AOS completed, defense required

TPSTwats

Thanks..
ok...made those changes...
....

With kind regards, IHATETPS!



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 BW legal, yet after returning to inspect the signage in the car park, Total parking solutions 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 BW Legal 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. 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

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.

ShakeItOff

TPSTwats wrote: »

Thanks..

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. I was not the driver on the material date. 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. At the material date, other people, including family members and friends with the appropriate insurance had access to the vehicle. [STRIKE]I am not the only person insured to drive the car in question.[/STRIKE]

6. The claimant does not rely on Pofa 2012 and therefore cannot hold a registered keeper liable Has the Claimant said that they are not relying on POFA? If they have, then I would be inclined to make this more specific. But if they are trying to rely on POFA, you need to be clear as to how they have failed this requirement to transfer keeper liability. You will then want to review Point 3 above

7. The claimant cannot “presume” that I the defendant and [STRIKE]RK[/STRIKE] the Registered Keeper was the driver at the time of the alleged contravention. Link or amalgamate this to Point 11

8. There is no law that allows them to do this. This is not strictly true - Protection of Freedoms Act allows them to transfer liability to the keeper, subject to them complying with the strict requirements of Schedule 4 (8)

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. This is a repetition of above

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. Repetition of above

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. [STRIKE](Exhibit Popla 2015)[/STRIKE]

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) Again, repetition. But you may want to specify how they have failed to meet the requirements

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. Have they quoted this at you in their case?

15. I have recently visited the site in question for the purposes of gathering evidence for this case. Great - what's the point of this point?

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. Correct capitalisation needed - Total Parking Solutions Ltd... Excel...

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, allowing the Claimant to sue in their own name.

19. The claimant failed to adequately respond to my request made by email (DATE?) 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 The Claimant has failed to detail where in the terms and conditions the additional £54 is . 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 [STRIKE]believed to [/STRIKE]not [STRIKE]be[/STRIKE] at eye level, are 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. Can you find the sunset times for the particular day through a credible website such as the Met Office to append as evidence?
iv. The defenant (typo) has been diagnosed with Aspergers Syndrome and being dyslexic and as such there have been no reasonable adjustments identified to support those with such disabilities to be able to enter into an informed contract [STRIKE]are no supporting signs for these disabilties[/STRIKE]. The Driver may want to ask their GP to confirm these diagnoses by letter - it is likely to cost, but you could add that in to the schedule of costs (note: YOU are relying on keeper liability here - not driver liability, so this may be something you need to consider

24. General conditons typo of the BPA [STRIKE]AOS [/STRIKE]Code of Practise also states that the only sum a keeper can be pursued for is the sum on the Notice to Keeper. I am not 100% familiar with the BPA COP, but does it actually say this, or is it that the advised max. charge is £100? In any event, POFA clearly states that only the amount stated in the NTK can be recovered from the 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. Repeated point
iv. The signs were also not illumanted typo in anyway. Making it very difficult to read in darkness or visibility reducing weather. But was this the case?
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 BW legal, yet after returning to inspect the signage in the car park, Total parking solutions 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 BW Legal solicitors, yet the maximum under the CoP is £100. Repeated from above

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. Third time that this has been mentioned!!In the defence and with a lack of evidence produced by the Claimant to attest otherwise, I averred aver that the Claimant is merely a contractor providing signs and back office systems on behalf of the landowner. [STRIKE]The Claimant has provided nothing to evidence their standing. [/STRIKE]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 You've just copied from my post - you'll need to word it better than this

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. What proof do you have of this? It is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue. Not sure it is worth arguing this point anymore

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. Your case isn't pre-POFA (pre-POFA is before 2012)

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.

Just some thoughts in red.

You are going to need to make sure that you fully understand and are comfortable with the information in this WS - if you are asked about it, you do not want BW Legal saying that you have cut and paste a WS, and have them picking holes in it. That will definitely not go well for you.

TPSTwats

Thank you for your help.

TPSTwats

...
Latest WS incorporating the changes from above.
.....

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. I was not the driver on the material date. 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. At the material date, other people, including family members and friends with the appropriate insurance had access to the vehicle.

6. The claimant does not rely on Pota 2012 and therefore cannot hold a registered keeper liable

7. There is no law that allows them to do this.

8. 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.

9. The claimant cannot “presume” that I the defendant and the Registered Keeper was the driver at the time of the alleged contravention.
(a) Barrister and parking law expert Henry Greens lade 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.

10. 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)

11. 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)

12. 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)

13. 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.

14. 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, allowing the Claimant to sue in their own name.

15. The claimant failed to adequately respond to my request made by email (1/01/2019) 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)

16. As the registered keeper 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)

17. In this matter the claimant is lying The Claimant has failed to detail where in the terms and conditions the additional £54 is. 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.

18. 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.

19. 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 at not at eye level, are 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 (typo) has been diagnosed with Asperger’s Syndrome and being dyslexic and as such there have been no reasonable adjustments identified to support those with such disabilities to be able to enter into an informed contract.

20. General conditions of BPA 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 at eye level, are 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 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 BW legal, yet after returning to inspect the signage in the car park, Total parking solutions propose a charge of £100.
ii. There is / was no compliant landowner contract known to the defendant

21. 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 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 the keeper - only the landowner can sue for damages

22. 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

23. 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.

24. 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

Pota 2012

should be the POFA 2012 but the first time you mention the Act you must type it out in full, and only use the acronym after that.

Remove #13, as the Cutts case is not like your case really, and talking about 2011 Excel signs really doesn't help your case v TPS.

TPSTwats

Thank you. Updated, would you like to see it again?

TPSTwats

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Hopefully the final version?

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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. I was not the driver on the material date. 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. At the material date, other people, including family members and friends with the appropriate insurance had access to the vehicle.

6. The claimant does not rely on POFA 2012 (Exhibit SCHEDULE 4Recovery of unpaid parking charges) and therefore cannot hold a registered keeper liable.

7. There is no law that allows them to do this.

8. 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.

9. The claimant cannot “presume” that I the defendant and the Registered Keeper was the driver at the time of the alleged contravention.
(a) Barrister and parking law expert Henry Greens lade 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.

10. 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)

11. 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)

12. 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)

13. 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, allowing the Claimant to sue in their own name.

14. The claimant failed to adequately respond to my request made by email (1/01/2019) 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)

15. As the registered keeper 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)

16. In this matter the claimant is lying The Claimant has failed to detail where in the terms and conditions the additional £54 is. 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.

17. 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.

18. 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 at not at eye level, are 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 (typo) has been diagnosed with Asperger’s Syndrome and being dyslexic and as such there have been no reasonable adjustments identified to support those with such disabilities to be able to enter into an informed contract.

19. General conditions of BPA 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 at eye level, are 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 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 BW legal, yet after returning to inspect the signage in the car park, Total parking solutions propose a charge of £100.
ii. There is / was no compliant landowner contract known to the defendant

20. 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 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 the keeper - only the landowner can sue for damages

21. 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

22. 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.

23. 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.

KeithP

Read again the first part of Coupon-mad's most recent post.

This bit:

should be the POFA 2012 but the first time you mention the Act you must type it out in full, and only use the acronym after that.

TPSTwats

I was not sure which part to quote so I added it as a reference which will be sent as part of the pack.

TPSTwats

I want to win, could you help me ensure that I have everything I need please.

If they cover the costs, I would be happy to donate to a charity (suggestions?). I am not looking to gain financially. But I do want to win now, still not sure how it will roll without turning up but that is another hurdle.