FINAL REMINDER - SIP LIMITED - Manchester

thismakemesad

Okay thank you. If I haven't mentioned these in my initial defence, how would I go about adding these in and it being obvious to the judge the relevance?

Coupon-mad

File them this week or next, with a skeleton argument, assuming you've already put in your WS. Skeleton arguments are shown in the NEWBIES thread post #2, no deadline to file one because you don't have to, but if you choose to, file it before the hearing.

thismakemesad

Morning all,

I'm really struggling to find a section in Beavis that is relevant to the point the in defence:

"5b. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum."

I am not the best reader and it's taken me a couple of hours of scrolling already with no luck. Would somebody know a particular section I can get into to use please?

I have found the Excel vs Smith case as CM suggested above, however my defence actually stated the Elliot vs Loake, how do I write in my WS that I couldn't find a transcript so have used another without it sounding like I haven't seen the case? I don't want that to go against me, and I assume if I don't supply any kind of transcript towards that point, then it won't stand without it? I've put the point below:

"3. The claimant might argue that Elliott vs Loake is applicable in identifying the registered keeper as the driver. This will be refuted as the Claimant has adduced no evidence at all as to the identity of the driver and Elliott v Loake was a criminal case turning on specific facts and forensic evidence as to who was driving the vehicle on the day on question. There is no similarity to this claim.
3b. Case Reference: C8DP37F1, Stockport, Excel v Mr C"

Think I'm close. It'll be a big relief just to have this out the way whatever the outcome!

Coupon-mad

You can search the Supreme Court decision for the word 'trespasser' or 'trespass' (control & F to find).

I have found the Excel vs Smith case as CM suggested above, however my defence actually stated the Elliot vs Loake, how do I write in my WS that I couldn't find a transcript so have used another without it sounding like I haven't seen the case? I don't want that to go against me, and I assume if I don't supply any kind of transcript towards that point, then it won't stand without it?

Just state that:

Cases which support my defence point, that a keeper cannot be held liable for a parking charge issued outwith the POFA, include a persuasive Appeal case in Excel v Smith (exhibit number xx) and also recent decisions on the same fact of law, in Excel v Lamoureux (exhibit number xx) and VCS v Quayle (exhibit number xx).

All are found in the Parking Prankster's case law, page number two.

You don't have to explain why you are producing those transcripts instead of the one referenced.

You will also need the Beavis sign image, easy to find, to show a clear and large lettering sign.

And you will need the words from Henry Greenslade from the POPLA Annual Report 2015.

thismakemesad

Weirdly starting to get nervous for this now. I'm not usually a nervous person but I just feel a bit underprepared despite it being a couple of weeks off. I'm a little unclear as to whether to mention the driver's reason for being late back to the car or whether that confuses the matter. If the judge mentions it, is it bad for me to say that the driver was late back because of a work reason (as discussed earlier in this thread) or do I stick with the guns of the site being badly signed and not answer that question? I'm not sure if answering that question makes everything else irrelevant?

Coupon-mad

No need to discuss if or why the driver was late back. You are defending against the validity of the charge and the fact there was no contract formed.

Everyone gets nervous, and everyone gets through it. At least it will be decided!

thismakemesad

Thank you for the above, I have the Beavis Sign and I also have the words from Henry Greenslade (pages 1, 12, 13).

Can the WS be more informal than the defence? I don't know how much more I can write that isn't already stated perfectly in the defence and so I'm just wanting to stick my exhibits in there more than anything additional. And explain why that exhibit is relevant to the point it is there for. Am I right in thinking little more than this is needed? Other than laying the document out in the recommended format shown here in #69:

https://forums.moneysavingexpert.com/discussion/comment/72186852#Comment_72186852

thismakemesad

Coupon-mad wrote: »

Just state that:

Cases which support my defence point, that a keeper cannot be held liable for a parking charge issued outwith the POFA, include a persuasive Appeal case in Excel v Smith (exhibit number xx) and also recent decisions on the same fact of law, in Excel v Lamoureux (exhibit number xx) and VCS v Quayle (exhibit number xx).
[/I]

I'm not sure what would be in the Exhibit here. A transcript?

Coupon-mad

Three transcripts, (or four, as Excel v Lamoureux was two cases - he posts as Lamilad here!).

From the Prankster's case law.

thismakemesad

Okay, I think I have my witness statement. Please could anybody comment with any advice?
I have attached my exhibits as a dropbox link in case anybody wants to read and see what the exhibits are exactly:

I am XXXX XXXXXX, defendant in this matter and deny liability for the entirety of the claim.

This matter relates to a pay & display car park and on the material day, XX/XX/XXXX, where the driver bought a ticket on land at Cable Street without realising they were entering into valid contract due to poor signage at the site.

As suggested with Exhibit number 1, I have not received proper contact from The Claimant to identify the driver nor received any evidence of a Notice to Keeper (NTK) - See defence point 1c. alongside Exhibit number 2 and 3 to further back up points in section 1 of the defence.

Section 2 in the defence shows how The Claimant has no right to relief from the keeper of the vehicle as they have failed to comply with the requirements of the Protections of Freedom Act 2012 (Exhibit number 2).

Section 3 - there are a number of cases which support my defence point, that a keeper cannot be held liable for a parking charge issued out-with the POFA (Exhibit number 14, pages 12 and 13), these include a persuasive Appeal case in Excel v Smith (exhibit number 4) and also recent decisions on the same fact of law, in Excel v Lamoureux (exhibit number 5) and VCS v Quayle (exhibit number 6).

The main points in this defence case is in relation to the lack of signage and fencing around the site to clearly inform about the intentions of the land as explained in Section 4 of the defence.

The Beavis vs ParkingEye 2015 case (Exhibit number 15) relates directly to part of this case regarding the signs. It was ruled in the Supreme Court that signs had to be clearly displayed with all text visible as shown in Exhibit number 8. However, The Claimant has a sign displayed as Exhibit number 7. A defiance of the IPC Code of Practice (Exhibit number 13).

The driver had entered the car parking space directly from the road in a rush, and there were no readable signs in either directions to state any abiding contracts or or to suggest indeed it was a private car park at all. See Exhibit number 10 to see the space that the car in question was parked (bottom of the picture is the space). The driver was parked facing out towards the road and had reversed into the space. The only visible sign spotted via photographs and after the date in question is on the side of the wall to the left of Exhibit number 10. When parking the car is virtually impossible to notice when there are cars filling up that car park opposite and it is not even clear whether that car park is the same company owned. The spaces are poorly organised as shown in Exhibit number 11 and there is complete lack of fencing and entrance signs to suggest the land is private. Exhibit number 11 also shows how scarce the amount of signs at the site are, and the ones that are there are poorly positioned.

Exhibit number 9 shows a potential entrance to the car park which is merely a guess even when revisiting the site. The fact that cars look invited by concrete lines on the floor identical to all other spaces laid out, to park in what would also appear to be an entrance (Exhibit number 11) creates confusion with any drivers attempting to use the site.

Argument 4c. in the defence argues that the location has no entry signs is contrary to the IPC Code of Practice which can be seen in Exhibit number 13.

Exhibit number 7 - The size of the font for the vital information on the signs, as mentioned in 4b. is unclear and all that seems large enough to read is how much the parking is. The information certainly cannot be seen anywhere near the vast majority of vehicles. Further to this point, the additional costs added above the fine appear to have been plucked from thin air as they are not stated in clear terms on the sign, nor have any costs been incurred from debt collectors services.

After complying with the claimants Letter Before Country Court Claim which stated that The Keeper did not believe the letter was fully compliant with the Practice Direction (Exhibit Number 1), I sent a response on the 16/04/17 (See exhibit number 12) I received no reply and The Claimant has failed to supply any evidence that they are the landowner or that they are authorised.

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

Signed:

Date:

https://www.dropbox.com/sh/ey2xen903r28431/AAAPAhLmj9QH21Ow5Of9atnFa?dl=0