Help please - Formal Demand Letter from CPM

Amaka123

So I’ve had my court date through - it’s mid November at Walsall. I believe I need to get my witness statement and all paperwork/evidence ready for 14 days prior. So that only gives me till roughly end Oct.

I’ll put a draft together and post here to ask for help/comments. Feeling a bit nervous already.

Amaka123

So, I've read lots of witness statements and picked bits that I feel are relevant to my case. I have put together a draft witness statement below and I'm hoping someone can have a look over it to see if it makes sense and that I'm not missing anything. Thank you in advance.

In the County Court at XXXXX
Claim No. XXXXXXXX
Between
UK Car Park Management (Claimant)
and
XXX XXX (Defendant)

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Witness Statement

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1. Sequence of Events
1.1 I am xxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience.
1.2 Although I am the Registered Keeper of the vehicle XXXX XXX I may or may not have been the driver at the time of the parking incident. Being almost 2 years ago I cannot be certain who was driving the car. It may have been myself or my Husband XXXXX XXXX who is also listed on my Car Insurance as a named driver. See Exhibit X.
1.3 This claim refers to a parking incident on XXXX Road, Lichfield. For all intents and purposes the part of the road parked on appears to be part of the public highway. There are no signs upon entering the road to state that the road is ‘private’. In fact there are nearly always cars parked along this part of XXXXX Road whenever you go down it. See photographs in Exhibit X taken on numerous days over the last year.
1.4 Upon receipt of the parking fine stating the road was a ‘private road’ I contacted Lichfield County Council to ask for clarification. The email response received stated that XXXXX Road is in fact a ‘public highway’ up until the 1st junction on the left of XXXXX Road. I was parked opposite this junction. There is not a single sign to state that the road is in fact ‘private’ after this junction (unless you drive further up the street).
1.5 The day of the parking incident was after heavy snowfall and very icy road conditions, as can be seen on the photographic evidence. Exhibit X shows the route that the driver took upon entering the road, pulling into a side street to reverse the car and then park alongside the road edge. At no point from entering XXXXX Road to parking up did the driver pass a sign to indicate the Road was private or that there were parking conditions imposed.

2. Keeper Liability

2.1 The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. No Contract Exists

3.1 I understand from correspondence with the Claimant that the Claimant’s case relies upon the signage at the site (see Exhibit X) constituting a ‘contract’ between myself and the Claimant as per ParkingEye vs Beavis. The ‘breach of terms’ on the Particulars of Claim presumably refers to the supposed ‘contract’ formed by this signage.

3.2 In ‘ParkingEye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. The ‘ParkingEye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.

3.3 There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of free parking‘ and no conceivable way the driver could have benefitted from this alleged ‘contract’ without breaching its terms.

3.4 In J Spurling Ltd v Bradshaw in the Court of Appeal, Lord Denning states that ‘the more unreasonable a clause is, the greater the notice which must be given of it’. This is commonly referred to the ‘Red Hand Rule’. As the terms of this ‘contract’ (specifically the clause relating to a £100 parking charge) are designed to discourage motorists from accepting them it follows that they must be ‘unreasonable’ and that therefore Lord Denning’s rule should apply.

3.5 The Claimant has not applied Lord Denning’s ‘Red Hand Rule’ to the terms and conditions in this case. The sentence that refers to a ‘parking charge’ is in an extremely small font (one of the smallest on the sign) which, given that this sign is supposed to be read from a vehicle, is woefully inadequate - particularly when compared to the signage in the ‘ParkingEye vs Beavis’ case (see Exhibit X).

3.6 The very act of entering into this alleged ‘contract’ (parking) constitutes a breach of its terms, therefore making it impossible to perform.

3.7 Both the PCN and Notice to Keeper issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. I cannot be seen to have entered into a contract for something I was not ‘authorised’ to do.

3.8 The signage and its wording at this site is very similar to the signage in the case of ‘Parking Control Management v Bull’ (Exhibit X) in which the Judge found that it was ‘impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway.’ and that therefore any charges made on the basis of said signage would be damages for trespass and must constitute reparations for actual loss.

4. Inadequate Signage

4.1 A key factor in ‘ParkingEye vs Beavis’ was that the relevant signs were ‘large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature’ and ‘the charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here. The parking charge of £100 is actually one of the smallest fonts on the sign (see Exhibit X).

4.2 In ‘Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case there was no sign adjacent to my vehicle, the driver had not passed any signs to park, and no signs in the vicinity could possibly be read from inside the vehicle.

4.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice. In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International Parking Community (IPC).

4.3.1 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the road in question and one can see from the photographs that the driver would not have passed any signage indicating they were entering a private road.

4.3.2 The IPC guidelines state that text on signage ‘should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the signs are mounted at least Xft off the ground, makes it very hard to read and impossible to read from a vehicle.

4.3.3 The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving as it is mounted on a pole at least Xft high.
4.3.4 The first parking conditions sign situated in XXXX road and the one that would have been closest to my parked vehicle is actually only around 3ft from the ground and when a vehicle is parked in front of it (as witnessed on many occasions – see photographs in Exhibit X) the sign is completely out of sight to anyone passing in a vehicle.

5. Landowner Authority

5.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have the authority to do this, and that the terms and conditions of parking they impose at the site are in line with what they have been authorised to do. I have reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

6. Additional Costs

6.1 The Particulars of Claim include £50 for ‘contractual costs’. The Claimant is put to strict proof that these additional charges are justified. I have the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself. In reference to Exhibit X, The Protection of Freedoms Act 2012, Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.
6.2 According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.


I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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

XXXX
XX/10/2019

SCHEDULE OF COSTS


In the County Court at XXXX
Claim No. XXXX
Between
UK Car Park Management Limited (Claimant)
and
XXXX (Defendant)

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Defendant's Schedule of Costs

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Ordinary Costs

Loss of earnings/leave, incurred through attendance at Court 19/11/2019: £90.00

Return mileage from home address to Court: £9.00 (20 miles x £0.45)

Sub-total £99.00 ======

Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents (4 hours at Litigant in Person rate of £19 per hour) £76.00

Stationery, printing, photocopying and postage: £15.00

Sub-total £91.00 ======

£190.00 TOTAL COSTS CLAIMED

Redx

maybe its me but that doesnt look like a witness statement , ie:- your story

it looks more like a DEFENCE to me

a WS should be your story, what you understood at the time , what you have noted since, should pull apart their evidence by referencing it or your own, should add quotes and transcripts and exhibits etc

but as I said , maybe its just me ?

KeithP

1.4. Did you contact Lichfield District Council or Staffordshire County Council?

Coupon-mad

4.3.4 The first parking conditions sign situated in XXXX road and the one that would have been closest to my parked vehicle

...sounds like you were driving, that sentence. But earlier you said you did not know as it was 2 years ago.

If that is your true position then are you going to add a POFA defence, i.e. that you cannot be held liable because with two potential drivers and no identifying evidence submitted by the C, the balance of probabilities has not been tipped to conclude that the D must have been the driver, and you believe you were not, because you have no recollection of getting any PCN here (if true). As such, as registered keeper you can only be held liable if the parking firm has fully complied with Schedule 4 of the POFA, which - due to 'inadequate notice of the parking charge', the possibility that this is Council owned land under statutory control (Not 'relevant land' under the POFA definition) and a lack of any relevant contract/relevant obligation upon the driver - this C has failed to invoke the law. As such, keeper liability cannot pass to the keeper.

Evidence to support that would be Schedule 4 with the relevant words highlighted, plus Henry Greenslade's words about UNDERSTANDING KEEPER LIABILITY, from the POPLA Annual Report 2015 (search the forum and copy, as this has been written many times before here).

Amaka123

Oops yes Staffordshire County Council - I will amend thanks

Coupon-mad

Here's an encouraging win at Walsall:

https://forums.moneysavingexpert.com/discussion/5874113/pcn-letter-received-after-58-days&page=2

Amaka123

Coupon-mad wrote: »

...sounds like you were driving, that sentence. But earlier you said you did not know as it was 2 years ago.

If that is your true position then are you going to add a POFA defence, i.e. that you cannot be held liable because with two potential drivers and no identifying evidence submitted by the C, the balance of probabilities has not been tipped to conclude that the D must have been the driver, and you believe you were not, because you have no recollection of getting any PCN here (if true). As such, as registered keeper you can only be held liable if the parking firm has fully complied with Schedule 4 of the POFA, which - due to 'inadequate notice of the parking charge', the possibility that this is Council owned land under statutory control (Not 'relevant land' under the POFA definition) and a lack of any relevant contract/relevant obligation upon the driver - this C has failed to invoke the law. As such, keeper liability cannot pass to the keeper.

Evidence to support that would be Schedule 4 with the relevant words highlighted, plus Henry Greenslade's words about UNDERSTANDING KEEPER LIABILITY, from the POPLA Annual Report 2015 (search the forum and copy, as this has been written many times before here).

Yes I will amend and add in the POFA and POPLA bits. Unless you feel it's not worth my while and it's not an area that I may 'win' on? I don't want to over complicate the whole thing as I already find it pretty complicated with all the different reasons (signage/positioning/add on costs etc). I am pretty anxious about going to court and worry I'll be bamboozled by all the terminology etc that I'm not familiar with.
Thanks for your help

Amaka123

I think I will just admit to being the driver for simplicity...my husband and I were both in the car but I genuinely can't remember who was actually driving over 2 years ago..

Coupon-mad

Then I would not admit being the driver, I would say exactly what you just said.