Entered Wrong reg on App. messed up my appeal now.

Jamesrb

Coupon-mad wrote: »

Good, so now you can add to it, and tear apart their template WS/evidence trash, like people have done on defence threads every time they see such a pile of rubbish.

Why not show us the entire evidence pack suitably redacted, have they sent it in electronic form so you can go through and cover your name, address, VRN and PCN number, etc, and show it and the photo 'evidence' to us so we can have a laugh (and also help you)?

Its a long old read but this is their witness statement, copied of notepad so may not look too great, I also have to post in too parts as there is too much text so please also see the post below:


INTRODUCTION
1. I am a Paralegal in the employment of BW Legal Services Limited, Solicitors for the
Claimant, at their office at the address stated above. I have conduct of this action
subject to the supervision of my principal. The matters to which I refer are within my
own knowledge, or based on information provided to me by my client within the
course of my instruction, save where expressly stated to the contrary, and are true to
the best of my knowledge, information and belief. I am duly authorised by the
Claimant to make this statement on its behalf.
2. I make this witness statement in readiness for the hearing listed for xxxxxxx
am and in support of the Claimant's Claim against the Defendant.
3. Within this statement, I make reference to various documents. These are now
produced to me in a paginated bundle marked 'NA01 ' and have been provided to me
by the Claimant to support the claim. Any reference to a page number within this
witness statement is a reference to the pages of exhibit 'NAO 1' unless expressed to
the contrary.
BACKGROUND
4. The Claimant is engaged in providing and managing private parking facilities
nationwide.
5. At all material times, the Claimant has been an Accredited Member of Approved
Trade Associations certified by the Driver and Vehicle Licensing Agency ("DVLA"),
and was awarded Approved Operator Status through its full compliance with their
Code of Practice for Private Enforcement on Private Land and Unregulated Car
Parks. This Code of Practice gives recommendations in regards to the signage
within car parks, and the Claimant follows these recommendations.
6. At the time of the contravention, the Claimant was a member of the British Parking
Association ('BPA').
7. The BPA is an organisation that fulfils the role of an Accredited Trade Association
within the parking industry and to the private parking companies that manage parking
on private land.
8. As the Claimant was an established member of the BPA at the time of the
contravention, it had to adhere to the BPA's Code of Practice for parking on private
land. This Code of Practice gives recommendations in regards to the signage within
car parks. The signs within car parks comply with the recommendations outlined in
the Code of Practice and are therefore deemed reasonable.
SITE DETAILS
9. The Claimant provides, manages and enforces private parking at the land located at
Plymouth - Charles Cross, Plymouth (Car Park). The Claimant's role is to operate
and manage a traffic space management scheme (Scheme) in return for the right to
take receipt of standard car park charges, and a right to raise further charges from
the users of vehicles who infringe the "regulations" which relate to the entitlement to
use the Car Park.
10. Now shown at pages 1-2 is a letter of authority, which sets out, inter alia, the
Claimant's standing and rights to manage and enforce the regulations in situ.
11 . The "reg ulations" referred to above (hereinafter referred to as the Terms and
Conditions) are displayed on large highly prominent signs erected by the Claimant
at various points throughout the Car Park, and in line with the BPA's Code of
Practice.
12. The signs are clearly displayed, and the Defendant would have had the opportunity
to read and understand them when entering and then parking at the Car Park. An
objective observer would consider this action to have been done in acceptance of the
Terms and Conditions.
13. Now shown at pages 3-14 are copies of the signage located within the Car Park.
14. The Terms and Conditions of the Car Park, inter alia, express the following
conditions for any motorist using the Car Park:
"Welcome to Plymouth Charles Cross
Restrictions and charges apply at all times to all vehicles including blue badge
holders.
Please enter the FULL and correct vehicle registration into the payment machine
when paying the tariff.
Parking Charge Notice may be issued to all vehicles which:
Fail to purchase a valid ticket, voucher or permit"
15. The Claimant has a clear and legitimate interest in maintaining the Scheme at the
Car Park on behalf of the landowner. If there were no preventative measures
available from the enforcement of the Terms and Conditions, the situation could
easily arise where a motorist could be deprived from using a parking space at the
Car Park. That motorist would then have to park at an alternative location to their
detriment, which could have a negative effect on the entire operation of the parking
facility, and any businesses it supports.
REASON FOR CAR PARK MANAGEMENT
16. The management of private car parks is commercially necessary for private
landowners, as the landholder needs to manage their land in order to ensure that
their business can run successfully. They have a right to manage their private land
as they see fit, and allow motorists to use this land for parking under certain terms
and conditions.
17. The damages clauses of any terms and conditions are necessary to prevent the
abuse of private land.
18. The terms and conditions of parking on private land are derived by agreements
between the landholder and their contractor or car parking management company,
and it is the obligation of the motorist to comply with these when they park in the car
park.
19. Such terms and conditions are clear and fair to all motorists, in accordance with the
Code of Practice referred to above, and established case law. However, if the
motorist believes them not to be, they always have the option to leave and not enjoy
the benefits offered from using the private car park.
FORMATION OF CONTRACT
20. The signage situated across the Car Park forms a unilateral offer to anyone wishing
to park their vehicle at the location. As the offer is a unilateral one, there is no need
for the motorist to communicate their acceptance; the performance of parking (as
opposed to leaving) in accordance with the Terms and Conditions is the act of
acceptance. The signs are prominent and the Terms and Conditions are clearly
displayed, and the motorist would have had the opportunity to read and understand
them on parking at the Car Park. An objective observer would consider this action to
have been done in acceptance of the Terms and Conditions.
21 . The Claimant has provided their part of the contract by providing a space for the
Defendant to park within. In return, the Defendant is to follow the Terms and
Conditions stipulated by the Car Park.
22. The Claimant places reliance on the judgment in the appeal case - Vehicle Control
Services Limited v Alfred Charles Crutchley [2017]. In this case, His Honour Judge
Wood QC decided that:
"It is incumbent, in my judgment, on a person entering private property, when it is
clear that a contractual licence is being provided, to understand the terms of such a
licence. It would not be onerous or oppressive, although probably inconvenient, for a
visitor to establish those terms and conditions before entering the business park in
the first place, even if this required remaining outside, and entering on foot, when the
contents of the notices in combination, would become apparent"
23. The Defendant, by entering and proceeding to park the Vehicle at the Car Park,
wilfully agreed to abide by the Terms and Conditions, including those terms
applicable to any breach.
24. For the above reasons, the Claimant has a legitimate commercial interest and
sufficient standing to:
24.1 Issue Parking Charge Notices as a result of the Terms and Conditions being
breached; and
24.2 Bring proceedings in its own name.
THE DEFENDANT'S BREACH OF THE TERMS AND CONDITIONS
25. On xxxx 2017 (Contravention Date), it is submitted that the Defendant was the
registered keeper and/or the driver of a vehicle, registered xxxx (Vehicle)
which was observed breaching the Terms and Conditions.
26. On this date, the Defendant failed to purchase a valid Pay & Display ticket (PDT),
which led to the Claimant issuing a Parking Charge Notice (PCN) against the
Defendant. A copy of the PCN is shown at page 15.
27. The Claimant's Parking Attendant (PA) subsequently took photographs of the
Defendant's Vehicle as evidence of the Defendant's breach. The photographs taken
by the PA are now shown at pages 16-19.
28. Following the Defendant's breach above, the PA affixed the PCN to the Vehicle.
29. The PCN contained the following details:
• The PCN Number
• The issued date and time of the PCN
• The Vehicle Registration Number
• The date and time of the contravention
• The reason for issue
30. The PCN expressly stated that the Defendant was liable in the amount of £60.00 if
paid within 14 days of the date of the PCN or £100.00 if paid within 28 days of the
PCN.
31. The PCN also stipulated that in order to contest the PCN, the motorist must write to
the Claimant setting out the reasons, and providing evidence in support.
APPEALS PROCESS
32. The PCN offered the Defendant the ability to appeal within 28 days from its
imposition.
33. On xxxx 2017, (shown at page 16) the Defendant wrote to the Claimant stating
the following:
33.1 That he parked in the Car Park on the Contravention Date;
33.2 That he accepts the reason the PA issued a PCN to him;
33.3 That he paid for parking using a phone payment application ca lled
PayByPhone (App), but he entered a different registration to that of the
Vehicle (entered xxxxx instead of xxxxxx).
34. The Claimant responded to the Defendant's appeal on xxx August 2017 (shown at
page 21-22). Within the Response the Claimant set out the Defendant's requirement
to adhere to the Terms and Conditions; specifically that the full and correct Vehicle
Registration Mark (VRM) of the Vehicle must be entered when making payment to
purchase a ticket.
35. Nevertheless, the Claimant was understanding of the Defendant's position and as a
gesture of goodwill the Claimant discounted the PCN to £20.00, but informed the
Defendant that if this was not accepted within 14 days the PCN charge would revert
to £100.00.
36. The Defendant was also informed that he could appeal the matter further to the
Ombudsman Services, Parking on Private Land Appeals (POPLA).
37. The Defendant failed to take advantage of the Claimant's goodwill gesture and failed
to make payment of the discounted amount of £20.00.
38. I am instructed that the Defendant raised an appeal with POPLA, however after
considering the evidence from both parties the Defendant's appeal with POPLA was
also rejected.
NOTICE TO KEEPER
39. As the PCN remained unpaid and in light of the Defendant failing to contest the PCN,
the Claimant issued a Notice to Keeper (NTK) to the registered keeper of the Vehicle
on 07 August 2017. A copy of the NTK is shown at page 23.
40. As at the Contravention Date, the Claimant would not have known the name of the
driver of the Vehicle, the current address for service of any notices to the driver or
the registered keeper of the Vehicle.
41 . The Claimant, as an approved operator and under its contract with the DVLA,
obtained the Vehicle's registered keeper details from the DVLA. Such information
has been provided in accordance with the Road Vehicles (Registration and
Licensing) Regulations 2002.The DVLA notified the Claimant that the Vehicle was
registered to the Defendant at the address of xxxxxxxx
The court will note that this is the Defendant's current address.
42. The NTK set out the following information:
• The PCN Reference Number
• The issue date and time of the PCN
• Location
• The Vehicle Registration Number
• The date and time of the contravention
• The reason for issue
43. The NTK made it abundantly clear that Defendant was required to pay the sum of
£100.00 in respect of the parking charge. The NTK also set out how the Defendant,
as the registered keeper of the Vehicle, could transfer liability if he was not the driver
of the Vehicle when the breach occurred; the Defendant was required to complete a
form and return it to the Claimant's registered address with either of the following
options:
43.1 That he was keeper of the Vehicle, but the vehicle was leased or hired to
another person, or
43.2 That he was the keeper of the Vehicle, but the vehicle was in the possession
of another person.
44. In either scenario, the Defendant was required to provide the full name and address
and/or any information that would have led to the true identification of the driver
responsible for breaching the Terms and Conditions. The Defendant failed to provide
any such details that would have led to the identity of the driver to the Claimant. In
fact, the Defendant failed to respond to the NTK altogether.
45. Furthermore, the Defendant failed to respond to subsequent correspondence (shown
at pages 24 - 35) from the Claimant's solicitors which left the Claimant no option but
to initiate county court proceedings against him to recover the amount payable under
the PCN, plus any additional costs and interest recoverable by virtue of the Terms
and Conditions.
46. To amplify the point above, the Claimant's solicitors had written to the Defendant on
various occasions prior to commencing proceedings. However, the Defendant has
failed to engage in any pre action dialogue with the Claimant and therefore the
Claimant had no option but to institute legal proceedings against the Defendant.
THE CHARGE
47. The £100.00 charge is regarded as a charge for contravening the Terms and
Conditions.
48. The Claimant has a legitimate interest in charging infringing motorists which
extended beyond the recovery of any loss.
49. The Supreme Court considered that PCN Charges (like this charge) in ParkingEye v
Beavis [2015] EWCA Civ 402 serve a legitimate commercial interest and did not
consider the term imposing a similar charge as unfair. The term does not exclude
any right which the consumer may be said to enjoy under the general law or by
statute. In the leading judgment of Lord Neuberger and Lord Sumpton, it was said
that "Motorists could hardly avoid reading the notice and were under no pressure to
accept its terms." The relevant Car Parking Code of Practice also gives guidance
that £100.00 is a reasonable sum to charge.
50. The Claimant has offered to contract with the motorist, providing a limited
contractual license to the motorist to use the Car Park on the basis of the specified
Terms and Conditions. The Claimant has provided their end of the bargain by
permitting the Defendant's Vehicle to park on private land. Following the
Defendant's breach, the Claimant is simply enforcing the Terms and Conditions in
relation to that breach.
THE DEFENCE
51 . The Defence is premised on the following (in summary):
51.1 The Defendant alleges that no contract was formed;
51 .2 The Defendant alleges that the signage is insufficient;
51 .3 The Defendant explains in detail that he used the App to purchase a ticket;
51.4 The Defendant alleges that the App incorrectly used the registration number
of a previous vehicle that he had also used when purchasing a ticket on a
previous occasion (Previous Vehicle) ;
51 .5 The Defendant alleges that this is a breach of DPA;
51 .6 The Defendant alleges that the Claimant does not have the correct authority
to bring this claim; and
51 .7 The Defendant alleges that the Claim is disproportionate.
THE CLAIMANT'S RESPONSE
Defendant's allegation that no contract was formed
52. Paragraphs 20 - 24 are repeated.
53. The Claimant refers to the signage in the Car Park, and specifically pages 4-6,
which is a screen print of the bottom of the signage in situ at the Car Park. This
clearly states that by parking in the Car Park you are entering into a contract with
the Claimant.
54. In any event, the act of parking in the Car Park, and making payment as alleged is
the Defendant's act of acceptance of the contract.
Defendant's a/legation that the signage is insufficient
55. Paragraphs 12 - 15 are repeated.
56. At the time of the contravention, the Claimant was a member of the British Parking
Association ('BPA'). The BPA is a professional association that represents the entire
parking sector across the UK, representing 710 member organisations in the
parking and traffic management profession. The BPA provide an Approved Operator
Scheme ('AOS') which serves the purpose of an Accredited Trade Association to a
fifth of its membership, the private parking companies that manage parking on
private land.
57. As the Claimant was an established member of the BPA at the time of the
contravention, it had to adhere to the BPA's Code of Practice for Private
Enforcement on Private Land and Unregulated Car Parks. This Code of Practice
gives recommendations in regards to the signage within the Car Park. The signs
within the Site fully comply with the recommendations outlined in the Code of
Practice and are therefore deemed reasonable.
Defendant's explanation that he used the App to purchase a ticket
58. The Claimant does not contend that the Defendant may have used the App to make
payment.
Defendant's allegation that the App incorrectly used the registration number of the previous
Vehicle
59. Paragraphs 12 - 15 are repeated.
60. The Claimant refers to paragraphs 32 - 38 of this witness statement and the
evidence adduced at page 20. In this correspondence to the Claimant, the
Defendant clearly admits that he entered the wrong registration number whilst
making payment using the App.
61. The Claimant has confirmed that the App is available to motorists to pay for their
parking. This is not part of the Claimant's system, and is in independent App
available for motorists to use.
62. Having downloaded the App, motorists can enter their registration number and store
it to the App. This enables it to be easier to pay for future parking sessions. The
motorists can store numerous VRMs on the App. However it was the Defendant's
responsibility to pay for the correct vehicle at the correct site.
63. Now shown at pages 36-43 are screenshots of step by step instructions when using
the App. These instructions show that motorists can amend the details at any time.
The instructions clearly detail how much motorists are paying, which location for,
and which vehicle they are parking.
64. Below are the terms and conditions of the App which needs to be followed by all
users:

Jamesrb

Continued from post above....


C.2.2 Paying for a Transaction:
i. (a) Each time you use the PayByPhone Service at a parking
Facility, the following will be charged to the crediUdebit card
registered on your Account: (i) the parking fee charged by the
Facility Operator, (and any applicable taxes); and (ii) the Service
Charges (unless Service Charge is paid by the Facility Operator as
determined by the Facility Operator); and (iii) any Text Receipt or
Text Reminder fees (as defined under clause C.3.2 and C.3.3
respectively).
(b) Payments shall be made in Pounds Sterling.
(c) Cost of the Transaction shall be notified to you during
the transaction process.
(d) VAT (if appli cable) shall be included in the cost of
Transaction. A breakdown of the VAT collected or charged are on
parking receipts which can be found within your Account section of
the Website.
C.2.3 Completing a Transaction:
C.2.3.1 A Transaction shall only be deemed to be completed on receipt of a
confirmation message which shall be any one of the below ("Confirmation
Message"):
(a) A verbal confirmation if making the Transaction in accordance with
clause C.2.1 (a);
(b) An SMS confirmation text sent within 5 minutes of sending the original
text in accordance with clause C.2.1 (b);
(c) A confirmation screen generated immediately after the Transaction in
accordance with clauses C.2.1 (c), C.2.1 (d) and C.2.1 (e); or
(d) Any other form of confirmation introduced by PayByPhone from time to
time.
C.2.3.2 If you do not receive a Confirmation Message, then the Transaction
may not be complete and you may remain liable to pay for parking to the
Facility Operator. In such circumstances, you should check the IVR, App,
Website (in the "Park Now" section), Mobile Web or Customer Care Centre
and start a new session if you have no live sessions on your Account.
C.2.3.3 Where you have received a confirmation text as described in clause
C.2.3.1 (b) and any details are wrong, you must text "STOP" to the relevant
number within 5 minutes of receipt and start a new transaction.
65. The terms and conditions are clear, if the wrong details had been entered then the
Defendant had the opportunity to cancel the transaction and start a new transaction
in accordance with clause C.2.3.3.
66. It was the Defendant's responsibility to ensure that he checked the text message
which confirmed the details of parking and payment. Had the Defendant done this
he could have re-started his session on the App and avoided a PCN.
67. In any event, the Claimant has endeavoured to work with the Defendant to reach an
amicable solution. As explained the paragraphs 35 the Claimant acknowledged the
Defendant's mistake and offered him a reduced payment in the sum of £20.00, even
though the Defendant was clearly in breach of the terms and conditions.
Defendant's a/legation that a breach of DPA has occurred
68. The Claimant strongly denies that a breach of DPA has occurred.
69. As described in paragraph 63, I am instructed that the registration numbers of
vehicles are saved to the App only with the motorists consent.
70. Now shown at page 44 are further details of the step by step guideline of how to use
the App. This clearly states that the motorist has the choice of what vehicle to
select.
71. It is therefore submitted that no breach of DPA has occurred and the Defendant is
clearly misconceived.
Defendant's a/legation that the Claimant does not have authoritv to bring this claim
72. Paragraphs 9 - 10 are repeated.
73. The evidence shown at pages 1-2 states that the Claimant has authority from the
landowner "to take legal action to recover parking charges where they remain
unpaid".
Defendant a/legation that the claim is disproportionate
7 4. Paragraph 11 - 15 are repeated. The sign age clearly states that a PCN in the sum
of £100.00 would be issued for a breach of the Terms and Conditions.
75. The Claimant is seeking recovery of its debt recovery costs in the sum of £60.00.
The Claimant refers to the bottom of the sign (displaying the Terms and Conditions),
which states "Where parking charges remain unpaid beyond 28 days, recovery
charges in respect of further action may apply". The provision for such costs was
also detailed in the NTK, such that they would be levied if payment of the PCN was
not made and/or if debt recovery action or court proceedings became necessary.
76. The above term forms part of the Terms and Conditions, which were agreed by the
Defendant by parking in the Car Park. It is the Claimant's position that the £60.00 is
recoverable from the Defendant. Had the Defendant paid the PCN, within the 28 day
period, then the Claimant's need to instruct solicitors (incurring expense) to recover
the PCN charge would have been avoided.
77. Under the BPA Code of Practice, Part B, Section 23 - Recovering unpaid parking
charges states, "Where a Parking Charge becomes overdue and before Court
Proceedings have commenced, a reasonable sum (which covers the cost of
recovering debt) may be added for the debt recovery fees. This sum must not
exceed £70 unless prior approval from the BPA has been granted."
78. The additional £60.00 levied by the Claimant in relation to its debt recovery costs
falls within the scope of the above provision and is therefore considerer reasonable,
and in any event, recoverable from the Defendant.
79. Without prejudice to the paragraph above, the Claimant relies on the Court of Appeal
ruling in Chap/air Limited v Kumari [2015] EWCA Civ 798 which states "that does not
alter the fact that it remains a contractual entitlement which the court will enforce
subject to its equitable power to disallow unreasonable expenses. There is nothing in
the rule making powers in respect of the CPR which enable the rules to exclude or
override that contractual entitlement and I therefore agree with Arden LJ that the
judge had jurisdiction to assess the costs free from any restraints imposed by CPR
27.14."
80. From a mitigation point, the Defendant had an initial period of 14 days from the date
of the PCN to pay the sum of £60.00, failing which the charge would revert to the
original amount of £100.00. Given that the Defendant failed to exploit the opportunity
to pay a reduced amount, the Claimant is well within their rights to pursue the
Defendant for the full amount of the PCN including its debt recovery costs and the
costs of these proceedings.
81. The Defendant's unwillingness to pay the outstanding sum has led to proceedings
being issued and a final hearing being necessary.
82. The Claimant submits that it's claim is wholly reasonable and proportionate.
GENERAL SUBMISSIONS ON THE DEFENCE
83. By virtue of the Defendant failing to deal with certain points in the Defence, it is
stated that:
83.1 The Defendant does not deny being the registered keeper of the Vehicle;
83.2 The Defendant does not deny being the driver of the Vehicle on the
Contravention Date;
83.3 The Defendant does not deny parking his Vehicle at the Car Park on the
Contravention Date;
83.4 The Defendant does not deny the fact that a valid ticket was not purchased
on the Contravention Date;
83.5 The Defendant does not deny ignoring the Claimant's letters and attempts to
contact him.
84. The Defendant's unwillingness to pay the outstanding sum has led to proceedings
being issued and a final hearing being necessary.
CONCLUSION
85. It is submitted that the defence is entirely without its merit.
86. The Claimant therefore requests that the Court grants the Claimant Judgment for the
principal balance of £160.00 plus the Claimant's costs to date.
STATEMENT OF TRUTH
I believe the facts in this statement are true.
SIGNED ... ...... ~ ..... .. . ... .
xxxx
Dated xxxx 2019

KeithP

You haven't shown us any pictures from their WS.
Check them carefully.
We have even seen a tariff sign from a car park over a hundred miles away before now.

Jamesrb

KeithP wrote: »

You haven't shown us any pictures from their WS.
Check them carefully.
We have even seen a tariff sign from a car park over a hundred miles away before now.

Not sure how to upload images. is there a specific way of doing it. I have to work off a works computer so cant access many external sites like photobucket to create them. I'll have a try in the meantime. Although if my main defence is the app storing my old data should I just leave the signage out of it?

MothballsWallet

Can you try somewhere like tinypic, postimage?

Are they blocked by your works IT department?

KeithP

Jamesrb wrote: »

Not sure how to upload images. is there a specific way of doing it. I have to work off a works computer so cant access many external sites like photobucket to create them. I'll have a try in the meantime.

I wasn't suggesting you up load the pics, although you can if you want, just saying to check them carefully.

Jamesrb wrote: »

Although if my main defence is the app storing my old data should I just leave the signage out of it?

Signs form the basis of any contract. Why would you want to leave them out?

Jamesrb

KeithP wrote: »

I wasn't suggesting you up load the pics, although you can if you want, just saying to check them carefully.



Signs form the basis of any contract. Why would you want to leave them out?

Yeah, hadn't really thought too much about that. To be fair, the writing on the signs in the Terms and conditions is very very small. The £100 penalty bit is written large but hard to read anything in the small print. I will include them as well then.


I need to have another go at re-writing my witness statement. Anyone who read the original one, was it miles off the mark or not too bad? any help welcomed and im very grateful to all who have helped so far.

Coupon-mad

Please, please show us their evidence pics, the signage photos and the landowner authority etc. - hosted by Dropbox which you should be able to access on any PC.

You MUST talk about signage. It is the foundation of the matter!

So please, show us their 'evidence'. Your WS needs to tear into their evidence.

Jamesrb

Coupon-mad wrote: »

Please, please show us their evidence pics, the signage photos and the landowner authority and any other crap they included - hosted by Dropbox which you should be able to access on any PC.

You MUST talk about signage. It is the foundation of the matter!

Show us what they sent you, as you seem to be in a panic and, by contrast, we are laughing at their usual template WS and wondering what it is that's worried you so much. This is all normal rubbish from them.

So please, show us their 'evidence'.

Your WS needs to tear into their evidence!

All the sites are blocked by my company, I am in the process of trying to download the app and will attempt to do it on my mobile and then post the link on here. Unless by any chance you have a generic email address you could DM me that I could email them to?
Will try get them loaded up in the meantime.

Coupon-mad

Send me a pm.