Civil enforcement Ltd defense statement

Redx

The first PCN that arrived in the post is the NTK because it was posted to the keeper after they obtained keeper details from the DVLA

Any further letters are reminders

Always query POFA unless they know who was driving, usually caused by somebody telling them

Johny86

How about Letter of notification regarding keeper liability?

Redx

Chances are that this one is the NTK, especially if it was the first Postal notice, so check it against POFA for timescales and wording

Johny86

WITNESS STATEMENT



I am xxxxxx of xxxxx, and I am the Defendant in this matter. The claim is denied in its entirety.


This is my Witness Statement in support of my defence already filed.


I am the registered keeper of vehicle xxxxx. I was not the driver on the material date.


I am not liable to the Claimant for the sum claimed, or any amount at all. Any alleged breach of contract was between the unnamed driver and the Claimant.


The Claimant states that my vehicle attracted a “Parking charge notice” for being parked in breach of the terms of their signage. I will show the reasons why they cannot enforce this charge against me as keeper including, but not only, their failure to abide by the Protection of Freedoms Act 2012.



The Claimant sent me a “Parking Charge Notice” by post on xxxx (exhibit) followed by a number of reminders and other letters from unregulated debt collectors. All of these letters were ignored.


The Claimant submits that I parked my vehicle for xxxxxxx which was captured by the Claimant’s Automated Number Plate Recognition (ANPR) camera therefore incurred the charges referred to in the Claimant’s Witness Statement.


This is denied and Mr Ashley Cohen, who signed the Witness Statement was not there and has no knowledge of who was driving on any occasion. Unlike Mr Ashley Cohen I do have knowledge: I was not the driver.


The Claimant suggests that by failing to correspond with them prior to the issue of a Court Claim, I was acting unreasonably. The reasons for not replying sooner are as follows:


Publicity surrounding the conduct of private parking companies led me to believe that the notice and the subsequent correspondence was no more than a scam designed to intimidate them into paying a large sum of money when there had been no breach of the terms of parking.


The Claimant's Parking Charge or (Notice to Keeper) was not compliant with the Protection of Freedoms Act 2012 as detailed in paragraph 10 of this Witness Statement.



The Claimant’s “charge” is not an offence or fine from an authority like a Council or the Police, there was no reason or legal obligation for me to ‘appeal’ to what appeared to be junk mail.


The Claimant’s notice did not include any photographic evidence of my vehicle showing it was parked.


Signage at the location was inadequate as detailed in paragraph 28 of this Witness Statement.


The Claimant is a known serial litigator with a track record of making court claims that they subsequently discontinue when a defence is filed.



The Claimant is unable to enforce the charges they allege apply, for reasons including, but not limited to, their own failure to abide by the Protection of Freedoms Act (the POFA) 2012 Schedule 4 - (Exhibit 1, Notice to Keeper, page 2) - not abiding by the statutory timescales and prescribed wording not present on their NTK.


The POFA is legislation introduced by the government to provide a mechanism for a parking firm, provided it fully complies with the strict terms of the statute, to acquire the right to recover debt from the keeper of the vehicle if the identity of the driver is unknown. It was the intention of Parliament that this would be the only lawful means that parking charges could be recovered from the keeper.


Paragraph (9)(2)(a) of the POFA states:


“The notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”.



The NTK issued by the Claimant - (Exhibit 1, Page 2, Notice to Keeper) - simply states an “incident date/time”. It does not mention a “period of parking” or warn the keeper as required by Paragraph 9(2) of the Protection of Freedoms Act.



The Claimant should never have issued to a registered keeper, a document described as a ‘Letter of notification regarding keeper liability’ because they were not availing themselves of any right to ‘keeper liability’. This right is offered under statute to parking operators and landholders, ONLY if they comply with Schedule 4 of the POFA, which the Claimant did not.


Given that all applicable statutory conditions have not been met, the Claimant cannot recover any charges from the keeper under the POFA. And given that I cannot be presumed to be the driver there is no cause of action against me.



It is my understanding that if any part of the Claimant’s claim shall fail then the claim should be dismissed in its entirety. Barrister and parking law expert Henry Greenslade were the Parking on Private Land Appeals (POPLA) Lead Adjudicator from 2012 to 2015 he states “If these timescales are not complied with then keeper liability does not generally pass under Schedule 4.” (Exhibit 1, Page 4, Service of Notices)



The POFA also states that the only sum a registered keeper can be pursued for (if Schedule 4 is fully complied with, which it was not) is the sum on the NTK. The Claimant cannot add additional arbitrary sums when pursuing the keeper.



I, the registered keeper, am under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The Claimant has shown no evidence that I was the driver on the date in question.



Mr Greenslade’s wording from the POPLA Annual Report 2015 - (Exhibit 1, Page 6, Keeper Liability):


However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.


I refer to the persuasive case of Excel Parking Services v Smith M17X062 (appeal) Stockport, 08/06/2017 an appeal ruling which established that outside of the POFA, the only alternative course of action against a defendant is if the keeper is a company entity and the driver an employee engaged on company business (as was the situation in the case of Combined Parking Services v AJH films). I dispute the Claimant’s assertion that this case is distinguished when it is clearly not (Exhibit 2, Transcript).



I also refer to the persuasive case of Excel v 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.



In the similarly persuasive case of VCS vs Quayle C1DP010H, in front of DDJ Gourley at Liverpool on 4th May 2017; the claim was dismissed on the grounds that keeper liability did not apply as the Claimant was not compliant with POFA and they offered no evidence of who was driving.



The Defendant refers to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper elected to offer no evidence, and put the claimant to strict proof that he was the driver. This of course was an impossibility for the claimant. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper.



Failure to set out clear parking terms, ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished.


The Claimant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a private land car park of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights to park, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout (Exhibit 3)



The Claimant’s bundle includes photographs which the Claimant states show my vehicle in contravention of the terms of parking. This cannot be the case as the ANPR camera photos merely show a vehicle arriving but no evidence of leaving. The exit picture of the vehicle is not clear and almost impossible to tell which vehicle it was.



Section 7 of the BPA Code of Practice “Written authorisation of the landowner” sets out the requirements that AOS members must comply with in order to issue charges at a location:


“7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent).The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.



7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.


7.3 The written authorisation must also set out:



a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation


c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement


d) who has the responsibility for putting up and maintaining signs


e) the definition of the services provided by each party to the agreement


7.4 Our compliance team are responsible for making sure that you follow the Code. If the team give you reasonable notice, you must allow our appointed manager to inspect the landowner’s written authorisation.



To date, the Claimant has failed to produce any evidence whatsoever that they hold valid authorisation to issue charges at this location.



The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.



The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.



The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the Claimant may not pursue any charge.




If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a residential car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.



Only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves.



The Claimant refers to the case of Vine v Waltham Forest LBC [2002], which is strange because it is a persuasive judgment from the Court of Appeal which supports the Defendant’s case, not theirs. (Exhibit 5 Transcript).




This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.



So, I put the Claimant to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require the Claimant to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' or close-ups of the (alleged) signage terms will not be sufficient to disprove this.



It is my belief that the parking signage in this matter was, without prejudice to the primary defence, inadequate. The Claimant submits that the images of the car park and signs in their Exhibits 1,3, & 4, detail the terms and conditions of parking and the consequences of failing to comply with said terms and conditions. The claimant claims the map and photographs are a true representation of the signs.



This is denied, not least because the entrance picture is undated and in from 2017. The Claimant has omitted to mention this crucial difference to the Court.




The claimant referred the court to the phone and pay report in their xxxx to demonstrate the phone and pay machine was in working condition on xxx The report shows entries from the date xxxx but the incident occurred on xxxxx which clearly proves it's not the statement of truth.



POFA Schedule 4 Paragraph (5) does not allow for more than the original charge to be collected from the keeper. The original charge was £100; therefore, the additional amounts added for ‘debt, interest, indemnity costs and legal fees’ is not permitted. The Claimant is put to proof that any additional fees have been incurred.



The Claimant has brought a claim for £xxxx for a contractual parking charge of £100. This gross inflation of the amount is an abuse of process and not supported by the decision of ParkingEye v Beavis [2015] UKSC 67 (the Beavis case). I believe this is a clear attempt at “double recovery” to circumvent the restrictions of the Small Claims track.




Costs on the claim - disproportionate and disingenuous

- CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

“(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and


(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.”


Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself.


The ParkingEye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.



Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this “cut and paste” claim.



According to Ladak v DRC Locums 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.



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 an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:


''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...''


The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as a registered keeper when the Claimant has no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.



Statement of Truth



I believe the contents of this witness statement are true to the best of my knowledge

Johny86

Good morning guys

Please have a look at my WS and let me know if any correction needed. My original draft is numbered and paragraphed but for some reason not showing here. I will be submitting NTK, POPLA report, Beavis case sign, POFA schedule 4 and some case transcript as an exhibit. Please advice is there anything more I can include to strengthen my case. Thank you

Le_Kirk

This is denied and Mr Ashley Cohen, who signed the Witness Statement was not there and has no knowledge of who was driving on any occasion. Unlike Mr Ashley Cohen I do have knowledge: I was not the driver.

Good point about the witness not actually being there but how do you have knowledge if your were not the driver? Were you a passenger or have you spoken to the driver? It needs explaining for the judge.

At the beginning of your statement you should put something like "I will refer to a paginated bundle marked J86_001 - J86_099" Any evidence you point to should then have a unique reference or index using the numbers referred to.

Order was identical in striking out both claims without a hearing:

I quote from the case as follows: -
''IT IS ORDERED THAT The claim is struck out as an abuse of process.

this is to make sure you are not instructing/ordering the judge or court rather you are quoting from a previous case.

KeithP

Every paragraph needs a sequential number.

Johny86

Hi Le_Kirk
Thank you for pointing out. I have amended the I quote from the case as follows: bit.
referring to your point Can I just say I confirm I was not the driver instead of unlike Mr Cohen I have knowledge and I was not the driver or I should just remove my bit completely.

Le_Kirk

I have re-read your point and can now see what you are saying.

Johny86

Shall I leave it as it is then?