BW Legal for VCS county court claim

Djdamo

Another update, i think i've correctly referenced POfA and argued why CPS v AJH films is not relevant. Also added about keeper not being the driver.

IN THE COUNTY COURT - Claim No.: xxxxxxx

Between

Vehicle Control Services Ltd (Claimant)
vs
xxxxxxx (Defendant)

____________________________

WITNESS STATEMENT
__________________________

I, ****************** of **************, *********, ***********, **** *** am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they 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. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

4. The vehicle registration xxxxxxx was not parked in any car park in SA1 on Sunday 5th June 2016 as claimed by the claimant. I include a copy of the original NParking Charge Notice, obtained through a SAR as the original was not left on the vehicles windscreen at the time of the alleged breach, (Exhibit A) which on the rear has a hand drawn map clearly showing the vehicle parked on Langdon Road directly outside the entrance to a car park located on Langdon road and not in the car park located at Swansea Waterfront SA1, A14 Kings Road Swansea, SA18QY as claimed. In the text box below the drawing there is a free text box where the parking attendant has written that the vehicle stopped and parked on the road. It also goes on to refer to the driver as ‘him’ and ‘he’. I also include a copy of my original appeal letter (Exhibit that the claimant has written notes regarding the case. These notes again state that the vehicle was parked on the road and refer to the driver as ‘him’ and ‘he’. I also include a Google maps image identifying where the car was parked and the location of the “Car Park’ (Exhibit C).

5. Langdon Road which is where the vehicle has been identified as being parked using the claimants own documents as above is under Swansea City Control according to the Swansea SA1 Waterfront Traffic Regulation Order Scheme which came into effect on Friday 19th May 2014, document WJ205 (Exhibit D). This land isn't relevant as defined in The Protection of Freedoms Act 2012 and therefore keeper liability cannot be claimed. The claimant is not the landowner nor have a contract for the location the vehicle was parked.

6. Regarding the letter dated 31/07/2018 from BW Legal which highlights the contravention type as ‘Parked in a restricted area of the car park’ (Exhibit E). Point 3 makes reference to your client being contracted to manage and enforce private parking at the private land known as the Swansea Waterfront SA1, A14 Kings Road Swansea, SA18QY (the ‘Car Park’) which is leased to DT C Technical Solutions Limited and therefore the Landowner. According to Companies House there is no such company called DT C Technical Solutions Ltd, although there's a company called DT Technical Solutions Ltd. The claimant is allegedly contracted by the landowner although there seems to be confusion who this is, is to enforce the agreed terms and conditions which are contained on the signage throughout the car park which are accepted upon entering the ‘Car Park’. However as identified in point 4 using exhibit A, B & C, the vehicle was not parked in the ‘Car Park’ at Kings Road nor entered the ‘Car Park’ your client is alleged to be contracted to enforce parking restrictions. In fact the vehicle was parked, as identified in point 4, on Langdon Road, a public highway, which is currently owned by the Welsh Government and under Swansea City control as identified in point 5 and Exhibit D. The location of where the vehicle was parked is approximately 200 meters away from the car park the claimant is contracted to.

7. Regarding exhibit E, point 6 states that the terms and conditions were accepted upon entering the ‘Car Park’ however as identified in point 4 and exhibit A,B & C, the vehicle did not enter nor park in the ‘Car Park’ at Kings Road therefore no terms and conditions were accepted or breached.

8. Schedule 4 paragraph 8 and 9 of the POfA 2012 stipulated mandatory information that must be included in the notice to keeper. If any of the information is not present then NTK is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means the registered keeper cannot be held to account for the alleged debt of the driver. The NTK dated 06/08/2016 (Exhibit F) fails to identify the land the vehicle was parked on, it simply states a privately operated car park at SA1. There are approximately 14 private car parks at the SA1 waterfront area.

9. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a NTK. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver. The Protection of Freedom Act 2012 requires that the notice, to be valid, must be delivered (where a notice to driver, PCN, has been served) not earlier than 28 days after nor more than 56 days after the service of that notice to driver. The date of Exhibit F is 06/08/2016, which is 62 days after service of the notice to driver.

10. I did not respond to the alarmist notices sent to me by VCS because I believed them to be spam especially as they did not comply with Schedule 4 of POfA 2012. Also as I was not the driver and this was not offence or fine from an Authority like a Council. There was no reason or obligation upon a registered keeper to respond to what appeared to be junk mail. The claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver. This is not an obligation or a failure on my part; I had no reson to respond and this is supported by an extract from the POPLA Annual report 2015 (Exhibit G).

11. Exhibit E states your case to hold the keeper accountable is supported by CPS Ltd v AJH Films Ltd 2015, however this case is not valid here as there was no contractual relationship between the driver and the keeper. If the Claimant wants to pursue the defendant as keeper, the Claimant MUST comply with the requirements of POFA.

12. No attempt was made by the claimant to provide suitable information or evidence of this alleged breach despite my direct request on appeal dated 17/08/2016 (Exhibit ??) following the 1st NTK received through the post dated 06/08/2016 (Exhibit ??), which was with the 28 day period to lodge an appeal and acknowledged by the claimant on 20/09/2016 (Exhibit ??). It was in this acknowledgement the claimant stated they would have a decision on the appeal by 12/10/2016. The next letter the claimant sent was dated 08/02/2017 stating I did not submit my appeal in time (Exhibit H).

Coupon-mad

This [STRIKE]land isn't relevant[/STRIKE] is not 'relevant land' as defined in The Protection of Freedoms Act 2012 (the POFA) and therefore the (restricted under that statute) concept of 'keeper liability' cannot be claimed. [STRIKE]The claimant is not the landowner nor have a contract for the location the vehicle was parked.[/STRIKE]

6. Regarding the letter dated 31/07/2018 from BW Legal which highlights the contravention type as ‘Parked in a restricted area of the car park’ (Exhibit E). Point 3 makes reference to the Claimant [STRIKE]your client[/STRIKE] being contracted to manage and enforce private parking at the private land known as the Swansea Waterfront...

11. Exhibit E attempts yet again, despite this Claimant knowing that this is neither relevant nor possible given the facts of this case, that their [STRIKE]states your[/STRIKE] case to sidestep the POFA but still try to hold the keeper accountable, is supported by CPS Ltd v AJH Films Ltd 2015. However this case is inapplicable [STRIKE]is not valid here[/STRIKE] as there was no contractual or agency relationship between the driver and the keeper. If the Claimant wanted [STRIKE]wants[/STRIKE] to pursue [STRIKE]the defendant as[/STRIKE] any registered keeper, the [STRIKE]Claimant MUST[/STRIKE] remedy existed in the form of full compliance [STRIKE]comply[/STRIKE] with the requirements of POFA, as many parking firms manage to do.

11.1. I am astonished to find from researching my defence, that this Claimant continues to assert at various hearings that it does not have to use, or rely upon, the POFA to pursue registered keepers, despite the words of barrister and parking law expert Lead Adjudicator, Mr Greenslade in the POPLA Annual Report 2015.

11.2. Further, the Claimant firm is owned by Simon Renshaw Smith, who also owns Excel Parking Services Ltd, and both companies are fully conversant with the outcome of an Appeal hearing before HHJ Smith, sitting at Manchester County Court on 8.6.2017 regarding Claim No. C0DP9C4E/M17X062 (Excel v Smith : Exhibit X*).

11.2.1. The original flawed County Court decision was overturned and Excel's representative was admonished for their 'improper citation' of CPS Ltd v AJH Films Ltd, and HHJ Smith reminded Excel:

''There is, of course, a specific regime within the Protection of Freedoms Act 2012, schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency. [...] In all those circumstances it seems to me that Excel have failed to make out their claim. That, on the face of it, does put a company like Excel in a difficult position because they have to work on an assumption that the registered keeper was the driver unless the registered keeper tells them to the contrary and that enables a registered keeper to prevent the company from taking proceedings against the correct defendant, namely the driver. It may well be that that is precisely why schedule 4 of the Protection of Freedoms Act was enacted to enable companies in those circumstances to have a real remedy. Whether or not that is the case, and I do not know, this judgment does not leave companies like Excel without a remedy, for that reason. Accordingly the appeal is allowed.''



Point #6 is far too long and just needs breaking up into paragraphs, so:

6.
6.1.
6.2.
etc

And I think #12 is in the wrong place, and so the witness statement seems to switch back and forth. Try to make the points about the sequence of what happened in terms of letters/appeal, be grouped nearer each other.

Then the final point in the WS should IMHO be more of a conclusion.

If your local court is Swansea, I am sure that LoadsofChildren123 will tell you that there is at least one terrible, allegedly PPC-biased Judge on that circuit.

If he gets your case you are going to have to use the POFA Schedule 4 as evidence and walk him through it, in terms of 'not relevant land' and in terms of how that NTK arriving too late - and its lack of an 8(2)f proper, mandatory 'keeper liability' warning - means that there is no applicable rule of law that can possibly make a 'non-driving registered keeper' liable.

Take the POFA Schedule 4 in your bundle on the day (highlighting the relevant parts) and prepare to talk a Judge through it in case they are minded to think, ''meh, a parking firm can hold a keeper liable''.




* Excel v Smith is here to download the transcript as an extra exhibit:

http://www.parking-prankster.com/more-case-law.html

And have you got proof that the road is Public Highway, as an exhibit?

Djdamo

Thanks coupon-mad.

I have evidence to prove the road is owned by the Welsh Government. I've been informed that this then means it's public property?

I've had another redraft, hopefully this flows better following the timeline.

IN THE COUNTY COURT - Claim No.: xxxxxxx

Between

Vehicle Control Services Ltd (Claimant)
vs
xxxxxxx (Defendant)

____________________________

WITNESS STATEMENT
__________________________

I, ****************** of **************, *********, ***********, **** *** am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they 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. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

4. The vehicle registration xxxxxxx was not parked in any car park in SA1 on Sunday 5th June 2016 as claimed by the claimant. I include a copy of the original Parking Charge Notice, obtained through a SAR as the original was not left on the vehicles windscreen at the time of the alleged breach, (Exhibit A) which on the rear has a hand drawn map clearly showing the vehicle parked on Langdon Road directly outside the entrance to a car park located on Langdon road and not in the car park located at Swansea Waterfront SA1, A14 Kings Road Swansea, SA18QY as claimed. In the text box below the drawing there is a free text box where the parking attendant has written that the vehicle stopped and parked on the road. It also goes on to refer to the driver as ‘him’ and ‘he’. I also include a copy of my original appeal letter (Exhibit that the claimant has written notes regarding the case. These notes again state that the vehicle was parked on the road and refer to the driver as ‘him’ and ‘he’. I also include a Google maps image identifying where the car was parked and the location of the “Car Park’ (Exhibit C).

5. Langdon Road which is where the vehicle has been identified as being parked using the claimants own documents as above is under Swansea City Control according to the Swansea SA1 Waterfront Traffic Regulation Order Scheme which came into effect on Friday 19th May 2014, document WJ205 (Exhibit D). This is not 'relevant land' as defined in The Protection of Freedoms Act 2012 (the POFA) and therefore the (restricted under that statute) concept of' keeper liability' cannot be claimed.

6. Schedule 4 paragraph 8 and 9 of the POfA 2012 stipulated mandatory information that must be included in the notice to keeper. If any of the information is not present then NTK is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means the registered keeper cannot be held to account for the alleged debt of the driver. The NTK dated 06/08/2016 (Exhibit E) fails to identify the relevant land the vehicle was parked on, it simply states a privately operated car park at SA1. There are approximately 14 private car parks at the SA1 waterfront area, 5 of which are located along kings Road, therefore not valid.

7. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a NTK. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver. The Protection of Freedom Act 2012 requires that the notice, to be valid, must be delivered (where a notice to driver, PCN, has been served) not earlier than 28 days after nor more than 56 days after the service of that notice to driver. The date of Exhibit F is 06/08/2016, which is 62 days after service of the notice to driver and therefore not valid.

8. No attempt was made by the claimant to provide suitable information or evidence of this alleged breach despite my direct request on appeal dated 17/08/2016 (Exhibit F) following the 1st NTK received through the post dated 06/08/2016 (Exhibit G), which was with the 28 day period to lodge an appeal and acknowledged by the claimant on 20/09/2016 (Exhibit H). It was in this acknowledgement the claimant stated they would have a decision on the appeal by 12/10/2016. The next letter the claimant sent was dated 08/02/2017 stating I did not submit my appeal in time (Exhibit I).

9. I did not respond to the alarmist notices sent to me by VCS for two reasons, one due to their refusal to deal with my letters of appeal which were submitted within the required time frame outlined in the NYK. Secondly because I believed them to be spam especially as they did not comply with Schedule 4 of POfA 2012. Also as I was not the driver, the vehicle has never entered the car park located at Swansea Waterfront SA1, A14 Kings Road Swansea, SA18QY and this was not offence or fine from an Authority like a Council. There was no reason or obligation upon a registered keeper to respond to what appeared to be junk mail. The claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by an extract from the POPLA Annual report 2015 (Exhibit J).

10.1 Regarding the letter dated 31/07/2018 from BW Legal which highlights the contravention type as ‘Parked in a restricted area of the car park’ (Exhibit K). Point 3 makes reference to the Claimant being contracted to manage and enforce private parking at the private land known as the Swansea Waterfront SA1, A14 Kings Road Swansea, SA18QY (the ‘Car Park’) which is leased to DT C Technical Solutions Limited and therefore the Landowner. According to Companies House there is no such company called DT C Technical Solutions Ltd, although there's a company called DT Technical Solutions Ltd.

10.2 There are 5 private car parks located along Kings Road; however none have the Postcode SA18QY. SA18QY according to Google Maps points to a location on Langdon Road just in front of the Village Hotel, approximately 300 meters away from where the vehicle has been identified as being parked and 500 meters away from the nearest car park located on Kings Road.

10.3 The claimant is allegedly contracted by the landowner although there seems to be confusion over who this is, is to enforce the agreed terms and conditions which are contained on the signage throughout the car park which are accepted upon entering the ‘Car Park’. However as identified in point 4 using exhibit A, B & C, the vehicle was not parked in any of the 5 car parks along Kings Road nor entered the ‘Car Park’ your client is alleged to be contracted to enforce parking restrictions. In fact the vehicle was parked, as identified in point 4 by the claimants own documentation, on Langdon Road, a public highway, which is currently owned by the Welsh Government and under Swansea City control as identified in point 5 and Exhibit D.

11. Regarding exhibit K, point 6 states that the terms and conditions were accepted upon entering the ‘Car Park’ however as identified in point 4 and exhibit A,B & C, the vehicle did not enter nor park in the ‘Car Park’ at Kings Road therefore no terms and conditions were accepted or breached.

12. Exhibit K attempts yet again, despite this Claimant knowing that this is neither relevant nor possible given the facts of this case, that their case to sidestep the POFA but still try to hold the keeper accountable, is supported by CPS Ltd v AJH Films Ltd 2015. However this case is inapplicable as there was no contractual or agency relationship between the driver and the keeper. If the Claimant wanted to pursue any registered keeper, the remedy existed in the form of full compliance with the requirements of POFA, as many parking firms manage to do.

12.1. I am astonished to find from researching my defence that this Claimant continues to assert at various hearings that it does not have to use, or rely upon, the POFA to pursue registered keepers, despite the words of barrister and parking law expert Lead Adjudicator, Mr Greenslade in the POPLA Annual Report 2015.

12.2. Further, the Claimant firm is owned by Simon Renshaw Smith, who also owns Excel Parking Services Ltd, and both companies are fully conversant with the outcome of an Appeal hearing before HHJ Smith, sitting at Manchester County Court on 8.6.2017 regarding Claim No. C0DP9C4E/M17X062 (Excel v Smith : Exhibit L).

12.2.1. The original flawed County Court decision was overturned and Excel's representative was admonished for their 'improper citation' of CPS Ltd v AJH Films Ltd, and HHJ Smith reminded Excel:

''There is, of course, a specific regime within the Protection of Freedoms Act 2012, schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency. [...] In all those circumstances it seems to me that Excel have failed to make out their claim. That, on the face of it, does put a company like Excel in a difficult position because they have to work on an assumption that the registered keeper was the driver unless the registered keeper tells them to the contrary and that enables a registered keeper to prevent the company from taking proceedings against the correct defendant, namely the driver. It may well be that that is precisely why schedule 4 of the Protection of Freedoms Act was enacted to enable companies in those circumstances to have a real remedy. Whether or not that is the case, and I do not know, this judgment does not leave companies like Excel without a remedy, for that reason. Accordingly the appeal is allowed.''

13. I Also point out that the claimant has not supplied any evidence at all that the alleged contravention even occurred. Exhibit A states that two photographs were taken however these have never been supplied even after a SAR was submitted. In order to demonstrate that the vehicle was parked in a restricted area of the ‘Car Park’ there should be corresponding photos to prove this. If the two photos do eventually turn up they will show that the car was not parked in the ‘Car Park’ as claimed.

14. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
The PoC did not contain any evidence of contravention or photographs. These documents and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct.
This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction.
On the basis of the above the defendant request the court strike out the claim for want of a cause of action. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

***add details***

***add conclusion***

Djdamo

I dont think ive been sent their Witness Statement, the only letter i've received was in response to my defence, or is that their WS?

Djdamo

Had another tidy up and expanded a few points.

Still need to add the conclusion.

Does anyone have any other suggestions please before i get it ready for printing?

IN THE COUNTY COURT - Claim No.: xxxxxxx

Between

Vehicle Control Services Ltd (Claimant)
vs
xxxxxxx (Defendant)

____________________________

WITNESS STATEMENT
__________________________

I, ****************** of **************, *********, ***********, **** *** am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they 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. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

4.1 The vehicle registration xxxxxxx was not parked at A14 Kings Road Swansea or any car park in SA1 Water Front on Sunday 5th June 2016 as claimed by the claimant. I include a copy of the original Parking Charge Notice, obtained through a SAR as the original was not left on the vehicles windscreen at the time of the alleged breach, (Exhibit A) which on the rear has a hand drawn map clearly showing the vehicle parked on Langdon Road directly outside the entrance to a car park located on Langdon road and not in the car park located at A14 Kings Road, Swansea as claimed.
4.2 On Exhibit A, there is a text box below the drawing of a map where the parking attendant has written that the vehicle stopped and parked on the road. It also goes on to refer to the driver as ‘him’ and ‘he’.
4.3 I also include a copy of my original appeal letter (Exhibit that the claimant has written notes on regarding the case. These notes again state that the vehicle was parked on the road and refer to the driver as ‘him’ and ‘he’. I have provided a Google maps image (Exhibit C) identifying where the vehicle was parked on Langdon road and the location of the private car parks that are along Kings Road; unfortunately I’ve been unable to identify which of these is A14 Kings Road.

5. Langdon Road which is where the vehicle has been identified as being parked using the claimants own documents as above is under Swansea City Control according to the Swansea SA1 Waterfront Traffic Regulation Order Scheme which came into effect on Friday 19th May 2014, document WJ205 (Exhibit D). This is not 'relevant land' as defined in The Protection of Freedoms Act 2012 (the POFA) and therefore the (restricted under that statute) concept of' keeper liability' cannot be claimed.

6. Schedule 4 paragraph 8 and 9 of The Protection of Freedom Act 2012 stipulated mandatory information that must be included in the notice to keeper. If any of the information is not present then NTK is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means the registered keeper cannot be held to account for the alleged debt of the driver. The NTK dated 06/08/2016 (Exhibit E) fails to identify the relevant land the vehicle was parked on, it simply states a privately operated car park at SA1. There are approximately 14 private car parks at the SA1 waterfront area, 5 of which are located along kings Road, therefore not valid.

7. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a NTK. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver. The POFA 2012 requires that the notice, to be valid, must be delivered (where a notice to driver, PCN, has been served) not earlier than 28 days after nor more than 56 days after the service of that notice to driver. The date of Exhibit F is 06/08/2016, which is 62 days after service of the notice to driver which is dated 05/06/2016 and therefore not valid.

8. No attempt was made by the claimant to provide suitable information or evidence of this alleged breach despite my direct request on appeal dated 17/08/2016 (Exhibit F) following the 1st NTK received through the post dated 06/08/2016 (Exhibit G), which was with the 28 day period to lodge an appeal and acknowledged by the claimant on 20/09/2016 (Exhibit H). It was in this acknowledgement the claimant stated they would have a decision on the appeal by 12/10/2016. The next letter the claimant sent was dated 08/02/2017 stating I did not submit my appeal in time (Exhibit I). I find this behaviour unacceptable and a deliberate attempt to thwart any efforts to appeal the ticket.

9. I did not respond to the alarmist notices sent to me by VCS for two reasons, one due to their refusal to deal with my letters of appeal which were submitted within the required time frame outlined in the NTK. Secondly because I believed them to be spam especially as they did not comply with Schedule 4 of POFA 2012. Also as I was not the driver on the day of the alleged breach, the vehicle had never entered any car park located at Swansea Waterfront SA1 and this was not an offence or fine from an Authority like a Council. There was no reason or obligation upon a registered keeper to respond to what appeared to be junk mail. The claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by an extract from the POPLA Annual report 2015 (Exhibit J).

10.1 Regarding the letter dated 31/07/2018 from BW Legal which highlights the contravention type as ‘Parked in a restricted area of the car park’ (Exhibit K). Point 3 makes reference to the Claimant being contracted to manage and enforce private parking at the private land known as the Swansea Waterfront SA1, A14 Kings Road Swansea, SA18QY (the ‘Car Park’) which BW Legal claims is leased to DT C Technical Solutions Limited and therefore the Landowner. According to Companies House there is no such company called DT C Technical Solutions Ltd, although there's a company called DT Technical Solutions Ltd.

10.2 There are 5 private car parks located along Kings Road as shown in Exhibit C; however none has the Postcode SA18QY. SA18QY according to Google Maps (also identified on Exhibit C) points to a location on Langdon Road just in front of the Village Hotel, approximately 300 meters away from where the vehicle has been identified as being parked and 500 meters away from the nearest car park located on Kings Road.

10.3 The claimant is allegedly contracted by the landowner although there seems to be confusion over who this is, is to enforce the agreed terms and conditions which are contained on the signage throughout the car park which are accepted upon entering the ‘Car Park’. However as identified in point 4 using exhibit A, B & C, the vehicle was not parked in any of the 5 car parks along Kings Road nor in any car park on Langdon Road and therefore did not enter the ‘Car Park’ your client is alleged to be contracted to enforce parking restrictions. In fact the vehicle was parked, as identified in point 4 by the claimants own documentation, on Langdon Road which is privately owned by The Welsh Government and under Swansea City control as identified in point 5 and Exhibit D.
10.4 Under Section 32(1)(a) of the Road Traffic Regulation Act 1984, a Council retains the status of a Local Authority providing off-street parking places, therefore VCS had no contractual agreement with Swansea Council since the introduction of the TRO on Friday 19th May 2014 which handed traffic enforcement on the roads in SA1 Waterfront to Swansea Council.

11. Regarding exhibit K, point 6 states that the terms and conditions were accepted upon entering the ‘Car Park’ however as identified in point 4 and exhibit A,B & C, the vehicle did not enter nor park in the ‘Car Park’ at Kings Road therefore no terms and conditions were accepted or breached.

12. Exhibit K attempts yet again, despite this Claimant knowing that this is neither relevant nor possible given the facts of this case, that their case to sidestep the POFA but still try to hold the keeper accountable, is supported by CPS Ltd v AJH Films Ltd 2015. However this case is inapplicable as there was no contractual or agency relationship between the driver and the keeper. If the Claimant wanted to pursue any registered keeper, the remedy existed in the form of full compliance with the requirements of POFA, as many parking firms manage to do.

12.1. I am astonished to find from researching my defence that this Claimant continues to assert at various hearings that it does not have to use, or rely upon, the POFA to pursue registered keepers, despite the words of barrister and parking law expert Lead Adjudicator, Mr Greenslade in the POPLA Annual Report 2015.

12.2. Further, the Claimant firm is owned by Simon Renshaw Smith, who also owns Excel Parking Services Ltd, and both companies are fully conversant with the outcome of an Appeal hearing before HHJ Smith, sitting at Manchester County Court on 8.6.2017 regarding Claim No. C0DP9C4E/M17X062 (Excel v Smith : Exhibit L).

12.2.1. The original flawed County Court decision was overturned and Excel's representative was admonished for their 'improper citation' of CPS Ltd v AJH Films Ltd, and HHJ Smith reminded Excel:

''There is, of course, a specific regime within the Protection of Freedoms Act 2012, schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency. [...] In all those circumstances it seems to me that Excel have failed to make out their claim. That, on the face of it, does put a company like Excel in a difficult position because they have to work on an assumption that the registered keeper was the driver unless the registered keeper tells them to the contrary and that enables a registered keeper to prevent the company from taking proceedings against the correct defendant, namely the driver. It may well be that that is precisely why schedule 4 of the Protection of Freedoms Act was enacted to enable companies in those circumstances to have a real remedy. Whether or not that is the case, and I do not know, this judgment does not leave companies like Excel without a remedy, for that reason. Accordingly the appeal is allowed.''

13. I Also point out that the claimant has not supplied any evidence at all that the alleged contravention even occurred. Exhibit A states that two photographs were taken however these have never been supplied even after a SAR was submitted. In order to demonstrate that the vehicle was parked in a restricted area of the ‘Car Park’ there should be corresponding photos to prove this. If the two photos do eventually turn up they will show that the car was not parked in the ‘Car Park’ as claimed and I can only assume this is the reason for them not being submitted to date.

14. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
The PoC did not contain any evidence of contravention or photographs. These documents and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct.
This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction.

Coupon-mad

Looks very thorough to me!

Sounds like you have not yet got a WS from them yet; it would have been recent.

Djdamo

All thats been sent was the 3 images I uploaded a few days ago of the letter that was in response to my defence. It included a copy of the NTK and following letters, a copy of the 1st appeal letter and their response saying it was too late, the letters in between were not included.

How do I go about chasing up to get a copy of their witness statement?

Coupon-mad

You do not want to chase up! You want them to fail.

Castle

Djdamo wrote: »

How do I go about chasing up to get a copy of their witness statement?

According to your post 84, the court hearing is on 2nd November and witness statements are not normally required until 14 days before; (so around 19th October).

Djdamo

Breaking news!!

Received a notice of discontinuance in today's post ����

I'll confirm with the courts Monday they recieved the same just to be sure.

Can I counter claim now to regain my costs? I've not even had chance to send them my bundle yet, although they've already read it above ����. Saves printing a load of stuff I guess.

Massive thanks to everyone here who's helped directly in this thread and indirectly by either posting details of their cases or putting the newbies posts together.

Chalk another one up for MSE even if I didn't get my day in court