AOS completed, defense required

TPSTwats

1. I am X, the Defendant in this matter. I will say as follows:

2. I arrived at the car park in overcast, heavy rain and the signs were difficult to read as they are not lit. The signs were difficult to read in this situation and it did not help that the print was small. This can be seen with image (b.1 IMG_20190210_115109.jpg) and image (b.2 IMG_20190210_115144.jpg). There is also a lack of signage as shown by image (b.3 IMG_20190210_115216.jpg) and video (c. VID_20190210_115225.mp4) of the car park.

3. The signs do not conform to the requirements of schedule 1 of the IPC Code of Practise, as follows:

a. There are no entrance signs as required in Part E Schedule 1 of the IPC Code of Practise (see Exhibit A).
b. The signs are not all illuminated as required in Part E Schedule 1 of the IPC Code of Practise (Exhibit .
c. Total Parking Solutions Limited have no identified themselves as ‘the creditor’ (Part E Schedule 1 of the IPC Code of Practise (Exhibit .

4. The terms of the sign are also unfair and a disguised penalty. As stated in the Unfair Terms I Consumer Contracts Regulations 1999:

a. ''5.(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
b. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

5. Since receiving the penalty charge notice The Claimant has not supplied further and better particulars, even though I have requested these on multiple occasions.

6. The BW Legal Limited’s FAQ’s which was sent to me in my reply for further and better particulars did not fulfil any of my requests and was a shameful attempt to do so. They in no way answered any queries I had and this should have been obvious to The Claimant.

7. The Claimant has not notified me whether I am being pursued as the driver or the keeper of the vehicle.

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

This is my latest Witness Statement, I am hoping this will be good enough? I have removed the statements about the resident as this was not applicable, i will be working on just signage.

With kind regards, TPSTwats.

Coupon-mad

IPC Code of Practise

Practise is the verb. You want the noun, Practice.

Don't cite the UTCCRs, these were replaced in 2015 by the Consumer Rights Act.

I think you need to pad it out about how no contract was seen nor accepted.

And expand on #7 saying that the POFA 2012 was not complied with because the Notice to Keeper was not compliant with para 9 of Schedule 4 (explain why...was it received outside of 14 days? Did it include the 9(2)f wording about keeper liability?) and add that there was no 'relevant contract' nor 'relevant obligation' due to 'inadequate notice' of the parking charge.

TPSTwats

Ok, found some padding (https://forums.moneysavingexpert.com/discussion/5666757/civil-enforcement-parking-charge-defence)

Thank you for the help, i am a little dyslexic so get words and spellings mixed up frequently.

How about this one, I really am trying to get it right!

---

1. I am X, the Defendant in this matter. I will say as follows:

2. I arrived at the car park in overcast, heavy rain and the signs were difficult to read as they are not lit. The signs were difficult to read in this situation and it did not help that the print was small. This can be seen with image (b.1 IMG_20190210_115109.jpg) and image (b.2 IMG_20190210_115144.jpg). There is also a lack of signage as shown by image (b.3 IMG_20190210_115216.jpg) and video (c. VID_20190210_115225.mp4) of the car park.

3. The signs do not conform to the requirements of schedule 1 of the IPC Code of Practice, as follows:

a. There are no entrance signs as required in Part E Schedule 1 of the IPC Code of Practice (see Exhibit A).
b. The signs are not all illuminated as required in Part E Schedule 1 of the IPC Code of Practice (Exhibit .
c. Total Parking Solutions Limited have no identified themselves as ‘the creditor’ (Part E Schedule 1 of the IPC Code of Practice (Exhibit .

4. Since receiving the penalty charge notice The Claimant has not supplied further and better particulars, even though I have requested these on multiple occasions.

5. The BW Legal Limited’s FAQ’s which was sent to me in my reply for further and better particulars did not fulfil any of my requests and was a shameful attempt to do so. They in no way answered any queries I had and this should have been obvious to The Claimant.

6. The Claimant has not notified me whether I am being pursued as the driver or the keeper of the vehicle.
7. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent of such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
Schedule 4 also states that the only sum a keeper can be pursued for, is the sum on the Notice to Keeper.
9. This Claimant has not complied with pre-court protocol, as an example as to why this prevents a full defence being filed at this time - a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant
f) Alternatively, the Defendant asks that the Claimant is required to file particulars which comply with Practice Directions and include at least the following information;

i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

ii. A copy of any contract it is alleged was in place at the time (e.g. copies of signage)

iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

vi. If relying on Automatic Number Plate Recognition (ANPR) data, then Installation record of the ANPR system with location, showing the height and angle of the camera and a record of maintenance of the system
10. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b) In the absence of strict proof, I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered, between the driver and the Claimant

c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

i. It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended

ii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant

iii. The signs are believed to not be at eye level, unlit and under trees. The date of this particular incident was in November when the sun would have set and therefore lit signs would certainly be necessary in this case.

d) BPA CoP breaches - this distinguishes this case from the Beavis case:

i. the sum pursued exceeds £100. The defendant was only made aware of the original parking charge amount of £140 via Wright Hassall solicitors, yet after returning to inspect the signage in the car park, Civil Enforcement propose a charge of £100.

ii. there is / was no compliant landowner contract known to the defendant

7. No legitimate interest – no proof has been given that Total Parking Solutions have a contract with this land. This distinguishes this case from the Beavis case: This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims. It is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages

10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

A. Failed to disclose any cause of action in the incorrectly filed Claim Form by the claimant

B. Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

TPSTwats

Bump bump Bump

Coupon-mad

They are BPA, not IPC! You need to cite the BPA CoP; it's not quite the same (read it).

Do you understand why you are saying they have issued a Non POFA NTK or have you guessed? You need to be fairly sure of your ground to argue this at a hearing.

Remove all of this as this is not a witness statement, this is legal argument and not helpful to you anyway:

9. This Claimant has not complied with pre-court protocol, as an example as to why this prevents a full defence being filed at this time - a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant
f) Alternatively, the Defendant asks that the Claimant is required to file particulars which comply with Practice Directions and include at least the following information;

i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

ii. A copy of any contract it is alleged was in place at the time (e.g. copies of signage)

iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

vi. If relying on Automatic Number Plate Recognition (ANPR) data, then Installation record of the ANPR system with location, showing the height and angle of the camera and a record of maintenance of the system
10. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b) In the absence of strict proof, I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered, between the driver and the Claimant

Then re-sort you numbering as you had #7 twice...

TPSTwats

....
#PickMyselfUpAndTryAgaun
....

1. I am X, the Defendant in this matter. I will say as follows:

2. I arrived at the car park in overcast, heavy rain and the signs were difficult to read as they are not lit. The signs were difficult to read in this situation and it did not help that the print was small. This can be seen with image (b.1 IMG_20190210_115109.jpg) and image (b.2 IMG_20190210_115144.jpg). There is also a lack of signage as shown by image (b.3 IMG_20190210_115216.jpg) and video (c. VID_20190210_115225.mp4) of the car park.

3. The signs do not conform to the requirements of the BPA Code of Practice, as follows:
a. There are no entrance signs as required in Part E Schedule 1 of the BPA Code of Practice (see Exhibit A).
b. The signs are not all illuminated as required in Part E Schedule 1 of the BPA Code of Practice (Exhibit .
c. Total Parking Solutions Limited have no identified themselves as ‘the creditor’ (Part E Schedule 1 of the BPA Code of Practice (Exhibit .

4. Since receiving the penalty charge notice The Claimant has not supplied further and better particulars, even though I have requested these on multiple occasions.

5. The BW Legal Limited’s FAQ’s which was sent to me in my reply for further and better particulars did not fulfil any of my requests and was a shameful attempt to do so. They in no way answered any queries I had and this should have been obvious to The Claimant.

6. The Claimant has not notified me whether I am being pursued as the driver or the keeper of the vehicle.


7. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent of such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
Schedule 4 also states that the only sum a keeper can be pursued for is the sum on the Notice to Keeper.
c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

i. It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended

ii. No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the Claimant

iii. The signs are believed to not be at eye level, unlit and under trees. The date of this particular incident was in November when the sun would have set and therefore lit signs would certainly be necessary in this case.

d) BPA CoP breaches - this distinguishes this case from the Beavis case:

i. the sum pursued exceeds £100. The defendant was only made aware of the original parking charge amount of £140 via Wright Hassall solicitors, yet after returning to inspect the signage in the car park, Civil Enforcement propose a charge of £100.

ii. There is / was no compliant landowner contract known to the defendant

8. No legitimate interest – no proof has been given that Total Parking Solutions have a contract with this land. This distinguishes this case from the Beavis case: This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims. It is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages

10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

nosferatu1001

Erm, why are you talking about pOFA when I can take a pretty good guess at the drivers identity, in the first para?

helpforDan

more worrying is two drafts of the defence the OP has asserted he was not the driver

Coupon-mad

Not really an issue for now. Although I did post way back in post #2 this:

It is admitted that the Defendant is the registered keeper of the vehicle mentioned in the particulars but it is not know who was driving/the Claimant has provided no evidence in this regard. (or even the more robust ''it is denied that the D was the driver'' ONLY if TRUE).

Anyway, he/she can say, if asked, that he/she was in a panic when he got the claim and was using a template defence and didn't see that sentence. I doubt it will be an issue as long as he/she appears as the admitted driver at the hearing and the WS has been written honestly about the facts.

@TPSTwats, remove these:

c. Total Parking Solutions Limited have no identified themselves as ‘the creditor’ (Part E Schedule 1 of the BPA Code of Practice (Exhibit .

6. The Claimant has not notified me whether I am being pursued as the driver or the keeper of the vehicle.

7. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent of such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions. Schedule 4 also states that the only sum a keeper can be pursued for is the sum on the Notice to Keeper.

Move all this up to become part of point #3 about signs:

Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

i. It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended

ii. No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the Claimant

iii. The signs are believed to not be at eye level, unlit and under trees. The date of this particular incident was in November when the sun would have set and therefore lit signs would certainly be necessary in this case.

Make these your points #6 and #7:

6. In breach of the BPA CoP, the sum pursued exceeds £100. The defendant was only made aware of the original parking charge amount of £140 via Wright Hassall solicitors, yet the maximum under the CoP is £100.

7. There is / was no compliant landowner contract known to the defendant, and no proof has been given that Total Parking Solutions own or lease this land. In the defence, I averred that the Claimant is merely a contractor providing signs and back office systems on behalf of the landowner. The Claimant has provided nothing to evidence their standing.

Can you tell us please, what was the location, and allegation?

Not paying an displaying? (how long were you there?).

Overstaying paid-for time? (how long were you there/did you overstay?).

Overstaying free time (how long were you there/did you overstay?).

I am concerned this might be similar to the Beavis case and secondly, I am concerned that you do not understand your defence.

TPSTwats

Ok, I have made the requested changes as below. The location was halfords in Harrow, I parked my car in the carpark and visited a nearby shop. It does seem my defense is based on poor signage.

With kind regards, TPSTwats.



1. I am X, the Defendant in this matter. I will say as follows:


2. The driver arrived at the car park in overcast, heavy rain and the signs were difficult to read as they are not lit. The signs were difficult to read in this situation and it did not help that the print was small. This can be seen with image (b.1 IMG_20190210_115109.jpg) and image (b.2 IMG_20190210_115144.jpg). There is also a lack of signage as shown by image (b.3 IMG_20190210_115216.jpg) and video (c. VID_20190210_115225.mp4) of the car park.


3. The signs do not conform to the requirements of the BPA Code of Practice, as follows:
a. There are no entrance signs as required in Part E Schedule 1 of the BPA Code of Practice (see Exhibit A).
b. The signs are not all illuminated as required in Part E Schedule 1 of the BPA Code of Practice (Exhibit .
c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
i. It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended
ii. No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the Claimant
iii. The signs are believed to not be at eye level, unlit and under trees. The date of this particular incident was in November when the sun would have set and therefore lit signs would certainly be necessary in this case.

4. Since receiving the penalty charge notice The Claimant has not supplied further and better particulars, even though I have requested these on multiple occasions.

5. The BW Legal Limited’s FAQ’s which was sent to me in my reply for further and better particulars did not fulfil any of my requests and was a shameful attempt to do so. They in no way answered any queries I had and this should have been obvious to The Claimant.
Schedule 4 also states that the only sum a keeper can be pursued for is the sum on the Notice to Keeper.
c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
i. It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended
ii. No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the Claimant
iii. The signs are believed to not be at eye level, unlit and under trees. The date of this particular incident was in November when the sun would have set and therefore lit signs would certainly be necessary in this case.
d) BPA CoP breaches - this distinguishes this case from the Beavis case:

i. the sum pursued exceeds £100. The defendant was only made aware of the original parking charge amount of £140 via Wright Hassall solicitors, yet after returning to inspect the signage in the car park, Civil Enforcement propose a charge of £100.

ii. There is / was no compliant landowner contract known to the defendant

6. In breach of the BPA CoP, the sum pursued exceeds £100. The defendant was only made aware of the original parking charge amount of £140 via Wright Hassall solicitors, yet the maximum under the CoP is £100.

7. There is / was no compliant landowner contract known to the defendant, and no proof has been given that Total Parking Solutions own or lease this land. In the defence, I averred that the Claimant is merely a contractor providing signs and back office systems on behalf of the landowner. The Claimant has provided nothing to evidence their standing.

8. No legitimate interest – no proof has been given that Total Parking Solutions have a contract with this land. This distinguishes this case from the Beavis case: This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims. It is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages

10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success

Statement of Truth

I believe that the facts stated in this Witness Statement are true.