PCN from UK CarPark Management UK CPM

alexwells

Hi KeithP,
Just a quick update, I was called the other day from Gladstones, they were asking whether I wanted to consider to settle or not which I have ignored. The Hearing is scheduled for Sep and I just received a copy of their submission with all the proof and pictures etc... Should I be sending something as well to discredit their proof?

Gladstone basically sent all photos and witness statement to highlight the Agreement of the company, the sign "contract", site plan, notices etc..

I just wanted to know whether I should be sending an additional letter or not since I have not done anything since the directions questionnaire.

Thanks as always!

KeithP

Well yes.

You need to file and serve a Witness Statement and evidence - as described in post #2 of the NEWBIES thread.

Your latest Notice from your local court, the one that gives you a hearing date, will tell you the date that has to be done by.

nosferatu1001

Indeed, you knew that this needed to be done, as the newbies thread is pretty explicit on the topic!

alexwells

Indeed I thought so but I waited because unless the Claimant went ahead and processed the payment to the court this could have been automatically ruled in my favour but since I received yesterday a copy of the Claimant's witness statement that means they are also proceeding with this.

I will attach here a copy of their statement as I would like my response to be as correct and as professional as I can.

I, claimant WILL SAY AS FOLLOWS:

1. I am the Employee of the Clairuant Company ('my Company') and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

2. Exhibited to this Witness Statement at 'GSL 1' are the following documents which my Company wishes to rely upon;
i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as 'the Relevant Land');
ii) The Sign ('the Contract');
iii) The Site Plan;
iv) Notices;
v) Photographs of the incident.
vi) Blank copy of Permit

3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign).
Set out in the Schedule below are details of the parking charge;

Reading similar templates, because my defence is based both on the fact that I wasn't the driver and also the Car had a Valid Permit, I have started drafting the below:

The Defence
1. My Company's signs on the Relevant Land are clear and unambiguous in that a motorist can park without incurring a charge provided they adhere to the following;
"A VALID UKCPM PERMIT & TAX DISC MUST BE CLEARLY DISPLAYED IN THE FRONT
WINDSCREEN AT ALL TIMES / VEHICLES DISPLAYING BAY OR AREA ALLOCATED
PERMITS MUST PARK IN THE CORRESPONDING BAY OR AREA"

"NO PARKING OUTSIDE OF A DESIGNATED PARKING AREA/ PARKING BAY E.G ACCES ....
ROADS/ YELLOW LINES/ PAVED/ HATCHED OR LANDSCAPED AREAS"

2. Should a motorist choose to park otherwise than in accordance with the above terms, they accept a charge of £100 (reduced to £60 if paid within 14 days of being incurred) for the 'privilege' of parking outside of the terms and conditions of the Contract, which they enter into at the point of parking.
3. All motorists are made aware of the terms and conditions of the Contract as they are clearly set out on numerous copies of the sign placed upon the Relevant Land (the site and the content of the signs have been audited and approved by the International Parking Community (the 'IPC')). The site map exhibited to this Witness Statement clearly shows there was ample notice of the Contract provided to the Defendant at the point of parking.
4. The Defendant parked on the Relevant Land and, as can be seen from the photographs exhibited to this Witness Statement, did not display "a valid UKCPM permit" in their "front windscreen". In choosing to remain parked on the Relevant Land otherwise than in accordance with the Contract, the Defendant accepted that a charge of £100 was due.
5. The Defendant was provided with 28 days from the Charge being incurred to make payment yet my Company is not in receipt of any payment towards the Charge. On the 28th day, the Defendant then breached the Contract and the debt as set out below became owed.
6. As my Company did not receive an appeal or payment of the Charge, the keeper details were requested from the DVLA for the vehicle xxxx (the 'Vehicle') on date xxxxxx. My Company received the Defendant's details on date...... A Notice to Keeper was sent to the Defendant on ....... informing them of the Charge and providing them with the opportunity to pay the Charge or provide the details of the driver, if it was not them.

The permit
7. My company doesn't dispute the Defendant was issued with a permit, however as is evident from the photographs it was not properly on display at the time of the incident. The Defendant was aware of the terms when obtained a permit. A condition of use of the permit is that it must be on display in the windscreen.
8. It is rejected that, given the length of time the Defendant claims to have parked on the Relevant Land, my Company's operative should have been aware that the Defendant's vehicle with registration xxxxxxx ('the Vehicle') had a valid permit. My Company's operative does not have a list of vehicle registrations to which permits have been issued, if it had there would be no need for a permit to be on display.
9. Exactly the same permit templates are used for all our sites. The unique information for each site is written/typed onto the permit. This information and bar code provide the permit's validity. The written information and bar code must be clearly displayed as this is the only way that my Company's operatives know when a permit is valid. The information contained will be unique to that permit and a blank copy of the permit can be found exhibited to the statement which shows all the information that was not on show and required so my Company's operative can validate the Defendant's parking. As the permit could not been seen as it had slipped down the dashboard the validity could not be established.

Particulars of Claim
10. The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:

i) The date of the charge;
ii) The vehicle registration number;
iii) The Parking Charge Notice number;
iv) The amount outstanding;
v) That is relates to parking charges; and
vi) That it is debt.


11. Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge which is the subject of this claim.
12. The Defendant avers my Company has failed to comply with Civil Procedure Rule 16.4 yet has failed to substantiate as to how or what information he believes was non-compliant. In any event, this is rejected as my Company provided each piece of information within its Particulars of Claim required from 16.4(1 )-(2).
13. The Defendant alleges further non-compliance as no written agreement nor the terms of an oral agreement (as required by CPR PD 16 (7.3 - 7.5)) was attached to my Company's Particulars of Claim. The contract entered into by the Defendant was done so by performance, my Company made a unilateral offer to the Defendant to park on the Relevant Land in accordance with the terms stated on the Contract or if they wished to park 'as they please' they could do so for a charge of £100. As the Defendant choose to park on the Relevant Land without displaying a valid permit it accepted, at the point of parking, the parking charge notice 2107819 and also accepted payment was due within 28 days of the date of the incident. In any event PD 7E (6.4) does not require this to be annexed as proceedings were issued online.
14. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver yet has failed to do so. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.
15. In the alternative, if the Court is not able to infer that the Defendant was the driver then the Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 of the Protection of Freedoms Act 2012 ('the Act') Paragraph 4( 1) which states:

"The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle."

16. Paragraph 2 of the Act states that; the "keeper" means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.
17. The relevant Notice was sent to the Defendant in accordance with the Act and the Registered Keeper (the Defendant) failed to nominate who was driving the vehicle prior to these proceedings which is required under paragraph 5(2) of the Act.
18. In accordance with the above and on the assumption the Defendant is the driver, the charge is owed by him

The Contract

19. My Company grants a contractual license to all; this license allows anyone permission to be at the site. This is inferred by the nature of the Relevant Land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all the motorists) were offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and My Company's consideration is the provision of parking services.
20. Further to the above, I hold that a valid contract was formed between the driver (the Defendant in this instance) and my Company and the charge owed is outstanding.
21. The charge is due within 28 days of being incurred, if the charge remains unpaid after this date the contract the motorist entered into is breached and a debt is owed to my Company, my Company is entitled to damages that have occurred as a result of the breach. The costs are a pre-determined and nominal contribution to the actual losses. They relate to the time my Company's staff have spent and material used to facilitate the recovery of this debt. This time could have been better spent on other elements of the business.

The Signs

22. The Defendant alleges that the terms on the Contract are unreadable to a passing vehicle yet my Company has not yet suggested the Contract is to be read upon a glance. My Company provides a grace period for all drivers in line with 15.1 of Part B of the International Parking Community's code of practice which states;

The Current Debit

28. In view of the defendant not paying the charge within the 28 days allowed they are breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.

29. My company is an accredited operator of the international parking community (IPC) who prescribes a maximum charge of 100£. The code of practice states:

" Parking charges must not exceed 100£ unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and / or other documentation.

Where a parking charge becomes overdue a reasonable sum may be added. This sum may no exceed £60 (inclusive of VAT where applicable) unless court proceedings have been initiated".

30. In view or the Defendant not paying the charge withi n the inltial 28 days allowed or the further 28 days allowed after the Notice to Keeper has been sent. the parking charge has become overdue and a reasonable sum of £60 has been added.

31. The Sign sta tes the prescribed charge for faiing to comply with the terms is £ 100. however i t also specWles "Faiure to pay the Charge within 28 days of issue may result in the registered keeper details being requested from the DVLA. Unpaid parking charges may be passed to our debt reoove,y agent, which may incur addi6on8/ costs· Further the Letter Before Claim also made it clear the debt may increase in respect or costs and Inter est W a claim had to be issued. Due to the Defendant not paying the charge the matte r was passed to my Company's legal representatives, Gladstones Solicitors Ltd, who were Inst ructed to commence legal proceedings. The potential additional costs mentioned above are now sought.

The debt has, as a result or this referral risen as my Company's staff have spent time and material in facilitating the recovery or this deb t. This time could have been better spent on other elements of my Company's business. My Company believes the costs associated with such time spent were incurred naturally as a direct result or the Defendant's breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. A lterna tively, my Company does have a right to costs pursuant to the sign (i.e. the contract).




MY DRAFT RESPONSE I STARTED:



IN THE COUNTY COURT AT NORTHAMPTON

CLAIM No: CXXXXXX

BETWEEN:

UK Car Park Management Limited (Claimant)

-and-

Me (Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________


I, ……………………., am the defendant in this case.

1. The facts in this statement are from my own knowledge, true and 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. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant’s paralegal, YYYYYYY


4. RE #2: Due to the unreadable terms and conditions the claimant refers to when entering the car park, it is impossible to acknowledge what the Parking company’s rules are. In fact, I attach a copy evidence from a passenger’s perspective when driving through the site. When comparing this also to the Beavis case, it shows how awful the small print is. Photographic evidence attached with reference.



5. RE #3: I am the registered keeper of the vehicle in question in this case, not the driver, therefore the Claimants appeal regarding the acceptance of their terms and conditions do not apply as I was not the driver since I was abroad in a planned trip. Attached hotel receipt of my stay with printed dates corresponding to that of the date of charge.


6. RE #4: The vehicle in question with Registration XXXXXX had also a valid permit and was parked in the correct Parking bay marked on the permit of the photograph attached.

7. RE #5: The Claimant states that the defendant did not make a payment within the 28days stated for breaching their contract. This statement is correct because as this has been highlighted to the Claimant initially, since the defendant is not the driver responsible for driving the vehicle on that occasion and also having a valid permit, there was no violation of their terms and conditions.



Suggestions and corrections would be greatly appreciated as I do struggle a little with all the legal lingo

Thank you all!

KeithP

Do you understand that your Witness Statement is not just a response to the Claimant's WS?

Your WS is your opportunity to tell your story of what happened.

Look again at the many example Witness Statements linked from post #2 of the NEWBIES thread.

And why does your response start "DEFENCE STATEMENT"?

When exactly is your WS due?

alexwells

I see, I will have more of a read through this week, but my case will be looked at on the 30th of Sep, so reading online I should have till two weeks prior to send my statement.

Looking also around I saw a few formats that were more towards a response to the Claimant, so I will look at changing this to more my side of the story.

Thanks again

alexwells

Hi KeithP thanks again for your suggestions, and yes reading online I have now drafted a proper one :T

Hopefully there will be little to change but here is my statement



________________________________________
WITNESS STATEMENT OF …..
________________________________________


I, ……………………., am the defendant in this case.

1. The facts in this statement are from my own knowledge, true and 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 am the registered keeper of the vehicle in question, but the Claim relates to an alleged debt in damages arising from a driver's breach of contract, when parking at xxx on the DATE at TIME. However, I was not the driver of the vehicle at the time of the alleged contravention.


4. The facts are that the vehicle, registration XXXXX, was driven and parked with a valid permit at LOCATION through an agreement with DEFENDANTS COMPANY NAME and MANAGEMENT COMPANY NAME who act on behalf of the landlord of LOCATION. Exhibit #1 attached for reference.

5. What I find frustrating from the claims made by UK Car Park Management Limited, is that they claim not to have been able to read the parking permit, and they also attached photos as reference, but these cleverly show only photographic evidence with the front view, with an angle, to which the permit is not readable from the camera, but it is clearly visible from the driver’s window.


6. Due to the vehicle with registration XXXXX having a registered permit, to park at LOCATION, the claimant is pursuing an unnecessary claim for breach of contract which never occurred, adding additional claims that their signage clearly displayed all their terms and conditions which from a driver’s view are unreadable and certainly not clearly marked as shown in photographic evidence, as contrary to their statement. Exhibit #2 for reference.
With this I would also like to bring to attention a similar case ParkingEye vs Beavis which have the common issue concerning the visibility of the “small print” that the Claimant refers to as “Terms and Conditions”. Please refer to Exhibit #3 which shows the comparison.


Statement of Truth

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


Thanks again!

KeithP

In support of para 5, can you not exhibit a photo taken from a different angle showing that the permit was clearly visible if only the 'happy snapper' hadn't tried to hide the evidence?

alexwells

Hi KeithP,

I don't have that kind of evidence I'm afraid.

Let me know if there is probably anything else I can add, but the photos of the paking signage are shockingly small to begin with, therefore that is already a big help winning this.

Thanks
Alex

nosferatu1001

Why not takea picture now?
You can put the permit where it should have been and show how its there one photo, gone the next.