Advice on Witness Statement for non-compliant and out of time NTK case

QuackNuts

Here's another example of what a farce this Private Parking industry is:

One of the 'old clampers' have issued a non-compliant and out of time NTK. They have kept hold of this like a rabid dog and it's finally coming to court so if you can give me your thoughts on this witness statement please I will be very grateful.

WITNESS STATEMENT

1. I, Xxxx Yyyyy of 123 The High Street, Town, Post Code, am a I]Position Held[/I of I]Company Name[/I. The facts in this case come from my personal knowledge and experience.
2. I]Company Name[/I was the keeper of the vehicle stated in the Particulars of Claim in this case.
3. I]Scambag Parking[/I has no right to pursue me for this amount because no Notice to Driver was issued and the Notice To Keeper was not delivered within the relevant period of 14 days as stated in the Protection of Freedoms Act 2012 Schedule 4 (POFA), paragraph 9(4 and 5) see Exhibit A, Protection of Freedoms Act 2012, copy attached.
4. I]Scambag Parking[/I claim that parking terms were breached on 25/08/17 I]example date[/I. The Notice To Keeper was issued 20 days later on 14/09/17 see Exhibit B - Parking Charge Notice To Keeper, copy attached.
5. I]Scambag Parking[/I do not have the right to pursue me as the keeper as their Notice To Keeper Exhibit B does not meet the criteria of POFA Paragraph 8(f).
6. I was not the driver and the vehicle was not in my or I]Company Name[/I’s care on the date of Notice To Keeper, see Exhibit D, letter from I]Garage Name[/I copy attached.
7. The parking charge was £100 yet I]Scambag Parking[/I are claiming £160.00 plus interest and this is not allowed see Exhibit A, paragraph 4 (5).
8. I believe that the facts stated in this witness statement are true.

Signed
Date
I've kept it brief but am wondering is this enough or do I need to put points about totally inadequate and contradicting signs as well, with Exhibits to prove it to hammer it home?

nosferatu1001

Youre making arguments, somehting you should not do. Just reference POFA
If no notice to driver why are you looking at para 8? Its para 9
Does this relate to an existing thread? If so, why have yuo started a new one?

are you also claiming you were not the Keeper? If so then you need to actually state that. "Care" is a meaningless term.

QuackNuts

I'm sorry, I didn't mean to sound argumentative. This doesn't relate to an existing thread. I thought I was just pointing out the facts. Do you mean, don't add anything about signs etc?

We're admitting we are the keeper and now I've read it again with fresher eyes I see that para 8 would apply if there was NTD but because only NTK it's para 9 (2) (f) - thanks for clarifying that for me, my head was spinning.

The letter from the garage was to show that we, the keeper couldn't have been driving so is this worth putting in and how can I re-word it so it doesn't sound argumentative?

Castle

Is the defendant an individual or a company?

nosferatu1001

". [Scambag Parking] has no right to pursue me for this amount because ..."

That is clearly making an argumentt
I am not liable because...is an argument
The notice could not have been served within 14 days as required under ... because... is a statement of fact.

Clearly different.

You need to state it more clearly then!

"On the material date the vehicle was being Kept by garage ... as shown in ... and as such while I was the Registered Keeper on the date in question i was neither the driver nor the day to day Keeper...."

Or similar.

You cannot have been the keeper, the garage was. You were, at that time, MERELY the RK.

QuackNuts

Thank you. How's Version 2?
WITNESS STATEMENT
I, Xxxx Yyyyy of 123 The High Street, Town, Post Code, am a [Position Held] of[Company Name]. The facts in this case come from my personal knowledge and experience.
[Company Name] was the keeper of the vehicle stated in the Particulars of Claim in this case.
[PPC] has no right to pursue me for this amount their notice to keeper see Exhibit A - Parking Charge Notice To Keeper, copy attached does not comply with the requirements of the Protection of Freedoms Act 2012 Schedule 4 (POFA), paragraph 9 see Exhibit B, Protection of Freedoms Act 2012, copy attached.
The notice to keeper Exhibit A could not have been delivered within the relevant period of 14 days as required in POFA paragraph 9 (5) because it was issued 20 days later on 14/09/17.
The notice to keeper Exhibit A could not meet the criteria of POFA Paragraph 9(f) exhibit B because it does not warn the keeper that if, after 28 days the creditor does not know both the name and address of 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 that remains unpaid.
On the material date the vehicle was being kept by [Garage Name] as shown in Exhibit D, letter from [Garage Name] copy attached and as such while I was the Registered Keeper on the date in question I was neither the driver nor the day to day Keeper.
The parking charge can not comply with Exhibit A, paragraph 4 (5) because [PPC] are claiming £160.00 plus interest and not the £100 stated.
I believe that the facts stated in this witness statement are true.


Do I have to mention the exhibit each time I mention that document?

Coupon-mad

7. The parking charge was £100

Don't say that, it's acknowledging and confirming the charge was clear/known. You could say:

'The Claimant's purported parking charge (of which there is no evidence of it being prominently and adequately displayed so that a driver was 'bound to have seen it) was £100 but...'

You do need to comment on the signs, even if you've never seen them or even been there in your life!

You do need to raise the issue that it is your honest belief from researching signs used by this operator, that they do not - for example - have an entrance sign saying the place is managed/have clear & prominent signs, meeting the 'adequate notice of the parking charge' requirement of Schedule 4, and the mandatory signs section of their Trade Body Code of Practice...etc. and you put the C to strict proof at the hearing and wish to examine the evidence of signs on the material day, not stock photos.

You cannot have been the keeper, the garage was. You were, at that time, MERELY the RK.

Yes, and then quote from Schedule 4 where the term 'keeper' is defined.

How about adding as evidence, the article about David Beckham's case where a Notice served outside of a statutory 14 day period was deemed void under the applicable law, and the same applies when comparing the 14 day period as set out in the statute (POFA) in this case (and quote it from para 9).

How about the registered keeper makes an effort to also adduce evidence that they were not the driver/where they were that day (work record?) in addition to the Garage note? Just in case the Judge is minded to assume. Can you think of any other evidence to throw at the case to show that the rk was not the 'keeper' (in charge of the vehicle) that day?

Can the rk show that they told the C this, before court proceedings? Prove that too, so that the C can't say ''well we didn't know''.

I do suggest the Beckham case (also referring to Gidden v Chief Constable of Humberside: DC (Lord Justice Elias, Mr Justice Openshaw - 29 October 2009) is used sparingly in defences now, where a case turns on a late NTK for a non-driver Defendant:

https://www.bbc.co.uk/news/uk-england-london-45668735

And there's poetic justice in using a footballer speeding case against a Claimant using in their own WS (probably) a footballer case and a speeding case! I think it makes some sense.

Gidden is case law (unlike Beckham) and is explained here and was a High Court decision:

https://www.lawgazette.co.uk/law/criminal-procedure/53075.article

The question posed for the determination of the High Court was whether, upon a proper construction of sections 1(1)(c), 1(1A)(c) and 1(3) of the act, a notice of intended prosecution should be regarded as having been properly served where the said notice was sent to the defendant by first-class ordinary post on a date that would normally lead to it being delivered within the 14-day time limit but where the court was satisfied that it was actually delivered after the 14-day time limit.

Held: ...there was a rebuttable presumption that, unless shown differently, a document sent by first-class post was deemed to be received, and thereby served, on the second business day after it was despatched. Further, section 7 of the Interpretation Act 1978 provided that service by post was deemed to be effective unless the contrary was proved.

...The words of the relevant legislation were clear and, as a matter of statutory construction, where a notice of intended prosecution sent by first-class post had not been received in the normal way, there was no effective service. Although that conclusion might create problems, especially when a postal strike occurred, the authorities would then have to adopt other means of warning a defendant to avoid the risk of belated delivery.

Throw both the Beckham case and the Gidden case in as evidence.

NB, thanks to bama on pepipoo for alerting a group of us to Gidden.

QuackNuts

Is the defendant an individual or a company?

The defendant is a company but the PPC has addressed the PCN incorrectly in that it targets the person who registered the vehicle...

Yes, this should probably be the first point in the statement?! - sorry, first timer for court.. will add to version 3...

Coupon-mad

The defendant is a company but the PPC has addressed the PCN incorrectly in that it targets the person who registered the vehicle...

Yes, this should probably be the first point in the statement?!

Yes, if the person is not the name on the V5.

Is the V5 definitely in the company name? If so, the individual Defendant can truthfully say they were neither the registered keeper nor the driver on the material date and thus, they have no liability and the Claimant has no cause of action.

QuackNuts

i followed your advice and put the extra points in. Printed the three copies, posted them off - guaranteed next day by 1pm, then waited for their papers - none arrived, then with a week to go, got an email off them with a Notice of Discontinuance.

Can we get costs somehow? - the only thing we've not incurred is the time in court and if they're going to learn how to defend the next case I want them to know they're going to pay for the privilege.

nosferatu1001

Technically not, unless they behaved unreasonably
All you can do is
1) Write to the court and ask for a costs order agasint the C. They clearly had no claim to answer and were hoping for a default. See how much you can persuade the court under CPR27.14(2)(g). You will need a costs schedule
2) Send a costs schedule to the claimant and point out their unreasonable behaviour.