your reply.

    I was already aware of the Parking Prankster, and whilst it would be nice for the case to be discontinued, I was hoping for some help with my WS. I've tried to include the salient points that helped previous cases get thrown out/discontinued. Hopefully I've done enough.

    Regards,

    JC
    • Coupon-mad
    • By Coupon-mad 17th Jul 17, 7:59 PM
    • 50,024 Posts
    • 63,421 Thanks
    Coupon-mad
    • #7
    • 17th Jul 17, 7:59 PM
    • #7
    • 17th Jul 17, 7:59 PM
    Hello all,

    I have a court case on August 1st and I need to file the WS by tomorrow. I will post my WS separately in a moment for your thoughts, but I have a story and then a question:

    I filmed the Heath Parade area last week to help with my case (Ms Sunglasses helpfully popped out of a doorway when a car came along). There was a blue Toyota parked on the end of the strip. Another car came along as I filmed, so I politely told them to move along before Ms Sunglasses got to them. The passenger said "why's that car there, then?". I didn't know, but they left anyway. JoeyCoco 1, Ms Sunglasses nil.

    While compiling the WS, I'm browsing through PCM's WS, and found a photo where they've marked their sign locations with x's. Up front and centre is the same blue Toyota. The photo is at least 4 months old - it was taken before the gym opened.

    Honeytrap, anyone? Or am I just being cynical? Is it even worth mentioning in court?
    Originally posted by JoeyCoco
    Definitely mention the Honeytrap 'decoy' Toyota in court, and in your WS.

    You are likely to find PCM discontinue the claim (no hearing is likely) so make sure you are ready to file an urgent letter asking the Judge for your costs, loss of leave and the wasted time and p&p and printing in defending this scam.

    LoadsofChildren123 posted an example of a punitive costs letter for a Judge after a discontinuance, as linked in the NEWBIES thread post #2. You must get your costs for this farce.
    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.

    • born_3
    • By born_3 28th Jul 17, 6:06 PM
    • 47 Posts
    • 32 Thanks
    born_3
    • #8
    • 28th Jul 17, 6:06 PM
    • #8
    • 28th Jul 17, 6:06 PM
    Sorry, to crayon on someone else's thread and I'm probably going to incurr the wrath of many forumeers but:

    we drove past this trap yesterday lunchtime on the way to the RAF museum - I noticed that there were a few vehicles parked there because of the extensive rebuilding word being undertaken for the centenary of the RAF and coupled with the fact it's school hols the museum car park was full. I would expect quite a deluge of enquires about what happens when you stop at Heath Parade...
    • IamEmanresu
    • By IamEmanresu 1st Aug 17, 10:01 AM
    • 1,480 Posts
    • 2,758 Thanks
    IamEmanresu
    • #9
    • 1st Aug 17, 10:01 AM
    • #9
    • 1st Aug 17, 10:01 AM
    Good Luck today
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.
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