Two fines with NCP

ulukai

How does this look so far? feel like I need something in there about No Contract but am struggling to find a way to word it, been over many threads but most seem like very different situations.

In the County Court at xxxxx

Claim Number: xxxxxxx

Hearing Date: xxxxxxx

WITNESS STATEMENT OF xxxxxxxx (DEFENDANT)

1. The facts in this statement come from my personal knowledge. Where they are not within my knowledge they are true to the best of my information and belief.

2. I am x, of [Address], [Postcode], the Defendant in this matter. I will say as follows:

3. I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Witness Statement in support of my Statement of Defence as already filed.

4. The facts of the case are as set out in my Statement of Defence, and I rely on that document as a true account. A copy follows this Witness Statement.

5. I represent myself as a litigant-in-person, with no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional.

6. In my statement I shall refer to exhibits within the evidence bundle supplied with this statement, referring to page and reference numbers where appropriate. I will refer to this bundle as EB01

7. I assert that I was the registered keeper of the vehicle in question, registration xxx on the date xxx.

8. Sequence of events:

8.1 This matter relates to a pay & display car park and on the material date 27.09.2018, I was in Newcastle for work specifically to attend HSBC for ATM repairs which lasted just over 2 hours, this was the first time I had to use this car park, when I arrived the signs at the entrance are on the passenger side and are difficult / too small to read, also it’s impossible to read all of the signs due to parts not being visible from my vehicle on the drivers side, this is the only place these specific signs are located in the car park, on an awkward slope and very narrow entrance with no walkway, you would not think to stop in this spot to read a large document, safety being my first concern, and holding up a one way system being the second, see EB01 pages 01-04

With there being no signs for pay and display around the ticket machine or entrance signs and having entered my reg and not had any option to increase the tariff I had assumed this ANPR system calculates your stay and charges the required fee when you leave, so I went and did my job and came back to buy a ticket in good faith however the ticket machine has too many buttons, is overly confusing and there was no option to increase the tariff again, see EB01 pages 05-06 , as I had put my reg in I had assumed that the ticket machine had calculated my fee for my stay in the car park and paid £2.50, see EB01 page 7, as I was looking down to the machine trying to figure this out you do not notice the sign above and off to the right with the tariffs, see EB01 page 5.

8.2 It is my position that, the Claimant has no standing, or cause of action, to litigate in this matter. The signage and ticket machine were inconsistent, confusing, and hence incapable of binding the driver into any contract

8.3 EB01 page 07-08 show the receipt and the expenses claimed with my company to prove I had no intention to under pay and had absolutely no reason not to pay the required amount.

9. Later Events:

9.1 I used this car park twice, the second time being a few days later and made exactly the same mistake, it wasn’t until I received the parking charge notices until I realized my error, for reasons unknown to me the hire company paid the second fine before informing me, making it impossible to appeal, these charges then get taken off my wages as well as £15 admin fees per letter.

9.2 Upon receipt of a parking charge notice from the Claimant, I informed them of my mistake and offered to pay the difference (£8) over the phone which was refused, I would not have expected it to be £10.50 to park for 2 hours 45m in a car park so far from the city center when on street parking on the adjoining street is £1.70 per hour and another car park 50meters away is £1.30 per hour, this another reason I did not question the £2.50 tariff on the machine.

9.3 To my dismay after this the Claimant decided to hire BW Legal who are a firm of solicitors, whose business model seems to be mainly based on representing PPCs like The Claimant and churning out computerized “Roboclaims”, simple copy-and-paste letters that no qualified solicitor has cast an eye over and that are designed to intimidate and harass people into caving in to vexatious and unfounded claims.

9.4 While I fully appreciate the need for parking control on private land I do not appreciate the apparent business tactics of The Claimant whereby they insist people going about their lawful daily business have entered into some kind of vague “contract” with them, based on the tiny words on small and obscured signs. Nor do I appreciate the tactics of BW Legal who have sent me many harassing phone calls and distressing letters, making veiled threats towards my credit rating and even my employability.

constitute a “consideration” in respect of this. The ‘ParkingEye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the “contractual licence to park” being given to the Defendant, e.g. “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there”.

10. Inadequate signage

10.1 Incapable of binding the driver - this distinguishes this case from the ParkingEye v Beavis case. Should the claimant rely on the case of Beavis, it should be pointed out that there is a test of good faith.
Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code

10.2 The Defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contract and which met the specifications above. There are several considerations in relation to this aspect of the claim:
(a) It is argued, that at the time of this alleged offence, and even as witnessed by the Defendant during a visit to the location in February 2020, the parking specific signage is sporadic and illegible from a vehicle, throughout the site and is inadequate at the entrance and exit of the site. The suggested charge is not prominent, in large lettering. This is in breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract can subsequently be formed to pay any stated sum.
(b) There was no evident ANPR 'data use' signage, at the time of the alleged offence – this is in breach of ICO rules and the BPA Code of Practice.
(c) It is believed the terms were not transparent or easily legible; this is an unfair contract and not agreed by the driver.
(d) No promise was made by the driver that could constitute consideration, as there was no offer known, nor accepted. No consideration flowed from the Claimant.
(e) Signage on site offers no clear explanation of reasons as to why this fee has been inflated in a way that the Claimant has attempted to do so.
(f) In the clear absence of certain elements of a contract, there can be no breach of contract.

10.3 The inadequate signage at the entrance has also been changed since the alleged contravention, the T&Cs that were on the drivers side have been removed and a tariffs board has been put up in it’s place see EB01 Page 01 & 20, this should provide further evidence that there was not enough signage explaining or detailing tariffs from entrance to exit.

11. Additional Costs – Abuse of Process:

11.1 The Particulars of Claim include £60 for “contractual costs”. The Claimant is put to strict proof that these additional charges are justified. I have the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself. The Protection of Freedoms Act 2012, Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Keeper Liability Notice in this case £100, please see EB01 page 9 with District Judge Grands ruling in Britannia Parking Group Ltd V Chris Crosby in November 2019.

This is an abuse of process by the Claimant in trying to claim a total amount of £251.76 when the signs were for £100... contrary to the CRA 2015, the Beavis case and the POFA 2012 (EB01 page 10 to ).

11.2 According to Ladak v DRC Locums (case number UKEAT/0488/13/LA) a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

11.3 Judges have disallowed all added parking firm “costs” in County Courts up and down the country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating:

''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

11.4 That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Vehicle Control Services Ltd v Davies (Case number FTQZ4W28) on 4th September 2019, District Judge Jones-Evans stated:

11.5  ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

signed:


date:

Coupon-mad

Every paragraph needs a number, and I would re-number the entire lot consecutively, removing all the .1 .2 .3 sub paras.

NCP are not in the IPC!  Why have you copied something about the IPC CoP, you need to read the BPA CoP that applied at the material time. 

Admit to being the driver because your WS does identify this anyway:

7. I assert that I was the registered keeper and driver of the vehicle in question, registration xxx on the date xxx

This needs some full stops and capital letters for new sentences and change 'I assumed...' to 'it was my reasonable belief from the details the machines displayed, that...'

With there being no signs for pay and display around the ticket machine or entrance signs and having entered my reg and not had any option to increase the tariff I had assumed this ANPR system calculates your stay and charges the required fee when you leave, so I went and did my job and came back to buy a ticket in good faith however the ticket machine has too many buttons, is overly confusing and there was no option to increase the tariff again, see EB01 pages 05-06 , as I had put my reg in I had assumed that the ticket machine had calculated my fee for my stay in the car park and paid £2.50, see EB01 page 7, as I was looking down to the machine trying to figure this out you do not notice the sign above and off to the right with the tariffs, see EB01 page 5.

Remove all of this, that adds nothing and it a bit of a rant and unfinished sentences:

9.3 To my dismay after this the Claimant decided to hire BW Legal who are a firm of solicitors, whose business model seems to be mainly based on representing PPCs like The Claimant and churning out computerized “Roboclaims”, simple copy-and-paste letters that no qualified solicitor has cast an eye over and that are designed to intimidate and harass people into caving in to vexatious and unfounded claims.
9.4 While I fully appreciate the need for parking control on private land I do not appreciate the apparent business tactics of The Claimant whereby they insist people going about their lawful daily business have entered into some kind of vague “contract” with them, based on the tiny words on small and obscured signs. Nor do I appreciate the tactics of BW Legal who have sent me many harassing phone calls and distressing letters, making veiled threats towards my credit rating and even my employability.
constitute a “consideration” in respect of this. The ‘ParkingEye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the “contractual licence to park” being given to the Defendant, e.g. “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there”.