Liverpool business park PCN - We won!

KeithP

Tinyteague wrote: »

*** I cannot find the exact section of Consumer rights act to back this up, the unfair terms appears to be based on the actual contract?

Consumer Rights Act 2015 Section 69.

Tinyteague

Cheers Keith, I'll get that one in.

Tinyteague

DQ has arrived and needs completing.

I have filled it all in bar the court of preference.

There are two County Courts that deal with money claims near me, there is Liverpool, which is closer by 1 mile, then there's St Helens which is actually quicker to get to.

I've heard Liverpool is a tough place to fight PCNs, so should I put down St Helens as the preferred choice?

KeithP

When complete, return the DQ to the CCBC in the same manner, and to the same email address that you used when filing your Defence.
To refresh your memory, have another look at post #27 above.

Do not forget to send a copy to the Claimant - address on your Claim Form.

Coupon-mad

I've heard Liverpool is a tough place to fight PCNs, so should I put down St Helens as the preferred choice?

I suspect you will get the same pool of Judges.

Tinyteague

The date for filing the witness statement has snuck up on me (4pm 17 June). If anyone could have a glance over it to make sure there is no glaring mistakes I'd really appreciate it.

IN THE COUNTY COURT

CLAIM No: XXXXXX

BETWEEN:

VEHICLE CONTROL SERVICES (Claimant)

-and-

XXXXXX (Defendant)

__________________________________________________
WITNESS STATEMENT – XXXXXX
__________________________________________________

1. Preliminary

1.1 I, XXXXXX am the Registered Keeper in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

1.2 Attached to this statement is a paginated bundle of documents marked E1, E2 etc., to which I will refer.

1.3 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.

1.4 The claim refers to an incident involving vehicle XXXXXX on XXXXXX at the location of XXXXXX (hereafter referred to as the site).

1.5 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 already submitted.

2. Protection of Freedoms Act 2012 (POFA)

2.1 The POFA 2012 is only concerned with parking contraventions. As this is a no stopping contravention, the private parking company have failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

2.2 In appeal case HHJ Harris QC in Jopson v Homeguard Services Ltd (case number: B9GF0A9E) (2016), parking was distinguished from stopping based on duration, “pausing for a few moments or minutes” as opposed to “leaving a car for some significant duration of time”. As shown by photos from the claimants SAR response (hereafter referred to as the photos), the driver never left the vehicle and was stopped for 38 seconds. Therefore the car was not parked. See case transcript E1 (Sections 19, 20, 21), photos E2a, E2b.

3 The Incident location

3.1 From the photos, there is clearly a sign facing the vehicle in question. The sign is an upside down equilateral triangle. From the Highway code, Section “Traffic signs - Signs giving orders” only “Give Way” signs take this shape, and per the photo, there is oncoming traffic. Rule 171 of section “Using the road” in the highway code, “The approach to a junction may have a ‘Give Way’ sign or a triangle marked on the road. You MUST give way to traffic on the main road”.

The instruction on this sign contradict the terms of the no stopping signs, and clearly pose a risk of injury or life. The placement of these sigs are confusing and ambiguous as the rules could be interpreted in two ways, and thus the interpretation that most favours the consumer must prevail (Ambiguous terms, the Consumer Rights Act 2015). See Highway Code E3. Photos E2a, E2b. CSA E4.

4. Grace Period

4.1 The photos cover a period of 38 seconds. The Parking Charge Notice appears to be in contravention of the Claimant’s own accredited parking operator scheme (The Independent Parking Committee (IPC)), which states that a grace period must be allowed for a driver to locate signage, go up to it, read it and then decide whether to accept the terms or not:

Part B, Section 15.1 “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.” and Section 15.2 “Drivers should be allowed a sufficient amount of time to leave a site after a pre-paid or permitted period of parking has expired.”. See photos E2a, E2b. IPC Code of Practice (COP) E5.


5. Inadequate Signage

5.1 It is unlikely that the driver of the vehicle would of seen the one sign that is erected on the exit of a roundabout immediately before the location. I believe that in the case of “Vine vs 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 have not seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no signage directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle when parking.

5.2 The signage at the site is difficult to read and impossible when moving. A key factor in the case of “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 that “the charge is prominently displayed in large letters and at frequent intervals within it”. That is not the case here. See entrance sign E6, PE Vs B transcript E9 (paragraph 90. And paragraph 100.)

5.4 The signage and operating practice of the Claimant in use at the site fails the Claimant’s own accredited parking operator scheme (IPC), on many points:

5.4.1 The IPC Code of Practice (COP) has 3 criteria that signage on entering the site should conform to. The entrance signs to the site fail at 2 of these:

Criteria a) “Make it clear that the motorist is entering onto private land”. This is not clear on the entrance sign, where the only text is a small line at the bottom right of the sign reading “This private property is managed & controlled by”. See entrance sign E6, IPC COP E5 (Part E, Sch.1 b.)

Criteria b) “Refer the motorist to the signs within the car park which display the full terms
and conditions.”. The entrance signage makes no mention of any additional signage which the full terms and conditions are displayed. See entrance sign E6, IPC COP E5 (Part E, Sch.1 a.)

5.4.2 The IPC COP state that “Text 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 sign contains 98 words and is mounted immediately to the side of the roundabout exit, where a drivers attention should be on traffic on the roundabout, makes it impossible to read from a moving vehicle. See entrance sign E6, IPC COP E5 (Part E, Sch.1 “Text Size”)

5.4.3 The IPC COP states “If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated”. The smaller signs that were received from the claimant as part of the SAR response specify “Charges Apply 24 Hours Per Day”, and therefore should be illuminated. None of the signs within the site are illuminated. See smaller sign E7, IPC COP E5 (Part E, Sch.1 “Contrast and illumination”).

5.5.1 The Department for transport’s “Traffic Signs Manual 1982” (TSM 1982), specifies requirements in making signs legible at a given speed. It states that a driver should not have to move their head more than 10 degrees from the road ahead to read the sign. It continues to mention that the message on the sign should be fully absorbed before the sign exceeds the 10 degree observation angle. As the entrance signage is immediately following the exit of a roundabout, the sign would come into the observation angle as the driver exited the roundabout, and would exit the observational angle within seconds later. The 98 word message on the sign would not of been fully absorbed in those seconds, and thus is illegible. See TSM 1982 E8 (part 5 “The Design and Use of Signs” paragraph 1.31 b.).

5.7.2 The TSM 1982, states that signs should erected with the lower edge of the sign being between 900mm and 1500mm of the highest point of the alongside carriageway. The entrance sign fails to meet this standard, as its bottom edge meets the grass verge. This further reduces reading time of the sign as the message quickly becomes obscured by cars bonnet on approach. See TSM 1982 E8 (part 6 “The Positioning of Signs”, paragraph 1.49).

6 Declaration

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.

Statement of Truth

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


Signature

Date

nosferatu1001

1.1 I dont like this. Just confirm you are the defendant and registered keeper of VRM XXXXXXX on the material date.

1.4 its an alleged incident unless you are accepting that it took place exactly as they stated?

2.1 You cannot comply with something if it isnt even relevant in the first place - I would revise this to state that there is no provision under POFA to transfer liability from a driver to a keeper for anything EXCEPT for parking. As the claimant has confirmed this is "no stopping" and not "no parking" they have no claim under POFA against the keeper.

Tinyteague

Thanks Nosferatu. I've revised those points and changed them as suggested.

Regarding citations from the bundled documents:

Do I need to include the entire document when only citing a small paragraph? (ie the Beavis vs PE 2nd appeal, is a very large transcript, I am referring to only two paragraphs)

Also the highway code, Do I take the full booklet as backup, but include only the relevant parts in the bundle?

For the signage, do they need to be printed in colour (I don't make any argument against the colour scheme)?

Then regarding serving the file:

I put this all together in a paginated file for myself and the court, then do I send the file in its entirety to the court?

For the claimant, do I just email them all parts of the file?

Umkomaas

Do I need to include the entire document when only citing a small paragraph? (ie the Beavis vs PE 2nd appeal, is a very large transcript, I am referring to only two paragraphs)

Extracts, but obviously referenced to the source.

Also the highway code, Do I take the full booklet as backup, but include only the relevant parts in the bundle?

Seems sensible to take the booklet to back up the extracts in your evidence.

For the signage, do they need to be printed in colour (I don't make any argument against the colour scheme)?

I don't think it will harm anything. If you are taking a laptop/tablet/smartphone with you, if necessary, you could show full blown colour versions.

I put this all together in a paginated file for myself and the court, then do I send the file in its entirety to the court?

Our advice is, that where possible, the file is hand-delivered to the court.

For the claimant, do I just email them all parts of the file?

Everything you serve on the court you must also serve on the claimant. Sending via email (if that's the method you've used previously in this case) is fine, they can print off their own copy.

Tinyteague

Thanks nosferatu, that clears up a lot of my questions.

If you could answer a few more I'd appreciate it:

Is the judge likely to out right ask whether the defendant was driving, and if so do we have to answer directly?

if we lose, do we pay the charge notice + any awarded costs to the claimant?

if we win, our cost schedule may or not be awarded by the judge - what would be a reasonable amount to ask for?

Thanks again.