ES Enforcement County Court Claim

Dot2101

Hi there, any other opinions out there about iphone steps been used? Thanks in advance

Coupon-mad

Sounds like a different way to show what you were doing, in your defence & witness statement, so yes, use it. But the PPC doesn't have 'images of me coming out and heading to the vehicle'...they don't have CCTV nor lawful access to it.

Dot2101

They have sent us 6 images, you can see someone coming out of Next and heading towards and been right by the vehicle. Are you saying that I shouldn't mention that it is me? They also have images which show the driver of the vehicle, at this stage should we wrack our brains to think about who this was (I'm sure if we thought long and hard we would remember) or is it better to have a bad memory in this instance?
Thanks

Coupon-mad

They have sent us 6 images, you can see someone coming out of Next and heading towards and been right by the vehicle. Are you saying that I shouldn't mention that it is me?

Oh, so someone was watching and taking sneaky photos to make a profit, but failed to mitigate their loss by telling the occupants of the car to move and/or by fairly drawing the driver's attention to the tiny small print on a sign a hundred metres away. Failure to mitigate loss. Read VCS v Ibbotson in the Parking Prankster's case law.

At the hearing, always be truthful, yes that is you.

Dot2101

Yes Very sneaky of them indeed!
I will read up about the case you mentioned thanks
I will be truthful in the hearing, presume the keeper of the vehicle should also be truthful?
Thanks

Coupon-mad

Yes, keep the moral high ground. Let the PPC scrape in the gutter.

Dot2101

Hi there,

I am hoping someone can take a look over my first draft of the witness statement?

Note: my points are not in numerical order but they are in the order in which i plan on presenting them, i didnt follow strict order as I have played around with th eorder so much and I might end up adding further points in.
The mention of exhibits also do not follow a numerical order whilst there may be extra things to add in.
there are a couple of instances where i have put as a prompt to myself that i need to dig up details eg Bulstrode v Lambert (1953).

Questions about exhibits
if i am referring to transcripts do i need to print the whole transcript?
does it matter that I don't have any in some cases, i have pointed 3 out in the roboclaim section but i can only find details about one of them.
do i need to print the full POPLA report, it is very long and I am not entirely sure if this should remain as one of any arguments anymore??

I have spent so long working on this and as you see i have a lot of tidying up to do but I am hoping someone can tell me if I am going along the right lines here and if there is anything obvious that i have not included?

Here goes:

WITNESS STATEMENT #1

I, ... am the Defendant (referred to throughout as “I”) in this matter as an unrepresented consumer, and says as follows:

1.
The facts in this statement come from my personal knowledge. Where they are not within my 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 sum at all and this is my Witness Statement in support of my Statement of Defence as already filed.

3.
The facts of the case are as set out in my Statement of Defence, and I rely on that document as a true account. A copy can be seen in exhibit xxx

4.
I assert that I am the registered keeper of the vehicle in question, registration xxxxxx I also assert that I was the registered keeper of that vehicle on the date 16/07/2016. I can also confirm that I was the driver of the vehicle but as per the POPLA 2015 report this cannot be presumed by the Claimant.

5 – No reasonable presumption that the registered keeper of the vehicle is the driver.
I wish to draw your intention to POPLA (Parking on Private Land Appeals) Lead Adjudicator’s Henry Greenslade’s words in the 2015 POPLA Annual report.

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 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. Any evidence in this regard may therefore be highly relevant.
I have included a copy of the relevant part of this report as Exhibit 1.

2. Poor Practice used by PPCs
Justice Minister Sir Oliver Heald in December 2016 has announced a consultation and information campaign to help protect consumers and stated that there will be an assessment of the role of parking companies and examine how drivers are informed of fines. It is also stated that the Department for Communities and Local Government will be taking further steps in due course to tackle poor practice by private parking companies. The article can be seen in exhibit. I believe this suggests that it is well known and documented that it is noted that some PPCs have poor practice, I believe ES uses poor practice as they are not following the necessary conditions as further discussed in points xx and xx

7. The landowner is the only proper claimant, not ES who is an agent. The landowner does not support this case been taken to court.
It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant.

a) 18/1/17 C2GF3D6 ES Parking v Limited Company Manchester. It was noted that - the signs state that the private land is managed by ES Parking Enforcement Ltd but it is not, the land is managed by Spinningfields Estate. The judge therefore ruled the signage was incorrect
b) 29/11/2016 C8GF4C12 ES Parking Enforcement v Ms A. Manchester, in front of DJ Iyer. The judge stated that the signage was forbidding, there was no mention of the word 'contract' on them. The word 'breach' was on the signage. As a result of this, the only person that could bring a claim was the landowner for trespass.
c) 23/10/2013 ParkingEye v Sharma 3QT62646 Brentford County Court . The judge examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name and only the Landowner could bring the case to court as seen in exhibit xxx.

Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. This information was requested on the 10th August, as seen in exhibit 4, but no contract was received. Exhibit 6 is a letter from the Landowner in which she states she does not approve of the case been dealt with in court. Unfortunately she has struggled with contacting ES to discuss this matter further as she no longer holds a contract with them for the Charleston Road retail site.

7. No Notice to Keeper received

I wish to draw your intention to Schedule 4 of the Protection of Freedoms Act (POFA) 2012. I believe that the Claimant has failed to show that they have met the conditions for recovering this charge under Schedule. The conditions necessary for a claim to be pursued against the keeper of the vehicle have not been met as no Notice to Keeper was set.
I have included a copy of this legislation as Exhibit 2.

I can confirm that I received no notice to keeper (NTK) before receiving the parking charge notice letter which was the first means of communication received by ES as seen in Exhibit 3. The language used in the letter received on the 29th July suggested that this was not their first form of communication “parking charge…remains unpaid in full and for which the balance due remains outstanding”. An appeal letter was sent to ES on the 10th August as seen in Exhibit 4 to request a copy of their original letter sent and to request further photographic evidence. No response was received.


8. Unexplained Inflated costs
I received a reminder letter from ES with the charges inflated, as seen in Exhibit 10. The inflated costs are questionable and discussed further in the Defence statement, found in Exhbit xxx I presumed that they had not yet processed my letter whilst this letter was in transit. I awaited a reply but never received this.

8. IPC/ IAS / Gladstones all linked
Whilst I had not received a response to my letter sent directly to ES, I discovered that the claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. My research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges. Following this revelation I had taken the decision to not appeal to the IAS, I felt that I had already sent my appeal and was looking forward to receiving a response to discuss the matter further.

11. Lack of responses from Gladstones Solicitors.
Following the initial parking charge notice and the reminder letter, the next letter I received was a letter before claim from Gladstones as seen in Exhibit 7. I promptly replied within their 14 day request, as seen in Exhibit 8, but again, no response was received.

10. Lack of detail within the Particulars of Claim
I received County Court papers on xxxxx (date) where within their particulars of claim it cited “parking charges”, as seen in Exhibit 9.
I am unsure what reasons ES are using for taking the case to court as they have provided very limited particulars of claim (PoC). I had received letters, as seen in Exhibit 3 and 10, which stated reasons for the charge as ‘not been parked within the confines of a parking bay’ but I had since appealed this reason in that I was stopped, not parked as seen in Exhibit 4.
It is unknown if anything that I had previously stated within Exhibit 3 changed their reasons that made them find it deemable to raise this case to court as I did not receive a response and there is no detail offered of what “parking charges” entails within the PoC. The PoC does not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.1 and 1.4 which can be found in Exhibit 12. This therefore means that the Claimant has not complied with the pre-court protocol.

14. Lack of detail within the Particulars of Claim “RoboClaim”
The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support in accordance with CPR 1.1 2(a) “ensuring that the parties are on an equal footing”.
As an unrepresented consumer I am immediately at a disadvantage compared to trained solicitor in the matter and this is aggravated by Gladstones Solictors whom have not following CPR 16.4 1(a) as I have not received a detailed PoC to be able to properly formulate a concentrated argument.
a) On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law’
b) On the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.
c) ES Parking Enforcement Ltd v Ms Q. C0GF4C5K. It is stated that the first point of contention is that ES Parking Enforcement had not completed the particulars of the claim properly despite been told before as seen in exhibit xx
16. Various different outcomes could come under the umberella term “Parking charges”
As the detail is so limited I have had to consider a number of options that the claimant may be using as deemable under ‘parking charges’.
1) Not been parked in the confines of a bay - discussed within point xxx
2) Been stopped on double yellow lines. – discussed within point 19
3) Been stopped in an area where no stopping is allowed - discussed within point 19,20,24

17. Temporarily stopped, not parked.
The reasons for visiting the site was to attempt to enjoy the facilities that the retail site offers. On this occasion it was to visit Next on the first day of its Summer sale, a famously popular sale event. I drove around the car park to try and gain a car parking space, after a period of time, I let my partner who was visiting the site with me, out of the vehicle to allow her to go into the store and to allow me more time to attempt to find a parking space.
My partner called me from inside the store to inform me that she had purchased a glass ceiling light along with other goods, she was ready to leave Next as she was just about to pay. As I was aware that my partner had bought a large glass ceiling light along with the other goods I was conscious that I wanted to avoid her walking long distances with heavy and fragile goods. Whilst she was paying I took the decision to drive close to the front of the store and waited for the very brief time period to allow my partner to exit the store. Bulstrode v Lambert (1953) (case law about right of way)

25 – Temporarily stopped, not parked.
To my knowledge I believe that my hazard lights were on during the very short time period that I was stopped, this helps indicate to other drivers that I am temporarily stopping as opposed to parking. Should I have been obstructing access for any other vehicles, as I was in the vehicle I will have been able to swiftly move should needed. (law about hazards been on?!) It is believed that from the images sent it appears that a couple of these have been taken strategically when the lights would be flashing off to make it appear as though the cars engine was off. These tactics could mislead the court and suggest that the Claimant acted in an unprofessional manner.

18. Definition of parked/not parked
I wish to bring to your attention the Jopson case findings of fact about parked/not parked' as found by His Honour Charles Harris QC. Please see exhibit xxx

19 – The Highway Code Road Markings - Double Yellow Lines
I had stopped my vehicle on the double yellow lines with my hazards on. My knowledge was that on public roads you are able to stop on the double yellow lines when needing to load/unload goods or collect passengers unless there is clear signage to state otherwise or if double pips feature on the pavement which suggests no stopping at anytime as per the Highway code guidance on road markings, found in exhibit xxxx(traffic act). To my knowledge I did not recall noticing any signage or double pips to indicate that no stopping on the double yellows was allowed therefore I presumed that the same laws applied within this car park as on public roads.

20. The Traffic Act is not enforceable on private roads/land.
Upon receiving the charge I researched further into the laws of double yellow lines to cement my argument and Exhibit xxx and xxx furthers my beliefs but agrees that the laws of double yellow lines can often be misunderstood. Regardless of any blurred understanding it is indeed correct that the Traffic Act (exhibit) is in accordance to public roads only. Private roads cannot legally enforce the Traffic Act in the same context as on public roads. This means that double yellow lines have no meaning on private roads, they mean nothing more than yellow graffiti on the floor and should be treated as so in that they are not legally enforceable.

20. Lord Denning’s Red Hand Rule
When re-visiting the retail site I could not see of any signs by the double yellow lines to suggest that the lines should be followed in accordance to the Traffic Act. If the car park did not wish for any cars to stop for any time period then there should be clear signage to indicate this.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis', exhibit xxx.

A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables within exhibit xxx would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast.

22. ES sign content
Following receiving court papers, I revisited the site to take images of the signs and to read these in detail. All of the signs are on lampposts above parking areas as per exhibit xxx . The main copy that stands out is the telephone number, “warning” and the name of the company is also prominent. However the other information is in much smaller font eg: “disabled drivers only in this area”. It then lists in much smaller copy “vehicles must be parked fully in the confines of a marked disabled bay”, points xx and xx are relevant again here. None of the signs relate to no stopping.

21. Lack of signage.
(this lack of signage means no contract can be in place by performance, as per Vine v Waltham Forest case.)

22. Font size used on the signs cannot form a contract
I have since returned to the site where there are 3 small signs in slight vincity of where my vehicle was stopped, each can be seen in exhibit xxx.
Signazon indicates a chart to suggest the font size to be used dependant on the distant in which the sign needs to be visible, this can be reviewed in exhibit xxx. I believe that the important information, such as the charges and the terms of the car park displayed within this sign are completely unsuitable to be able to read from the insides of a car.

As the signage font is so small to read this would mean that the driver would have needed to vacate the car, leaving it unattended as no bays were available, to walk over to the nearest sign to read and absorb the information to decide as to whether they agree to the terms listed which forms some kind of contract in the car park managements eyes. Exhibit xx is a photograph of the closest sign, despite been stood very close even then the smaller t&cs are barely legible.
a) ES Parking Enforcement Ltd v Ms Q. C0GF4C5K. Preston. Discusses a case where in which it is argued that a contract can not be established in instances when a car is stopped for a short period of time. “ES Parking Enforcement were trying to establish a contract existed but the judge said this was not possible”. The article about this case can be found in Exhibit xx.
b) On the 26th January ES took six cases to court in Manchester. The judge were dismissed the first 2 in short order, with the judge stating the defendants could not have parked, read the sign and got back in their car within the 1 to 2 minutes they were observed. The third also received full costs. The full article can be seen in exhibit xxx.

21 – Inadequate signage cannot form a contract
The IPC code of practice, Part E, Schedule 1 “You must adequately display any signs intended to form the basis of a contract between the creditor and the driver. Such signs must…be clearly ligible and placed in a position (or positions) such that a vehicle is able to see them clearly”
It is not possible to form a contract with the company with the signage used at Charleston Retail site.. Exhibit xxx shows signage which has been deemed by the high court in Parking Eye vs Beavis case as clear enough to form a contract with the driver, as you can see the terms are much clearer, as is the charge if you do not follow the conditions of the car park.

In the absence of ‘adequate notice’ of the terms and the charge this fails to meet the requirements of Schedule 4 of the POFA. See exhibit xxxx for the sign used by ES.
The ES sign offers a lot of detail within a small sign meaning that all of the information is illegible from the distance between the vehicle and the sign. According to the Consumer Rights Act there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible. 2015
It would appear to be highly difficult to read all of the detail to understand if you were in breach of the rules of the car park.

23. Photographic Evidence
On the 15th February, 189 days after my original request within Exhibit 4, I received all photographs of the vehicle taken by ES, as seen in Exhibit 5. The photographs were taken between 11.44 and 11.45.I believe that the angles of the images taken of the vehicle suggest that this was not a static camera but a person with a camera. This amounts to predatory tactic which does not comply with the IPC Code of Practice Part B 14.1 “You must not use predatory or misleading tactics to lure drivers into incurring parking charges.”. (exhibit xxx)

24.Grace periods.
The Claimant did not comply with the IPC code of practice (Part B 15.1) regarding grace periods:
“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.”
The photographic evidence submitted by ES are date and time stamped. It shows the vehicle photographed at 11.44 and 11.45 but it does not offer the time with seconds included, suggesting the time period could be much less than 2 minutes, this is not a suitable grace period. Again as points xx xx a and b have already highlighted, this is not enough time to form a contract.

25. Potential breach of contract between ES and the Landowner
Despite requesting for a copy of the contract between Halifax Retail Limited and ES Parking Enforcement, I did not receive a copy. I do however have a copy of the contract between ES and the landowner for Spittalfields site which appears to be ES favourite spot to lure unknowing drivers into receiving parking charges. A full copy can be found in exhibit xxx. Point 5 of the contract states;
“All short term visitors will not be issued a parking charge notice if they are displaying their hazards on and not exceed a 20 minute grace period”
Presuming that the same contract was offered to Halifax Retail Limited, it appears that ES have breached their contract with their client as they gave no more than 2 minutes grace period.

26. The claimant is responsible for mitigating the losses to the landowner
I refer to case Vehicle Services Ltd vs Ibbotson (2012) –part of the transcript is offered in exhibit xxx in which it is agreed that the claimant was responsible for mitigating the losses to the landowner. The parking operative had every opportunity to tell the driver in person that they needed to move the car or face charges, but failed to do so.
In my case they did not ask me to move my vehicle but instead chose to take photographs of the vehicle. This is in breach of IPC CoP section 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.”

12. Lack of alternative suitable places to stop.
There are 2 other retail car parks close by, Currys and Sainsburys. However I presumed that these car parks are only for the use of their shoppers and not for shoppers of Next so I felt it inappropriate to stop within these car parks.
The other alternative car park is North Bridge Leisure centre which is a paid for car park managed by Calderdale Council however this is half a mile walk away, again as my partner had bought fragile goods I did not want to risk damages to these goods along the way (exhibit of the light bought and proof that we had purchased this).

There is also a main road before turning into the retail site, Charleston road, which is a public maintained road. This also features double yellow lines which I would have needed to stop on for a much longer time period. Charleston road is a busy narrow road in which stopped vehicles could cause disruption to traffic as exhibit xxx displays, it would be difficult for cars to get past a stopped vehicle along this road. Exhibit xxx also displays a google typical traffic map for a Saturday at 11.45am where you can see that the road is indicated orange, suggesting that it is not fast moving traffic. I was aware that this road was busy as we had driven along this road to get to the retail site so I took the decision that this would not be a suitable place to stop on this occasion.

I believe the facts stated in this statement are true.

Lamilad

assert that I am the registered keeper of the vehicle in question, registration xxxxxx I also assert that I was the registered keeper of that vehicle on the date 16/07/2016. I can also confirm that I was the driver of the vehicle but as per the POPLA 2015 report this cannot be presumed by the Claimant.

I take it this should say "I can also confirm that I was NOT the driver...."? Otherwise this sentence makes no sense.

Coupon-mad

And in #25, you refer to Spittalfields - do you mean Spinningfields?

Lamilad

I [FONT=&quot][YOUR NAME[FONT=&quot], [/FONT]ADDRESS AND POSTCODE] [/FONT]am the Defendant [STRIKE](referred to throughout as “I”)[/STRIKE] in this matter [STRIKE]as an unrepresented consumer, and says as follows:[/STRIKE]

[FONT=&quot]1. [/FONT][FONT=&quot]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.[/FONT]

[FONT=&quot]2. [/FONT][FONT=&quot]I am an unrepresented consumer who has never attended the County Court before and was not even the driver so I have no knowledge of the event, or signage terms. [/FONT][FONT=&quot][if applicable][/FONT]