Help with Witness Statement and Skeleton Argument

Jinxycat

This is my speaking note - it's less detailed than my witness statement, but I assumed I would not be able to read the full statement as it would take about twice as long. I timed this at twenty minutes:

The Claimant has no cause of action against me for the following reasons:
• The Claimant has not disclosed reasonable grounds or particulars for bringing a claim.
• The Claimant has failed to prove who was driving and has failed to acquire any right to pursue me as the registered keeper under the Protection of Freedoms Act 2012. In fact their conduct is an egregious abuse of process.
• The Claimant has no standing to bring a case and cannot sue for breach of contract as he has no right in agency to do so. The Claimant cannot sue for damages under the tort of trespass, as the Claimant does not have exclusive occupation or ownership of the land.
• If a contract has been formed it is void. The terms are not transparent or are unfair (Consumer Rights Act (CRA) 2015).
• The charge amounts to a penalty, which is extravagant and unconscionable, and consists of non-contractual amounts which are attempts at double charging.
• The Claimant did not have advertisement consent for their signage and is committing an offence.
• The signage is forbidding and does not offer an invitation to park on certain terms.

A ticket was paid for and displayed so all details could be seen, and I cannot say at which point the ticket flipped over on the dashboard or why. The ticket was a licence to park for the entire day, from 09:00am until 11:59pm on 28/06/16, covering the time and date relating to the disputed charge [EXHIBIT 1].

First, the ‘letter before claim’ (EXHIBIT 2), and ‘particulars of claim’ (EXHIBIT 3) are incoherent, fail to comply with CPR Part 16.4, and ‘provide no facts that could give rise to any apparent claim in law’. I invite Your Honour to strike out or dismiss the claim under Rule 3.4(2)(a) of Practice Direction 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (CPR Part 16.4(1)(a) and Practice Direction 16 paragraphs 3.1-3.8). Practice Direction 3A 1.4 provides examples of cases where the court may conclude that particulars of claim fall within Rule 3.4(2)(a): ‘(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’, (2) those which are incoherent and make no sense, (3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.’

I’ll turn second to the most important question of driver and keeper liability.
The Claimant served a Notice to Driver, otherwise known as a windscreen ticket, on my vehicle after the parking ticket fluttered over on the dashboard. It was a private car park on public land, held in Trust by an independent statutory body, the Sennen Cove Harbour Commissioners. The Claimant relies on a contract between the driver and his company to pursue this charge (EXHIBITS 6 & 7), and improperly pursues me as the keeper of the vehicle, in breach of primary legislation including the Protection of Freedoms Act 2012 and the Data Protection Act 1998. The Claimant misrepresents the case of Elliott v Loake [1983] Crim LR 36 and does not demonstrate a proper understanding of the burden of proof in the civil courts. The burden of proof is on the Claimant to demonstrate that he is owed the money ‘on the balance of probabilities’. No evidence has been supplied by the Claimant as to who parked the vehicle and Elliott v Loake establishes no rule or precedent that the “Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption” [Claimant Witness Statement, paragraph 4]. The case was simply a finding on the facts.
The ruling in Elliott v Loake was obviously not sufficient to establish such a presumption, otherwise Parliament would not have legislated to address this problem by enacting the Protection of Freedoms Act 2012, which regulates the only process by which the Registered Keeper can be held liable for parking contracts which have been breached by drivers, and where the driver’s identity cannot be proven.

The Claimant should have served a ‘Notice to Keeper on me, after having properly requested my details from the DVLA and satisfied the requirements of the Protection of Freedoms Act 2012, to request that I name the driver, or otherwise be held liable as the keeper of the vehicle.

However, the Claimant has never requested my details from the DVLA (EXHIBIT 4) and has not met the terms of paragraphs 6, 8 and 9 of Schedule 4 of the the Act. This means that I cannot be held to account for the alleged debt of the driver as the Claimant is ‘out of time’ to issue a Notice to Keeper, per section 8(5).

The claim is bound to fail because of this point of law and should be struck out (CPR Rule 24.2).

Furthermore, the Claimant has stated in his Witness Statement, under a Statement of Truth, that I have been invited to name the driver at paragraph 4 (page 1), that I was sent a Notice to Keeper in accordance with the Act at paragraphs 5-7 ( page 2) and paragraph 18 (page 4). These are lies. Either the Claimant can prove I was the driver, which they cannot, or the Claimant can comply with the PoFA to pursue me as the keeper, which it is proved they did not.

CPR Rule 32.14 states that (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth, without an honest belief in its truth. I know that Rule 27 says that Rule 32 doesn’t apply to small claims – however it must surely be that the meaning and effect of the Statement of Truth must apply to all cases including the small claims track. Otherwise the effect of Rule 27 is that witnesses in small claims can lie with impunity which would be against public policy.

The Claimant has misused my personal information, which is a breach of the Data Protection Act. The Claimant is acting fraudulently to create the impression of reasonable cause, where there is none. The Claimant has aggravated the breach by continuing to process the ticket and my information, despite the evidence I have offered. It should never have been submitted to the small claims track. They could have withdrawn this case from the court list.
[7 mins]

My third point in defence relates to the Claimant’s standing to bring a case for breach of contract or trespass, their right of audience at court, and the lack of an express ability to recover charges directly.

With regard to paragraph’s 14-15 of the Claimant’s Witness Statement, I want for absolute clarity to state that what is at dispute is the Claimant’s standing – their right of audience before the court is not automatic, as a representative of the landowner that right can only be conferred by the terms of the agreement between the landowner and the Claimant. Their right to bring an action before the court for either breach of contract or trespass depends on the terms of this agreement. Contrary to the Claimant’s view, Exhibit 5, the agreement between the parking operator and the landowner is absolutely of relevance.

The Claimant is a member of the Independent Parking Committee. Their Code of Practice, in Part B section 1.1 states that the agreement between the landowner and the Claimant: ‘Must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly.’

EXHIBIT 5 demonstrates the only rights that have been assigned to the Claimant:
• To provide a supply of parking permits;
• Supply, erect and maintain warning signs;
• Patrol the land and issue parking charge notices to vehicles not correctly displaying a ticket;
• To sue for trespass to enforce warnings and to recover money.

As to suing for trespass, the Claimant is not the owner of the car park, has no property right in the land, and does not have exclusive possession of the land, per Hill v Tupper [1863] 2 H & C 121. At most, the Claimant has a license or mere right of entry to the land for the agreed purpose of parking control, but this is distinct from exclusive possession, which is required to exercise the rights of a landowner to sue in trespass. The Claimant does not have exclusive possession as the land in question is a working harbour and is held in trusteeship by the Port Authority, the Sennen Cove Harbour Commissioners, on behalf of the Government for uninterrupted use by the public.

In any case, my vehicle was parked on land where parking was invited and a licence to remain on the land was paid for the entire day, and there was no overstay. There was also no intention to interfere with the landowner’s right of possession. Trespass cannot therefore be made out.
The Supreme Court in the case of ParkingEye Ltd v Beavis [2015] UKSC 67, held that trespass is limited to the landowner themselves claiming for a nominal sum, measured in relation to the value of the intended use – the occupation value of the parking space. The Claimant has no right to therefore enforce the charge and is acting in excess of their authority.

The Claimant has failed to establish their contractual authority to issue enforcement proceedings before the County Court for breach of contract, either in the Claimants name, as an agent of the landowner, or the name of the landowner. In Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd, Viscount Haldane ruled the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Operator acting as agent; no such consideration flows in this case as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees, as consideration for the supply of parking services. The proceeds from parking ticket sales are constrained by the Trust, to be used solely to maintain harbour facilities.

The Claimant has no right of audience in the agreement with the landowner to sue for breach of contract as an agent of the landowner, and cannot sue in trespass as they do not enjoy exclusive occupation of the land. Your Honour, I invite you to strike out the claim for this reason.
(12 minutes)

My fourth point relates to the Consumer Rights Act (CRA) 2015 – Unfair Terms
Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms of the contract.

The term, 'Vehicles must fully display a valid pay and display ticket in the front windscreen so all details can be inspected' [EXHIBIT 6] in particular the meaning of 'fully display' and 'all details', is not transparent per Section 68 of the CRA 2015.

Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.

A valid ticket was displayed in the front windscreen of the vehicle. If the Claimant wanted to impose a term to continuously display permits, then they should have drafted clear terms to that effect. Adjudicators in Council PCN adjudications have ruled that fluttering ticket cases require specific terms to ‘continuously display’ or there is no contravention. The term is fundamental to the contract, and I invite the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defendant invites the Court to take these issues into account in determining the fairness of the term.

The most important terms of the contract are those emphasised as terms and conditions on the signage in larger, bolder, red, bulleted text. It was held in Thornton v Shoe Lane Parking Ltd that the terms of the offer can only be those those placed near the machine, sufficiently brought to the customer's attention. The term that ‘Retrospective evidence of authority to park will not be accepted’ is a subsidiary requirement and does not specify the main subject matter of the contract. It cannot therefore be excluded from an assessment of fairness per Section 64(1) of the CRA 2015.

The term that ‘Retrospective evidence of authority to park will not be accepted’ [EXHIBIT 6] falls within the ‘grey list’ of terms which may be regarded as unfair under Schedule 2 Part 1 of the CRA 2015, paragraph 20 (referred to in Section 63(1) of the CRA 2015), as it restricts the evidence available to the Defendant to defend the charge and to demonstrate a valid licence to park. It raises a presumption that the term is unfair. The meaning of the term is unclear. It is not clear what is meant by ‘retrospective evidence’ in this context.
Furthermore, it is an unfair term, in that it creates a significant imbalance, contrary to the requirements of good faith, to the detriment of consumers. It was held in Munkenbeck & Marshall v Harold [2005] EWHC 356 (TCC), [2005] All ER (D) 227 (Apr) that where a term is one-sided and its terms have not been sufficiently drawn to the attention of the consumer, the term is more likely to be held to be an unfair term.
Section 62(1) of the Consumer Rights Act 2015 establishes that an unfair term of a consumer contract is not binding on the consumer. In the event that the Court decides this is a consumer notice rather than a contract, Section 62(2) applies. Section 69 of the CRA 2015 provides for the application of the contra proferentem rule, which gives the consumer the benefit of the doubt. I invite the Court to consider that the terms are either not transparent or are unfair, and the terms are not binding.
(16 minutes)

My final point relates to the nature and amount of charges sought by the Claimant.

The parking contract with the driver provides for a parking charge of £100 if the terms and conditions of parking are breached [EXHIBIT 6].

The Claimant’s solicitor added £50, which was deceitfully misrepresented as a contractual charge in the Letter Before Action (EXHIBIT 2). On the Claim Form (EXHIBIT 3), the Claimant seeks a further £50 for Solicitor’s costs. These are examples of an extravagant and unconscionable penalty, and consist of non-contractual elements, which make it unenforceable. The Claimant is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. I have a good faith belief that due to the sparse particulars in the Claim, and Gladstone’s automated robo-claims system, that the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim.

In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221, 255]) ‘when regard is had to the innocent party’s interest in the performance of the contract’, and an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable.’
Contrary to the assertion at paragraph 16 of the Claimant’s Witness Statement, the Supreme Court in ParkingEye Ltd v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield, paragraph 419). The alleged and inflated contractual charge of £150 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the alleged conduct. This is especially so in the knowledge that the proceeds of parking go to a public Trust for the maintenance of the working harbour.

The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. Schedule 4, section 4(5) is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs: ‘The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’

Furthermore, the Claimant claims interest of £4.21 from 26/07/16 [EXHIBIT 3]. The charge was held in abeyance until the outcome of the IAS appeal. The IAS parking adjudicator had not given their decision on appeal until 31/08/16, and the disputed charge was due to be paid within 16 days of that decision. Interest should therefore not be claimed until 16/09/2016, when the disputed charge was due following IAS adjudication.
(20 minutes)

Coupon-mad

Jinxycat wrote: »

Yes, I intend to. The agreement between the landowner and the operator only provides for recovery action under trespass, which they cannot make out. I will argue that the operator is not able to demonstrate that they act as an agent, and is therefore unable to show an authority to appear in court in their own name or the name of the landowner.

It's not about that. Challenging RoA is challenging the very right to speak, of the legal rep they throw at it, who will not be someone from Gladstones no likely to be someone from the PPC.

The first thing you do is challenge that individual's RoA, whether or not they are known to the Court. Take the Law Gazette Article and the case law mentioned by the Parking Prankster in his blog.

https://www.lawgazette.co.uk/law/bar-council-solicitors-agents-could-face-prison-term/5059560.article

http://www.civillitigationbrief.com/wp-content/uploads/2016/09/click-here-to-see-case.pdf

Explained by LoC123 here:

http://forums.moneysavingexpert.com/showthread.php?p=72454170#post72454170

and here:

http://forums.moneysavingexpert.com/showthread.php?p=72623708#post72623708

PublicanPaul on pepipoo had a case thrown out after last-minute coaching about challenging RoA:

http://forums.pepipoo.com/index.php?showtopic=113246

...and he succeeded even though the Judge first of all grumbled that it was OK because the rep had appeared 'many times'.

Umkomaas

Your Honour

This isn't a Crown Court case. 'Sir' (or Ma'am) is the normal convention.

Coupon-mad

Lamilad has just posted this on another thread for MA61 who is also at court tomorrow:

http://forums.moneysavingexpert.com/showthread.php?p=72625669#post72625669

http://forums.moneysavingexpert.com/showthread.php?t=5650032

Wonder if you are both at the same court v the same PPC?!

Lamilad wrote: »

The preliminary matters document (written by Bargepole) is here along with supporting transcripts.

https://www.dropbox.com/sh/a1pxeqpztlhs5rc/AACwUBB1rKusiwjkBluqfiXBa?dl=0

It was written for a BW Legal case so para 8 will need editing.

Jinxycat

Thank you, that's such a help. I wonder too, does he come to Somerset much?!

Coupon-mad

Does who come to Somerset? Lamilad and Bargepole don't. Is yours the case in Bath v KBT?

You can use/adapt that preliminary matters document though, it's free for all to use.

Jinxycat

Yes, mine is the case in Bath tomorrow; how did you know?
Thank you for the preliminary matters template, I've tailored it accordingly!

Coupon-mad

Although they haven't put it up yet, the BMPA publish court listings and I've seen the 31st list:

http://www.bmpa.eu/court.html

What might be useful to you there (above), is the explanation about RoA there and the kind, free offer by that charity, of a ''check the rep'' immediate service, or you could text them in the morning before the case and ask for any tips about KBT t/a Armtrac in Court.

I think sometimes Brian Cook or Mick Cook turns up himself, in which case RoA is NOT an issue, but their 'evidence' will be worth SCRUTINY! Be forewarned:

http://parking-prankster.blogspot.co.uk/2017/01/is-brian-cook-of-armtrac-using-staged.html

http://parking-prankster.blogspot.co.uk/2017/01/mick-cook-from-armtrac-presents.html

https://bmpa.zendesk.com/hc/en-us/articles/203549462-KBT-Cornwall-Ltd-Trading-As-Armtrac-Security-Services-

So common is the scam if fluttering tickets to make money for Armtrac (however the ticket flips over...not the driver's fault nor under their control), that the BMPA even have a robo-defence all about it, designed for Armtrac:

https://bmpa.zendesk.com/hc/en-us/articles/213982109-Fluttering-Ticket-Robodefence

Some of that wording might help you in court, have it to crib from...

Jinxycat

Thank you SO much. I'll let you know how I get on!

Coupon-mad

You and MA61 and stephthechosenone are all in court tomorrow:

http://forums.moneysavingexpert.com/showthread.php?t=5578291&page=2

...in your case be ready to face a 'Cook' and try to spoil his broth, so to speak!