Need My Witness Statement Checking Over

Umkomaas

iffy_jiffy wrote: »

If only i could ignore it Umkomaas! Hopefully it's thrown out by the judge.

Eh? What have I suggested you ignore?

iffy_jiffy

Nothing. Just thinking out loud about your reply to dw190 about sh*te :-)

Ignore me lol

iffy_jiffy

Need some more info about signs at entrance in my WS. Ive found some nfo on the IPC web site but thats them but cant find anything anywhere else in terms of the laws/regulations. Could someone help??

Checked the Newbies thread too, peipoo and google too.

Umkomaas

iffy_jiffy wrote: »

Need some more info about signs at entrance in my WS. Ive found some nfo on the IPC web site but thats them but cant find anything anywhere else in terms of the laws/regulations. Could someone help??

Checked the Newbies thread too, peipoo and google too.

There are no 'laws' about signage, but the IPC's Code of Practice is the 'bible' for their operators. Check out what the CoP says about signage.

iffy_jiffy

DW190 wrote: »

OP. Have you got photos with the bundle? Also are there any Particulars of the claim?

This has now been uploaded...see the dropbox location where are all the files are:

https://www.dropbox.com/sh/md2cav7unnxjzs8/AAC8g_2O4ReLVYCadG5saw_ba?dl=0

iffy_jiffy

Right peeps, im done a draft WS and put in all the main points from top down. From point 18 onwards additional points have been put but im not 100% sure these are relevant - could you give a yes or not please.

The POC has been uploaded to drop location - again here...

https://www.dropbox.com/sh/md2cav7unnxjzs8/AAC8g_2O4ReLVYCadG5saw_ba?dl=0


Details of the case are:
The case details are that the car was parked in a lidl/club 3000 bingo car park for about 10mins. The attendant was sat in his car behind the keepers car and took pictures when leaving and returning to the car. You didnt have to pay for the car park as this was for customers only.

In terms of the Evidence/Exhibits, i'll sort and clarify this at the end. Please ignore these atm!


Defence has been included in too..then the WS.


Defence:
**
Defence Statement

Introduction
1. I am xxxxx, the defendant in this matter. My address is xxxx
2. This is my statement of truth and my defence.
3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
4. For the avoidance of doubt on the relevant date I was the registered keeper of a xxxxx, registered number xxxxx and not the driver on the day.
5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at Gateway Park, New Hall Lane, PR1 on Date1 + Date2 2016.

Purported Basis of Claim
6. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:

a. There was a contract formed by the defendant and the claimant on Date1 + Date2 2016.
b. There was an agreement to pay a sum or parking charge.
c. That there were Terms and Conditions prominently displayed around the site including the boundaries of the parking space to be controlled.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
g. Further that the defendant has not paid the alleged debt.

Rebuttal of Claim
7. It is denied that:

a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site and that the area allegedly under the control of the Claimant was unequivocal.
d. That in addition to the Parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
g. That I am liable for the purported debt.
8. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
9. The claimant is put to the strictest proof of their assertions.





My Defence
My defence will rely principally upon the following points:
10. That the signs erected on site (see attached) are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed. The signs erected on site state !!!8220;customers only!!!8221; !!!8211; this is unclear, ambiguous and fails the !!!8220;red hand rule!!!8221; as set down by Lord Denning or the test set in Thornton v Shoe Lane Parking. The signs in ParkingEye v Beavis were clear and unambiguous unlike the claimant!!!8217;s defence. Therefore, drivers would have little knowledge of these hidden terms.

11. a. The car was not present at time stated and have doubts about the quality of the systems used by ES Parking at the site.

11. b. That the area the Claimant says was within their control wasn't clear as the boundaries were unclear and open to misinterpretation. The IPC Code of Practice says on this point:

2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.!!!8221;
2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
The ability of a driver to recognise what the code calls !!!8220;a controlled zone!!!8221; is fundamental to any alleged contract. Schedule 1 of the Code shows the signs that must be present on entry to the !!!8220;controlled zone!!!8221;. None of these signs were present and any driver would be unaware of the boundaries of any zone.

12. Should the claimant rely on the case of ParkingEye v Beavis, the defendant wishes to point out that there is a test of good faith.
Para 205: !!!8220;The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.!!!8221;
13. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
14. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
15. Section B.1.1 of the IPC Code of Practice outlines to operators:
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 !!!8220;Creditor!!!8221; 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 landowner's 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.
The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.
16. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
17. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
18. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c;
8(2)d, 9(2)c or 9(2)d of the Act).
19. In view of all the foregoing the court is invited to strike the matter out of its own motion.
20. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.
This statement is true to the best of my knowledge and belief.

Signed ______________________
Name
Dated 21-01-2018

**

iffy_jiffy

Witness Statement (in another post as there was a character limit):

**

Witness Statement:
**
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 no 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, DEFENDANT’S PARTNER, SON, DAUGHTER, DAUGHER IN LAW, AND OTHER CHILDS FATHER (IN THE PHOTOGRAPH)


3. The quality of the equipment used to take the photographic equipment 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 Independent Parking Committee (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 Independent Parking Committee 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 Independent Parking Committee (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 Independent Parking Committee 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 the entering private land and the relevant parking conditions. These do not adhere to Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (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 Independent Parking Committee 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.


7. The Contract provided by ES Parking Enforcement Limited is 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 Club 3000 Bingo. There is however a Peter Minshull who is the General Manager. PROVIDE EXHIBIT EVIDENCE

https://www.localbarsfinder.com/GB/Preston/103110796435310/Club-3000-Bingo-Preston

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 both 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 brings about the validity of the contract itself.


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 company’s behalf but which does not amount to the attendant’s.


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. 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 driver’s alleged breach. Schedule 4 relies upon not just a Notice To Keeper being served but these pre-requisites 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 didn't 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. PoFA Schedule 4 (S4): 9.2(f) states “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”

a. 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.
b. I submit that the claimant’s Notice to Keeper (NTK) does not comply with PoFA S4, 9.5 PROVIDE EXHIBIT EVIDENCE OF SCHEDULE 4 AS ONE OF THE NTK’s IS OVER 14 DAYS AFTER THE ALLEGED OFFENCE


14. PoFA 2012 was enacted to provide private parking company’s (PPC’s) 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. 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)

16. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton. The Judge was critical of the claimant’s 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 (Exhibit D)


17. 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.


18. 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
pre-action protocol.


19. 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 ICO’s SAR guidelines.


20. 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.


21. 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 Association's 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 landowner’s 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)

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


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


24. 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.


25. 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.’


26. On the 27thJuly 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.


27. 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.


28. 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)


29. 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


30. 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.


31. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the Notice to Keeper. (PROVIDE EXHIBIT EVIDENCE)


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)


Statement of Truth
**

DW190

If the one pic on the Notice to Keeper is the only pic and no original in the bundle I think they're goosed.

No evidence submitted to support the claim that the Defendant or the Driver left the site.

The statement of Hargreaves is no more than paper you buy prewrapped around a roll in relation to you leaving.

iffy_jiffy

The 2 photos in the NTKs (1 photo for each NTK) are the only photos shown in the NTKs. These 2 photos and others are shown in the bundle for both NTKs.

Coupon-mad

Please URGENTLY remove your second sentence after this heading, from your post:

Details of the case are: