Need My Witness Statement Checking Over

iffy_jiffy

Hi @dw190 and @johnersh thanks.

Note thinking more about it. Let the court decide themselves. Ill change the wording "that is not true".

DW190

iffy_jiffy wrote: »

Thanks KeithP. I've seen on schedule 4 they seem both the same in terms if the text but ill change the quote to paragraph 9 to reflect the situation.

I think the simplest way to respond to Hargreaves assertion that POFA Paragraph8 was compliant (16 of his statement) is by stating:

16 of Hargreaves asserts POFA Paragraph 8 compliance.

To comply with POFA s4 Paragraph 8. a Notice to Driver should have been given at the time of the alleged contravention(s4.p8. 2. (c)
state that a notice to driver relating to the specified period of parking has been given ) and a copy would and should have been annexed to the statement. It wasn't. The Claimant has failed to comply with the strict requirements of POFA to rely on Keeper liability. The claim must fail.

iffy_jiffy

DW190 wrote: »

I think the simplest way to respond to Hargreaves assertion that POFA s8 was compliant (16 of his statement) is by stating:

16 of Hargreaves asserts POFA s8 compliance.

To comply with POFA s8 a Notice to Driver should have been given at the time of the alleged contravention(s8. 2. (c)
state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);) and a copy would and should have been annexed to the statement. It wasn't. The Claimant has failed to comply with the strict requirements of POFA to rely on Keeper liability. The claim must fail.

The parking was not paid but free for customers of lidl/bingo so dont think paragraph 7 applies. Only 8 applies as thr NTK was sent via the post and not put on the windscreen..

DW190

Iffy, In your statement you have put:

Pete Minchull who works for Club 3000 Bingo

It should be Pete Minchull Frazer Capitol Man Ltd, Huyton Club 3000,
Poplar Ban, Huyton Liverpool L36 9US.

Coincidently there is a Peter Minshull who just happens to be the General Manager at Preston Club 3000 Bingo that share the car park with Lidl.


This may put another spanner in their works. Contract for the Bingo and claiming its for Lidl customers.

I doubt the landowner or even Lidl have any involvement with ES

DW190

iffy_jiffy wrote: »

The parking was not paid but free for customers of lidl/bingo so dont think paragraph 7 applies. Only 8 applies as thr NTK was sent via the post and not put on the windscreen..

Have a look at it now.

It can be cut off after the bold. It just makes it clear that a NtD should have been given (windscreen) and you should have been served a copy with the docs.

He's claiming POFA 8 but not evidenced a Notice to Driver. NtD is the first piece of the jigsaw for S8. so there should have been one on the vehicle, also a copy in the pack you have.

Coupon-mad

only 8 applies as thr NTK was sent via the post

How did you reach that conclusion after being told what Schedule 4 says?

Para 8 only applies if there was (or was claimed to be) a PCN on the windscreen. This is not a difficult concept.

Para 9 is for a postal PCN which doesn't claim that a windscreen PCN remains unpaid.

iffy_jiffy

My bad then. So Paragraph 9 applies to my case as it was a postal PCN.

So why has Paragraph 8 been referred to by ES (point 16)? Mistake?

iffy_jiffy

Coupon-mad wrote: »

You have:

You have referred to 9(2)f but para 9 does not relate to your case at all.

Para 8 does, so go and read and cite para #8 of the POFA Schedule 4 and show that the operator has not issued a NTK in compliance with the 'keeper liability' statutory warning required as mandatory wording in 8(2)f.

@Coupon-mad - you did say Paragraph 9 does not apply and Paragraph 8 does so i changed the WS accordingly.

I'll change it to paragraph 9.

iffy_jiffy

DW190 wrote: »

Iffy, In your statement you have put:

Pete Minchull who works for Club 3000 Bingo

It should be Pete Minchull Frazer Capitol Man Ltd, Huyton Club 3000,
Poplar Ban, Huyton Liverpool L36 9US.

Coincidently there is a Peter Minshull who just happens to be the General Manager at Preston Club 3000 Bingo that share the car park with Lidl.


This may put another spanner in their works. Contract for the Bingo and claiming its for Lidl customers.

Updated thanks. Agree 100% about the claiming it's for Lidl customers.

iffy_jiffy

Updated WS draft to check through please.

Paragraph 8 and it's references removed replaced with Paragraph 9. Also, tried to simply the POFA points issues from points 12-16.

*****************
IN THE COUNTY COURT BUSINESS CENTRE

CLAIM NO:xxx


ES Parking Enforcement Limited
(CLAIMANT)

AND


xxxxx

(DEFENDANT)


____________________________________

WITNESS STATEMENT OF xxxxxx
____________________________________


I, , xxxxxx WILL SAY AS FOLLOWS:

I, xxx of xxxx am the defendant in this case.

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.

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.

I am an unrepresented consumer who has never attended the county court
before.

I have no knowledge of the events, or signage terms on the date in question.


1. It is admitted that I was the authorised registered keeper of the vehicle in question at the time of the alleged incident. However as I am not the only driver of this vehicle I cannot be presumed to be the driver in the absence of any evidence. The claimant has produced no evidence I was the driver the claimant also failed to state in the Notice To Keeper that the creditor does not know both the name of the driver and a current address for service for the driver. It just wrongly presumes that I was the driver.


2. The Claimant has stated in the Witness Statement that parking charges were on date1/time1 and date2/time2. On both occasions, the car was not present in the car park but was at my home address. This includes the driver and children photographed by the attendant. PROVIDE EXHIBIT EVIDENCES FROM DEFENDANT, DEFENDANTS PARTNER, SON, DAUGHTER, DAUGHER IN LAW, AND OTHER CHILDS FATHER (IN THE PHOTOGRAPH).


3. The quality of the equipment used to take the photographic evidence and the validity of the photos are called into question in relation to the above point. This was raised in a letter to ES Parking Enforcement Limited at the outset on 24/10/16. The contents of the letters, including request for further information were ignored and simply taken as an appeal they were not appeals. PROVIDE EXHIBIT EVIDENCES


4. The Claimant has stated in the description in the Witness Statement that the Defendant left the site whilst in a free parking for patrons area. No evidence has been claimed to prove this. Only photographs of the car in the car park during the alleged time.


5. The Claimant has not provided any evidence as to what constitutes the site boundary, nor how this was communicated to the patrons, and no evidence of where exactly the car or driver claimed to be. Thus any contravention has not been evidenced and is denied.


6. In relation to the signs in the car park, the Claimant has stated there are 37 signs. There are not 37 signs, there are only 13 signs. (Exhibit *****). Furthermore,

a. The signs were of a small font and the text/characters and do not adhere to Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which ES is a member), clearly states 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. (PROVIDE EXHIBIT EVIDENCE IPC P23

This Code of Practice from the International Parking Community has not been adhered to. The wording is also cramped, of small characters/font, and illegible.

b. On the date1/time1 and date1/time1, the weather was dull and there was downpour of rainfall as shown in the photographic evidence by ES Parking Enforcement Limited. The signs were not illuminated and difficult to see and barely legible, and do not adhere to Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which ES is a member), clearly states that You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge. PROVIDE EXHIBIT EVIDENCE IPC P23

This Code of Practice from the International Parking Community has not been adhered to.

c. There were no signs at the entrance of the site and the signs within the site were not obvious to the drivers to make them aware of entering private land and the relevant parking conditions. These do not adhere to Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which ES is a member), clearly states that Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist. PROVIDE EXHIBIT EVIDENCE IPC P23

This Code of Practice from the International Parking Community has not been adhered to.

d. The signs above in the car park are so high up that only a person of above average height would be able to see. IPC P24 states **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.**
PROVIDE IP24 IPC AS EVIDENCE


7. The Contract provided by ES Parking Enforcement Limited has a number of mistakes that make the Parking Contract void and legally ineligible:

a. ES Parking Enforcement Limited has a signed contract with Frazer Capitol Man Ltd. There is no company with that name on the Companies House register. PROVIDE EXHBIT EVIDENCE

b. ES Parking Enforcement Limited has a signed a contract with Frazer Capitol Man Ltd. The contract has been signed by a Pete Minchull who works for Frazer Capitol Man Ltd, Huyton Club 3000, Poplar Ban, Huyton, Liverpool, L36 9US. There is however a Peter Minshull who is the General Manager. PROVIDE EXHIBIT EVIDENCE

https://www.localbarsfinder.com/GB/Preston/103110796435310/Club3000BingoPreston

Furthermore, this signed contract is not with Lidl but Lidl has been referenced in the Witness Statement Point 4 and on the Parking Sign photograph (Page 7).

c. In the Witness Statement provided by ES Parking Enforcement Limited, the signature of Brian Hargreaves in both places (P4 Signed Witness Statement and P5 Parking Contract with Frazer Capitol Man Ltd) are different.

d. ES Parking Enforcement Limited are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges and bring about legal proceedings on this land in their own name and that they have no rights to bring this case.

e. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

f. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

The above points bring about the invalidity of the contract itself and the overall claim.


8. Brian Hargreaves has signed the contract on P4 Signed Witness Statement and P5 Parking Contract with Frazer Capitol Man Ltd. Nowhere in the bundle does it state what the position of Brian Hargreaves is and whether he has the legal right to sign the documents on the Witness Statement and Parking Contracts.


9. There is no mention of the attendant i.e. name and his company role/position and more to the point there is no Witness Statement by this individual who photographed the car and individuals. Brian Hargreaves has made a Witness Statement on his companys behalf but which does not amount to the attendants.


10. The Claimant has adduced no evidence as to what constitutes the site boundary nor how that was communicated to patrons, nor even any photos of where the driver was claimed to be. Thus, any contravention has not been evidenced and is denied.


11. The Claimant claims that the only shop in the vicinity was Lidl (Witness Statement Point 4). This is incorrect as Club 3000 Bingo is also in the same vicinity.


12. I have no liability, as I am the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 Schedule 4. (Exhibit A) in order to hold me responsible for the drivers alleged breach. Schedule 4 relies upon not just a Notice To Keeper being served but these prerequisites which are absent from the evidence:

a. A relevant contract (with the driver, i.e. there MUST be a contract capable of being read and agreed, from clear signs)

b. A relevant obligation giving rise to a parking charge (i.e. there MUST be evidence that the driver had a clear obligation and didnt comply with it and so a charge arose)

c. Adequate notice of the parking charge itself (the actual charge must be in large
lettering on clear signs as shown in (Exhibit B parking signs in car park)


13. To comply with PoFA Schedule 4, the following mandatory conditions have to met:

a. Paragraph 9.2(f) states:

(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given!!!8212;
(i) the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
The creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The above underlined part of Paragraph 9.2(f) is not included in the Notice to Keeper. The claimant has failed to comply with the strict requirements of POFA. PROVIDE EXHIBIT EVIDENCE.

b. Paragraph 9.5 states:

The relevant period for the purposes of subparagraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

The Notice to Keeper sent by the Claimant is over 14 days. The claimant has failed to comply with the strict requirements of POFA.

PROVIDE EXHIBIT EVIDENCE OF SCHEDULE 4 AS ONE OF THE NTKs IS OVER 14 DAYS AFTER THE ALLEGED OFFENCE

This makes it absolutely clear that if the claimant fails to meet any one of the conditions under S4 no matter how minor or trivial that failing is then the act cannot be relied upon to invoke keeper liability.


14. PoFA 2012 was enacted to provide private parking companys (PPCs) a legal process for them to follow which would allow them to transfer liability for parking contraventions on private land from the driver to the keeper, if the driver was not known, and the keeper did not provide the driver details when invited to do so by the PPC.

The claimant, through their own deliberate action chooses not to comply with PoFA. They cannot dispense with the statute then still ask the court to allow them to invoke keeper liability as if they had complied with it. If the court allowed this to happen then it would mean there was no need to enact PoFA in the first place.

I enclose PoFA 2012 S4, (Exhibit A POFA 2012 Schedule 4) as evidence to support these points.


15. Point 16 of ES Parking Enforcement Limiteds Witness Statement from Brian Hargreaves has stated the following:

The relevant Notices were sent to the Defendant in accordance with the Act, in particular the Notices to Keeper which were sent in accordance with Paragraph 8 of the Act.

The statement from ES Parking Enforcement is not true as they did not issue a Notice to Keeper in accordance to POFA Schedule 4. This is a nonPOFA Notice to Keeper.


16. Furthermore, the Notice to Keeper sent to the Defendant did not comply to POFA Schedule 4 by using the wording i.e. Should the Registered Keeper either provide an unserviceable name and address of the driver OR the named driver denies they were the driver, we may pursue the Registered Keeper for any Parking Charge amount that remains outstanding on the assumption they were the driver.

The above is contrary to POFA Schedule Paragraph 9 and all private parking firms know the difference between a POFA and a nonPOFA Notice to Keeper by simply assuming the keeper was the driver. The keeper cant be assumed as the driver and cant be held liable. Once again, ES Parking Enforcement Limited did not issue a Notice to Keeper in accordance to POFA Schedule 4. This is a nonPOFA Notice to Keeper. Also, the next point also adds weight not to assume the keeper was the driver.

Further evidence to support cant assume the keeper being driver:

a. Excel v Mr B. C0DP33Q9 19 December 2016. Stockport in front of District Judge Dignan ..as the driver could not be identified, there couldnt be a contract between the private parking company and any individual..

b. Excel v Ian Lamoureux, C3DP56Q5 at Skipton !!!8230; The Judge was critical of the claimants attempts to hold the keeper liable without being able to rely on PoFA. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012. I enclose the transcript of the judgement in this case as PROVIDE EXHIBIT EVIDENCE

c. CS048 VCS v Quayle C1DP0H0J (keeper not liable for drivers actions if POFA not complied with) PROVIDE EXHIBIT EVIDENCE


17. The claimant states that they believe the keeper was the driver at the material time based on reasonable presumption. I submit that there is no reasonable presumption in law that the keeper was the driver. PATAS and POPLA Lead Adjudicator and Barrister, Henry Michael Greenslade, clarified that with regards to keeper liability,

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 (2015).

I enclose this statement from the POPLA Annual Report 2015 as (Exhibit C)


18. On the 6/10/16 and 27/10/16, i wrote to the Claimant for further details (PROVIDE EXHIBIT EVIDENCES OF BOTH LETTERS). The Claimant did not respond to my request.


19. Withholding any relevant photos of the car, particularly the full view of the
windscreen and the signage terms, despite being asked for by the myself at the
outset, is against the SRA code as well as contrary to the overriding objective in the
preaction protocol.


20. On 20/2/18 and 5/6/18 I wrote to ES Parking Enforcement Limited with regard to Subject Access Request whilst enclosing £10. I did not receive a reply. This is contrary to the ICOs SAR guidelines.


21. As Gladstones are a firm of solicitors whose Directors also run the IPC Trade
Body and deal with private parking issues every single day of the week there can
be no excuse for these omissions.


22. The claimant failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Associations Code of Practice B1.1 which says:

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowners behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions. (PROVIDE EXHIBIT EVIDENCE)


23. On the 13/10/16 and 15/10/16 I received letters rejecting an appeal which I did not make. (PROVIDE EXHIBIT EVIDENCE)


24. The driver did not enter into any agreement. No consideration flowed between the two parties and no contract was established.


25. I deny that the driver would have agreed to pay the original demand of £100 to agree
to the alleged contract had the terms and conditions been properly displayed.


26. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.


27. On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St Albans
County Court without a hearing due to their roboclaim particulars being incoherent, failing to comply with CPR. 16.4 and providing no facts that could give rise to any apparent claim in law.


28. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were deficient and failed to meet CPR 16.4
and PD 16 paragraphs 7.3 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be struck
out.


29. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done. (PROVIDE EXHIBIT EVIDENCE)


30. I also dispute that the Claimant has incurred £60 losses costs to pursue an alleged
£100 debt, the costs of which are in any case not recoverable


31. The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £221 for each alleged offence.


32. I would like to point out that as this car park does not offer a free parking period the
ParkingEye v Beavis and Wardley case does not apply (ParkingEye v Cargius case)


33. The claim must fail due to the points listed above.


Statement of Truth
*****************