Parking Charge, IPC Member, inadequate signage

behindtheeye

Here is my first draft. I would really welcome any feedback!

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 xx/xx/xxxx, 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.

7. The sign (exhibit xx) 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 xx.

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

10. I adduce as evidence photos xx and xx 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.

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 xx.

12. 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. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the British Parking Association, that parking companies were unable to pursue drivers who were not identified. 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

13. In my initial correspondence with the Claimant, the Claimant stated that my details did not match the details they had acquired from the DVLA. This was incorrect as the Claimant had not obtained my details at that time, a fact that was subsequently confirmed in a letter from the DVLA (see Exhibit xx, xx).

14. 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 xx). The claimant is not able to do this, as described in point 8.

15. 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 ), In fact, the Claimant’s solicitors have provided a bare minimum of information throughout, putting me at significant disadvantage as an unrepresented Defendant.


16. The amount of £xx 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).

17. 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.

Coupon-mad

I would remove this sentence from #12 because it suggests the law was changed to stop people doing...exactly what the Claimant will say you are doing (withholding the driver details), which might not impress the Judge:

The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the British Parking Association, that parking companies were unable to pursue drivers who were not identified.

Here, I would quote verbatim what they said in the letter and add words like 'disingenuous', not just 'incorrect' (it was deliberately misleading IMHO because DE knew they hadn't got DVLA data so there can have been no excuse for such a disingenuous and misleading reply):

13. In my initial correspondence with the Claimant, the Claimant stated that my details did not match the details they had acquired from the DVLA. This was incorrect as the Claimant had not obtained my details at that time, a fact that was subsequently confirmed in a letter from the DVLA (see Exhibit xx, xx).

I would also use as evidence, this first POPLA Annual Report from 2013 and explain that District Enforcement were in the BPA when this report came out and so would be well aware of the section about 'no stopping zones', and whilst the Claimant has moved to the IPC and so they no longer deal with POPLA, it doesn't negate the clear findings of previous PATAS and POPLA Lead Adjudicator Henry Greenslade, a barrister with unique expert knowledge of parking regulations and signs on roads:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2013.pdf?sfvrsn=2

Highlight the section about 'no stopping zones' which is the only relevant section, and include that page in your evidence (your copy for the hearing, can be the whole POPLA report in case you are challenged to show where that came from).


And I would add something to say that:

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.*




* urgently spend £3.50 on a Land Registry search, to see who owns the road...it may help - could it be Local Authority owned up to a point? District Enforcement are known for operating Local Authority sites 'as if they are private land' (which is not allowed and MP Robert Goodwill made that clear in a letter to Councils).

behindtheeye

Thank you very much Coupon-mad, I will make those changes.

With regards to the 'no stopping zones', should I include that even though the reason given on the sign at this location is "no parking on access road"? There is no specific mention of no stopping although I suppose it could be considered similar.

Should I go to town with the photos of the signage? I have loads from various angles but perhaps a few choice ones would be best. There is also one from Google Street View which shows a similar thing.

Do the photos need to be date-stamped or is that not important?

Thank you very much :T

behindtheeye

PS - I'll look into the Land Registry

behindtheeye

I've looked at the Land Registry. I think I have found what I think would be the relevant property title plans but I haven't paid the £3 to download it as it mentions on the below link that for use in a court case I would need official copies - this needs to be done by post and I won't have time to do that.

https://www.gov.uk/get-information-about-property-and-land/search-the-register

But if anyone thinks I've misinterpreted this and I could use the electronic title plan please let me know and I'll go ahead and pay for the electronic version.

Umkomaas

I’ve never heard of that before, but I can’t give you a definitive answer. However, logic might suggest that having something to back you up is better than nothing, then leave it to the ‘opposition’ to object (if they spot it).

You won’t be ‘penalised’ for it, even if your assertion above is correct.

Coupon-mad

I would use the electronic title plan, if it helps your argument...does it show the car park and access road are all owned by the same company (same as DE have their 'contract' with, and not the Local Authority?). People have used electronic ones in evidence for cases we've seen before.

I would definitely say the 'no-stopping zones' article/professional opinion from barrister Henry Greenslade (use my words, paint him as the parking signs/regulations expert he really is - both a local authority and private land appeals Lead Adjudicator) relates to the roadway you showed us. The signs should face the motorist and be repeated, etc. and nothing has changed about that in the couple of years since DE decided to hop to the IPC instead (to avoid POPLA, one assumes).

Use everything you can, to make your case. Do not hesitate. You have a case.

behindtheeye

Thanks, both.

I've downloaded the title plan from the Land Registry. It's from 1993 and is quite low quality. The area has changed significantly since then and it doesn't include roads that are now there. However, as best as I can tell it seems that the area in question including what is now the building, car park and access road are all part of it. So I think I'll drop that.

I am finalising the Witness Statement and Evidence and will post the WS on here for final review - I have to submit tomorrow!

Is there any set text I should include in the Evidence pack? I am just putting it all as a Word Document with references that match what I've mentioned in the Witness Statement. I'll submit the POFA as a separate document as it's large.

Umkomaas

I am just putting it all as a Word Document

Draft it in Word, but safer to convert to a .pdf file after that.

I'll submit the POFA as a separate document as it's large.

You only need to attach Schedule 4, not the whole shooting match!

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Coupon-mad

For the local Court, don't email your WS and evidence like you would (2 or 3 separate emails to reduce the size of attachments) for the claimant. Certainly email the Claimant's version - make them work!

Local Courts are likely to have a limit on how much they will print from an email and it would be terrible to fall at the final hurdle and find the Court have not printed half your evidence and so the Judge hasn't got it.

We recommend using a folder/ring binder for the Judge, so it's nice and organised, easy to read:

https://forums.moneysavingexpert.com/discussion/comment/72860828#Comment_72860828

HTH