County court claim..defence?

KeithP

Inapickle01 wrote: »

I!!!8217;ve just tried to upload a photo via tiny pic. I have the web address but I am unable to post here as I am new.
I changed the h t t p to h x x p and it still won!!!8217;t allow me to post.
It would be great if you could see the pic. Especially the ones of the way they have squished the signs.

What's needed is a little bit of initiative.

I just used the forum search facility and searched for tinypic.

Within the first dozen or so posts returned I found this one, posted just last Wednesday:

forums.moneysavingexpert.com/showpost.php?p=74401755&postcount=11

Does that help you at all?

Coupon-mad

Don't refer to 'excessive charges' in a heading, makes it open to the Claimant to refer to the Supreme Court decision in ParkingEye v Beavis, and kill any such argument.

Don't have 'the Defendant this, the Defendant that'. Your WS should be your story of what happened, so ''I''. And remove the swathes of quotes from things like the Consumer Rights Act...that isn't the sort of thing to have in a WS.

And it needs evidence, such as photos and case transcripts that support your case.

6 (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; or
(b) has given a notice to keeper in accordance with paragraph 9.

This only allows the Claimant to pursue the registered keeper for parking charges where they serve a Notice to Driver AND Notice to Keeper.

The above in blue is not true; under para 9 there is no NTD.

What are these PCNs even about? Overstay? No permit? Where, retail park?

Was there a NTD, or just a postal PCN (NTK)? Was the NTK on EACH and EVERY case received by day 14 and was it worded so as to hold the keeper liable every time?

Inapickle01

Thank you Keith. I will do that when I get home.

Thank you coupon, will amend and repost.

It is a supermarket car park that is next to a hospital. A small section of the car park is leased to the hospital which is controlled by ECP and not Horizon (will attach map).
6 PCNs
1 - no ticket displayed
1 - ticket expired
4 - no permit.
Within the ECP controlled area there is 1 row that belongs to the supermarket. It does say permit holders but it doesn't say whether it is permits for ECP or supermarket.

Each ticket has, copy of the PCN that was on the window, a reminder notice and photographs of the vehicle. It states that if I was not the keeper/driver at the time they ask to inform them of their details.

I was hoping my partner could speak on my behalf, easier at things like this than I am. Does the lay rep document go with the bundle or on the day? I have read mixed answers.
Thank you

Inapickle01

http://i63.tinypic.com/bgww93.jpg

Inapickle01

Brilliant. That worked.

I'll upload them now. These are all my photos except the maps which are the claimants. I have taken more than one photo of the signs - I'll post one of each example here. They are all included in my WS. I can upload them all if you require?

The above link ( http://i63.tinypic.com/bgww93.jpg ) is the birds eye view of the whole car park.

http://i63.tinypic.com/k3t2ww.jpg - closer view of the top area covered by ECP

http://i64.tinypic.com/20qezxx.jpg - permit sign

http://i64.tinypic.com/2ppihb8.jpg - entrance sign photo. There are two entrances, both signs are the same as this and I have included both in my WS. Claimant has not included any entrance signs.

http://i66.tinypic.com/300rv4y.jpg - close view of the sign. I had to take this holding my phone up at an angle

http://i67.tinypic.com/23k3f9l.jpg - sign

http://i65.tinypic.com/15ceuye.jpg - sign

http://i66.tinypic.com/ehc9lh.jpg - claimants version of the same sign

Coupon-mad

Does the lay rep document go with the bundle or on the day?

You just take a copy of the Lay Reps Right of Audience Order, on the day:

http://www.legislation.gov.uk/uksi/1999/1225/made

Tell the court clerk you are there as a lay rep, and say ''no'' if they assume McKenzie friend (the latter cannot speak for the Defendant, whereas a lay rep has that right, as long as the D is also there with them).

Inapickle01

I (name) of (address) WILL SAY AS FOLLOWS:


It is acknowledged that I, (name) was the registered keeper of the vehicle. 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.

The claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons and this is my Witness Statement in support of my defence as already filed.

Presumption of the Registered Keeper as the Driver

1. It is admitted that I was the authorised registered keeper of the vehicle in question at the time of the alleged incident. I was not the driver of the vehicle so have no knowledge of the events, or signage terms on the date in
question and the Claimant did not identify the driver.

2. The Claimant states that they are pursuing me as the driver. They presume I am the driver because I was the registered keeper of the vehicle.

i. As quoted on pages 12 & 13 in the POPLA annual report 2015 by PATAS and POPLA Lead Adjudicator and Barrister Henry Michael Greenslade;
Exhibit 1 !!!8211; page 14.



!!!8220;Keeper Liability
The person who may be liable for a charge arising out of the presence of a vehicle on private land is the person who last caused the vehicle to be at rest in that position, that is the !!!8216;driver!!!8217;.
There is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper is the driver.!!!8221;

3. Protection of Freedoms Act 2012, Schedule 4, Paragraph 6, Exhibit 2 !!!8211; page 15, states;
6 (1) The second condition is that the creditor (or a person acting for or on behalf of the creditor)!!!8212;
(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b) has given a notice to keeper in accordance with paragraph 9.


Signage and Contracts

4. The signs are unclear and unreadable from inside a vehicle. They are also placed too high to be able to read the small print. The parking charge is hidden within the small print, it is not a clear and prominent charge.

i. The claimant has provided photographic evidence of the signage in their bundle on pages 12, 13, 14 & 15. These photographs have been resized which gives false illusions.
Exhibit!!!8217;s 3-13 - pages 16-26 are full, unsized versions of the signage.

ii. No prominent signage is displayed at the entrance of the area.
Please see Exhibit!!!8217;s 3 & 4 - pages 16 & 17.

iii. Although there are numerous signs present they are mounted too high and are difficult to read from a vehicle or standing height due to their height and text size.
Exhibit 5 - page 18 is a photograph of a sign taken from sitting in the driver!!!8217;s seat.
Exhibit 6 - page 19 is a photograph of a sign taken after exiting the vehicle.

iv. The claimant relies on the case of Parking Eye -v- Beavis [2015] stating it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign and accepted by the driver!!!8217;s actions as prescribed therein.
I argue that;
A. Parking Eye and Horizon have very different signage.
Exhibit 14 - page 27 is a copy of the sign Parking Eye submitted to the Supreme Court regarding the Beavis case.
Part E, Schedule 1 of the Code of Practise of the Independent Parking Committee, Exhibit 18 !!!8211; pages 31-33, clearly states that;
!!!8220;Text should be of such a size and in a font that can easily be read by a motorist having regard to the likely position of the motorist in relation to the sign.!!!8221;
I have included three more Parking Eye signs from various sites, Exhibit 15 - page 28, for comparison.

B. As outlined in points 4.i-4.iii clear signage was not displayed for any driver to view and agree to and therefore a contract has not been formed.

v. The claimant states that in the unlikely event that I did not see the signs I ought to have done so. The Claimant uses the case Vine v London Borough of Waltham Forrest 2000 to assert that once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice.
I argue that;
A. I have not been established as the driver, so it is irrelevant whether the Claimant feels I have seen the signs or not.
B. I have demonstrated in points i-v that sufficient and adequate warning notices were not in place. Therefore, the observation that Lord Justice Roch made in the case of Vine v London Borough of Waltham Forrest 2000 supports my case that the driver may not have seen the signage.
As the Claimant has not displayed clear signage no contract can be formed with the driver of the vehicle.
5. In relation to charges; xx xx xx & xx the Claimant has stated that their signs have made it clear that a valid permit must be displayed. As shown in Exhibit 17 !!!8211; page 30 this area is predominantly controlled by Euro Car Parks who also issue permits.
I argue that the signage is ambiguous and does not clarify whether it is a permit bay for the land controlled by Horizon or the land controlled by Euro Car Parks.
This sign can be seen in Exhibit 13 - page 26.

6. Page 17 of the claimant!!!8217;s bundle is a birds-eye view of the whole car park. Exhibits 16 !!!8211; page 29.
Page 18 is a clearer birds-eye view of the car park indicating the section that is not controlled by Horizon themselves but is controlled by Euro Car Parks.
Exhibits 17 !!!8211; page 30.
I argue that the Claimant has not provided any evidence of where, specifically, in the car park the vehicle was parked at the times of the alleged incidents.

Charges

7. The Claimant states that as I have not paid the charge within 28 days I have breached the contract. They state that the breach of contract entitles the innocent party to damages in addition to the charges.

I argue that;
i. I have no contract with the Claimant as I was not the driver.
ii. I have shown how no contract could have been formed with the driver due to inadequate and improper signage.
iii. As no contract has been breached the Claimant cannot be due damages for breaching a contract.

8. It does not state on any sign, PCN or Reminder Notice that the charge will increase to £120. It is suggested that this is nothing but a means of artificially inflating the value of the claim.

9. The Claimant argues that the charge sought is in line with the British Parking Association!!!8217;s Code of Practise who prescribe a maximum charge of £100.
Exhibit 19 !!!8211; page 33, point 19.5
The Claimant then states that the company!!!8217;s charges are within this level and are therefore not excessive.
I argue that;
i. The charge sought here is £120 per invoice which is higher than the BPA prescription.
ii. The charge of £120 per invoice is excessive and has not been ruled otherwise in any case including Parking Eye -v- Beavis 2015 and therefore should not be allowed.



Statement of Truth



In regards to "excessive charges" would I be better completely removing point 9ii?

I have included sections of relevant documents.
For example; BPA Code of Practise. The whole document is 46 pages long. Would I enter the whole document as my exhibit and specify the page/point or just the section I am referring to? At present I have included just the extract I am referring to.

Thank you

Inapickle01

I have switched off smart punctuation I don't know why it's still doing that. I apologise

Inapickle01

Re reading it I noticed I left out a vital part. I only individually argued 4/6 tickets.
I merged point 5&6 together and have come up with the below;

5. Page 17 of the claimant!!!8217;s bundle is a birds-eye view of the whole car park. Exhibits 16 !!!8211; page 29.
Page 18 is a clearer birds-eye view of the car park indicating the section that is not controlled by Horizon themselves but is controlled by Euro Car Parks.
Exhibits 17 !!!8211; page 30.
i. In relation to charge; xx the Claimant doesn!!!8217;t dispute the fact the driver may have paid for parking.
I argue that the Claimant has not provided clear evidence of the ticket displayed in the window of the vehicle nor have they provided clear evidence of where, specifically, in the car park the vehicle was parked at the time of the alleged incident.
ii. In relation to charge; xx the Claimant doesn!!!8217;t dispute the fact the driver may have paid for parking.
I argue that the Claimant has not provided clear evidence of where specifically, in the car park the vehicle was parked at the times of the alleged incidents.
iii. In relation to charges; xx xx xx & xx the Claimant has stated that their signs have made it clear that a valid permit must be displayed. As shown in Exhibit 17 !!!8211; page 30 this area is predominantly controlled by Euro Car Parks who also issue permits.
I argue that the signage in Exhibit 13 - page 26 is ambiguous and does not clarify whether it is a permit bay for the land controlled by Horizon or the land controlled by Euro Car Parks.
The Claimant has not provided any evidence of where, specifically, in the car park the vehicle was parked at the times of the alleged incidents.



Is it best to convert to PDF emailing the court and claimant solicitor AND post recorded delivery. Or just post recorded?

Coupon-mad

You can't expect the court to print stuff.

Take a file in person, with a contents page, your WS, your defence, then ordered, numbered evidence printed out, all in a nice ring binder. How often do we have to type this, you want the Judge to have in his/her hands an easy to follow defence file, all paginated and organised like a little book of info.

As for the Claimant/solicitor, email theirs in several emails, let them lump it.

No 'signed for' post, please.