AOS completed, defense required

KeithP

TPSTwats wrote: »

Trying to get the maximum help TBH.

You're already getting that.

At over 140 replies, your thread is the longest thread answered in the last two days.

TPSTwats

...and yes I am grateful for all the help I have received.

With kind regards, TPSTWATS

TRNC

I recognise that witness statement

Just a couple of things I see. You've used the same examples of them not confirming to the IPC code as I but. You've change it to BPA but have you haven't changed the references i.e. part E schedule 1.

I'd recommend reading the relevant BPA schedules as you may be able to add more ways in which they do not conform.

Just to be clear, you can't just delete IPC and replace it with BPA. Check with the BPA code of practice document.

My second point is the FAQ you mention. Gladstone's actually sent me an FAQ in reply to me, it seems to be something typical of Glastones and I provided evidence of the letter. Did BW Legal actually send you an FAQ in reply to your request for further information?

TPSTwats

Thanks for the info.

With regards to the FAQ, sadly no. I was working on the basis that they do not attend the hearing, perhaps not the right thing to do.

With regards, TPSAreTheBiggestTwatsEver.

Coupon-mad

You can't just copy things verbatim from a WS against a Gladstones claim about an IPC firm, when yours is a BW Claim about a BPA firm.

You'll clearly have to change it to make sense for your case and we cannot know that you didn't receive a FAQS document, if you (wrongly) say you did, in the draft WS!

You shouldn't be copying a WS anyway. Come on this is an easy stage.

A WS is your story of what happened and what the case for the defence centres around and why you are not liable. That it your story, not someone else's.

And it includes your evidence, some of which might be used by other people here (e.g. the Beavis case sign, Schedule 4 of the POFA, Henry Greenslade's words from the POPLA Annual Report 2015, and some case law) but other evidence will be specific to your case - e.g. your pics showing unclear signs or lack of signs.

Make your story make sense for YOUR case only. This is obvious for any such document.

And yes, BW Legal do send a freelance legal rep to a hearing, surely you've read all the wins on this forum and know this happens?

TRNC

Thanks for the info.

With regards to the FAQ, sadly no. I was working on the basis that they do not attend the hearing, perhaps not the right thing to do.

I think you need to set aside a few hours and do some reading. Looking back you included my reasons about a resident not giving you a visitor permit but you parked at a Halfords!? Then saying it was dark at 1300?!

I'd suggest deleting what I wrote about not conforming with IPC. Then go through the relevant section of the BPA document and then writing about the sections that are relevant.

Won't be able to win by copying and pasting from an irrelevant WS and hoping they don't turn up. Even if they don't they judge can award it to them.

TPSTwats

Thank you CM and to everyone else supporting my cause. I have readdressed the WS, There maybe too much, not sure but i have based it on a WS i found. (https://forums.moneysavingexpert.com/discussion/5775293/help-2-court-claims-bw-legal-excel-parking).

I am hoping that the judge may just get bored reading through it! Would i need to supply a Dr note to state that i am indeed dyslexic?

With kind regards, TPSAreTheBiggestTwatsInTheWorldAndMostOfThemUseAnimals.

---

The Particulars of Claim give no hint as to the allegation, making the position as Defendant keeper who was not driving, almost impossible.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.
2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.
3. The claimant has produced no evidence of who was driving and is put to strict proof.
4. I have no recollection of this occurrence.
5. I am not the only person insured to drive the car in question. (exhibit copy of Insurance showing other named drivers , Insurance copy of me being a named driver on another policy)
6. The claimant does not rely on Pofa 2012 and therefore cannot hold a registered keeper liable
7. The claimant cannot “presume” that I the defendant and RK was the driver at the time of the alleged contravention.
8. There is no law that allows them to do this.
9. I assert under ‘statement of truth’ that I was not the driver on this occasion. This will be repeated in court should this claim proceed to a hearing.
10. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.
11. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. (Exhibit Popla 2015)
12. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)
13. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit Excel Vs Lamoureux)
14. The claimant is known to cite Elliot Vs Loake (1983) as a basis of their claim to assume the keeper was also the driver. However this is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence (road traffic accident) and thus has no basis upon this case or contract law.
15. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.
16. Even if I was the driver on the date in question, the signage on and around the site does not meet the British Parking Association (BPA) or the Independent Parking Committee (IPC) which the claimant is a member of.
17. I refer to the IPC code of practice which states signs should where practical be placed at the entrance to a site. The site in question has three entrances with only a sign to one entrance. (Exhibits - Photo / Video Evidence; IPC Code Of Practice; Detailed map of site sign positions)
18. I again refer to the IPC code of practice which also states the Claimant is required to provide a sufficient number of signs to ensure any parking conditions are adequately brought to the attention of the motorist. There is only 2 signs in total on the site where neither sign has been repeated. (Exhibits - Photo / Video Evidence; IPC Code Of Practice ; Detailed map of site sign positions).
19. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case. (Exhibit- Beavis Case Sign)
20. My case can be compared to the Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) with DJ Lateef’s findings. Observations from her visit in person found answer to the key issue of whether excel had taken reasonable steps to draw attention to the terms and conditions of using the car park. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in early 2011 which Excel parking LTD are still using . (Exhibit - Excel Vs Cutts 2011, Picture of signs)
21. I also refer to the IPC code of practice which states the text should be of such size and in a font that can be easily read by the motorist. The site in questions signs do not meet this requirement. (Exhibit IPC Code)
22. I have reasonable belief that the claimant does not have the authority to issue charges on this land in their own name as they failed to supply the relevant information when requested. The claimant is put to strict proof that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd.
23. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing. (Exhibit - DVLA Freedom of information Request Regarding Excel 2012 Ban)
24. The claimant failed to adequately respond to my request made on xxx where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf. (exhibit copy of email sent )
25. My Request for information was ignored
26. As the RK I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions. (Carpark Sign)
27. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question and the claimant is put to strict proof otherwise.
28. 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.
29. 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 Appendix B of the BPA Code of Practice (see Exhibit A).
b. The signs are not all illuminated as required in Appendix B 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.
iv. The defenant has been diagnosed with Aspergers and being dyslexic and as such there are no supporting signs for these disabilties.
30. Since receiving the penalty charge notice The Claimant has not supplied further and better particulars, even though I have requested these on multiple occasions.
31. 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.
General conditons of AOS Code of Practise 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.
iv. The signs were also not illumanted in anyway. Making it very difficult to read in darkness or visibility reducing weather.
v. There are too few notices within the carpark it is unclear which areas are subject to enforcement. Certainly the area which i parked in there were no signs which were readable within eye distance. This can be seen in the supplied video.
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
32. 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.
33. 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.
34. 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.
35. 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
36. 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.
37. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.

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.

Fight_the_good_fight

As already eluded to the few regulars are responding to a huge number of requests,so to be faced with a huge wall of text is just mindbogling.

Can you repost with paragraphs and suitable spaces to make it easier on peoples peepers

Umkomaas

Fight_the_good_fight wrote: »

As already eluded to the few regulars are responding to a huge number of requests,so to be faced with a huge wall of text is just mindbogling.

Can you repost with paragraphs and suitable spaces to make it easier on peoples peepers

At 8:30pm, there have been 115 separate and different threads currently being dealt with today, with Coupon-mad doing a huge amount of heavy lifting. Yet posters just chuck huge walls of block text at us, with absolutely no regard for the people having to read them, yet expect surgical analysis and expert advice by return, giving them winning answers and causing them not too much inconvenient extra work.

Blindly copying and dumping any old random WS, leaving others to do the analysis and tidying up ........ don't get me started.

It's such poor consideration for those voluntarily giving up their own time to help total strangers with their personal problem, and with the expectation that, without too much work on the part of the poster, a regular will save them £100+.

TRNC

Have you just copy and pasted two witness statements and combined them? Without reading whether they are relevant to your case?

Point 4 - States you have no recollection of the occurrence? Then point 28 goes on to describe what happened...

You mention IPC multiple times but myself and other posters have already told you the IPC have nothing to do with BW Legal.

You have not removed the bit about an FAQ even though you said earlier they never sent one!?

The WS tells the story from YOUR point of view - you cannot just copy and paste things from other WS.

I will say I laughed after reading I believe that the facts stated in this Witness Statement are true.