Claim Form received - no NTK, no LBA received before

LGTH

The insurance was exclusively only for that particular driver, mine was terminated before the parking incident occurred as the insurance company gone bust and I decided to rent the vehicle. Would I bring that as evidence = not insured for that particular time.

By saying "something" I mean just literally something = any piece of paper.

Coupon-mad

The insurance was exclusively only for that particular driver, mine was terminated before the parking incident occurred as the insurance company gone bust and I decided to rent the vehicle. Would I bring that as evidence = not insured for that particular time.

Absolutely yes! But you must file it in advance, with your WS, which should include what you've just said. It is dynamite to prove you could not have been driving, and that the parking firm has not complied with Sch4 of the POFA either.

LGTH

Thanks Coupon-mad. Could you explain how then this is non-compliance by parking fir, I am not following.

And lastly ( for now), in some threads it says WS has to be only a statement of what happened, dates, etc. But in a lot of WS I have seen that it also includes Defence/arguments. So I am confused.
and would WS start with when the initial communication by Claimant received or start with when and how the car ended up with the driver?

Sorry for silly questions but do not want to mess up an already messed up situation.

Coupon-mad

Could you explain how then this is non-compliance by parking firm, I am not following.

It's about whether they issued the required NTD and NTK, as prescribed by Sch4 of the POFA (it's linked in post #1 of the NEWBIES thread so you can read para 7 and 8 and see for yourself that the Act requires mandatory notices to be served).

And lastly ( for now), in some threads it says WS has to be only a statement of what happened, dates, etc. But in a lot of WS I have seen that it also includes Defence/arguments. So I am confused.
and would WS start with when the initial communication by Claimant received or start with when and how the car ended up with the driver?

People have done joint WS/skeleton arguments, due to lack of time usually. The NEWBIES thread post #2 shows you examples of what the difference is between the two, if you split them.

LGTH

I would like to ask:

I my WS, am I allowed to take into account Claimant's WS and what they have provided me as evidence?
or just keep to my initial defence where I did not have much information? Too confusing.

Coupon-mad

Yes you are allowed, and several examples do. Look at the link to tidegu's one he/she received:

https://forums.moneysavingexpert.com/discussion/comment/72749330#Comment_72749330

See my reply to tidegu, an example of a Witness Statement which rips into their drivel.

LGTH

Hello again,

The contract with landowner states that PPC is "parking enforcement service" or "parking charge enforcement service". Also contract says that PPC are there to undertake management of parking and/or enforcement of parking.
Does that mean that they have the right to enter into contract with the driver or can just write out PCNs?

Can't wait for this to be over, really

Coupon-mad

Does that mean that they have the right to enter into contract with the driver or can just write out PCNs?

Could mean either! If the contract doesn't say they have that right.

Read PACE v Lengyel, pretty sure this was one of several bombs within DJ Iyer's judgment in that case, he demolished the parking charge in that case. The transcript is hosted in the Parking Prankster's 'more case law' page and is useful to adduce as evidence for a defendant.

LGTH

Could you please comment on my attempt at WS. Is that at least OK?

WITNESS STATEMENT
_____________________

I am the Defendant and I am unrepresented with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.
I deny any liability to the Claimant for the sum claimed, or any sum at all.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise. Exhibited hereto is a paginated bundle of documents to which I refer during this Statement.
The facts of the case are as set out in my Statement of Defence, filed in response to the original claim and verified by a statement of truth. They do not bear repetition here, but my defence case can be summarised under the following headings, supported by my evidence:-

1. No ‘keeper liability’ established
(a) There is no evidence to identify the driver. Even if the Court believes that a legible contract term was breached, I cannot be held liable because this Claimant has failed to comply with the statutory requirements set out in Schedule 4 of the Protection of Freedoms Act 2012 (‘the POFA’), which states that a Notice to Keeper (‘the NTK’) has to be served to the Registered Keeper (‘the RK’). The Claimant has been put to strict proof to provide proof of postage that the NTK has been sent to the Defendant, yet has failed to do so.
(b) The Claimant’s witness attempts to use Elliott v Loake, a criminal case with no application in contract law. I am aware that this Claimant’s Solicitors habitually rely on this case in thousands of unchecked robo-claims against registered keepers. The Claimant (and its solicitors) know that their argument has been rejected countless times, in other courts. In Elliott v Loake there was overwhelming forensic and witness evidence to show that the registered keeper was driving the vehicle. It made no presumption, and it did not put the onus on the Defendant to rebut any presumption, about who was driving. The burden of proof remains with the Claimant, not with the Defendant. In any event, and without concession, Certificate of Motor Insurance for XXX, Certificate of Motor Insurance for the Defendant together with termination letter of the Defendant’s insurance evidences that the Defendant was not the driver on the date of the alleged breach.
(c) It is false for the Claimant’s witness to misquote the POFA to assert that the RK is ‘required’ by law (their witness at #6) to name the driver. POPLA’s Lead Adjudicator Henry Greenslade, experienced Counsel, states in its 2015 Annual Report (under the heading 'Keeper Liability') that there is no presumption in law that a keeper of a vehicle was its driver, and confirms the legal position, that registered keepers have no legal obligation whatsoever to disclose the identity of the driver to a private parking company.
(d) The Claimant exhibits in their Witness Statement that the NTK has been issued on XXX and allegedly served to the Defendant. However, the NTK fails to state the mandatory warning about possible ‘keeper liability’ - simple wording a parking firm is required to quote from the POFA para 9(2)(f): (a Notice to Keeper must):
‘‘warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given…’’
The NTK has been paraphrased vaguely: ‘if within 28 days…’ and fails to explain which date is the ‘given date'.
2. No evidence that the vehicle was parked at the time stated – no grace period
a) The concept of ‘Parking’ as opposed to a brief stop for one reason or another as part of the normal coming and going of a vehicle, was helpfully defined in a persuasive decision, heard on Appeal in the Oxford County Court in June 2016: B9GF0A9E Jopson v Homeguard, where Senior Circuit Judge Charles Harris QC defined ‘parking’ in detail.
b) Even worse is the fact that Gladstones were the losing Claimant’s solicitors in Jopson, therefore the Claimant’s Solicitors knew, or certainly should have known, the below included in Part B of the International Parking Committee ( the ‘IPC’) Code of Practice (the ‘Code’) (October 2016 version):
‘‘Grace Periods - 15.1: Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.
15.2: Drivers must be allowed a minimum period of 10 minutes to leave a site after a prepaid or permitted period of parking has expired.”
This Claimant’s own photo evidence shows the car in the dark for XXX minutes. I contend that the driver was most likely to have been attempting to discover any parking signs/terms in the dark or attempting to obtain a permit, then left, well within an allowable period of grace.
It is noted that the Code also includes:
‘‘Professionalism 13.1: You agree to ensure that all your operators, servants or agents maintain a professional standard of behaviour when carrying out their duties and comply with the rule of law at all times.
‘‘Predatory Tactics 14.1: You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system …”
Further, at Part E, the ‘core criteria’ for IPC members is set out:
‘‘Part E: With reference to the core criteria, operators will be expected to produce satisfactory evidence of the following key areas:
F - A plan of each site with details of signage locations.
G - An image of each sign type that purports to form the basis of a charge…’’
Part B of the IPC Code further states that:
‘‘2.2 Signs must conform to the requirements as set out in schedule 1 to the Code […] it is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge […] If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.’’
3. Inadequate signage capable of creating a contract/complying with the IPC Code of Practice
a) There is only one sign which can be easily missed as it is attached on the wall of a building. In addition, it might have been easily missed in the dark. Therefore, there was no ‘adequate notice’ as required in the POFA), as the IPC Code in Part E states that: “
“If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.”
b) The text size on the entrance sign is very small and hardly legible from the driver’s seat, assuming the driver even noticed it in the dark. Part E of the IPC Code states that:
“Identify the amount of any charge and explain when it becomes payable …Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign [and be] clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly”.
4. No legitimate interest or landowner authority for this charge
a) The Claimant is neither the lawful occupier of the land, nor its owner.
b) The Agreement between the Landowner and the Claimant authorises the Claimant to operate a parking enforcement service but does not specifically permit to enter into the contract with drivers. Therefore, it is arguable whether the Claimant has authority to offer parking to drivers as such.
c) There is no legitimate interest shown, which could excuse this Claimant in seeking compensation beyond ordinary damages or nominal costs under the tort of trespass. The Claimant tries to rely upon ParkingEye Ltd v Beavis 2015, yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence, since it confirmed that ParkingEye could not have claimed £85 if there had been no clear & prominent signs, and could not have claimed any sum at all under the tort of trespass because they were not in possession.
d) In addition to the original ‘parking charge’ of £100, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported ‘Solicitor’s or 'indemnity' Costs’ which I submit have not actually been incurred by the Claimant. The IPC Code states:
“If your charges amount to damages you should be able to demonstrate how such charges are calculated for each site as a ‘genuine pre-estimate of loss’ in order to be able to justify the amounts.”
e) These costs were never part of any agreed contract and in the POFA, the sum that can be recovered is restricted to the sum on any NTK, not allowing for any 'double recovery'. Furthermore, the added 'legal' cost is an artificially invented figure (carefully avoided in the Beavis case where only £85 was pursued/allowable). This is a cynical attempt to circumvent the Small Claims costs and POFA statutory regulations, which preclude such double recovery.

Coupon-mad

Good, looks fine as anything goes in small claims and it makes the points you want.

I would isolate this point near the top, as a point of its own:

In any event, and without concession, Certificate of Motor Insurance for XXX, Certificate of Motor Insurance for the Defendant together with termination letter of the Defendant’s insurance evidences that the Defendant was not the driver on the date of the alleged breach.