UKCPM - Take Two

LewiiiD

Good afternoon.

Just received Claimants WS this morning, looks like it’s still going through to court:

https://www.dropbox.com/s/2r4ypzbleczjtcn/Bundle%20the%20approved%2C%20signed%20statement%20with%20the%20exhibits.pdf?dl=0&m=

Is anyone able to have a quick look over. Seems pretty generic once again. Need to make a start on my WS / SA etc as they need to be submitted in a week or so.

I’ll draft up some bits and submitted ASAP.

Thanks again!

LewiiiD

[FONT=&quot]Good evening. This is my draft WS if someone is able take a look. Claimants is attached via the dropbox in my previous post.
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[FONT=&quot]WS:
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[FONT=&quot]1. I am the Defendant in this matter. I am an unrepresented consumer who has limited experience attending the county courts. In this statement I will refer to the documents contained in Witness Statement Evidence as ‘Exhibits’ to support my account, by page number, and Claimant’s Accredited Trade Organisation (ATA) (International Parking Community) Accredited Operator Scheme Code of Practice, by section numbers. [/FONT]
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[FONT=&quot]2. The facts in 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. [/FONT]
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[FONT=&quot]3. The vehicle was parked down a side road within a residential estate. There are no road markings along this road that would suggest that the vehicle would have been parked illegally. At the time of parking the Visitor Space’s allocated to the site were full. A Visitor Permit was displayed. [/FONT]
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[FONT=&quot]4. There was no signage on entering the residential car park (except the statement “Resident’s Parking Only”)(Exhibit 1, page 8) and there was no illuminated signage visible at night. (Exhibit 2, page 9) [/FONT]
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[FONT=&quot]5. The first knowledge of any parking infringement was from the first letter I received from UK CPM dated 15/05/17 – this was a Formal Demand demanding a payment of £100 for an alleged “No Parking Outside of A Marked Bay”. This figure rising to £149 if not paid within 28 days. One very poor quality photo was attached showing the vehicle in question. No reference to how the alleged charge had been calculated was included. [/FONT]
[FONT=&quot]No PCN was ever received. This goes against POFA Schedule 4 9(2)(f) (Exhibit 3, page 10) as the keeper must be warned about the period 28 days beginning with the day after that on which the notice is given. [/FONT]
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[FONT=&quot]6. The first letter received from Debt Recovery Plus (DRP) dated 25/07/17 – this demanded a payment of £160, with no reference as to how the alleged debt had arisen or how the charge had been calculated. There was also inclusion of the text “a parking operator, like our client, took a motorist to court for a parking charge – and won. The Supreme Court ruled that the parking charge was lawful” with no reference to the case name or number. (Exhibit 4, page 11) [/FONT]
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[FONT=&quot]7. My own research has found it likely the Supreme Court case was in reference to ParkingEye Ltd v Beavis (UKSC67 2015) (Exhibit 5, page 12) – which has since been found inapplicable to Residential Parking (Jopson v Homeguard B9GF0A9E 2016) (Exhibit 6, page 12). [/FONT]
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[FONT=&quot]8. I received a second letter from DRP dated 09/08/17 titled “Notice of Intended Court Action – Unpaid Parking Charge £160”. There was no reference as to how the alleged debt had arisen or how the charge had been calculated. This letter included the text “Supreme Court ruling in November 2015, where the court ruled that the parking charge was lawful” – with no reference again to court case name or number. (Exhibit 7, page 13) [/FONT]
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[FONT=&quot]9. I received a third letter from DRP dated 24/08/17 headed “Final chance to pay” of £160 to avoid court action”. Once again there was no reference to how the figure had been calculated or indeed what this alleged debt was for. (Exhibit 8, page 14) [/FONT]
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[FONT=&quot]10. By this point I had been told at various points over the previous 4 months that I owed the Claimant £100 & £160 with no explanation throughout as to how these fees had been calculated. [/FONT]
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[FONT=&quot]11. I received one letter from Gladstones Solicitors dated 10/10/17. This letters alleged I owed the Claimant £160, again with no reference as to what the debt was for or how it had been calculated. This letter once again referenced the ParkingEye Ltd v Beavis court case and states “the law is now clear”(Exhibit 9, page 15). The law is indeed clear - as Jopson v Homeguard states – the Beavis case is inapplicable to residential car parking (Exhibit 6, page 12). [/FONT]
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[FONT=&quot]12. The letter received from Gladstones dated 10/10/17 had included a telephone number for DRP but none for Gladstones.[/FONT]
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[FONT=&quot]13. I received a second letter from Gladstones dated 21/06/18 titled “Letter Before Claim” – the alleged debt was £160. There was no reference as to how the fee had been calculated. The debt was simply referred to as “Parking charges” with no reference as to how the charges had allegedly arisen. (Exhibit 10, page 16). [/FONT]
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[FONT=&quot]14. At this point I had now been told I allegedly owed the Claimant £100 and £160. There was no explanation as to how these fees were calculated or why they varied. [/FONT]
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[FONT=&quot]15. I received a Claim Form dated 14/08/18 from Northampton County Court with claim number *********. The receipt of this claim form led me to research this matter further. [/FONT]
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[FONT=&quot]16. The Particulars of Claim (“PoC”) of the Claim Form were sparse and lacking in detail (Exhibit 11, page 17). The PoC do not meet the requirements of Practice Direction 16 7.5 as there is nothing that specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not “clear and concise” as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything that could be considered a fair exchange of information. It just states “parking charges” which does not give any indication of on what basis the claim is brought. [/FONT]
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[FONT=&quot]17. The Pre-Action Protocol encourages early disclosure of documents. As no documents were received, the Defendant contacted the claimant via letter dated 29/06/18, requesting information relating to the alleged claim. (Exhibit 12, page 18,19,20)[/FONT]
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[FONT=&quot]18. As per the Pre-Action Protocol the creditor should not issue court proceedings until 30 days after the date on which the creditor provides the documents requested by the debtor. [/FONT]
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[FONT=&quot]19. The request for information was finally received via email dated 11/11/18. Within this email it was admitted that they had failed to comply with the Pre-Action Protocol and made the following statement: “It has been noted that legal proceedings have been issued prematurely”. (Exhibit 13, page 21,22)[/FONT]
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[FONT=&quot]20. Taking into account the above admission, the defendant again invites the court to strike the matter out of its own motion. [/FONT]
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[FONT=&quot]21. I found out that UK CPM were members of the International Parking Community (IPC) – there is no reference to IPC membership on their signage. (Exhibit 14, page 23,24) [/FONT]
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[FONT=&quot]22. The sign displays the British Parking Association’s (“BPA”) Approved Operator Scheme (“AOS”) roundel logo – however upon researching this online it was found that the Claimant is not a member of the BPA’s AOS. Upon contacting the BPA it was found the Claimant ceased to be a BPA AOS member in December 2015 and were given a three-month period to remove the AOS logo from their signage. (Exhibit 15, page 25) [/FONT]
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[FONT=&quot]23. The claimant suggests that the signs have been audited by the IPC, yet they still refer to the BPA, even though UK CPM joined the IPC in 2015. The signs still advertise a 0845 number, which was banned back in 2014. This would suggest that the signs haven’t been audited or approved by the IPC and they fail to comply with the IPC Code of Practice set out in Part E Schedule 1. [/FONT]
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[FONT=&quot]24. Having arrived late at night, I had not studied the Claimant’s signs as they were not visible at the point of parking. [/FONT]
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[FONT=&quot]25. It is clearly incumbent on the Claimant, if it accuses drivers of parking offences, to install and maintain clear signage informing drivers that they operate in the residential car park, and about what terms apply to the parking. There was no such signage at the entrance of the car park operated by the Claimant (This lack of signage at the entrance goes against the terms of the Code of Practice of the Claimant’s Accredited Trade Organisation (ATA), Part E Schedule 1 which states as follows: [/FONT]
[FONT=&quot]Entrance Signs should:
a) Make it clear that the motorist is entering onto private land
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
c) Identify yourself (where you are a limited company. This should be by reference to your full company name, your company number and the jurisdiction within your company if registered). [/FONT]
[FONT=&quot]I should emphasise that compliance with the Code is a compulsory condition of the Claimant’s membership of its ATA (and without membership the Claimant would not be allowed to request keeper details from the DVLA which allow it to pursue private parking charges). Compliance has also been held by the Supreme Court to be compulsory if a private parking company like the Claimant wishes to recover what is effectively a penalty charge (rather than a lower sum designed to reflect its actual loss) (case of ParkingEye v Beavis, paragraphs 96 and 111). [/FONT]
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[FONT=&quot]26. In addition to the lack of entrance signage, the signs within the area, operated by
the Claimant were small and not easy to read from a car (another breach of the Code
of Practice). I refer to the photographs in Exhibit 16, page 26. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which the Claimant 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". The signage is not as per the code. [/FONT]
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[FONT=&quot]27. The signage is incapable of forming, as claimed, a contract with drivers. (unlike other signs held as capable of doing so – see for example the sign in the ParkingEye v Beavis and Wardley case, a copy of which is found at Exhibit 17, page 27). [/FONT]
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[FONT=&quot]29. I was aware that I had the right to park in the Resident’s car park as a Visitor – The only condition of parking understood by the tenant and myself was that a permit must be displayed which it was.If no visitor spaces are available, where is one designated to park? [/FONT]
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[FONT=&quot]30. I had not entered into any contract with the Claimant and had no prior contact with them, neither had I any awareness as to their “conditions”. [/FONT]
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[FONT=&quot]31. I discounted the Claimant - based upon the fraudulent display of membership to a professional body they are not a part of - as a “cowboy” organisation. [/FONT]
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[FONT=&quot]32. To that regard I had no contact with the parking company UK CPM, DRP or Gladstones Solicitors prior to receiving the Claim Form. [/FONT]
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[FONT=&quot]33. A parliamentary debate from 2/2/18 looked at the issues surrounding private parking companies and their ‘out of control’ nature picking on residents and authorised visitors in their own homes. The debate can be found at https://www.theyworkforyou.com/debates/?id=2018-02-02a.1149.0&p=11026 [/FONT]
[FONT=&quot]It is exactly the sort of rogue, predatory practice exposed by every MP in the House, speech after speech exposing the national pariah of PPC’s, agreeing that the industry is an ‘absolute disgrace to this Country’ with none in dissent. These are some of the comments made by the MPs concerning the unregulated parking industry, that no court should be supporting: [/FONT]
[FONT=&quot]''Cowboy companies, signage deliberately confusing to ensure a PCN is issued, bloodsuckers, absolute disgrace, rogue operators, unfair charges and notices, wilfully misleading, signage is a deliberate act to deceive or mislead, unreasonable, designed to trap innocent drivers, 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, and ''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 it, and I wholeheartedly support the Bill.'' (Exhibit 18, page 28, 29) [/FONT]
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[FONT=&quot]34. The Defendant is at a serious disadvantage in this case as is an inexperienced litigant in person whereas the Claimant is a well funded, serial litigant. [/FONT]
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[FONT=&quot]35. The Claimant has issued vague and incoherent PoC such as the Defendant does not have enough information to efficiently defend this claim (Exhibit 11, page 17), I therefore reserve my position to add further points to my defence once I have seen the Claimant’s court bundle containing their evidence and witness statement. [/FONT]
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[FONT=&quot]I believe that the facts stated in this Witness Statement are true. [/FONT]
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[FONT=&quot]Signed: Dated: Defendant [/FONT]

Coupon-mad

Bumping this for the early morning Sunday posters to look at!

Le_Kirk

I can only see two things (IANAL) and they are in your point 20 you say: -

20. Taking into account the above admission, the defendant again invites the court to strike the matter out of its own motion.

But, this is the first time in your WS that you have asked the court to strike it out.

Not sure that the bold text in point 29 should be there as a judge might turn round and say (as I saw in a lost case yesterday) "you could turn around and leave"

LewiiiD

Not sure that the bold text in point 29 should be there as a judge might turn round and say (as I saw in a lost case yesterday) "you could turn around and leave"

I see your point there. I will remove this sentence.

Regarding the notion to strike out due to their failure to comply with the pre action protocol, it was mentioned in my defence. I shall amend the statement accordingly though.

Thanks again everyone. Will be aiming to send WS tomorrow morning.

Fruitcake

5. … any "alleged" parking infringement

15. Redact the claim number!

19. The [STRIKE]request for[/STRIKE] requested information

21. Perhaps you could add something like, No reference to the IPC Approved Operator Scheme (AOS) which is a requirement of the IPC CoP in order to obtain keeper details from the DVLA.


Do you have access to the tenant's lease/AST to back up comments about visitor parking requirements. Wording or lack of wording helps.

LewiiiD

5. … any "alleged" parking infringement

15. Redact the claim number!

19. The request for requested information

21. Perhaps you could add something like, No reference to the IPC Approved Operator Scheme (AOS) which is a requirement of the IPC CoP in order to obtain keeper details from the DVLA.

All of the above has been adjusted. Thanks again.

Do you have access to the tenant's lease/AST to back up comments about visitor parking requirements. Wording or lack of wording helps.

Regarding the above, we are struggling to find the AST for the property we were in at the time. As you can appreciate this was a couple of years ago now, and we no longer have any documentation which is highly frustrating!

Coupon-mad

The lessee can send a SAR to the letting agent for a copy, under GDPR, as it was a document that held their personal data and they signed it, so it must be available.

LewiiiD

The lessee can send a SAR to the letting agent for a copy, under GDPR, as it was a document that held their personal data and they signed it, so it must be available.

Not sure I will have enough time now to include this is in my WS. But I will go through the process. Could I include at a later date?

Coupon-mad

Yes I expect that will be fine, send a supplementary WS & evidence hot on the heels of the first one (always to the Court and the Claimant).