Defence assistance

Lop5

Coupon-mad wrote: »

No. That's quite a small car park though.

There are in fact only 3 signs. The sign that isn't there is the sign my car would have been facing and the sign I would have walked past after leaving the car park. I've just been up today to double check and take photos. There is also no terms & conditions sign upon entry. There is a sign close to the pay & display machine however I wasn't the one that purchased the ticket, my passenger was. Can I use this in my favour or would I have needed them to produce a witness statement?

Lop5

Coupon-mad wrote: »

And in terms of claiming that a notice to driver is not a notice to driver, when the POFA is clear that the intention of Parliament was clarity = either a windscreen PCN and 28 days to appeal, or a postal PCN, not a hybrid mix.

I also realised today they informed me of the decision 30 days after I appealed even though they state a decision would be made within 28 days. They also sent me a NTD in the post before they'd even informed me of their decision, however POFA states the NTD must be given before the vehicle is removed from the land and whilst stationary and they already claim the card on the windscreen isn't a NTD but a 'warning card'.

Coupon-mad

Lop5 wrote: »

I also realised today they informed me of the decision 30 days after I appealed even though they state a decision would be made within 28 days. They also sent me a NTD in the post before they'd even informed me of their decision, however POFA states the NTD must be given before the vehicle is removed from the land and whilst stationary and they already claim the card on the windscreen isn't a NTD but a 'warning card'.

Yep that's the little misleading game VCS and Excel run all the time.

Q: When is a NTD not a NTD?

A: When Excel say it isn't!

There are in fact only 3 signs. The sign that isn't there is the sign my car would have been facing and the sign I would have walked past after leaving the car park. I've just been up today to double check and take photos.

Ooh, that will be very good for your WS. When's your deadline?

Lop5

Coupon-mad wrote: »

When's your deadline?

Deadline is 12th April 4pm. I'm just trying to finalise my WS so I can post here and hopefully get some feedback. My skeleton argument doesn't have to be submitted along with the WS does it?

Coupon-mad

No, a skelly is not mandatory and can be filed & served with your draft COSTS SCHEDULE just 2 or 3 days before the hearing.

Lop5

The court document I received stipulates all evidence I wish to rely on has to be included in the witness statement, would this mean if I wanted to refer to POFA I should include a copy in my evidence? Also if I want to include a video how would I evidence this?

Umkomaas

if I wanted to refer to POFA I should include a copy in my evidence?

Yes - but not the whole ~300-page shooting match.

DNA retention - adopting the protections of the Scottish model for the retention of DNA and fingerprints

fingerprinting of children in schools - introducing a requirement on schools and colleges to obtain the consent of parents before taking fingerprints (and other biometrics such as iris scanning) from children under the age of 18 years

further regulation of closed circuit television/automatic number plate recognition systems - introducing a statutory code of practice and the appointment of a surveillance camera commissioner with responsibility for reviewing and reporting on the operation of the code

the use of the Regulation of Investigatory Powers Act 2000 by local authorities

stop and search powers

pre-charge detention

powers of entry - there are some 1,200 separate powers of entry contained in a mix of primary and secondary legislation. The bill creates three order-making powers to: (1) enable a minister of the crown (or the Welsh ministers) to repeal unnecessary powers of entry and associated powers; (2) consolidate a group of existing powers; or (3) attach additional safeguards to the exercise of such powers, including in particular provision requiring prior authorisation by a magistrates’ court. Provisions are also made for a code of practice governing the exercise of powers of entry

prohibiting wheel clamping - creating a new criminal offence to immobilise, move or prevent the movement of a vehicle without lawful authority. We are also changing the law so that parking providers and other landowners may seek to recover unpaid parking charges from the registered keeper of a vehicle

reform of the vetting and barring scheme and criminal records regime - introducing legislative provisions to implement the outcome of the reviews of the vetting and barring scheme and the criminal records regime, so as to scale them back to common-sense levels

disclosure of decriminalised convictions for consensual gay sex - changing the law so that historical convictions for consensual gay sex with over-16s no longer have to be disclosed

freedom of information - extending the freedom of information regime to cover companies wholly owned by two or more public authorities

right to data - creating an obligation on departments and other public authorities to proactively release datasets in a reusable format

Office of the Information Commission - changes to the appointment and accountability arrangements to enhance the independence of the Information Commission

human trafficking - give effect to the criminal law aspects of EU Directive of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (Directive 2011/36/EU)
serious fraud trials - repealing provisions removing the right to trial by jury

....... just the relevant part (Schedule 4)!

Lop5

Hi all,
Here is a draft of my WS. I will obviously finish with a request for costs and a statement of truth. Any feedback or amendments is always appreciated

I, XXXX of XXXXX will say as follows:

1. I am the Defendant in this case. I am unrepresented with no legal background or training and have had no previous experience of county court procedures. Attached to this statement is a paginated bundle of evidentiary documents marked XX1 to which I will refer.

2. On the material date XXX I parked my vehicle in the XXXXX. XX1 page X details a self-made aerial view map of the car park, the space where my vehicle was parked, where the warning signs are situated within the car park and the route in which I exited the car park on foot. Upon entry to the car park there are no warning signs as evidenced by image X of XX1 page X, therefore I was unable to accept the terms and conditions of the car park upon entry. There are also no signs at the entrance which satisfy the stipulations of the The Independent Parking Committee Code of Conduct. There are only 3 warning signs within the premises, not 4 as the Claimant has stated, which are noted in XX1 page X. The post mounted warning sign which the Claimant has marked nearest the entrance on the north side of the car park on page 22 of their evidence does not exist. This is evidenced on page X of XX1, images XXX. Therefore there are no warning signs on the north side of the car park in which I parked my car and which my car would have faced had a sign existed. The terms and conditions are displayed in a font which is too small to be easily read from a passing vehicle, evidenced in XXXX, or from the space in which my vehicle was parked (XX1 page XX). The sign situated closest to my vehicle on the west side of the car park faces south east, whereas my car was facing north. This sign is not prominently displayed but attached to a fence and has no individual lighting to illuminate its contents in poor light conditions.
3. The font on the signage is of varying sizes, with the terms and conditions applicable to this case in one of the smallest fonts and not able to be read unless standing directly in front of a sign as evidenced by the Claimant. Therefore, it is unreasonable to suggest a motorist should be able to read and agree to the terms and conditions set out on the signage from a moving vehicle or from the space in which the vehicle was parked and as I did not come into close proximity to the insufficient number of warning signs to read them in their entirety, I cannot be bound by their terms.

4. My passenger walked to the closest pay and display machine and purchased a valid ticket at 13:12PM at the cost of £6.00 with an expiry time of 17:12PM. The valid ticket was placed on the dashboard in the front windscreen of my vehicle, which I can confirm with absolute certainty that when placed, the ticket was facing upright with all purchase details visible, therefore it is denied that any breach of the terms of parking occurred as I believe I made all reasonable endeavours to comply, and any shortfall should be disregarded by the Court under the principle of de minimis non curat lex. I, my passenger and her young child walked north east out of the entrance of the car park, passing no warning signs along the way.
5. The flimsy and light-weight qualities of the valid parking ticket are highlighted to the court; therefore it is not a ridiculous notion to presume a small gust of air could flip the ticket over. It is also highlighted the ticket displays a serial number on the front, which matches the serial number of the ticket displayed in the image taken by the Claimant, proving the ticket is legitimate. ‘Fluttering tickets’ are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of a motorist’s control, and where they have clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled. I include a quote from The Joint Report of the Parking Adjudicators for England and Wales 2006 when a motorist has a valid pay and display ticket.

“Many councils operate a policy of cancelling PCNs if the appellant is able to produce a valid p&d ticket covering the relevant period. This practice is to be commended. In HV05042K Havant Council set out its policy, which the adjudicator described as not only pragmatic but also fair and reasonable.”

http://www.manchester.gov.uk/download/meetings/id/3259/joint_report_of_the_parking_adjudicators_for_engla nd_and_wales_2006

Although this case does not involve a council Penalty Charge Notice the case of ParkingEye v. Beavis [2015] UKSC 67 drew similarities between private CNs and council PCNs.

6. Upon returning to my vehicle around one hour before the valid ticket was scheduled to expire due to illness, I arrived to find a red and black card affixed to my front windscreen stating ‘THIS IS NOT A PARKING CHARGE NOTICE’(XX1 page X). It was then that I noticed the valid ticket which I had placed on my dashboard earlier was no longer facing upright but was face down. On the reverse of the card a serial number ‘XXXX’, date ‘XXX’ and time ’15.13pm’ were handwritten. Printed on the reverse the card directed me to the website ‘https://www.myparkinghcarge.co.uk’ to enable me to view details of an alleged contravention. Nowhere on this card did it state Notice To Driver (NTD).

7. Due to the nature of the situation in which I had purchased a valid ticket and the card stating ‘THIS IS NOT A PARKING CHARGE NOTICE’, it was reasonable for me to assume the cark park operators were giving me an opportunity to provide evidence that the ticket they photographed on my dashboard was valid at the date and time of the alleged contravention. I subsequently visited the website printed on the reverse of the card and submitted an online appeal on XXX stating the reasons why I believed a contravention had not occurred. Providing evidentiary images of the valid pay and display ticket I had purchased along with the card attached to my windscreen (XX1 page X).

8. On XXXX I received a template automated email from Excel Parking Services Limited, a company who is not the Claimant, is not named on the warning signs demonstrated in the Claimant’s evidence nor the company named on the contract provided by the Claimant stipulating they were authorised to enforce parking management on the land situated at XXXX until XXXX; informing me they had received my appeal submission and I would receive a decision within 28 days (XX1 page X).

9. I received another template email from the same company on XXXX informing me attached to the email was important correspondence regarding my Charge Notice (CN) issued on XXXX, however according to the Claimant no CN had been issued at this time, merely a warning card stipulating an alleged contravention. The correspondence attached informed me a decision had been made in regards to my appeal whereby I would receive another email informing me of the decision (XX1 page X).
10. On XXXX I received a NTD/PCN in the post at a fee of £100, detailing the alleged contravention details and my options to either pay the fee or appeal to the Independent Appeals Service (IAS). The Protection of Freedoms Act 2012 (POFA 2012), Schedule 4, Para 7(4)(a) and (b) stipulates a NTD must be given before the vehicle is removed from the relevant land and whilst the vehicle is stationary. The Claimant clearly states in Paragraph 52 of their WS the card attached to the windscreen of the vehicle was merely a ‘warning card’ not a PCN and certainly not a NTD as they also stipulate in Paragraph 53 the NTD is the PCN issued on XXXX, therefore the ‘warning card’ does not satisfy the requirements of Para 7(2)(a)to(f) of POFA 2012 Schedule 4. The Claimant also acknowledges an appeal has been lodged and I should receive a decision within 28 days of lodging my appeal (XXXX).

11. On XXXX, 30 days (not 28) after lodging my appeal I received a final email from Excel (XX1 page X), a carbon copy of the previous email, which included an attachment detailing the Claimant’s decision to reject my appeal and their reasoning and again informing me I could either choose to pay the CN or appeal to the IAS.

12. After researching the IAS and discovering that they aren’t in fact an independent body, I decided against appealing as I was confident that I would lose the appeal. I include quotes from the Committee Debate: House of Commons 19 July, 2018 for the Parking (Code of Practice) Act 2019. A new Act of legislation to make provision for and in connection with a code of practice containing guidance about the operation and management of private parking facilities.

“I now pretty much know exactly how the parking companies and in particular the IPC have been running this scam for the past 5 years. Basically both of the appeals processes are a complete and utter sham.”

“The appeals process at Excel/VCS is run by a team of minimum wage office workers with no legal knowledge or experience whatsoever, who are given 6 minutes to read an appeal, and 12 minutes to reply.”

“The IAS (Independent Appeals Service) which the IPC offers as a second chance appeals service is also very similar, cut and paste answers, dubious legal statements etc… It is claimed by the head of the appeals service (retired Judge Bryn Holloway) that this is a completely independent fair process, it is not.”

“This is a typical example of the clear collusion between the IPC, their members and the IAS…all to the detriment of the motorist.”

It is comforting to know members of parliament are aware of the scam private parking firms are running and are taking steps to restrict these unjust parking fines. A letter of support from Mary Glindon MP is included within the evidence attached (XX1 page X).

13. On XXXX I received a Demand For Payment letter in the post (XX1 page X) with an outstanding balance owed of £160.00, with a deadline for payment of XXXX. The original charge of £100 had increased by £60 which the Claimant refers to as ‘debt collection costs’ or ‘damages’ as the Claimant refers to in paragraph 66 of their WS, however POFA 2012 Schedule 4 Para 4(5) states the maximum sum which can be recovered is the amount specified in the Notice To Keeper (NTK). The International Parking Community Code of Practice states if a charge amounts to damages a parking company should demonstrate how such charges are calculated as a ‘genuine pre-estimate of loss’. The Claimant has done no such thing. In addition, the case of Beavis established a parking company cannot seek damages. As no such indemnity costs were quantified on the Claimant’s warning signs, it can therefore not be included in the alleged contract terms.

14. According to POFA 2012 Schedule 4 Para 6(1) and (2) a Notice to Keeper must be given either after a NTD has been given in accordance with Para 8 or given solely in accordance with Para 9. The Claimant has not provided me with a NTK at all. The original charge of £100, a hugely inflated penalty, mentioned in the NTD could be classed as the original amount specified, however POFA 2012 Schedule 4 clearly stipulates a NTK must be issued and detail a specified amount owed.

15. A Final Demand For Payment was received on XXXX giving me 7 days to pay the inflated charge of £160 or face court action (XX1 page X).

16. A Letter Before Claim and reply form was received on XXXX and again around a week later. The reply form was sufficiently completed and returned to the Claimant within the time frame specified (XXXX) to the email address provided on the form. A reply was received on XXXX from an Associate Legal Executive of Excel Parking Services Limited (XX1 page X). Again, not the Claimant.

17. I then received a Claim Form from the County Court Business Centre on XXXX. The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how my conduct was considered a breach of contract. The Particulars are not ‘clear and concise’ as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states ‘CN for a contravention’ which does not give any indication on what basis the claim is brought. The Claimant states they were restricted by the 1080 character limit of the online Claim Form, however the Claimant only used 530 characters, giving the Claimant 550 characters to include the information required to enable the production of a specific defence.

Summary

18. The Claimant has not adhered to the specifications set out in POFA 2012 Schedule 4 detailing the conditions which must be met in order to claim unpaid parking charges.

19. The signage situated throughout the car park is insufficient in quantity with text containing prolix language of varying sizes, making the signage inadequate for the purpose of creating a legally binding contract.

20. The ruling of the Beavis case is fully distinguished from this case and cannot be applied, as held in ParkingEye v Cargius [2015], as the alleged parking contravention occurred in a pay and display car park and not a free car park. The initial £100 charge does not serve a legitimate purpose in this case as a parking ticket was purchased and valid for the entirety of the parking period; therefore the penalty rule remains engaged. In this case the £100 is extravagant and unconscionable as it is a clear punishment of a paying consumer and therefore unrecoverable.

21. On the date of the alleged contravention I had every intention of paying for parking, which I did so, and I genuinely attempted to take all reasonable steps to comply with the terms of parking and could not have foreseen the subsequent events which I deem were out of my control.

Lop5

Hi guys

Just a last ditch attempt to get some feedback for my WS before I submit to the courts tomorrow. Many thanks in advance.

Umkomaas

I’ve skim read the WS, and to my untrained (legal) eye it looks ok. Just a few pointers:

8. On XXXX I received a template automated email from Excel Parking Services Limited, a company who is not the Claimant, is not named on the warning signs demonstrated in the Claimant’s evidence nor the company named on the contract provided by the Claimant stipulating they were authorised to enforce parking management on the land situated at XXXX until XXXX; informing me they had received my appeal submission and I would receive a decision within 28 days (XX1 page X).

I think this is a very important point, too important to be languishing at #8, at a point where a Judge might be starting to skim over things. Get it higher up the batting order and make it very much a key issue.

Many councils operate a policy of cancelling PCNs if the appellant is able to produce a valid p&d ticket covering the relevant period. This practice is to be commended. In HV05042K Havant Council set out its policy, which the adjudicator described as not only pragmatic but also fair and reasonable.”

http://www.manchester.gov.uk/download/meetings/id/3259/joint_report_of_the_parking_adjudicators_for_engla nd_and_wales_2006

Print and attach rather than expect a very busy Judge to be chasing around the Internet looking at links.

I include quotes from the Committee Debate: House of Commons 19 July, 2018 for the Parking (Code of Practice) Act 2019. A new Act of legislation to make provision for and in connection with a code of practice containing guidance about the operation and management of private parking facilities.

“I now pretty much know exactly how the parking companies and in particular the IPC have been running this scam for the past 5 years. Basically both of the appeals processes are a complete and utter sham.”

“The appeals process at Excel/VCS is run by a team of minimum wage office workers with no legal knowledge or experience whatsoever, who are given 6 minutes to read an appeal, and 12 minutes to reply.”

“The IAS (Independent Appeals Service) which the IPC offers as a second chance appeals service is also very similar, cut and paste answers, dubious legal statements etc… It is claimed by the head of the appeals service (retired Judge Bryn Holloway) that this is a completely independent fair process, it is not.”

“This is a typical example of the clear collusion between the IPC, their members and the IAS…all to the detriment of the motorist.”

It is comforting to know members of parliament are aware of the scam private parking firms are running and are taking steps to restrict these unjust parking fines.

I’d be looking to attribute each of those quotes to the MP making each particular statement.