Period of validity

Missaver

Here is the new draft, thanks so much for everyone's review and advice

Missaver

IN THE COUNTY COURT AT xxx

CLAIM No. xxx

BETWEEN :

Parking Control Management (UK) Limited (Claimant)

and

xxx (Defendant)

 

WITNESS STATEMENT

 

1.            The facts in this statement come from my personal knowledge. Where they are not within my knowledge they are      true to the best of my information and belief.

 

2.            I am xxxx of (address ) (postcode). I am the defendant in this matter and I will say the following.

3.            I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Witness Statement in support       of my Statement of Defence as already filed.

4.            The facts of the case are as set out in my Statement of Defence, and I rely on that document as a true account. A copy follows this Witness Statement.

5.            I am an unrepresented consumer who has never attended the County Court before.

6.            I assert that I am the registered keeper of the vehicle in question, registration xxx.  I also      assert that I was the registered keeper of that vehicle on the date xxx.

7.            The essence of my defence to this claim is that the car was :

A. Temporarily stopped, not parked

B. Unloading for moving in

 

The reason for visiting the site was to unload large and heavy items for the purpose of moving in.  Upon entering the site, the driver did not notice any prominent signs regarding parking restrictions.  The block to be moved in is on the corner of the road and the entrance to the block faces a spot on the pavement outside with a lowered kerb with double yellow lines on the road.  There are no road signs to be seen to disallow any parking, shown in photographic evidence. (Exhibit xxx1)

The drop down kerb seemed like a sensible spot to park the car as there would therefore, be no obstruction to other vehicles on the road.   To gain access to the spot where the alleged contravention took place, some rising bollards needed to be lowered by the Concierge, of which there is a sign with the number to call (Exhibit xxx2) The driver called the number on the sign and spoke to the Concierge who gave authority to park for unloading, they then lowered the bollards for the driver to enter.

The parking charge does not state any times or restrictions and how long the car was parked.  It is also stated that the vehicle was parked in a manner whereby the driver agreed to pay a charge :"Parked within a Restricted Area".  To my knowledge, there has never been any such agreement.

8.            As stated in paragraph 7 above, the car was stopped for the purpose of unloading somecfurniture for moving in.  Therefore no parking has taken place and no Parking charge can be issued.

CASE 9GF0A9E JOPSON V HOMEGUARD

9.            I wish to bring to your attention the case findings from 9GF0A9E JOPSON V HOMEGUARD 29/06/16 of facts about parked/not parked' as found by His Honour Charles Harris QC. A full transcript can be found in Exhibit xxx 3)

The case supports that a car stopped for a short period of time cannot be classed as “parked” which is what I understand the Claimant is appealing against me, as outlined in the PoC “Parking charges”.

“Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it… Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars… I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried in her desk, it was not “parked”.”

A) The Road Traffic Regulation Act 1984 and The Highway Code talk about "parking","waiting", "loading or unloading" and "setting down or picking up passengers", each as a separate activity. "Loading and unloading" or "setting down or picking up passengers" are clearly different from parking or waiting.

 (B) Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the above mentioned Appeal case decided by His Honour Judge Harris QC at Oxford County Court.

(C) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

(D) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

(E) In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

(F) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. (Exhibit xxx 4 )

''After considering the facts at the time of the grant, Mr Justice Upjohn ruled that an ancillary right to stop, load and unload may be implied into the express grant of a right of way where such a right is necessary for the reasonable enjoyment of the right of way.'' The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

10.          It could be argued that in this instance, being new to the site and for the purpose of moving in, it was necessary to stop the vehicle to unload and be able to enjoy the home comforts by taking them up into the apartment.

The car was stopped off the road on a pavement with a drop down kerb.  There are double yellow lines on the road and if the car had been stopped on the road, it would have caused an obstruction to any vehicle exiting through the rising bollards. This would deem it dangerous to have stopped on the road.  There is no signage visible at the spot where the car was stopped as stated in the Particulars of Claim and none in the photographic evidence supplied by PCM.

The Traffic Act and Highway Code is not enforceable on private roads/land.
Upon receiving the charge I researched further into the laws of double yellow lines and I found that neither the Highway Code (found in Exhibit xxx5) or Traffic Act is only enforceable on public roads. Private roads cannot legally enforce the Highway Code or the Traffic Act in the same context as on public roads. This means that double yellow lines have no meaning on private roads, they mean nothing more than yellow graffiti on the floor and should be treated as so in that they are not legally enforceable.

Lord Denning’s Red Hand Rule

If the site did not wish for any cars to stop for any time period then there should be clear signage to indicate this.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in the case heard in Supreme Court, ParkingEye v Beavis [2015] 3 WLR 1373', as seen in Exhibit xxx6.
A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables within Exhibit xxx7 would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. I wish to bring to your attention Vine v Waltham Forest London Borough Council (2000) which highlights that it is important that the signage must be readable to allow a driver to understand the conditions of the car park. A short summary is available in Exhibit xxx8.

“Although it might reasonably be inferred that a motorist saw and understood the signs as a result of their numbers, size and location it was insufficient that an appellant had simply had the opportunity to see warning signs but that they must also have read and understood them and only then, by doing so, could they consent to the act of clamping if they parked in contravention to the notices"

Primacy of Contract

11.          As a new resident on site, the driver has the permission of the leaseholder to stop, and        who is entitled to rely upon his primacy of contact within the lease (Exhibit xxx9)

12.          No Notice to keeper received

I can confirm that I did not receive any notice to keeper (NTK) before receiving the Parking Charge – Keeper Liability letter dated 13 September 2018 (exhibit xxx 10) which was the first means of communication received by PCM. The language used in the letter suggested that this was not their first form of communication “since we gave you a Notice to Keeper letter”.

13.          Unexplained Inflated costs and Abuse of Process

I received a reminder letter for payment from the debt collectors Trace, the first of three, dated 29 October 2018 (exhibit xxx 11) with the charges inflated to £160. The inflated costs are questionable.  Further to this, the Claim Form now states the Amount Claimed is £175.30.

This is an abuse of process by the Claimant in trying to claim a total amount of £250.30 when the signs were for £100... contrary to the CRA 2015, the Beavis case and the POFA 2012 (Exhibit xxx12).

The Protection of Freedoms Act 2012 (exhibit 13), Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

 

 

Missaver

Abuse of Process and Orders to Strike Out similar Claims

 14.          Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019. Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A) and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix 'B').

 

15.          Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019.The court refused to set aside the Orders and, tellingly, no appeal was made.

 

16.          The Judge found that the claims-both trying to claim £160, with some ten or more similar cases stayed-represented an abuse of process that ‘tainted’ each claim. It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage. That Judgment is appended (Appendix C).

 

17.          District Judge  xxx is  invited to read the Appendices at the earliest opportunity. The Defendant avers that parking firm claims which add duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided. The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

 

18.          Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

 

19.          The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

 

20.          Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

 

21.          Lack of detail within the Particulars of Claim
I received County Court papers in November 2019 where within their particulars of claim it cited the driver ‘parked’ in breach of the terms of parking stipulated on the signage.  However, as mentioned above, the car was temporarily stopped for unloading, not parked.

I am unsure what reasons PCM are using for taking the case to court as they have provided very limited particulars of claim (PoC).

There is no detail offered of what “parking charges” entails within the PoC. The PoC does not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.1 and 1.4 which can be found in Exhibit xxx14. This therefore means that the Claimant has not complied with the pre-court protocol.

22.          Various different outcomes could come under the umbrella term “Parking charges”
As the detail is so limited I have had to consider a number of options that the claimant may be using as necessary under ‘parking charges’.
1) Not been parked in the confines of a bay
2) Been stopped on double yellow lines
3) Been stopped in an area where no stopping is allowed

23.          Photographic Evidence
Within the photographs of the vehicle taken by PCM, as seen in Exhibit xxx 15. The photographs were taken in front of and behind the vehicle. I believe that the images taken of the vehicle suggest that this was not a static camera but a person with a camera. This amounts to predatory tactic which does not comply with the IPC Code of Practice Part B 14.1 “You must not use predatory or misleading tactics to lure drivers into incurring parking charges.” As seen in Exhibit xxx 16.

The obvious lack of photo evidence showing the car actually was ‘parked in a restricted area’ is completely inadequate, therefore, this charge has no basis.

24.          The claimant is responsible for mitigating the losses to the landowner
I refer to case Vehicle Services Ltd vs Ibbotson (2012) The full transcript is offered in Exhibit xxx 17 in which it is agreed that the claimant was responsible for mitigating the losses to the landowner.
“…before the notice is issued. As predatory tactics have been used to take photos of the car and there was no windscreen ticket at the time, there was no attempt to mitigate losses to the Landowner at the time.

This is in breach of IPC CoP section 13.1, viewable in Exhibit xxx 18:
“You agree to ensure that all your operators, servants or agents maintain a professional standard of behaviour when carrying out their duties and comply with the rule of law at all times.”

25.          Schedule of Costs

            I attach a schedule of costs shown in Exhibit xxx19

            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.

 

I believe the facts stated in this statement are true.

Missaver

I'm not sure why, but all the text in my Word version which I copied from aligns the same to the left.  
eg, in the last line above, the word 'such' starts directly underneath 'I invite the Court...' at the same indent spacing, but above, it starts more to the left       
All numbers are sequential as I used a numbered  list in Word.

Coupon-mad

Bumping this for others to view & comment on as it was on page 4!

Missaver

Thanks CM. 
Not sure what you meant by it was on page 4 though, I thought I posted on the latest page each time 🤔

Coupon-mad

It means it dropped to page 4, which is where I rescued it from again tonight!

Missaver

Appreciate if anyone else could review my edited WS above please, thank you

Coupon-mad

You need to number every paragraph, such as here:

The reason for visiting the site was to unload large and heavy items for the purpose of moving in.  Upon entering the site, the driver did not notice any prominent signs regarding parking restrictions.  The block to be moved in is on the corner of the road and the entrance to the block faces a spot on the pavement outside with a lowered kerb with double yellow lines on the road.  There are no road signs to be seen to disallow any parking, shown in photographic evidence. (Exhibit xxx1)

The drop down kerb seemed like a sensible spot to park the car as there would therefore, be no obstruction to other vehicles on the road.   To gain access to the spot where the alleged contravention took place, some rising bollards needed to be lowered by the Concierge, of which there is a sign with the number to call (Exhibit xxx2) The driver called the number on the sign and spoke to the Concierge who gave authority to park for unloading, they then lowered the bollards for the driver to enter.

The parking charge does not state any times or restrictions and how long the car was parked.  

Re that last sentence, if there is nothing to say how long the car was observed, you need to add in as evidence the IPC CoP grace periods paragraphs and state that the driver was given no opportunity to read clear signs to learn about the onerous terms by which they would later be bound, and it seems the ticketing was immediate and predatory, with no fair 'observation' or grace period.

If the driver was you, then I am going to tell you to say so!

In a case like this you will do sooo much better to talk about the event as driver, if you were, and what happened, when the Judge asks.  Like Miss Jopson did in her appeal v Homeguard.

Also remove this, it is a pointless thing to pick up.  You are not alone; so many newbies home in on, and means nothing more than the driver accepted the charge by their conduct of parking, not that they signed an agreement:

It is also stated that the vehicle was parked in a manner whereby the driver agreed to pay a charge :"Parked within a Restricted Area".  To my knowledge, there has never been any such agreement.

 

This bit (below) is dodgy, not quite true (you do not treat signs as if they are graffiti and ignore them!) and misses the very useful point that you should be saying, that in fact to load and unload is 'exempt activity' in the Highway Code (and what is the 'Traffic Act'? I could find the RTA 1991 about road offences but that's not relevant):

The Traffic Act and Highway Code is not enforceable on private roads/land.
Upon receiving the charge I researched further into the laws of double yellow lines and I found that neither the Highway Code (found in Exhibit xxx5) or Traffic Act is only enforceable on public roads. Private roads cannot legally enforce the Highway Code or the Traffic Act in the same context as on public roads. This means that double yellow lines have no meaning on private roads, they mean nothing more than yellow graffiti on the floor and should be treated as so in that they are not legally enforceable.

Should you not be referring instead to the TSRGD (rather than saying wildly and wrongly that DYL are graffiti, it's better to point out the REAL meaning from the TSRGD and muse as to why the parking firm is trying to penalise people for exempt unloading activity and thinks their version of DYL has a different meaning than across the UK's roads!):

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/455160/TSRGD-august-2015-regulations.pdf

Missaver

Thank you Coupon Mad. I will look into all this this week and re edit.