HELP NEEDED! Received County Court Claim Mail Sent to Wrong Address

JM0809198

Thanks for the information!

I email dvla last night so I will await their reply.

I also called the court and they stated I can hand my WS and evidence on Tuesday due to the bank holidays, although I'm not sure it's worth the risk. They also stated that I will have to send my WS and evidence by post to the Claimant but I'm assuming they don't know I have the claimants email address.

I will post my Witness statement sometime tonight as I'm currently at work.

nosferatu1001

If the claimant has served you documents by email, its reaosnable to reply by the same method to serve yours
Technically you shoudl call to confirm first.

JM0809198

Witness Statement

In the matter of

UK Car Parking Management (Claimant)
v
******** (defendant)

Claim no:

Witness statement of Mr *******, defendant

I am the Defendant in this matter, 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.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

Exhibits to this witness statement

Exhibited to this witness statement are the following documents which the defendant intends to rely upon;
• Images of the car park signage
• Images of the worn out bay markings which the claimant intends to use as a means of breach
• The site plan
• DRP debt recovery letters
• LBC

1. Whilst I am the Registered Keeper of the vehicle in question, there is no evidence of the driver and due to the amount of time that has passed it is impossible to expect a keeper to recall who might have been driving.

2. I cannot affirm being the driver at the time of the supposed event, and therefore put the claimant to strict proof that any contract can exist between the claimant and myself.

A compliant Notice to Keeper was never served - no Keeper Liability can apply.

3. The claimant has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 of POFA and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
(1) 'The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'

The NTK should have been delivered to the registered keeper's address within the 'relevant period' which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to ignore the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

The first letter that I received is found in exhibit X.

Bay markings unclear throughout car park

4. 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.

Considering the state of bay markings in the car park in question it is unfair to accuse residents or their respective visitors under the terms suggested on the signage on site. The bay markings are far too sparse, worn and faded out to impose a charge for a breach of contract for not parking wholly within a bay. This puts the driver to a clear disadvantage which is further aggravated when parking at night.

5. Furthermore In Parking Eye v Beavis 4th November 2015 UKSC 2015/0116, in paragraph 310 Loud Toulson states “There may be reasons why a user parks with his wheels outside the marked bay (for example because of the way the adjacent vehicle is parked or because he is a wheelchair user and none of the blue bays are available). Examples could be multiplied. The point is that the penalty clause makes no allowance for circumstances, allows no period of grace and provides no room for adjustment”. This correlates to this case as the claimant has given no leeway to those who may be compelled to parking slightly out of bay lines.

Signage not clear as suggested by the claimant

6. The claimant suggests that the signage is sufficient and relies upon their site plan as evidence of this. I rebuke this and note that the site plan provided is not accurate as can be seen in the photograph of the bay in which my car is parked; it does not have a sign directly in front of it as suggested by the claimant’s site plan. In addition, the site plan produced by the claimant has less than half the amount of signs they have attempted to portray which is cause for concern.

7. The claimant also states that the vehicle’s headlights would have been directly on the sign and in his/her line of sight as the driver parked upon the relevant land and therefore doesn’t believe lighting is an issue. I take to task and reject the claimant’s statement based upon the information made in my previous point and further illustrated by the photograph I have taken of the bay; clearly demonstrating that the bay has no sign directly in front of it or adjacent to it.

7. UK Car Park Management Ltd had only recently placed their signage on the wall creating new terms and conditions for motorists. The IPC Code of Practice states that;

“Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.”

There are no signs In line with the drivers view upon entrance into the site and the claimant has provided no proof of any additional signage. This is relevant when considering the charge was made on the same day that the enforcement of charges began.

8. I contacted the claimant on two occasions requesting that they provide me with the documentation relating to the alleged charge and was told that it would be sent out to me, this failed to materialise as I received nothing of the sort.

STATEMENT OF TRUTH
I confirm that the above facts and statements are true to the best of my knowledge and recollection.
Mr XXXX XXXXX

Please could you provide me with some much needed expertise, I'm not sure if my witness statement is completely relevant in all honesty.

Coupon-mad

Please could you provide me with some much needed expertise, I'm not sure if my witness statement is completely relevant in all honesty.

Looks good so far. You need to add evidence numbers (e.g. your initials and a number, so it might say after you talk about your photo evidence: 'see photo of bay, JM1').

You need to attack their WS, line/numbered paragraph at a time, so I would be saying that:

The Defendant will require that the Claimant's Witness must explain why they signed a statement of truth where in fact:

(a) that person has never been to the car park, let alone can be able to act as a witness about signage there, especially given:

(b) a false aerial view mock-up map was enclosed, with misleading yellow paint splashes that bear no relation at all to the true picture of the number or placement of sparse signs, and

(c) at paragraph 19 the witness has referred to that false instrument (alleged aerial map) and put it into evidence, to suggest that headlights would pick out a sign in front of the car that simply does not exist on the building, and

(d) you wish to question the witness as to where the sign on the low wall actually was (if it existed at all) on the material date, because there is no low wall adjacent to the car in their own photos.



I thought enforcement started on 1st December, and the parking event was on 31st?

5. Furthermore In Parking Eye v Beavis 4th November 2015 UKSC 2015/0116, in paragraph 310 Loud Toulson states

Don't think he was that loud, certainly his voice of reason wasn't heard!

What evidence are you going to show, to argue primacy of contract as a resident/visitor? Proof of tenancy/lease terms?

I didn't see anything mentioning that the sign allows parking in an 'area' (like I said earlier), and I couldn't easily find where you talk about the very very faded bay lines, invisible if the driver parked in hours of darkness?

JM0809198

Thanks CM!

Lol Lord*, apologies I'm extremely exhausted so I'm not up to scratch, coupled with the fact I have type 1 Diabetes! hopefully its all worth it in the end.

I was going to include photos of the entrance (signage is way to high up for the driver to pay any attention to it), photos of the bay in question and the poorly marked out bays. The tenancy agreement doesn't mention anything that I can really use to my advantage unfortunately.

The witness also claimed their signage is compliant with IPC, is this correct?

Just a question on the point you made about the 'area' CM, if I were to argue this would they simply imply that the term to park wholly within a bay overrides this?

The sign they are making reference to is the one that the car allegedly faces prior to turning into the bay.

Thanks CM.

Coupon-mad

The tenancy agreement doesn't mention anything that I can really use to my advantage unfortunately.

Wrong, if it gives you a right to park, or mentions a bay, or the flat was advertised with free parking.

Just a question on the point you made about the 'area' CM, if I were to argue this would they simply imply that the term to park wholly within a bay overrides this?

The rep will try that but the legal position with consumer terms is that the burden rests with the trader who drafted the sign, and any ambiguity MUST be interpreted in the way that MOST favours a consumer. To say 'bay or area' then provide an area they never bothered to repaint, is something I would argue is ambiguous at best, and certainly a parking 'area'.

If the Claimant wanted to rely on bay markings (as opposed to an 'area' in the alternative as offered by the sign) they should have marked them so they could be seen clearly, particularly in a small tree-edged, shadowy car park with no close by ambient lighting that would have shown up/lit up those sparse scratches of old faded hints at lines.

You would NEVER see those lines in darkness. Say that. Prove it with your pictures in darkness.

Google the doctrine of contra proferentem and also search this forum for those keywords, and copy how people have used it in their own WS.

[Deleted User]

I think the witness statement could be improved with a bit more 1st person evidence and to actually give evidence, not just make argument.

I'm not saying to exclude what you want to say, but some of your points will be punchier with direct evidence of fact, thus:

On [date] in my capacity as keeper of vehicle xxxx I received a notice to keeper.

For the purposes of defending this claim I visited the car park in question on [date] and took the photographs exhibited to this witness statement as [initials]1.

As can be seen from the photographs the signage is well above normal head height. Indeed, I do not believe any driver would see them upon entry to the car park.

I walked on to the site to take photographs of the bays. None of the bays are clearly marked - the tarmac is worn and [ the lines were barely visible/not visible/there are no bays] [even standing over them, let alone for any driver seeking just to park next to an adjacent vehicle.] The impression I formed was that the site was poorly maintained.

System

The rep will try that but the legal position with consumer terms

Are tenants "consumers"? Is this not property law rather than consumer law?

They are contracts in the same way as employment is a contract but what about the appropriate legislation?

Castle

IamEmanresu wrote: »

Are tenants "consumers"? Is this not property law rather than consumer law?

They are contracts in the same way as employment is a contract but what about the appropriate legislation?

The view on Google is that the CRA2015; (part2-unfair terms etc), applies to tenancy agreements:-
https://www.mwsolicitors.co.uk/news/litigation-dispute-news/545-the-dangers-of-continuing-to-use-old-tenancy-agreements

System

@Castle Thanks for the link

Back to the question though

At the time of the alleged breach I wasn't a tenant

This was a visitor so whether he was a consumer or there by invite would IMHO be the issue to decide for the applicable law.

Can understand P&D or a "free" car park but residential .....