County court letter assistance

Logblahar

Great. Thank you.

Logblahar

Should I leave points 19-43 in my witness statement as they are from the claimants particulars of claim.

Coupon-mad

You can leave most of it in, but there is repetition to weed out.

Also the quotes from the Judge in Ian Lamoureux' Excel case need to be in speech marks.

And your debunking of the law of agency in #30 could be supported by transcripts of VCS v Quayle and also Excel v Smith (on appeal) which are both on the second page of the Parking Prankster's case law.

Logblahar

Much appreciation on the advice. Thank you. I will get on with that.

Logblahar

So this is where I am at with my witness statement. Any further advice is welcomed. Thanks

I intend to index my court bundle as follows:
1 DEFENCE
2 WITNESS STATEMENT OF [MY NAME]
3 EXHIBIT RAW1 CCTV EVIDENCE PHOTOS & MOD TIMESHEET
4 EXHIBIT RAW2 Initial Letter from BW LEGAL (Notice of Pending Court Claim)
5 EXHIBIT RAW3 POPLA ANNUAL REPORT 2015
6 EXHIBIT RAW4 - PROTECTION of FREEDOMS ACT 2012, SCHEDULE 4
7 EXHIBIT RAW5 EXCEL PARKING SERVICES LTD VS MR B -C7DP8F83 [14/12/2016]
8 EXHIBIT RAW6 EXCEL PARKING SERVICES LTD VS MR C -C8DP37F1 [31/10/2016]
9 EXHIBIT RAW7- ELLIOTT V LOAKE 1983] Crim LR 36, Co/589/82
10 EXHIBIT RAW8 EXCEL PARKING SERVICES LTD VS MR L -C3DP56Q5 [17/11/2016]
11 EXHIBIT RAW9-PHONEY FINES AND DODGY SIGNS (MARTIN CUTTS)
12 EXHIBIT RAW10 IPC CODE OF PRACTICE
13 EXHIBIT RAW11-EXCEL CAR PARK SIGNS
14 EXHIBIT RAW12-VCS v QUAYLE- C1DP0H0J [04/05/2017]
15 EXHIBIT RAW13-EXCEL vs SMITH (ON APPEAL)- C0DP9C4E/M17X062 [08/06/2017]

IN THE COUNTY COURT - Claim No.:

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

*********** (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, ****** ************** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my Defence as already filed.

3. On 28 October 2016 I was the registered keeper (RK) of the vehicle ABC 123, however I was not the driver as I was working on a secure military base 17 miles away. See Exhibit RAW1 for proof of this.

4. The Defendant knew nothing about the alleged offence until January 2018 when the claimants Solicitors posted a Notice of Pending County Court Claim to the vehicles registered keeper exhibit RAW2.

5. On 12 January 2018 the Defendant phoned the Claimants solicitors to try and discover more information as to how and why the claim had come about. I was simply told that they could not help as papers had been sent to court and I would have to call the court.

6. After many unsuccessful attempts to call the County Court Business Centre to find out more information, I sent a letter of further information to the Claimants Solicitors to gain more details of the alleged contravention. This information was only received after the claimants were ordered to submit further and better particulars by a General Form of Judgment or order from District Judge Wright at the County Court Skipton to address matters required by CPR 1998 PD 16.7 and the legal basis on which it claims the defendant is liable to it.

7. The claimant has produced no evidence of who was driving and is put to strict proof. I aver that I was not the driver as I was categorically inside the secure military base at the time of the alleged contravention.

8. The Claimant cannot presume that the Defendant and RK was the driver at the time of the alleged contravention for the following reasons.

9. There is no law that allows them to do this.

10. I assert under Statement of Truth that I was not the driver on alleged contravention date. This will be repeated in court should the claim come to a hearing. I aver that I was not the driver, as I was categorically inside the secure military base at the time of the alleged contravention and have provided proof, whereas the claimant has provided nothing to the alternative.

11. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

12. Barrister and parking law expert Henry Greenslade was the Parking on Private Land Appeals(POPLA) Lead Adjudicator from 2012-2015. I adduce as evidence (exhibit RAW3) Mr Greenslades opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. (Exhibit RAW3 Popla 2015)

13. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit RAW4 PoFA Schedule 4)

14. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper. ( Exhibit RAW5 Excel Vs Mr B 14/12/2016 )

15. The claimant may state that if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The claimant would wish to rely on the precedent of Elliot vs Loake (1982). This would not be applicable as it has no application whatsoever to this case. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant and Excel did not adduce evidence of the driver.
The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver (See exhibit Exhibit RAW6 Excel V Mr C and RAW7 Elliott v Loake)

16. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimants attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012. (Exhibit RAW8 Excel Vs Lamoureux ).

17. The paragraph numbers mentioned below relate to the Particulars of claim filed by the Claimants paralegal, Philip Byers-Nolan:

18. At #5,#9 The Claimant submits that the defendants was the driver of the vehicle on the contravention date.

19. This is denied by the defendant and the claimant has failed to provide any proof of who the driver was.

20. It is submitted that the main reason that the Claimant is unable to take steps to enforce the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on the occasion). In the absence of such notices, there is no cause of action. It is noted that, at #2, the Claimant does not intend to rely on Registered Keeper Liability detailed under the Protection of Freedoms Act 2012, Exhibit RAW4 proves the Notices were not worded accordingly.

21. Re #6: The claimant submits that if the defendant avers they were not the driver and excuse #4 probably meaning #5.

22. The defendant points out that there is no duty on them to disclose the drivers identity as it is the claimants claim to make and not the defendants.

23. At 6.1 the claimant states that it is reasonable to assume that the identity of the driver on the contravention date is known to the defendant, but he has unreasonably failed to disclose the same to the claimant.

24. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit RAW3, the POPLA Annual Report 2015.

25. At 6.2 the claimant states that the driver (the agent) of the vehicle on the contravention date had the authority of the defendant (principal) to drive the vehicle therefore the defendant is liable for the actions of the driver.

26. The defendant avers that a private individual lending a vehicle to another private person can be said to be bound by contracts they have made is nonsense and this can only be relevant in employer employee relationships or agency relationships which does not exist here and can be supported by VCS v Quayle and also Excel v Smith (on appeal). (See Exhibit RAW12 VCS v Quayle & RAW13 (Excel v Smith, on appeal).

27. At #8.1 and #15 the claimant states that the defendant was entering into a contract with the claimant and at #8.2 then states that the defendant agreed to pay a PCN for any action breaching the Terms and Conditions, i.e parked without payment of the parking tariff for the VRM of the vehicle on site. Then at #8.4 the claimant states that the claimant would be entitled to take legal proceedings against the defendant to recover the charge(s). The defendant would also be liable for interest and any additional costs incurred.

28. This is denied, as only the driver can enter into the contract and agree to pay a PCN. There has been no proof of who was driving on any occasion and attest that I was not the driver. The claimant would entitled to take legal proceedings against the defendant to recover the charge(s), if the defendant was the driver or if they had followed rules on Registered keeper liability detailed under the Protection of Freedoms Act 2012, which they have not. The Claimant is put to strict proof of their claim to prove driver identity.

29. At #19, 19.1 & 19.2 the claimant states that the defendant is female. The defendant definitely denies this and questions any proof at all of who the driver of the vehicle was at on the contravention date. The Claimant is clearly using copy & paste documents.

30. At paragraph 35 the claimant asks the court to come up with an alternative remedy if there is no contract.

31. The defendant would like to point out that there is/was a remedy but the claimant chose not to use it in #2. This is clearly premised as has been pointed out already, that the defendant had a contract in the first place.

32. In the case of Bagri v BW Legal, the solicitors boast of handling 1 mn claims with only 6 supervising solicitors. The Defendant asks the court that they provide a remedy to Defendants being exposed to shoddy vexatious claims and the abuse/misuse of the court process.

33. The Claimant states that the Defendants vehicle was captured by the claimants Automatic Number Plate Recognition system (ANPR) having parked in the car park without purchasing a valid pay and display ticket. (that the ANPR camera) !!!8216;Identified that the vehicle was parked without purchasing a pay & display ticket!!!8217;. This is denied and there is no evidence of any single period of parking, let alone evidence of not purchasing a ticket or not displaying it. An ANPR camera image shows none of these things.

34. I was never shown the alleged signage contract or been sent any photographs of the signs so as registered keeper, I never saw the contract they are trying to hold me liable for, until the enforced Particulars of Claim by DJ Wright where they have sent some photos, including an aerial map, which is no proof of the signs on the day of contravention. I have no idea of the alleged 'contract' terms, but I am aware that this operator buries onerous terms and charges in the small print. Since it is my honest belief that any circumspect driver of your car would not have accepted any terms to park for £100(?) thus, it is likely that the terms were not prominent or clear or close to where the car was parked. The Claimant is put to strict proof.

35. The claimant may state that the principles of the Parking Eye [PE] vs Beavis [2015] case apply here.

36. This is not the case. There are many significant and crucial differences between this and PE vs Beavis, as laid out in my defence para. 9. In the Beavis case one of the key factors was the clear and prominent signage in the car park the parking charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge

37. The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

38. Para 100: The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it and they must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.

39. Para 108: But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85. The entry sign to the Cavendish Retail Park Car Park does not even mention the PCN .

40. Para 205: The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.

41. The claimant understands the importance of clear and prominent signage. The sign referred to in the Beavis case is enclosed as Exhibit RAW11. When compared to the excel car park sign Exhibit RAW11,I I submit that no reasonable person would agree that their terms are brief, clear and prominently proclaimed.

42. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

43. Both the IPC and BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background. Both also recommend black on white as a good example (EXHIBIT RAW10).

44. I submit that Excels do not comply with IPC or BPA CoP. The dominant colours on Excel signs are blue and yellow against a background packed with confusing patterns and symbols.

45. The sign is a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden in the small print at the bottom of the sign. It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.

46. In support of the above 3 points I enclose Exhibit raw 10 the IPC code of practice and Exhibit RAW11 an Excel sign from the car park in question.

47. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

48. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

49. This judgment is binding case law from the Court of Appeal.

50. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established

51. Conclusion. No evidence of contravention, No compliance with Pofa 2012, No proof of who the driver was and the Particulars lack any basis for a claim.

52. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking evidence is wholly unreasonable and vexatious.

53. I believe the facts stated in this Witness Statement are true.


(add name and sign)

(add Date

Logblahar

I need to post my ws on Tuesday. So any further comments or advice would be greatly appreciated.

Redx

hi , in point 4 you have a typo , its knew , not new


I suggest you run a spelling checker over the document , just in case there are any more


good luck

Castle

Shouldn't point 53 read; "I believe the facts stated in this Witness Statement are true".

Coupon-mad

No need for your address in the first line.

As it's a PCN from 2016, you absolutely do not need:

14 EXHIBIT RAW11 BPA CODE OF PRACTICE

And it's not for you to file Elliott v Loake, if they want to try it, make them print it.

Clearly you do not need to file this with your WS either:

WITNESS STATEMENT/PARTICULARS OF CLAIM OF (Excel)

And file only the relevant page of these, but have in your own bundle, the full versions:

6 EXHIBIT RAW3 POPLA ANNUAL REPORT 2015
7 EXHIBIT RAW4 - PROTECTION of FREEDOMS ACT 2012, SCHEDULE 4

Logblahar

When sending my witness statement to the claimants solicitors do I send both the witness statement and the evidence?