ES Parking Enforcement Ltd

nochargenotice

Hi All,
I have posted below the version I intend to send to the court. It will go in a ring binder with the exhibits and defence statement, and covering letter to the Court Manager.

Thanks for your continued help.

IN THE COUNTY COURT AT XX - Claim No.:XX

Between
X (Claimant)
-and-
X (Defendant)

WITNESS STATEMENT

I, X of X, am the defendant in this case. Attached to this statement is a bundle of documents listed as Exhibit X to Exhibit n to which I will refer.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they 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.
I am an unrepresented consumer who has never attended the county court before.

3. It is admitted that I was the authorised registered keeper of the vehicle in question at the time of the alleged incident. However as I am not the only driver of this vehicle I cannot be presumed to be the driver in the absence of any evidence. The claimant has produced no evidence I was the driver and the claimant also stated in the Notice To Keeper that the creditor may pursue the Registered Keeper on the assumption that they were the driver. I submit that there is no reasonable presumption in law that the keeper was the driver, refer to section 8 below.

4. The Claimants solicitor contacted me by letter DDMMYYYY, advising of their intention to issue legal proceedings (Exhibit X). The letter was not compliant with Practice Direction pre-action protocol. On DDMMYYYY I replied requesting information that should have been provided (Exhibit X). The Claimant’s solicitor replied by letter DDMMYYYY giving further information (Exhibit X). The letter was not compliant with the Practice Direction pre-action protocol. Again I replied on DDMMYYYY (Exhibit X) and the Claimants solicitor responded by letter dated DDMMYYYY (Exhibit X). At no time have clear concise and coherent particulars of claim been provided to me. This is not compliant with the Practice Direction pre-action protocol and the lack of information is to my significant detriment as an unrepresented Defendant with no experience in the Small Claims procedure.

5. A ticket was purchased (Exhibit X). The ticket was valid for the time and date that the Claimant has identified (Exhibit X). The ticket did not have a sticky back and there was no way of keeping it securely on the dashboard. It was clearly unfit for purpose in the location of the car park.
If the Claimant was a member of the British Parking Association, they would also be aware that adjudicators cancel council tickets for such a failure.
The only reason the ticket did not remain in place was the Claimant’s poor choice of stationery and the prevailing weather conditions at the windy car park, both issues outside of the control of the Claimant and the Defendant. If anything the contract was frustrated by the weather and every effort was made to comply with the requirements.

6. I have shown a copy of the ticket to the Claimant. The valid ticket was not disputed by the Claimant.

7. I assert that all reasonable endeavours were made to comply with the terms and conditions. A valid ticket was purchased for the period of stay. To this end, the terms and conditions of parking were fully met. The failure to clearly display a parking ticket is the only breach of a term or condition that the Claimant has ever mentioned.

8. The claimant states that they believe the keeper was the driver at the material time based on a “presumption”. I submit that there is no reasonable presumption in law that the keeper was the driver. 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. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver” (2015).”
I enclose this statement from the POPLA Annual Report 2015 as (Exhibit X, paragraph X).

9. I have never seen a copy of the contract or the signage. The claimant failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

10. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

11. The Claimants charges are unlawful as in breach of the Consumer Rights Act 2015 specifically section 62(1) Schedule 2 (Exhibit X).

12. The Claimant has produced a figure of £X. This is a completely unsubstantiated and inflated three-figure sum, incoherently adduced by the claimant's solicitors. I reasonably believe that the sum is simply a number made up out of thin air, and an attempt at inflated cost recovery by the Claimant. Any time and resources allegedly spent by the Claimant are staff employed performing their normal duties for the express purpose of operating its business model and whose cost would have been incurred if the ticket had been displayed or not.

13. The claimants charges outline a number of due balances:
a.
b.
c.
n.
Balance discrepancies (b. to n.) make the Claimants standing confusing and ambiguous.

14. The Claimant also seeks to recover additional costs from the amount set out in the Particulars of Claim from £X to £X. The Protection of Freedoms Act Schedule 4 (5) does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued (Exhibit X, page X). The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative’s costs". These cannot be recovered in the Small Claims Court as they are not listed under CPR 27.14 (2).

15. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. I deny that the Claimant is entitled to the relief claimed or any relief at all.

16. I deny that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to ES Parking Enforcement Limited.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. 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.
The above points bring about the validity of the contract itself.

17. The claimant failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Associations Code of Practice B1.1 which says:
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowners behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions. (Exhibit X, paragraph X).

18. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence and no scrutiny of details. 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.

19. I assert that parking companies such as ES Parking Enforcement Limited are using the small claims track as a form of aggressive, automated debt collection and is a waste of court time and resources.

20. The court is invited to dismiss this claim and allow my costs, which will be submitted separately and in a timely manner. To pursue me as the registered keeper and submit incomplete and incoherent particulars of claim is unreasonable and vexatious.

Statement of Truth

The contents of my statement are true to the best of my knowledge and belief.

claxtome

If not too late I suggest you don't need to have both paragraphs 9 and 17 as they cover the same problem

Coupon-mad

9. I have never seen a copy of the contract or the signage.

Errrrmmmm...be careful.

You appear to be hiding behind ''prove I was the driver'' and have not actually said you WERE NOT, yet here you are saying you've never seen the signs on site.

System

The OP should be home and dry.

Have a read of this similar ES case and use it to explain why Beavis does not apply. Removes the "driver" issue.

https://forums.moneysavingexpert.com/discussion/comment/73735850#Comment_73735850

claxtome

Have a read of this similar ES case and use it to explain why Beavis does not apply. Removes the "driver" issue.
https://forums.moneysavingexpert.com/discussion/comment/73735850#Comment_73735850

Useful link something more in there for your SA.
IamEmanresu - The OP has moved the beavis arguments from the WS to the SA they are producing.

I suggest just to remove para 9 from the WS

System

IamEmanresu - The OP has moved the beavis arguments from the WS to the SA they are producing

Hope they won't be using a Ring Binder - trying to save them from extinction as we are going through them and forests of paper at a rate of knots.

nochargenotice

Thank you Coupon-Mad, claxtome and IamEmanresu.


In response to all:

1. I am planning to omit para 9 of the WS.

2. Draft of the WS with exhibits is complete, and I do plan to use a ring binder to keep the submission neat. I do agree that the amount of paper this has generated is likely to be responsible for the deforestation of a vast area of the planet!


New query from me. Lets say I'm ready to send my WS, then a few days before I plan to issue it, a few days before the courts deadline, the Claimants WS arrives and gives more information and it is better formatted than any previous correspondence from them.

If this happened, then I would deal with any of the points they have raised in my SA. Would you see that as the best way forward?

Thanks all for your assistance.

nochargenotice

The OP should be home and dry.

Have a read of this similar ES case and use it to explain why Beavis does not apply. Removes the "driver" issue.

https://forums.moneysavingexpert.com/discussion/comment/73735850#Comment_73735850

I have covered this in the DS. Thank you.

Umkomaas

I have covered this in the DS.

Is 'DS' the same as 'BS', but performed by ducks?

claxtome

New query from me. Lets say I'm ready to send my WS, then a few days before I plan to issue it, a few days before the courts deadline, the Claimants WS arrives and gives more information and it is better formatted than any previous correspondence from them.

If this happened, then I would deal with any of the points they have raised in my SA. Would you see that as the best way forward?

Yes I would...