Court defence help requested (quite urgent)

deepcomuk

Do I want to mention Beavis without then having to state how that is not relevant blah blah. Don't want to open a can of worms.

Coupon-mad

deepcomuk wrote: »

Do I want to mention Beavis without then having to state how that is not relevant blah blah. Don't want to open a can of worms.

Believe me, THEY will open that can of worms anyway - it was in their witness statement, I skim-read that bit as it was rubbish.

You will need to bite the bullet to distinguish your case from the Beavis case, certainly. It's not a case that helps them as the signs are so wordy, the charge hidden (unlike the Beavis case) and this is not an admitted driver (unlike the Beavis case) and this is a case where is no legitimate interest allowing more than a tariff to be claimed (unlike the Beavis case which was unique and 'complex' and about a free licence to park, not about a tariff, unlike your case). And no contravention proven either, nor do the signs match the PCN allegation.

In that case there was a driver Defendant who admitted seeing the terms, nothing like here, and in this case I haven't even seen what they are alleging. Is it no payment at all or a typo? What are they trying to ambush you with on the day? Call them out and make it clear you have no idea because they have failed to evidence the allegation, leaving you to guess and try to cover all bases, trying to include relevant recent cases in case this is merely all about a 'keypad error' in the VRN record by fault of the driver or Excel's system (which you can show from those two Peel Centre cases recently, is a system known to have VRN read-faults and even BW Legal admit it is deliberately set to allow a single digit VRN - ahem - why??). Who knows whose fault it was, or whether that's what they are hiding?

Because this is you, a registered keeper Defendant a full two and a half years later, trying to guess what an unidentified driver in an unremarkable car park is alleged to have done wrong in one random hour in one day in 2014. And yet even BW Legal admit that have no claim to 'keeper liability'! Why have you been dragged to court at all? Say it like it is!

Set out your expenses in advance and take a sheet with you to claim your costs/travel/missed work/some time wasted, if you win.

deepcomuk

The original court paperwork says non-payment, which I believe they said was because no ticket was purchased.
They also asked me just prior to entering the courtroom if I had anything else to say to them and I mentioned then that I was 95% sure it was an ex-colleague driving at the time as it tied in with a van service or MOT appointment but said I couldn't clarify as he no longer worked for the company so I would have to check records (which incidentally only go back 12 months due to change of vehicle, having since sold the van, and change of calendar system happening in the meantime so no real proof of that plus I don't really want to incriminate an ex staff member at this stage).

Fruitcake

I'm not sure if it has been mentioned, but you need a statement of truth at the end of your defence.

If it goes to court, then the defendant should tie their court bundle with something prominent like red ribbon, and if handed anything before going in to court by the claimant, leave it outside the court room.

Don't worry about dobbing in a former colleague/employer as you are not legally required to name a driver even if you could remember who it was.

Coupon-mad

I was 95% sure it was an ex-colleague driving at the time as it tied in with a van service or MOT appointment but said I couldn't clarify as he no longer worked for the company

Great - repeat that at the hearing and add it to the top of your defence. Is the defendant a company? A company cannot be the driver!

You can say you (the company??) are the keeper but you could find no records but are sure that this was not you. You are not liable and you do not have to name him because the POFA 2012 Bill was not amended to allow for keepers to be obligated to name a driver, even if they suspect who it may have been. The Act is clear and Henry Greenslade's clarification will assist the Judge.

The original court paperwork says non-payment, which I believe they said was because no ticket was purchased.

But you can't be sure that was the case - PPCs say that when they mean the VRN didn't match. I don't want you to be hijacked with that, with some evidence of a 'close but wrong' VRN so cover it now and include those cases which prove the machines allow a VRN fault to cause a charge through no fault of a driver.

And they have never proved that happened and I noticed that BW Legal included some old bluster, trying to justify why the machine allows one digit and will then print a ticket but will ALWAYS then issue a PCN (ridiculous and needs covering in your defence in case they spring a typo on you just before or at the hearing). You need to cover that base and shed some doubt on what might have happened seeing as Excel have not evidenced it at all.

deepcomuk

I'm not sure if it has been mentioned, but you need a statement of truth at the end of your defence.

Hi Fruitcake, Thanks for you note but yes I was aware. I'd just copied/pasted the relevant bits to the forum. Worth pointing out though for anyone else in a similar position reading this though.

deepcomuk

Hi Guys, I'm pretty much done now but one final quick question if anyone might know the answer to it but the signage provided by Excel states "If you breach the contractual Terms and Conditions of this private land you agree to pay a Parking Charge of £100".

Surely it should be "...breach the contractual Terms and Conditions of parking on this private land..." - ie the Ts&Cs are applied to parking on the land rather than the land itself or can private land have Ts&Cs?

Just wondering if this main sign is technically worded incorrectly for it to be deemed irrelevant?

Coupon-mad

I wouldn't mention it as it seems to me to be detail a Judge would not consider. I think you have enough evidence, get it taken to court & emailed!

deepcomuk

Hi Couponmad et al,

Thank you all for your input and suggestions here, especially Couponmad. I've emailed all the necessary documents to The Claimant and dropped a printed copy in to the court, as well as having a copy to post tomorrow to the Claimant so no excuse for not receiving.

In the hope that this can help others who may also have a similar issue the gist of my defence goes as follows, which I will attach as 3 separate posts below this one:

1) Defendant Witness Statement
2) Exhibit AC1 - Evidence Pack
3) Statement of costs

I have prepared all docs in Word then converted to PDF so if anyone would like a copy, even if this is just to use as a template then feel free to contact me.

I will let you all know the outcome in due course (likely to be early next year unless BD Legal pull out).

Andy.

deepcomuk

1) Apologies that this just looks like plain text when copied from Word:

On behalf of: Defendant
By: REDACTED
Exhibits: AC1

Claim Number: REDACTED
IN THE COUNTY COURT AT REDACTED

Excel Parking Services Ltd
Claimant
REDACTED
Defendant


WITNESS STATEMENT OF
REDACTED

I, REDACTED of REDACTED ADDRESS, SAY AS FOLLOWS:

Introduction
1. I make this witness statement in response to the hearing that took place on 11/10/2106 at 10:00 before DJ Ellington, in order to provide further information towards my defence having now received a copy of The Claimant’s actual claim towards me.
2. Within this statement I make reference to various documents. Some of these were provided to me in a paginated bundle marked “RK1” as part of the Claimant’s previously supplied Evidence Pack. Others are produced by me in a paginated bundle marked “AC1” attached.

Background
3. As per my original statement I am the Defendant in this matter and understand The Claimant has issued a claim against me for payment of an outstanding parking charge relating to a vehicle for which I was the legal owner and Registered Keeper. I deny all liability for the entirety of the claim.
4. I would like to make the court aware that as the owner of a small IT consultancy business the vehicles I own are insured for business use as well as personal and as such are occasionally used by other members of staff when the need arises.

The Defendant’s response to the Claimant’s claim
5. Whilst it has been confirmed that The Defendant was the Registered Keeper of the vehicle in question on the date of the alleged contravention, at no point to date has it been determined who the actual Driver of the vehicle was at that time.
6. The vehicle was owned by The Defendant but was occasionally used by other members of staff employed within The Defendant’s business. According to company records and the invoice shown at Page 1 of AC1, the company vehicle was being serviced on the 01/10/2014 so The Defendant is sure that he was not the driver on the day in question.
7. The Claimant’s points #12, #14 and #16 refer to The Defendant as having accepted and then contravened the Terms and Conditions of the car park however as The Defendant was not the driver at the time of the alleged contravention then these points are irrelevant.
8. At no point prior to the first hearing had the Defendant received any Parking Charge Notice (the ‘PCN’), Liability Notice (the ‘LN’) nor County Court Claim Form and as determined by DJ Ellington at the first hearing these were deemed not to have been correctly served.
9. As the Defendant didn’t receive a correctly served PCN this in itself should be enough to dismiss the case as a PCN must be served within 14 days as per the February 2014 British Parking Association Code of Practise (the ‘BPA CoP’), Appendix C, Schedule 4, Section 9.5, as shown on Page 6 of AC1.
10. By their own admission in their witness statement, point #34, Excel Parking are not relying on the POFA or Keeper Liability yet have provided no evidence as to who was driving. The Defendant is under no legal obligation to identify the driver so unless The Claimant can prove that The Defendant was the driver at the time of the alleged incident rather than just making an assumption they can only bring a claim under Keeper Liability (as The Keeper is all that The Claimant has determined). As such the Defendant cannot be held liable without reference to Keeper Liability statute.
11. Further, the BPA CoP states in paragraph 21.5 “If you want to make use of the Keeper Liability provisions in Schedule 4 of the POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9)” as shown on Page 11 of AC1. The Claimant was a member of the BPA in October 2014 yet the Notice to Keeper/PCN referenced does not meet the strict requirements set out in Paragraph 9, as shown on Pages 5 and 6 of AC1, hence The Claimant cannot seek to make the Registered Keeper liable.
12. The Claimant suggests in point #39 that in the absence of driver details being provided, they are entitled to proceed on the reasonable presumption that the Registered Keeper was the Driver. Due to the Defendant never receiving any previous paperwork there was no opportunity to identify the Driver nor is the Defendant legally obliged to do so. Furthermore, the entitlement to proceed without identifying the driver is the basis of Schedule 4 of the Protection of Freedom Act 2012 (‘POFA’) and as The Claimant is not seeking to rely on POFA The Claimant is not entitled to make the Registered Keeper liable. In addition, The Claimant’s reference to Elliott v Loake is not applicable in this case as this was a criminal case where forensic evidence was used to prove the identity of the Driver and not merely just the assumption of a parking company. No Assumption can be made.
13. As shown on Pages 12 and 13 of AC1 the Barrister, Parking Law Expert, and POPLA Lead Adjudicator from 2012 until 2015, Mr Henry Greenslade states “The only presumption that anyone else is liable for such a charge is under Schedule 4 of the Protection of Freedoms Act 2012”.“Nevertheless, there appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. Whether or not the keeper is the owner is not relevant. Unlike the statutory schemes, under Schedule 4 there is no concept of ‘owner liability’”.“However keeper information is obtained, 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 the 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”. Based on the above statement, again, no assumption of driver can be made.
14. The Claimant goes on to suggest in point #40, that if someone else was driving the vehicle then surely the Defendant could have identified said person by a simple process of elimination. Whilst this is likely to have been the case in October 2014, The Defendant was, and still is, under no legal obligation to do so, notwithstanding the fact that over 2 years had passed since the alleged contravention.
15. Other Excel Parking machines are known to be faulty so it is possible the ticket was incorrectly printed. In Claim no. C8DP11F9 – Excel v Mrs S – 09/09/2016, Oldham Court, The Claimant’s claim was dismissed after the Judge determined that the machine printed a ticket with an invalid registration number of ‘QQ’ due to a fault.
16. In Claim no. C8DP36F0 – Excel vs Ms C – 17/10/16, Stockport Court, The Claimant’s claim was also dismissed after the Judge determined that the machine had printed a ticket with an invalid registration number of ‘P’ due to a fault.
17. In point #55, The Claimant states that the PDT machines are linked to the ANPR system. This cannot be the case as if the PDT machine was linked to the ANPR then machine errors with the Vehicle Registration Number would not be possible. They are two separate systems. The Claimant’s Witness Statement even admits that the machines will accept just one digit – thereby causing any hapless motorist that accidentally makes an error in VRN entry, prone to incur a PCN. Yet, that would be a charge that is not recoverable, at least according to the Judges in the cases of Claim C8DP11F9, Excel vs Mrs S (09/09/16) and Claim C8DP36F0, Excel vs Ms C (17/10/16).
18. Excel Parking have produced no evidence as to the tickets purchased at the machine on the day in question around the time of the alleged incident so it is impossible to verify if a ticket was printed with a fault code (QQ). As such The Claimant has not produced ANY evidence to suggest that the car was ‘parked without displaying a valid ticket’ as per the stated reason for the alleged contravention on the PCN.
19. In point #61 The Claimant admits that the signage states that “Parking Charge Notices will be issued for ‘failure to make a payment within 10 minutes’…”. Failure to make payment (as drafted on that sign) has not been evidenced and cannot morph into ‘not displaying’ (also not evidenced) nor can it arise from a typo or single digit being entered incorrectly when paying. If that happened (again, the Claimant have shown no evidence of this) then it is not in contravention of the contract as drafted on the sign anyway.
20. Looking at the photographs in the RK1 evidence bundle provided by The Claimant, specifically Pages 13, 18 and 19 it is impossible to determine if ‘Parking without displaying a ticket’ is even a contravention in the terms and conditions. It is therefore unlikely that the Notice to Keeper matches the contract terms so deeming it invalid.
21. Staying with the photographs on Pages 13, 18 and 19 in RK1 there does not appear to be any terms listed which make it a clear obligation to input a VRN or risk paying a penalty. This needs to meet the test of fairness and transparency in the Unfair Terms in Consumer Contracts Regulations 1999 (‘UTCCR’) as applied in October 2014 (as shown on Page 14 of AC1) and not hide the ‘commercial intent’ behind the keying in of a VRN, or it can be held as an unfair, unenforceable term, being a ‘misleading omission’ under the Consumer Protection from Unfair Trading Regulations 2008 (‘CPUTR’) as shown on Page 15 of AC1.
22. As shown in the photograph on Page 17 of RK1 The Claimant’s signage states “Please refer to the full Terms and Conditions sign located at the Pay and Display Machine(s)” and, “If you breach the contractual Terms and Conditions of this private land you agree to pay a Parking Charge of £100”. None of the photographs provided by The Claimant, including the images on Pages 13, 18 and 19 of RK1 clearly show said Terms and Conditions thereby making it extremely difficult to make out what Terms and Conditions are supposed to have been contravened. It can also be argued that the signage at George Street, Wakefield is not legible enough for the Driver to have fully understood it, especially any part regarding keying in a VRN number.
23. As shown in the photograph of Page 19 of RK1, large parts of the signage are Yellow lettering on a Blue background, a combination warned against by the Independent code of practise as hard to read. As shown on Page 16 of AC1 is the sign from the ParkingEye v Beavis case by way of comparison as to what constitutes a brief and clear sign with the terms clearly stated in few words.
24. With reference to The Claimant’s mention of the ParkingEye v Beavis case in point #79 it should be noted that the Beavis case has a number of relevant differences by comparison to this case. The signage here is wordy, unlike the Beavis case. Here there is no admitted driver, unlike the Beavis case. In addition, there is no legitimate interest allowing more than a parking tariff to be claimed, unlike the Beavis case which was unique and ‘complex’ as it concerned a free license to park, not a tariff.
25. The Claimant admits that to manage parking on private land they must belong to an Accredited Trade Association and must adhere to the Scheme’s code of Practice in order to access Keeper Details from the DVLA. It has been shown above that the BPA’s Code of Practise in relation to the Notice to Keeper has not been adhered to and as such the Keeper Details should never have been supplied by the DVLA.
26. The BPA CoP Schedule 4, Paragraph 4 states that only the sum on the Notice to Keeper can be claimed. No debt collector/legal fee additions can be claimed, plus neither are mentioned on the signage that is referenced as the basis of the contract. As such The Claimant’s claim for £100 as the Parking Charge for contravening the Terms and Conditions is incorrect as this can only be £60 as per the Notice to Keeper.
27. The Liability notice is a document that The Claimant should never have attempted to serve as they have no right to hold The Defendant liable as Registered Keeper using the Notice to Keeper provided, hence no right to follow it with a liability notice. The Claimant is aware that they should not be telling a Keeper they were ‘liable’ in a non-POFA case as they stopped this practise at the end of 2014. It was misleading at best, potentially unlawful, and contrary to the DVLA rules about saying a keeper is liable when they are not, as well as being against the BPA CoP.

Conclusion
28. It is submitted that the claim is entirely without merit and that the Court should strike out the claim under its own initiative.
29. The Defendant is unsure why he has been brought before the court to defend a Parking Charge which The Claimant says isn’t being pursued under Keepers Liability yet who offers no proof as to the identity of the driver. The Defendant therefore requests that the Court finds in his favour.


Statement of Truth:

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

Full name: REDACTED

Dated 21/10/2016



Signed: __________________________________