Do I have a valid defence?

Le_Kirk

This happened to someone last week ....... and, if I remember correctly, it was to do with posting from Word.

Umkomaas

Le_Kirk wrote: »

This happened to someone last week ....... and, if I remember correctly, it was to do with posting from Word.

Forum Advisory:

https://forums.moneysavingexpert.com/showthread.php?t=5706338&highlight=word

Oscar_UK

Thanks Umcomaas, the team are working to get me back in. In the meantime Is the WS legible for anyone to critique. I only ask as I don't have much time to get it sent.

After consideration I think I'll remove the paragraphs about Gladstones I removed it from the defence previously as it doesn't add anything.

Should I challenge the right to audience on the day or would that rub the judge up the wrong way. How would you put it politely

Thanks in advance
Oscar

Oscar_UK

Ok I'll try again this time from notepad.


I have to post this today so any feedback would be greatly appreciated



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.

a) 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."

b) 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)

a) 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)

b) 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”).

c) 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 signs cannot be read then resulting charges that depend upon their content will not be enforceable.” (“Contrast and illumination”).

d) 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.”

6. 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

7. The claimant has already conceded that the signage was inadequate and has erected more signs in more prominent places since this incident. (P7)

8. 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

9. 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.

10. 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.

11. The signs are similar to those in the case Parking Control Management (UK) v Bull 2016 where District Judge Glen noted

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.

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.

10. 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.”

11. I have evidenced a sign that demonstrates how a contract can be formed. (P10)

12. 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.

13. 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

14. 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.

15. 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

18. 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

19. 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

Umkomaas

You have two paragraphs numbered 10 and two numbered 11.

You have no paragraphs numbered 16 and 17. You jump from para 15 to para 18.

Oscar_UK

Wow don't know how I missed that, thanks

Oscar_UK

Would anyone add this to the Aggressive automated debt recovery section?


These are some of the comments made by the MPs in Parliament concerning the unregulated parking industry (Feb 2018):


''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

Oscar_UK

Hi All,


I have asked this question before but I just need clarification. Do I print and send the relevant case note sections of the cases I have quoted to the court and the Claimant. It would appear the claimant has not done this in their WS.

Oscar_UK

I Won!!!!! and with £95 expenses:j:j


Gladstones didn't turn up to the hearing so the judge just went on their WS. We were only in there for around 2 minutes, he had read the WS's and made his decision already.


Gladstones sent a supplemental witness statement last week to rebuff my statement. The Judge said this wasn't allowed, and I think he would have had strong words with them about it, if they had turned up.


The judge found in my favour due to the fact the signs were completely forbidding and could not have formed a contract. ("No parking in this area either wholly or partially at any time") He quoted PCM V Bull and DJ Glen. and said this was more straight forward than that.


I was a little disappointed that he did not rule on any of the other points I had raised, i.e. lack of prominence or illumination. but he said he didn't want to rule on anything he didn't need to, which is a fair point.


For anyone who is a little unsure of whether to fight these scammers or not, Just do it, don't be a victim. If I can win you can. I knew nothing about Law or any of this before I started and with the help of the guys here and a little reading I managed to beat them and you will too




Thank you everyone here on MSE for your help I couldn't have done it without you.:T:T:T


Cheers
Oscar

Ralph-y

really well done ........



now can we take a few mins of your time and ask you to write to youe MP after reading / watching the below



https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

and slightly longer, the committee stage

https://www.parliamentlive.tv/Event/Index/d5550515-cce9-4185-83ec-754dadb7524a

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

These are the exact words used, so you should quote them to your MP in a complaint and ask him/her to contact Sir Greg Knight MP if he wants further information about this scam.

and some quotes from the committe stage

"The other area is hospital parking, and I want to single out one company for some pretty shady practices. That is ParkingEye"
" is very clear to me that there is collusion between parking companies and solicitors’ firms—so-called roboclaims companies. "
"They are often set up adjacently and involve the same directors and personnel. Incidentally, the same personnel get involved in the so-called appeals bodies."
"Essentially, it is a money-making enterprise that takes advantage of motorists up and down the country. They operate in a very business-like fashion, which is why I call them roboclaims companies."
"The companies are jamming up parts of our legal system."
“I now pretty much know exactly how the parking companies and in particular the IPC have been running this scam for the past 5 years. Basically both of the appeals processes are a complete and utter sham, (and part of that sham is Gladstones Solicitors itself)”
"The appeals process at Excel/VCS is run by a team of minimum wage office workers with no legal knowledge or experience whatsoever,"
" It is claimed by the head of the appeals service (retired Judge Bryn Holloway) that this is a completely independent fair process, it is not”
"The letter mentions two individuals—Will Hurley and Bryn Holloway—and concludes this is a typical example of the clear collusion between the IPC, their members and the IAS"
"what we can do about roboclaims companies and solicitors firms that profit, often in shady ways"
" the very large amounts of money that can be involved in such scams—a company called Smart Parking was involved in one such scam on my patch"
"tightening up the rules regarding the unfair use of automatic number plate recognition" "BW Legal, regularly issues 10,000 county court judgments a month, and is known to have issued 28,000 in one month"
"They are jamming up our court system, and are often totally unjustified."
" because the lifeblood of trying to extort money from people is having access to their details."

All from Parking (Code of Practice) Bill (First sitting) Hansard





Ralph:cool: