Gladys WS, interesting arguments - any thoughts?

luverlyjubbly

I won't post the full doc (most is waffle you've all seen a thousand times), but have picked out a few points from a Witness Statement from Gladys that just seem plain wrong and contradictory to me making me think they're clutching at straws on some key points. Of course, me being biased, I would think that. Could the more learned amongst us share any thoughts on the below please?

Notes before reading: the NTK was NOT PoFA compliant, keeper was NOT driving, Driver was not ID'd at the time and identity has not been divulged by the Keeper, this was a windscreen ticket not ANPR.

1 The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of
a vehicle may be presumed to have been the driver unless they sufficiently rebut this
presumption. To date the Registered Keeper has been invited on numerous occasions
to identify the driver, yet has failed to do so. The Court is therefore invited to conclude
it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver

2 In the alternative, if the Court is not able to infer that the Defendant was the driver
then the Defendant is pursued as the Registered Keeper of the vehicle pursuant to
Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’) Paragraph 4(1) which
states:
“The creditor has the right to recover any unpaid parking charges from the
keeper of the vehicle.”

3 Paragraph 2 of the Act states that; the “keeper” means the person by whom the vehicle
is kept at the time the vehicle was parked, which in the case of a registered vehicle is
to be presumed, unless the contrary is proved, to be the registered keeper.

4 The relevant Notice was sent to the Defendant in accordance with the Act and the
Registered Keeper (the Defendant) failed to nominate who was driving the vehicle prior
to these proceedings which is required under paragraph 5(2) of the Act.
.
.
.
5 The Defendant argues that we cannot rely on Elliot v Loake because it is a criminal
case. This is accurate; however, we invite the Judge to draw inferences from the
principles of this case.

6. The Notice to Keeper is not POFA compliant; however, my Company is able to pursue
the Driver as the Notice did still provide some information required by POFA.
.
.
.
7. It is denied that the contract constitutes a ‘distance contract’ within the meaning of
the Consumer Contracts Information, Cancellation and Additional Charge) Regulates
2013 (“the 2013 Regulations”). In particular:-
i. It is denied that the Defendant was acting as ‘consumers’. The
Defendant parked on the Land wholly or mainly for the purpose of
their trade, business, craft or profession;
ii. It is denied that the contract was concluded by ‘means of distance
communication’.
iii. The Claimant maintained a physical presence on the Land

8. It is evident from the photographs that the Defendant cannot be seen reading any
signs nor can the Defendant be seen near his vehicle. Further, I respectfully submit
that it is more than likely that the motorist will have been parked on the Relevant
Land for longer than the 10 minute grace period as the parking operative will have
performed a number of time consuming procedures, including:-
a. Having driven to the Relevant Land as part of his/her routine patrols;
b. Having to park the vehicle and exit the vehicle; and
c. Having to issue the parking charge notice

9. Without concession, upon receipt of the Notice, it was open to the Defendant to
nominate the driver of the vehicle if it was not him at the time the parking charge was
issued. Despite having had ample opportunity to do so, the Defendant has failed to do
this. The Defendant is therefore pursued as the driver of the vehicle.

10. As the Defendant is pursued as the driver it is irrelevant whether the Notice to Keeper
was POFA compliant or not as this is not relied upon.




My thoughts are that they have some 'template' software that lets them pick certain statements from a predefined list which then generates a WS - the PDF bears this out as it is generated by .net component. As a whole, it looks flawed and contradicts itself - that looks very suspect on a WS that is supposedly facts only and signed (albeit with a low-resolution electronic sig).

The Defendant knows how to rebut Elliot etc from research of this great (and other) boards, they're now looking for ideas on how to approach the whole "...!!!!!! are they talking about in that confused witness statement?". The Defendant was in two minds about sending a skeleton argument, it is now clearly essential!

As soon as the Claimant opens their mouth in court, something in that WS will contradict them.

Umkomaas

Standard Gladstones template guff. Dozens of Judges have disabused them of their attempt at sticking E v L onto a private parking charge claim.

http://parking-prankster.blogspot.com/2017/06/excel-v-ms-x-c8dp5c7t.html

So if they can't have that cake, they'll try to eat another - Keeper Liability, but it's not actually meeting PoFA M'Lud, but perhaps you can 'draw inferences' - shall we pass you the crayon for your drawing! :rotfl:

6. The Notice to Keeper is not POFA compliant; however, my Company is able to pursue
the Driver as the Notice did still provide some information required by POFA.

Not enough sunshine!

Seen this stuff so many times from Gs. As Albert Einstein once said:

Stupidity is doing same thing and expecting different results

Fruitcake

It's all contradictory rubbish.

They know E v L will be easily rubbished and thrown out. They then say they want to go after the keeper but admit they have failed to meet the strict requirements of the PoFA, but then go on to say they are pursuing the driver.
So which is it? Are they after the keeper or the driver?

They have met some PoFA requirements, but not met ALL of them, so fail on keeper liability.

The bit about not being seen reading signs doesn't mean the driver didn't go and read them.
The bit about what their operative may have done is completely irrelevant, and just laughable. They might have been in a pub for all we know.

luverlyjubbly

I'm glad it's not be going mad.

I like the way their operative had to drive to the site, get out etc... Then they try to rubbish the contract legislation by saying they were on site throughout!

You couldn't make it up.

Umkomaas

You couldn't make it up.

No, but they do!

beamerguy

Who on earth writes the Gladstones rubbish ????

They got more sadder as each day passes

Elliott v Loake ?????

The other train of thought is that Gladstones get
"turned on" by being whooped in court