Do I have a valid defence?

Umkomaas

KeithP wrote: »

Yes, and by not complying with the IPC CoP they have also broken their KADOE agreement with the DVLA, which means they have wrongly obtained keeper details from the DVLA:

But the big question is - who is going to do anything about it? The IPC won't, so complain to the DVLA who will tell you that it must be taken up with the IPC.

Maybe a complaint to your MP to see if he can rattle the DVLA cage enough to prevent them throwing you a fob-off line.

Oscar_UK

Do I have to print 3 copies of the IPC code of practice for the WS or can I just print the relevant sections?

System

Do I have to print 3 copies of the IPC code of practice for the WS or can I just print the relevant sections?

It's about as much evidential value as 3 copies of the Sun. Forget the CoP and quote the underlying case law that underpins the Code. Lack of a signs is Vine v Waltham Forest. Hidden terms is Shoe Lane Parking. Onerous terms is Spurling and Bradshaw.

Forget the DVLA too. They've been sidelined and the only possible use of the Code is to complain the ATA is not taking their code seriously.

But as Parliament already knows the DVLA are useless and the ATA's are crooks, then they are in the process of being replaced.

All the judge wants are the facts - he will then apply the law according to one of those three cases or a few others.

Oscar_UK

As I have quoted Parkingeye V Beavis do I have to print out 3 full copies of that case too?

Umkomaas

Oscar_UK wrote: »

As I have quoted Parkingeye V Beavis do I have to print out 3 full copies of that case too?

All 124 pages of it? Your printer will be working overtime.

Just print extract pages where the point you are making is covered within the judgment.

Oscar_UK

Phew! Thanks Umkomaas

Oscar_UK

Hi All,


Here's the first draft of my WS. Can someone please tell me if I'm going in the wrong direction anywhere of if I need to expand on anything


Cheers


In the ………… County Court

Claim Number: ………..

Parking Control Management (UK) Limited

(Claimant)

-AND-

…………

(Defendant)

_________________________________________

WITNESS STATEMENT OF …………..

_________________________________________

I ……….. OF ……………… WILL SAY AS FOLLOWS:





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 way that the Claimant may do, I trust the Court will excuse my inexperience


1. The Facts of this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.


2. I was the registered keeper of the vehicle …….. on …….. which is the subject of these proceedings


3. I was not the driver at the time however I was a passenger and have full knowledge of the incident.

• The Claimant is trying to claim “reasonable presumption” that the Registered Keeper was the driver, the court’s attention is drawn to POPLA's 'Annual Report of the Lead Adjudicator 2015', where under 'Understanding Keeper Liability', the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:
  "However keeper information is obtained, there is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver."
  
• The Criminal Case of Elliott v Loake [1982] has no application whatsoever to this case. 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. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. 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
  

4. On the night in question we drove down ….. St and parked alongside other cars in an unlit dark spot that was being vacated by a car just leaving. We did not see any signs alerting us to the fact we had entered private property or indeed that we had parked illegally. Photographs of the route we took are evidenced. (P1-P5)


Inadequate Signage


5. Having received the PCN I searched in the daylight and found the sign hidden amongst a host of more prominent property for sale signs. I noted the following. (P6)

• The Claimant’s sign is positioned above head height, with charges and terms in small print, as can be seen in evidence photos. The positioning, font size, and lack of illumination mean the sign is difficult to read from a driving position and impossible to read at night even when standing in front of it. As shown in the claimant’s own photographic evidence where the sign had to be lit by the camera’s flash. (P8)
  
• The sign does not conform to the IPC’s Code of Practice (Schedule 1 – Signage), which states: “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obvious to the motorist. The sign is not located nor mentioned near the site entrance, as required, nor is it obvious (“Entrance signs”).
  
• The sign is neither illuminated nor “made of retro-reflective material” – “You need to ensure that all signs are readable during the hours of enforcement as they form the legal basis of any charge. If signscannot be read then resulting charges that depend upon their content will not be enforceable.” (“Contrast and illumination”).
  
• For the reasons described, the signage at this location fails to meet the Code of Practice regulations (Schedule 1 – Signage) set by the Claimant’s ATA, the IPC. Part B.2.1 states: “It is therefore of fundamental importance that the signage meets the minimum standards under this Code as this underpins the validity of any such charge.”
  
  

• There is an End of parking restriction sign in front of the PCM sign suggesting the public highway stopped at that point and the Private road continued and that parking restriction up to that point was enforced by the previous parking control zone sign which informed that parking restrictions were applied between 8am and 7pm
  
• The claimant has already conceded that the signage was inadequate and has erected more signs in more prominent places since this incident. (P7)
  
• The site plan that the claimant refers to is a later edition that shows the new signs that were erected after April 2017 this is a false representation of the signs actually on the site at that time. This is supported with photographic evidence and indeed the clients own photographic evidence. (P5 April 2017 v P7 June 2018)
  
  No Contract
  
• The elements of offer, acceptance and consideration both ways have not been satisfied, therefore no contract can exist and the Claimant has no case. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
  
• Even if a contract had been formed, which is denied, the unlit and hidden signage would render the contract unfair and unenforceable under the Consumer Rights Act 2015. The sign specifically states “No parking in this area either wholly or partially at any time.” Further it is noted as trite law that a term that is forbidding cannot also constitute an offer; the signage does not offer an invitation to park on certain terms, so no contract can exist.
  
• The signs are similar to those in the case Parking Control Management (UK) v Bull 2016 where District Judge Glen noted
  
  

17. In the Beavis case the scheme was categorised by the permission the ParkingEye gave Mr Beavis to be in the car park for a limited period of time. So whether you call it a contractual licence or whether you simply call it a contractual permission, as Lord Mance in the end did, that was the consideration and the consideration flowing the other way was Mr Beavis’s agreement to be bound by those terms.


18. I am afraid that in my judgment that analysis just does not work in this case. It does not work for this reason. If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.

• The signs are also not dissimilar to those in the case Pace v Lengyel. Where District Judge Iyer dismissed the claim noting that;
  “Nowhere on this sign does it inform the reader that by parking in this car park, he is entering into a contract with the Claimant. Indeed the word contract or agreement do not appear at all within the sign it merely refers to the driver accepting liability for a charge. The phrase “Terms and conditions are not synonymous with a contract. Further, the opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver.”
  
• I have evidenced a sign that demonstrates how a contract can be formed. (P10)
  
• The claimant avers that it is inferred they “grant a contractual license to all” and “the rule” was not to park in restricted areas. There is no mention of contractual licenses or restricted areas in the sign so this cannot therefore be a part of any contract.
  
• Having failed to follow the IPC code of practice I believe the Claimant has breached their contract with the leaseholder and therefore invalidated the authority to issue parking charges.
  
  Consumer Rights Act 2015
  
• As The Supreme court held in Parking Eye V Beavis [2013] EWCA Civ 1539 and [2015] EWCA Civ 402, the concept of fairness requires the parking firm to comply with the requirements of the relevant code of Practice being either the British Parking Association’s code or the International Parking Committee’s code. Given that the sign is unreadable from a car or at night and the lack of signs at the entrance, the IPC’s code has been broken. and therefore it would be deemed unfair under the Consumer Rights Act 2015 where There is a requirement in Consumer Law for prominence and transparency which means that information is to be provided in plain and intelligible language and, if in writing, is legible and is prominent, being brought to the consumer's attention in such a way that the average customer – who is well informed, observant and circumspect - would be aware of the term.
  
• To assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations. The question then is whether the driver would have agreed to pay £100 for reading the sign followed by an unlimited, undisclosed sum to be determined by the Supplier. (Claimant) in an individual contract negotiation. The answer is of course, certainly not.
  
  

Aggressive /automated debt recovery

• The Claimant's solicitors (Gladstones) are known to be a serial issuer of tens of thousands of automated generic claims similar to this one (so called ‘robo claims’), with no due diligence, no scrutiny of details, or even checking for a valid Cause of Action. HMCS have reported identifying thousands of similar poorly pleaded claims, which are routinely dismissed by District Judges sitting in this Court and others throughout England & Wales.
  
• It is understood that Gladstones are under an active investigation by the Solicitors Regulation Authority as a result of its poor conduct. The firm was one of a handful specifically highlighted for unfair practices by MPs during 2018 debates of Sir Greg Knight MP's 'Parking (Code of Practice) Bill' in Parliament.
  
• The Defendant argues that the Claimant's conduct in aggressively pursuing unrepresented consumers through the small claims track using an automated system provided by their solicitors is against the public interest and not something the courts should support.
  
  

Additional Charges

• Should the Claimant try to justify additional charges because an out-of-sight sign states in small print: “Non-payment will result in additional charges that will be added to the value of the charge”; the sign fails to specify the amount, justification or cause of action for these “additional costs”, so is too vague to qualify as a contractual charge – in accordance with contra proferentem.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief

Oscar_UK

The layout has changed with when I posted this the paragraphs have lost their numbering and indentations. The layout looks ok in word

Le_Kirk

Oscar_UK wrote: »

The layout looks ok in word

It is advised to copy from Word into [STRIKE]Wordpad [/STRIKE]Notepad and then copy from their to the forum.


ETA As above, it's Notepad not Wordpad, thanks to Umkomaas posting the link from MSEAndrea

Oscar_UK

Thanks Le_Kirk

It looks like my ip address has been banned by the moderator I don't know why. I'm just waiting for an answer, I'll post it again when I get access back.