Witness Statement

Coupon-mad

Yep. You got it.

Claretmad was nervous as Heck, and won this week, like almost everyone does!

Soddingtypical

So, the hearing is in a week. I've received their witness statement - a day late!

There are several mistakes in it, including giving details of car park ownership for the wrong car park - the actual certificate in evidence is for the correct one
Also, they've got the date right sometimes and wrong elsewhere. So clearly a cut and paste job!

Anyway, a few questions if anyone would be good enough to answer. I'm just putting together my skeleton defence.
They have stated that my POFA isn't applicable defence in invalid because they're not relying on it. "The Claim is not reliant upon POFA and so that act is irrelevant". How do I argue against that?

Also, they're using all the examples that were anticipated and that I included in my original defence. Do I just copy and paste what I wrote there in rebuttal or should I abbreviate it? Or just refer to the original defence.

Thank you! All help VERY much appreciated.

Soddingtypical

Also, is there anything new I need to say about Elliot v Loake or CPS v AJH Films? Has anything major happened in any recent court cases?

Soddingtypical

Can anyone help?

Coupon-mad

Soddingtypical wrote: »

They have stated that my POFA isn't applicable defence in invalid because they're not relying on it. "The Claim is not reliant upon POFA and so that act is irrelevant". How do I argue against that?

Put in with your skeleton, some case transcripts, to show their argument about the POFA being irrelevant is b@ll'cks and has everything to do with your defence as keeper (no POFA = no keeper liability possible):

http://www.parking-prankster.com/more-case-law.html

Excel v Lamoureux and VCS v Quayle would be my choice. And file Henry Greenslade's words about 'understanding keeper liability' from the POPLA Annual Report 2015.

anything new I need to say about Elliot v Loake or CPS v AJH Films? Has anything major happened in any recent court cases?

Yes, CPS v AJH Films was thrown out as irrelevant in an Appeal case (i.e. higher than County court first hearing/small claims level). No transcript but this Blog explains the Appeal outcome, which being an Excel case, they can hardly deny it happened as reported:

http://parking-prankster.blogspot.co.uk/2017/06/motorist-wins-appeal-cps-vs-ajh-films.html

You could also throw in this blog (no transcript):

http://parking-prankster.blogspot.co.uk/2017/06/excel-lose-in-cardiff-judge-explains.html

''Judge explains why Elliott v Loake and CPS v AJH films not relevant''
Excel Parking Services Ltd v Mrs. Lynzi Evans
Judge: DJ McKay
Claim no: C8DP79CC in the Cardiff Civil Justice Centre.

I realise I am repeating myself but don't forget to also file:

...the FOI from the DVLA (Google it) which says why some parking firms, including Excel, were banned for 3 months in early 2012 (pre-POFA), as it states clearly that Excel were banned for signs or statements alleging that a keeper has a legal responsibility to name the driver (same as they are trying to say now, years later), and they were also picked up for stating that a keeper could be liable, when pre-POFA, they simply could not. It's a useful FOI as it sets out the DVLA's reasons for banning Excel, for a 'serious breach' of the BPA CoP at the time, pre-POFA.

It is disingenuous (in fact questionably fraudulent) for Excel to now try to re-run that DVLA-banned argument that you are at fault or have 'failed' to name the driver and that you can somehow be held liable, when you simply cannot.

Soddingtypical

That's great Coupon-Mad. Thank you. Does it matter that they have stated the wrong car park in the witness statement? Or that I received it only 13 days before the hearing?

Soddingtypical

Any chance someone could look over my skeleton argument? I've focused on two main areas as I'm short of time and need to get it sent and honestly believe there can't be any argument against them (fingers crossed!)
I've put a few digs at Excel in there. Please can you let me know if they're appropriate?
All help, as always, very much appreciated,

A valid PDT ticket was purchased

1. Please refer to the claimant’s evidence File A, Visual C (Defendant’s evidence A), which shows that the signage clearly states that a £1 ticket entitles the driver to 2 hours parking. Please also refer to the claimant’s evidence page 10 (Defendant’s evidence which shows the PDT log which states that a ticket was purchased at 17.01 and inexplicably expired at 17.59 - 58 minutes later.

2. The driver left the car park at 18:58 as stated in the Claimant’s witness statement (paragraph 42), 1 hr 57 minutes after arriving and within the two hours paid for.

3. The log (evidence also shows that 4 other vehicles were also in the same position with one vehicle (WDO4 ***) purchasing a ticket for £1.50 two minutes earlier. The driver of that vehicle would not have paid an extra 50p if they knew the ticket would expire at 17.59. One can only assume that they were under the impression that they were purchasing a 3 hour ticket, as indicated by the signage and this, therefore, further reinforces the misleading nature of the signage and raises the question of whether this is a tactic used by Excel to issue unwarranted tickets.

4. It was not made clear either on the signage or the ticket itself that the ticket would inexplicably expire early.

The driver was not the defendant

5. The claimant has no right to pursue the claimant for this alleged contravention. The alleged contravention occurred prior to the enactment of POFA (2012) and therefore can only pursue the driver and not the registered keeper, of which no evidence has been submitted.

6. The claimant claims they are not reliant on POFA (2012) but there is no other legislation that can be used in this instance. Please refer to the transcript of Excel vs Lamoureux (17.11.2016) which states that POFA must be used but is irrelevant in this case (Evidence C)

7. Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (Evidence D - POPLA report 2015 page 12).

8. The Claimant cannot claim that the keeper is liable for charges and was sanctioned by the DVLA for doing so in 2012. Please refer to the FOI request from Mr F Thorn (Evidence E) that states that the DVLA sanctioned Excel because :

a. “ DVLA received a number of complaints where members of the British Parking Association’s (BPA) Approved Operator Scheme (AOS) were allegedly stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was. This behaviour is a significant breach of the AOS Code of Practice.”

9. The claimant wishes to rely on Eliott vs Loake. This case irrelevant as it was a criminal case and relied on forensic evidence.

10. Please refer to recent cases where the judge ruled Elliott vs Loake not relevant or applicable.
a. Excel v Mrs E: C8DP79CC Cardiff 22/06/2017 (Evidence F – Observer’s report from Parking Prankster blog)
b. Excel v Mr C C8DP37F1 Stockport 31/10/2016
c. Excel v Mr B C7DP8F83 at Sheffield 14/12/2016

2. The claimant wishes to rely on CPS vs AJH Films. This case too is not relevant as this case does not show that liability can be passed from driver to keeper

3. Please refer to recent cases where the judge ruled CPS vs AJH Films was not applicable or relevant.
a. Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062 (Evidence G- Observer’s report from Parking Prankster blog)

Coupon-mad

The driver was not the defendant

I would switch that around = the defendant was not the driver.

And as it was Excel in 2011, I would also throw in and include as evidence:

- Excel v Cutts
- Martin Cutts' article 'Dodgy signs and phoney fines take drivers for a ride' (written in 2011)

http://www.parking-prankster.com/case-law.html

http://s3-eu-west-1.amazonaws.com/plcdev/files/130/original/DVLA-BPA-23May2012AsPub.pdf

...because whether or not this event was at the Peel Centre, or not (doesn't matter), Excel's signage was all the same (and still is) = wordy blue & yellow unreadable twaddle, with the tariffs in the largest font compared with the 'parking charge' buried in unintelligible and crowded small print, with no 'white space' to draw the onerous charge to anyone's attention.

So Martin Cutts' Plain Language Commission article is spot on.

Also, look at any evidence adduced by BW Legal & compare it to Google Streetview:

http://parking-prankster.blogspot.co.uk/2016/12/bw-legal-misleading-motorists-over-peel.html

Just to add, read through Matthew87's winning WS and evidence he linked, in his OneDrive:

https://forums.moneysavingexpert.com/discussion/5573407

And here's one I wrote for claretmad62, who won his case the other week:

https://forums.moneysavingexpert.com/discussion/comment/72047642#Comment_72047642

HTH

Soddingtypical

Right so all documentation has been sent and acknowledged by the court. I've done a schedule of costs. Do I send that ahead or just take it with me? I think I ready somewhere that you can only claim for three hours work on the case. Is that true? I must have spent around 50!
Thanks again!

Coupon-mad

You would be lucky to even get any hours @£19 allowed, it's rare.

You must file your costs schedule beforehand, with the court, and with the other side by email. And take everything with you including proof of your daily wage/annual leave taken.