UK CPM PCN received

DS90

Perfect explanation, thanks a lot Claxtome.

Coupon-mad

Use Johnersh's words in your WS and/or skeleton argument, and show us. No running out of time...

DS90

Coupon-mad wrote: »

Use Johnersh's words in your WS and/or skeleton argument, and show us. No running out of time...

Thanks, CM. I have used Johnersh's post in my WS, and will use it as the basis for my skeleton argument, which I'll write once I receive their evidence bundle, etc.

Here is my witness statement. Is it too long? Do I need to make reference to legal evidence here? I know it is explained that generally the WS is not the place for this, but it seems most of the examples on the forum contain at least the most pertinent legal arguments in the WS.



I, NAME, Defendant in this case, deny liability for the entirety of the claim.

1. This matter relates to a parking charge issued to my vehicle (registration: XXXX) on DATE. It is admitted that at all material times the Defendant is the registered keeper of this vehicle.

2. I confirm that my vehicle was parked in a bay belonging to ADDRESS. The vehicle was parked there by invitation from the tenant residing at this address at the material time.

3. It is denied that the Defendant was the driver of the vehicle. The vehicle is insured for several people to drive it at any time (see ITEM X). The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.
a. In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).
b. It is averred that the claimant has failed to do this on numerous points, not least of all, regarding the location of the incident as recorded on the original Parking Charge Notice, as well as the subsequent Notice to Keeper (NTK), which is entirely incorrect.
i. In their NTK, the claimant vaguely alleges that they are authorised to manage this area, ‘at St Dunstan’s’, ‘by our client’ (see ITEM X, NTK). Firstly, no evidence of this authority has ever been provided, despite numerous requests having been made by the defendant (see ITEMS xyz); secondly, this charge was not issued in St Dunstan’s, but on Station Road West, Canterbury. As can be seen on ITEM X, St Dunstan’s is an entirely different area of Canterbury, half a mile away from the actual site in question. Quite how the claimant has authority from a single ‘client’ to operate on an area this large on a singular basis, which somehow includes a residential building in a different postcode, is particularly perplexing.
c. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm (despite the claimant’s assertion in ITEM X). POFA 2012 makes no such requirement for a keeper to do this.
i. The claimant may seek to rely on the findings of Elliot V Loake (1982) in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.

4. The driver arrived at the address late on the evening of DATE, and the vehicle remained parked in the bay overnight.

5. Despite being a genuine visitor to the building, with permission granted to use the relevant parking bay, a parking charge was issued to the vehicle the following morning.

6. As the claimant has repeatedly failed to clarify the nature of the claim, the defendant has assumed that it relates to an alleged breach of contract.

7. Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (ITEM X) that exists between the tenant and their landlord extends to the use of the specified parking space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage (Items X). The tenant’s contract makes no assertion that a permit must be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so (Item X, pages xyz). The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.
a. Regarding signage: the defendant argues that the signage in situ at the time of the alleged parking contravention was woefully insufficient in conveying the terms of any alleged contract, particularly the most onerous, i.e., the £100 penalty.
b. ITEMS XYZ demonstrate that it is impossible to read the signs after dark, which, given the time of year of this particular incident, is any time after 16.30pm (see ITEMS X, pics). Moreover, the majority of the signs on site are completely invisible from the route taken by the driver, from entering the car park, to parking in the relevant bay, to walking into the building (SEE ITEM X, MAP). Only two signs are potentially visible: the entrance sign, which is demonstrably small, unlit, and illegible from the driver’s seat of a moving vehicle (and which is also placed on a junction equidistant between the car park in question and another, opposite, belonging to a different property {see ITEM X, MAP}); the second, that positioned near to the vehicle in question when parked, but which is not in any way facing in the direction of access to the parking bay {and is also unlit and illegible after dark, SEE ITEM X, PIC}).
c. On this matter, the defendant defers to the ruling of ParkingEye Ltd v Barry Beavis (2015) UKSC 67, insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any alleged breach of parking terms were clear – both upon entry to the site and throughout.
i. ITEMS XYZ clearly demonstrate that the signage in this instance was deficient in number, distribution, wording, and lighting, to reasonably convey a contractual obligation to which a driver could wilfully agree.
ii. The residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkyingEye distinguished.

8. I contend, therefore, that the tenant’s agreement provides an unfettered right to park in their assigned bay for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc.

9. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to residents and their legitimate visitors.

10. In this belief, therefore, I appealed, as the keeper of the vehicle, on X DATE (ITEM X).

11. My appeal was rejected on the false grounds that appeals must be made by the driver (see ITEM x).

12. With the rejection of this initial appeal, no offer of independent arbitration was made, contravening the Codes of Practice of the International Parking Community (IPC, a parking trade body to which the claimant belongs), the British Parking Association (BPA, a parking trade body to which the claimant formerly belonged), the DVLA, and flaunting the European Directive on Alternative Disputes Resolution.

13. An offer to appeal to an independent arbitrator was only made on DATE, in the claimant’s Notice to Keeper (NTK, ITEM X), which completely ignored the fact that an initial appeal had already been made and rejected. The NTK explains, ‘If we reject the appeal, you will be provided with the contact details of the Independent Appeals Service.’ As can be seen from ITEM X, no such provision was made following the rejection of my initial appeal.

14. It should be noted at this point that the ‘Independent Appeals Service’ (IAS), which the IPC utilises as its alternative dispute resolution, has a prominent reputation of biased rulings in favour of parking operators. Evidence supporting this assertion is readily available in the public domain, and appeals made by motorists through this service are largely futile. Unlike the equivalent service, offered by the BPA, ‘Parking on Private Land Appeals’ (POPLA), the IAS lacks any independent scrutinising body, and it defies the usual methodology of an ADR service by expecting the consumer (rather than the claimant) to bear the burden of proof, and by using anonymous ‘assessors’, contrary to usual ADR rules.
a. Statistics show that in the twelve months ending 31st March 2015, 52.65% of appeals made to POPLA were allowed, while 47.35% were refused. For the IAS, however, only around 20% of appeals were upheld, with the opposing 80% refused in favour of parking operators.
b. Crucially, the IPC, who utilise the IAS, is a company formed and directed by Misters Will Hurley and John Davies, who, incidentally, are the same individuals who run Gladstones Solicitors (SEE ITEMS XYZ, Companies House data), the claimant’s current representative (and a prolific agent working on behalf of parking management companies in the small claims court). Any opportunity of a fair review of one’s appeal under the IAS is absolutely lost, since it is clearly in the best interest of the IAS to refuse motorists their appeals, allowing Gladstones Solicitors to pick up the debts and take the cases to small claims court.

15. Therefore, I contend that no independent arbitration service was ever offered, and no reasonable efforts were made to resolve this dispute outside of court. It can clearly be seen from my own correspondence that attempts were made to acquire further details regarding the particulars of this debt and its validity, but these were met with predominantly automated replies.

16. The majority of the correspondence received from the claimant, their debt recovery partners, and their representation, has been threatening, misleading, and in several instances, absolutely duplicitous (ITEMS XYZ, letter from CPM; DRP and Gladstones masquerade; threats to credit rating, etc.)

17. Accordingly, it is maintained that the defendant has no liability for this debt and that the claimant has acted immorally and deceitfully on several occasions, pursuing the alleged debt in an aggressive and intimidating fashion, with the singular intention of coercing the debt from the defendant with continued threats of legal action. No effort was made whatsoever to address the very reasonable assertions made by the defendant that the driver had every right to park in the bay in question through invitation by the leaseholder; if this particular parking management company truly aimed to protect the rights of residents, this matter could have been resolved amicably and swiftly, without the need of involving the courts.

I believe that the facts stated in this witness statement are true.
SIGNED
DATE

Coupon-mad

The tenant’s contract makes no assertion that a permit must be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so (Item X, pages xyz). The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.

The above is very important and was buried in #7. I would have it higher, with its own number.

DS90

Coupon-mad wrote: »

The above is very important and was buried in #7. I would have it higher, with its own number.

Thank you. Other than that it's acceptable?

DS90

Quick question: the Newbies thread recommends 'a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case' to include in your evidence bundle. Any suggestions on where to find a copy of this? It would be extremely useful as a comparison.

Many thanks!

claxtome

Just Google it. I found it quite easily

DS90

claxtome wrote: »

Just Google it. I found it quite easily

Thanks, Claxtome - you're right! I thought it might be buried somewhere more specific, but it's on the Prankster blog.

DS90

Hi all.

Ten days to go so I'm putting together my skeleton.

The Gladstones 'bundle' (21 pages total) arrived a day late and I'm just working over their Witness Statement. I was hoping I might be able to get some advice on some of the issues they've raised. I think my inexperience has allowed me to become a little worried by the arguments they've made. I'm still confident in the strength of my case, but I'm not confident that I can persuade a judge of that in the face of an experienced solicitor.

These are some of the issues they raised that I'd appreciate some advice on, please.

1) They cite Link v Blaney (C9GF03Q9)(May 2017), paragraph 22: 'whereby it was held that the landowner's rights were subject to regulations brought in from time to time and therefore "any tenancy agreement...must be subject to it as well". In light of this, any right the Defendant alleges may have been given to them to park would have always encumbered as the Landlord could not have given a right which was not theirs to give.' This is their wording.

2) They cite Alder v Moore 1961: '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.'

They use this to support their assertion that '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.' Their wording.

3) ParkingEye v Somerfield (2011): '"If this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty[...]"'.

I'm not arguing that it is a penalty. Any thoughts?

4) Vine v London Borough of Waltham Forrest 2000: '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 etc.}...'

5) They say: My Company has included a claim for costs as its right on issuing proceedings. the costs are claimed in accordance with CPR 27.14 and CPR 45.'

What exactly can they claim in the small claims court, and how can I challenge it? They make a similar point further on about claiming costs for time and materials used in facilitating the recovery of the debt. They ask that these costs be awarded as damages.

Coupon-mad

Search this forum for them, one at a time, as these cases have been discussed loads of times:

Link v Blaney

Alder v Moore

ParkingEye v Somerfield

Vine v London Borough of Waltham

What exactly can they claim in the small claims court, and how can I challenge it? They make a similar point further on about claiming costs for time and materials used in facilitating the recovery of the debt. They ask that these costs be awarded as damages.

Again try searching for a phrase from that sentence, as your first step, to find costs fibs already rebutted in 2017.