UKCPM ticket no NtD, NtK arrived more than 14 days after dated.

Fruitcake

Swinglebum wrote: »

I was clamped in March 2012, before the Law changed..

I won't bore you with reasons why I was there but the Clamper nearly killed me with his wagon, so I followed him into a Car Park, to 'have a word'.

I wasn't parked but standing next to my car; but the moment I realised that he was going to clamp me I attempted to make my escape and the chains became wrapped around my suspension, causing damage to my car.. To my surprise he managed to get the clamp and chains wrapped around my wheel within 10 seconds.. Only when I gave up did he apply the padlock..

I called the Police, who insisted that I pay the man to remove the clamp.. Under duress, I handed £130 to the police officer, who paid the Clamper.. I then made a criminal allegation against the Clamper..

The Police investigation concluded that the Clamper was acting 'in good faith' and on the instructions of 'The Land Owner'.. I then looked up the title of the land and it turn out that the Land was unregistered, therefore the chap who instructed the Clampers was not in fact the Land Owner.. He merely had a right of way over the unregistered land..

As I understand the law, before October 2012, it is only the Land Owner or his appointed Agent who can instruct enforcement.. A right of way does not afford the legal right to instruct Clampers..

In January of this year after various attempts to have a conversation with the man who instructed the Clampers, I decided to register a Small Claims Action, mostly because at least 100 other people had their cars towed away and had to pay upwards of £500 to get them back.. I think the fines could be in the order of £350k..

I thought if I won my day in Court, all of these other people would be able to recover their costs..

I had a pre-hearing on Friday morning.. I found the process mentally exhausting, to the point where I started doubt myself.. The Judge order an amendment and ordered me to pay £800. Not a good day..

Am I doing the right thing taking the man who doesn't own the Land but instructed enforcement, to Court? I rather felt that he is entirely responsible for the manner in which the Clampers behaved? If he hadn't instructed them, I wouldn't have been nearly killed and there would be more happy people in the world.

The Court has ordered me to submit my 'Pleading's' within the next 14 days.. I was held by the Clamper for 2 hours.. I suffered intimidation and my car was damaged in the process..

All I can think of is that this was not an 'enforceable contract' as this man does not own the land over which he instructed punitive measures.

I'm interested to know what you think?

Your case has nothing to do with the original poster's private parking charge. Please do not hijack other people's threads.

You would probably be better off posting you query on pepipoo.com. You will need to register using an email address, but Hotmail accounts won't work for some reason.

Umkomaas

@Swinglebum

I'm interested to know what you think?

I think you need to take legal advice.

tidegu

I hate you brought it off topic. Everyone should start their own thread for their own issues. Your case has nothing similar to mine, and I NEED HELP from other most helpful members not your hijacking.

Please kindly edit and remove YOUR post from MY thread.

tidegu

Sigh... Tried to rearrange the hearing date with court due to the short time available, but they requests N244 form and fee at least £100 this time:

No fee – if all parties agree and the application is made more than 14 days before the next hearing
£100.00 if all parties agree and the application is made less than 14 days before the next hearing
£255.00 if the application is opposed.

Also went to CAB but they were not very helpful. The lady only says if I parked at wrong place I have to pay the penalty. Yes, she said penalty, and couldn't understand the difference between penalty and charge

I will visit a local law centre clinic tomorrow evening but doubt if they will be helpful. So my only option left is here. Please help, CM, Umkomaas and bargepole. Links of CWS are in #70.

I will definitely not going able to sleep tonight for filing the DWS... And I believe I have to send it tomorrow otherwise it will definitely way too late. The hearing is next Tue

I really shouldn't expect the court send letters in brown envelops and should have paid enough attention to my large pile of clogger letters...

Coupon-mad

Having a look now...

tidegu

Thanks CM! Please help me!

I am working on the WS and have read quite a few posts, but still not having much clue so far. I am trying to draft one and will post as soon as it is ready. But I bet it must be lousy and hope if you can help a draft if possible.

From the posts I recently read, it seems WS is not the only thing I need to prepare? I need to prepare another defense against their WS?

Coupon-mad

I will post up a Witness Statement that covers it all. Worked on it already...

Strictly speaking a WS should be short (the facts) and there should be a separate 'Skeleton Argument' but in small claims anything goes! And time is important for you. So let's get this done.

You need a WS and evidence filed in the morning (in person to the local court, ideally, in a file all nicely printed out in the morning, and a full copy of everything sent by email to Gladstones before 4pm).

So, I've written one, you just need to print out the evidence with page numbers written on them (to reflect what I've written) and add your own claim number/name at the top and sign and date it at the bottom.

Coupon-mad

IN THE COUNTY COURT AT (name of your local court)

Claim No.: [INSERT claim number]

Between

UK Car Park Management Ltd (Claimant)

-and-


[YOUR NAME] (Defendant)


_____________________

WITNESS STATEMENT
_____________________

I am the Defendant and 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, and excuse a small delay in filing this Witness Statement, due to my being away on training, and the extra time it has taken me to read and understand the court process at each stage and to research and prepare a response (English not being my native language).

I deny any liability to the Claimant for the sum claimed, or any sum at all.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise. Exhibited hereto is a paginated bundle of documents to which I refer during this Statement.

The facts of the case are as set out in my Statement of Defence, filed in response to the original claim and verified by a statement of truth. They do not bear repetition here, but my defence case can be summarised under the following headings, supported by my evidence:-


1. No ‘keeper liability’ established
(a) There is no evidence to identify the driver. Even if the Court believes that a legible contract term was breached, I cannot be held liable because this Claimant has failed to comply with the statutory requirements set out in Schedule 4 of the Protection of Freedoms Act 2012 (‘the POFA’), which requires far more than just posting a document called a PCN or Notice to Keeper (‘NTK’).

Schedule 4 of the POFA is appended in evidence at page 1.


(b) The Claimant’s witness attempts to use Elliott v Loake, a criminal case with no application in contract law. I am aware that this Claimant’s Solicitors habitually rely on this case in thousands of unchecked robo-claims against registered keepers. The Claimant (and its solicitors) know that their argument has been rejected countless times, in other courts. In Elliott v Loake there was overwhelming forensic and witness evidence to show that the registered keeper was driving the vehicle. It made no presumption, and it did not put the onus on the Defendant to rebut any presumption, about who was driving. The burden of proof remains with the Claimant, not with the Defendant.

(c) It is false for the Claimant’s witness to misquote the POFA to assert that I am ‘required’ by law (their witness at #6) to name the driver. POPLA’s Lead Adjudicator Henry Greenslade, experienced Counsel, states in its 2015 Annual Report (under the heading 'Understanding Keeper Liability') that there is no presumption in law that a keeper of a vehicle was its driver, and confirms the legal position, that registered keepers have no legal obligation whatsoever to disclose the identity of the driver to a private parking company.

A copy of the relevant extract of the POPLA report is appended as evidence, page 2.


(d) It is a falsehood for the Claimant to state at #20 that I did not appeal. In fact, I did not ignore the harassing demands and I appealed in good faith (as their own evidence shows) despite the fact that no driver of this vehicle reported finding any PCN on the windscreen. All I received at first was a letter with two indiscernible photographs taken at an unidentifiable location, with no signage visible. The photos were taken in pitch black darkness over a period of three minutes and the times did not match the time on the NTK.

(e) The Notice arrived on 15th December, despite the purported date on it being 1st December, meaning that even if I had wished to pay at the so-called ’14 day discount’ I was denied that opportunity. I researched the matter and realised this timeline (arriving sixteen days after the alleged event) was outside the deadline prescribed in the POFA, para 9. Further, the Notice failed to state the mandatory warning about possible ‘keeper liability’ - simple wording a parking firm is required to quote from the POFA para 9(2)(f): (a Notice to Keeper must):

‘‘warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given…’’

The Notice paraphrased this to a vague: ‘if within 28 days…’ and failed to explain or even mention the ‘date given’, such that it was ambiguous and misleading regarding the potential date of keeper liability, by over a fortnight. Within 28 days of 1st December? Within 28 days of 29th November? Neither of those is correct, since the date given was 15th December 2015, the statutory ‘28 day period’ in fact begins from the day after the 15th December, a date that is impossible to infer from the NTK. However, by serving it on day sixteen the Claimant was too late, even if the POFA wording had been compliant.


(f) Further, the POFA paragraph 9 requires a NTK to state other mandatory information, which this NTK did not:
‘‘9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (2)The notice must -
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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’’

(g) This prescribed wording is omitted completely, even the most basic liability information, that it is the driver - not the recipient keeper - who is liable in the first instance, is not there.

On this NTK, even the time stated, at 17.21pm, to suggest a ‘period of parking’ is not supported by the evidence photographs taken almost half an hour earlier. If the vehicle remained stationary for over 30 minutes, as suggested by the time stated, then there would have been no reason for the photographer/operative not to have issued a windscreen PCN. On the balance of probabilities, I submit that the car was not there for any more than the three minutes in the photographs - was not even ‘parked’ and was not there at 17.21pm - and I put the Claimant to strict proof.


2. No evidence that the vehicle was parked at the time stated – no grace period
(a) The concept of ‘Parking’ as opposed to a brief stop for one reason or another as part of the normal coming and going of a vehicle, was helpfully defined in a persuasive decision, heard on Appeal in the Oxford County Court in June 2016: B9GF0A9E Jopson v Homeguard, where Senior Circuit Judge Charles Harris QC defined ‘parking’ in detail.

Appended in my evidence at page 3 is the transcript of the Jopson case, defining ‘parking’.


(b) Even worse is the fact that Gladstones were the losing Claimant’s solicitors in Jopson, and (as stated in my defence) the Directors who ran Gladstones until very recently were the same two people who run the IPC Trade Body for parking firms. These are the same Directors who set the ‘IPC Code of Practice’ which this Claimant and their Solicitors knew, or certainly should have known, included in the Third Edition (October 2015) in Part B:

‘‘Grace Periods 15.1:- Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site. 15.2 Drivers should be allowed a sufficient amount of time to leave a site after a pre-paid or permitted period of parking has expired.’’

This Claimant’s own photo evidence shows the car in the dark, somewhere, with no signs in view, for three minutes. I contend that the driver was most likely to have been attempting to discover any parking signs/terms in the dark, then left, well within an allowable period of grace. The time of 17.21pm was either invented by this Claimant to as part of a predatory operation, to concoct a period of parking that did not exist, or was the time it took the photographer to upload photos taken to UKCPM’s back office, long after the car had left.

(c) The IPC Code of Practice applicable in late 2015, is appended in evidence, page 4.

It is noted that the Code also includes:
‘‘Professionalism 13.1 You agree to ensure that all your operators, servants or agents maintain a professional standard of behaviour when carrying out their duties and comply with the rule of law at all times.’’
‘‘Predatory Tactics 14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system…’’

Further, at Part E, the ‘core criteria’ for IPC members is set out:

‘‘Part E: With reference to the core criteria, operators will be expected to produce satisfactory evidence of the following key areas:
F - A plan of each site with details of signage locations.
G - An image of each sign type that purports to form the basis of a charge…’’

‘‘2.2 Signs must conform to the requirements as set out in schedule 1 to the Code […] it is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge […] If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.’’


3. No evidence of any sign capable of creating a contract/complying with the IPC CoP
(a) It is noted that this Claimant had only joined the IPC just weeks before the alleged parking event. It is contended that this site cannot have passed an Audit of signage at the time that the photographs were taken and the Claimant is put to strict proof of this matter.

(b) As in my defence, any signs were not lit (no ‘adequate notice’ as required in the POFA).

(c) No signs at all are shown in view of the car, not even in the distance. The Claimant adduces Vine v Waltham Forest, but in fact, this case was found on Appeal in favour of the consumer Miss Vine, who it was held, could not have seen the terms on a sign.

(d) With the benefit of a torch, the Claimant shows a photo of a sign purportedly taken that night. Yet - as stated in my defence - that sign carries the AOS logo of their previous Trade Body, the BPA, and as such, cannot possibly meet the requirements of the IPC Code. Further, the payment webpage for UKCPM in December 2015 also carried the BPA AOS roundel logo, contrary to the CPUTRs 2008 ‘Misleading Actions’ in Consumer Contracts.

Appended in my evidence page 5 is a screenshot of the website as at December 2015.

(e) Displaying the logo of a Trade Body when a company is not a member, is a criminal offence. A fellow notorious IPC AOS member, New Generation Parking Management, were in court on 14/06/2017, facing five charges for various breaches of the Consumer Protection Act 2008. The charges were brought by Trading Standards and the first charge was: ‘‘Displaying BPA logo when not a member of the organisation’’ for which NGPM were fined £1250. Gladstones can certainly confirm this, given their close connection to the IPC.

(f) A charge arising as a result of that sign must not be permitted, as a matter of public policy, pursuant to the well-established legal doctrine Ex dolo malo non oritur actio, rendering a claimant unable to pursue any legal remedy arising in connection with his own illegal act.

(g) Even if the sign is deemed capable of creating a contract, there is no evidence as to where that sign was in relation to the car, and no evidence of it being ‘parked’ or even briefly stopped beyond three minutes, well within the allowed grace period. There is no evidence of any entrance sign, which would alert a driver that they were entering private land.

(h) Ambiguous wording drafted by a trader in a contract, must be given the interpretation which most favours the consumer. I say that the car was not parked ‘without permission’ or in a ‘selective bay’ (ambiguous wording from the alleged landowner contract).


4. No legitimate interest or landowner authority for this charge
(a) The Claimant is neither the lawful occupier of the land, nor its owner.

(b) The Claimant shows in evidence an old 2013 ‘contract’ drawn up by the Claimant when they were BPA members, which allows for a ‘ten minute grace period to obtain a permit’.

(c) The Claimant is only authorised to issue a parking charge to any vehicle in breach of the ‘parking restrictions’ but those as drafted, do not allow a PCN within ten minutes and the contract mentions ‘selective bays (see page 3) permit holders only’ yet the purported sign does not reflect this and the photos do not evidence that the car was in a ‘selective bay’.

(d) The alleged contract does not name the signatories.

(e) There is no evidence that this contract is continuing/was current in 2015.

(f) There is no evidence that the car was within the specific ‘red outline’ as shown in the aerial ‘mock-up’ maps (all of which are almost impossible to make out, some being hand-drawn and others with ‘dots’), nor that it was even at the location covered in this contract.

(g) There is no legitimate interest shown, which could excuse this Claimant in seeking compensation beyond ordinary damages or nominal costs under the tort of trespass. The Claimant tries to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence, since it confirmed that ParkingEye could not have claimed £85 if there had been no clear & prominent signs, and could not have claimed any sum at all under the tort of trespass because they were not in possession.


5. (a) In addition to the original ‘parking charge’, believed to be £100, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported ‘Solicitor’s or 'indemnity' Costs’ which I submit have not actually been incurred by the Claimant. Gladstones reportedly offered free court paperwork to AOS members.

(b) These costs were never part of any agreed contract and in the POFA, the sum that can be recovered is restricted to the sum on any NTK, not allowing for any 'double recovery'. The added 'legal' cost is an artificially invented figure (carefully avoided in the Beavis case where only £85 was pursued/allowable). This is a cynical attempt to circumvent the Small Claims costs and POFA statutory regulations, which preclude such double recovery.


6. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

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



………………………………………………………. (Defendant)


……………………… (date)


***********************************

Coupon-mad

Here are links to help you find the pages of evidence (you already have the screenshot you took of the payment page in December 2015, showing the BPA roundel):

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2
(here you only need the page about 'Understanding Keeper liability')

https://bmpa.zendesk.com/hc/en-us/articles/213077149-Jopson-v-Homeguard-2016-
(You need to download the transcript with the Judge's findings, not the page linked there)

http://www.parkingprotection.co.uk/pdfs/ipc-code-of-practice.pdf

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

tidegu

Thank you so much CM! You saved me! You're my hero!

(sorry for being non-native speaker) To clarify, did you mean I have to submit in person tomorrow (or, actually today) morning (exactly 7 days before hearing)? And is an email to Gladstones would be sufficient or I have to post a physical copy as well?

TL;DR:

Do you think it would be any helpful to consult the legal advise clinic by tomorrow evening? I'm not sure if they can give any help but before having your kindest help, they were my last resort...

My original plan was to see them tomorrow evening and both email and post (RMSD 1pm) WS to court and "them" on Weds.

My work is 1 hour away from home, the clinic registers (walk-in and first come first served with limited slot) at 5.30pm, so I have to off work before 4pm to make sure I can arrive the clinic in time and get registered. If I have to leave office before 4pm, I then have to arrive office before 8am to fulfill my working hours, and thus I have to leave home before 7am... It will make me no time to visit court in person. BTW, my work has flexible hours for 8 hours per day and core business hours 10am-4pm, so I am free if I'd like to work early as 8am-4pm or late as 10am-6pm.

I am a new starter and it is my first job, and recent training made me off office too long, I worry the negative impact on short in-the-office hours recently (although I normally work over time voluntarily when I'm in the office). I know the court case matters a lot but I do seriously care about my work.