AOS completed, defense required

TPSTwats

First of all apologies. I am not trying to waste anyone's time and i did not realize that so few posters were trying to respond and help with many newbies like me.

Second of all, yes, I have been trying to cobble a WS together using other peoples WS. Not knowing enough about IPC/BPA I have thoroughly mixed up the statements and ended up in a complete mess. Not that this is forgivable but more of an admittance.

Third, I have been trying to rush through it, believing that any old WS will do and that the court will claimant will flounder at the court. . This maybe down to the fact like everyone else I have been busy with life and everything that comes with it. As well as full-time work, I have managed to start a part-time MSc which is breaking my face.

Fourth, I do want to win. I understand that there is enough knowledge with the regulars to help me do this. I could have paid them what they wanted and moved on, however the thought of more tickets and giving up was enough to start researching and building my case.

With kind regards, IProperlyHateTPS.

TPSTwats

....
WS
......

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.

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 Association (“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. 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)

18. 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 Total parking solutions LTD are still using.

19. 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 Total Parking Solutions Ltd.

20. The claimant failed to adequately respond to my request made by email 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 )

21. 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. (Car park Sign)

22. 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.

23. 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.

24. 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 authorized 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 defendant has been diagnosed with Asperger and being dyslexic and as such there are no supporting signs for these disabilities.

25. General conditions of AOS Code of Practice 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 authorized 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 illuminated in anyway. Making it very difficult to read in darkness or visibility reducing weather.
v. There are too few notices within the car park 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

26. 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.

27. 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 defense, 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.

28. 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.

29. 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

30. 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.

31. 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.

Coupon-mad

15. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.

Should start:

I have

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.

Don't finish a sentence with 'of'. It is clunky and bad grammar IMHO. And TPS are not members of BOTH Trade Bodies!

How do you know this much detail if you can't remember the event/who was driving?

23. 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.

TPSTwats

Ok, let me change that.

As for the weather, I was trying to cover all the angels. Perhaps I could put a reference to a weather report for the day?

Le_Kirk

...... or maybe the driver (whoever he/she is) told you!

TPSTwats

Yes, even better, thank you.

TPSTwats

.....
Lastest WS
Would you say that this is ready to be submitted?

Thank you in advance for your help.

With kind regards, TPSAreThugsAndBullies.
......


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.

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 have recently visited the site in question for the purposes of gathering evidence for this case.

16. 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)

17. 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 Total parking solutions LTD are still using.

18. 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 Total Parking Solutions Ltd.

19. The claimant failed to adequately respond to my request made by email 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 )

20. 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)

21. 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.

22. I have been informed by 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.

23. 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.

24. 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

25. 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.

26. 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.

27. 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.

28. 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

29. 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.

30. 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.

TPSTwats

Just a quick question, do i need to update my defence to represent the above?

ShakeItOff

25. 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.

26. 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.

You've mentioned WH Solicitors - BW Legal are the current solicitors involved - were Wright Hassall involved too? Apologies if I have missed that further up the thread.

In 26, you might want to put that the Claimant has failed to identify the cause of action in the particulars of claim, and is therefore put to strict proof that they have the ability to bring a claim in their own name. They cannot bring a claim for trespass against you - only the landowner can sue for damages.

Also - please be aware that BW may not attend in person, but they may send an advocate on their behalf. I had a set aside hearing where they were acting for the Claimant yesterday, and they notified me that they wouldn't attend but an advocate would.

In respect of your defence, if you change it now, it will cost you to do so.

Le_Kirk

TPSTwats wrote: »

Just a quick question, do i need to update my defence to represent the above?

You cannot *change your defence once it has been lodged with the court, so the answer is NO.

*Actually you can but you have to apply to the court and it cost £100