Parking Charge, IPC Member, inadequate signage

behindtheeye

Sorry, I should have mentioned I just meant Schedule 4

I plan to hand deliver it to the court tomorrow so will try to get it in a ring binder. I'll email a copy to Gladstones using the Leanne@... address which is the only one I can find on their site (unless anyone knows any others).

behindtheeye

I am looking to submit this tomorrow, please let me know if you think there should be any last-minute changes! Thanks.

WITNESS STATEMENT

1. I, xxx of xxx am the defendant in this claim. I deny liability for the entirety of the claim. The facts in this statement come from my personal knowledge.

2. I am the registered keeper for vehicle registration xxx and was on the xxx, the date of the alleged Parking infraction.

Circumstances surrounding the Parking Charge

3. The location for the alleged parking incident is a road within a business park, not a car park.

4. Signage at the location does not face oncoming traffic and is not visible when entering the road. Except for the inadequate signage, there is nothing to distinguish it from any other road on the business park, which is council-owned.

5. Whilst part of the road in question has double-yellow lines, the location where the car was parked has no double-yellow lines or other markings and so is not recognisable as a no parking area.

6. Whilst I am the Registered Keeper of the vehicle concerned, there is no evidence of the driver. The claimant is unable to rely on Schedule 4 of the Protection of Freedoms Act 2012 as there was no ‘relevant contract’ and no ‘adequate notice’ of a parking charge due to inadequate signage, both of which are pre-requisites of the same. (see exhibit Ex. 1)

7. The sign (exhibit Ex. 2) contradicts the Notice to Keeper sent by the Claimant as it tries to create a contract to pay £100 to park on the access road, yet drivers could not see that contract before parking. The Notice to Keeper describes the area as ‘no parking’, i.e. where that conduct is not only not offered for £100, but is prohibited.

8. There is no obligation for me to name the driver. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the British Parking Association) Lead Adjudicator from 2012 – 2015. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. See Exhibit Ex. 3.

9. This case can be distinguished from the Beavis case, where the signage was clearly marked. See Exhibit Ex. 4.

10. I adduce as evidence photos Ex. 5 a) and b) which shows the signs from this case seen from the entrance of the road. Subsequent inspections have shown that the sign is simply a piece of cardboard strapped to a lamppost with cable-ties and can easily rotate depending on the prevailing wind. As can be seen, the sign is not visible. To further demonstrate, b) shows the same area as shown by Google Street View on a different date – here it can also be seen that the sign is facing the wrong direction. Except for this sign, there were no other signs in the immediate area.

11. The signage does not meet the International Parking Community Accredited Operator Code of Practice, the Code of Practice for the Accredited Trade Association of which the Claimant is a member. A copy of the relevant section is shown in Exhibit Ex. 6.

12. I adduce as evidence (Exhibit Ex. 7) the POPLA Annual Report from 2013. The Claimant was a member of the British Parking Association (BPA) when this report came out and so would be well aware of the section about ‘no stopping zones’. Whilst the Claimant has moved to the International Parking Community (IPC) and so they no longer deal with POPLA, it doesn’t negate the clear findings of the previous parking appeals service and POPLA Lead Adjudicator Henry Greenslade, a barrister with unique expert knowledge of parking regulations and signs on roads.

13. The Claimant may choose to rely on Elliott v Loake [1982], which has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not a reverse burden of proof. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.


Pre-action Communications

14. In my initial correspondence with the Claimant, they stated “unfortunately your details do not match the details we have from the DVLA so unless you can confirm you were the driver at the time, we are unable to deal with your request”. This was disingenuous as the Claimant had not obtained registered keeper details at that time, a fact that was subsequently confirmed in a letter from the DVLA (see Exhibit Ex. 8 a), b)).

15. The Claimant then stated “we will assume for the purposes of progressing the charge that the driver was in fact the keeper on the vehicle” (see Exhibit Ex. 9.). The Claimant is not able to do this, as described in point 8.

16. The matter was then passed to the Claimant’s solicitors, who sent a Letter Before Claim which did not comply with the pre-action protocol under the Practice Direction. Despite a request to receive a compliant letter, one was not sent before court proceedings were started (see Exhibit Ex. 11). In fact, the Claimant’s solicitors have provided a bare minimum of information throughout, putting me at significant disadvantage as an unrepresented Defendant.

17. The amount of £xxx being claimed exceeds the £100 originally stated in the Notice to Keeper. Para. 4(5) Schedule 4 Protection of Freedoms Act 2012 sets out the maximum amount recoverable from the registered keeper where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

18. If the Claimant is authorised to enforce parking on this access road, then they have produced no such evidence, which would require them to divulge a copy of the landowner contract including dates, details, definitions, restrictions, exemptions, days/hours of operation and a clear boundary/site map showing the area where they are authorised to operate. The boundary cannot be assumed to include this separate roadway, particularly because a short way after the place where the car was parked, there are automatic barriers which lead into a car park. Even if parking restrictions are authorised within the car park, it cannot be assumed to include the road outside, nor can it be assumed that the road has the same landowner.


19. No witness statement has been received from the Claimant at the time of writing.


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

behindtheeye

Sorry to do this but giving this a final bump as after tonight I can't make any more changes and it's going to have to be submitted. Thank you very much.

Coupon-mad

I think that's good to go, with the evidence as well.

behindtheeye

Thank you very much as always Coupon-mad, I will of course keep you posted (and will probably have a few more questions nearer the date in ~2 weeks!)

behindtheeye

Deadline has passed and I've had nothing at all from Gladstones. Should I write to the court?

nosferatu1001

No, call. See if they have a copy of the claimants bundle. State you do not have yours, and wish this to be recorded by the court, and you object to the late service of anynb7ndle, should it appear, being included at the hearing

behindtheeye

So, I called the court yesterday and told them that I hadn't received anything from the Claimant, despite it being past the 14 day deadline. They confirmed that they hadn't either and suggested I call back the day after.

I called again today and they still haven't received anything. I mentioned that I wanted this recording and she suggested I email the court so the judge can make a decision (or words to that effect).

Any thoughts on what to say or shall I just write from the heart on this one?

Coupon-mad

Write and point out that the Claimant's solicitor has not filed any WS or evidence, and this conduct follows an entirely vexatious and wholly unreasonable claim from start to finish, with no full Particulars of Claim, and you don't even know what evidence they intend to rely upon, haven't seen any photos, not even of the ''contract'' they allege was breached on a sign (say whatever is true).

Mention Denton and BPP Holdings v The Commissioners for Her Majesty's Revenue and Customs, like this person did:

https://forums.moneysavingexpert.com/discussion/comment/73436039#Comment_73436039

and enclose the transcripts of both.

...and send the Judge your costs schedule as well, and ask that the Claim be struck out. And that your wasted costs are awarded, or that the hearing continues at the Court's own discretion, merely as a costs hearing to decide if additional costs apply on an indemnity basis, pursuant to CPR 27.4(2)(g).

You must demonstrate to tip the Judge's opinion, so that the Court agrees that the Claimant (not just their solicitors) have been wholly unreasonable in the entire conduct of the matter/claim, from dodgy signs/unwarranted demand/no liability/no contract, through to the woeful POC and lack of adherence to the court process.

It's been shown to be hard to do - to convince a Judge about this - and require preparation/blow by blow points from you, showing unwarranted conduct and downright unreasonableness throughout from the Claimant and their solicitor.

If the Judge agrees you can get costs over and above those normally allowed on the small claims track.

So, seize the moment to ask for the Judge to consider Denton and the fact that solicitors ought to know - much more than a litigant-in-person like you - about the court process, and even an admin error (if argued later by Gladstones) is deemed by the Court of Appeal to be no excuse for putting a Defendant through this prolonged harassment and distress, wasting the time of that party and the court.

Include a thorough costs schedule with several hours spent researching & handling this unwarranted threat, costed at £19 per hour, plus your other costs (see LOC123's example of a further costs schedule in the NEWBIES thread POST #2).

behindtheeye

Thank you very much Coupon-mad. I am drafting this up now. Should I CC this email to Gallstones? I saw mention in other threads that this sort of correspondence should include them at this stage.