UKCPM / Gladstones Witness Statement preparation

bmw30csl

Dear all,

I am due in court at the end of the month 28/3. My defence was drafted using many of the helpful templates on this website. As background the car was parked in what was thought to be a car park for the bank as it is behind the bank and has been used many times without issue by the keeper on other occasions. It turns out only half of the car park is belonging to the bank. There is no clear sign at the entrance and the signs in the car park are small print and up high on the wall. I plan to attach photos of the entrance to the car park with my WS.

Gladstones have sent me their Witness Statement which goes through their rebuttal of
'Particulars of Claim' - says that online claim forms do not need documents attached and that a Letter Before Claim was sent making the defendant aware of the charge.
'The Defendant avers that they were not the driver' - says that the keeper has not identified the driver and thus they are going after the keeper. They reference Elliott v Loake 1983 and also Schedule 4 of the Protection of Freedoms Act 2012.
'No Contract' they refer to Alder v Moore (1961) saying it is the obligations rather than the substance/form of the agreement that matter. They say it is distinguished from Parking Eye as it was not an overstay but rather only authorised people can park there.
'No Authority to enforce charges' - they have attached an agreement between UKCPM and the Freeholder. They also argue the Upper Tribunal's reasoning in the VCS vs. HMRC case was flawed.
'POFA Complaint' - They claim they met the Act specifically paragraph 92)(a)-(i)

Then it goes on to talk about 'The Current Debt' stating they are an Accredited Operator of the International Parking Community and thus the charges are in line with those guidelines.

I was hoping this would not go to court but am ready to see it through however I am struggling to come up with much to add to my defence other than pictures of the lack of signs at the entrance and the small font on the ones in the car park.

Defence :
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state that the Defendant was driving the Vehicle and/or is the Keeper of the Vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

3. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

3(i) the driver has not been evidenced on any occasion.

3(ii) There is no presumption in law that the Keeper was the driver and nor is a Keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. Further and in the alternative, it is denied that the Claimant's signage is capable of creating a legally binding contract.

5(i). There is no sign clearly displayed upon entering the location from xxx and it appears to be an xxx bank car park for customers.

5(ii). The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. Furthermore, the charge is buried in the small print and is an unfair term.

5(iii). This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon points 5(i), 5(ii) and 5(iii) above, none of this applies in this material case.

6. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the Keeper is the charge stated on the Notice to Keeper, in this case £100.

7. The Claimant is put to strict 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

8. The Claimant’s Notice To Keeper does not comply with the Protection of Freedoms Act 2012 schedule 4 paragraph 8 including but not limited to 2(f).

9. Furthermore, the Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) as there was no compliant Letter before County Court Claim, which should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

The_Deep

They reference Elliot v Loake

Then they will crash and burn, read these also and bring it to the attention of the judge.

http://parking-prankster.blogspot.com/2017/01/skipton-judge-rubbishes-elliot-v-loake.html

http://parking-prankster.blogspot.com/2016/10/excel-parking-youve-been-gladstoned.html

https://www.bing.com/search?q=elliott+v+loake+case+law&form=EDNTHT&mkt=en-gb&httpsmsn=1&refig=613fe3c4d16f4e46d568360ab74b8360&PC=ACTS&sp=5&qs=SC&pq=elliot+v+loake+&sk=SC4&sc=8-15&cvid=613fe3c4d16f4e46d568360ab74b8360&cc=GB&setlang=en-GB

they no full well E v L will not fly in a Civil Claim, they are wasting the court's time. Also, complain to your MP.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem become so widespread that MPs agreed to enact a Bill to regulate these scammers. It has cleared Parliament and hopefully, this will become law shortly.

bmw30csl

Here is the sign - on some other pages it seemed that 'That sign is incapable of forming a contract as there is no offer to non-permit holders.' might be a good point to include in the WS?

https://imagizer.imageshack.com/img923/260/mcAeZU.jpg

bargepole

bmw30csl wrote: »

I was hoping this would not go to court but am ready to see it through however I am struggling to come up with much to add to my defence other than pictures of the lack of signs at the entrance and the small font on the ones in the car park.

The purpose of the WS is not to "add to" your Defence.

It is your statement, written in the first person, and it is what leads your evidence. it should describe the sequence of events, not make legal arguments.

Your defence does not state whether or not you were the driver, and in my view you were wrongly advised to file a defence which simply relies on non-compliance with POFA.

The Judge can simply ask "Were you driving or not?", and if you give an evasive answer, can find on balance of probabilities that you were.

The rest of your defence is based on allegations of poor/inadequate signage, but these points would hold far more water if you were actually there to see them at the material time.

I'm afraid that this kind of 'technical' defence won't cut any ice with most Judges.

The_Deep

bmw30csl wrote: »

Here is the sign - on some other pages it seemed that 'That sign is incapable of forming a contract as there is no offer to non-permit holders.' might be a good point to include in the WS?

https://imagizer.imageshack.com/img923/260/mcAeZU.jpg

Lots of information here

https://www.google.co.uk/search?source=hp&ei=I4iGXLmiMKuVlwTRkJKYAQ&q=prohibitory+sign+parking+prankster&btnK=Google+Search&oq=prohibitory+sign+parking+prankster&gs_l=psy-ab.3..33i160.1639.17605..19750...0.0..0.214.3415.20j14j1......0....1..gws-wiz.....0..0i131j0j0i10j0i22i30j0i8i13i30j33i21j33i22i29i30.JisFY8eUxCw

bmw30csl

Thanks for the replies.

The Deep - do you think that this would be ok to say in regard to these signs: The Claimant’s signs are in small font and placed up high on the wall. They do not offer unauthorised vehicles a contract to park and thus no contract can have been broken.

Bargepole - when you say ;'The rest of your defence is based on allegations of poor/inadequate signage, but these points would hold far more water if you were actually there to see them at the material time.'

I was there but was not the driver at the time.

joannaw443

I recently opened a letter to a letter sent to my house.. the wrong initials but the correct surname. It was a Parking Charge Notice from Smart Parking.. £54.00 if paid immediately. I ignored it and when the second letter came through, again to the wrong initials, I did not open it but returned it writing "name now known at this address". A couple of weeks later I have now received a threatening letter from Debt Recovery Plus with the fine having been escalated to £160.00. This letter was correctly addressed. Should I demand a copy of the initial letter from Smart Parking?

Thank you all!

Le_Kirk

You should: -
a). Read the NEWBIE section post # 1
b). If that doesn't give you all the advice you need, start your own thread.

bmw30csl

It also seems in the pack they have sent me that the Enforcement Area that is pictured in the Self-Ticketing Agreement does not cover the spot where the car was parked. As I did not have this contract before how would I bring this up in the Witness Statement or would I mention that in the 'Skeleton' as mentioned in some other threads?

bmw30csl

This is my draft WS - comments would be most welcome:

In the xx Court

Claim No. xxx

Between
UK CAR PARK MANAGEMENT LIMITED (Claimant)

and

xxx (Defendant)

Witness Statement

1. I, xxxx the Defendant in this matter, will say as follows:

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. On 4th September 2018, I visited the xxx bank branch in xxxx as I have done many times in the last year. The car was parked in the space to the rear of the bank as usual. The entrance to the car park from the road is shown in Exhibit 1 and when driving in the signs are not clearly displayed.
4. The Claimant is pointing the court to Elliott v Loake 1982, a criminal case. The claimant states that the case holds that ‘the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption’

5. Exhibit 2 shows photographs of signs that have very small text and are placed up high rather than at eye level. These allegedly form the basis of the Claimant’s litigation.
5. Exhibit 3 shows the boundary of the enforcement area that the Claimant has drawn in their agreement with the Freeholder of the land. My car was parked outside of this area as shown.

6. It is my position that the signage that the Claimant relies on to bring this Claim was forbidding and claiming for an alleged parking breach is therefore perverse. There was prohibition of parking except for ‘Authorised Vehicles Only’ and therefore no contract arose to give cause.

7. 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.

Statement of Truth

I believe that the facts stated in this Witness Statement are true.
Signature Date

Coupon-mad

bmw30csl wrote: »

It also seems in the pack they have sent me that the Enforcement Area that is pictured in the Self-Ticketing Agreement does not cover the spot where the car was parked. As I did not have this contract before how would I bring this up in the Witness Statement or would I mention that in the 'Skeleton' as mentioned in some other threads?

You would be starting your WS with this fact:

I was there but was not the driver at the time.

Your WS does not make this clear as you talk about being there as if you were the driver!

If you were not, you MUST make it clear. bargepole assumed you were the driver, so a Judge will too, unless you spell it out.

Then you do need to refer to their WS and evidence and basically pull it apart, paragraph by paragraph. Where they say the D was driving/did this/that, you need to pull them up on it, and your WS will be longer by the time you've worked your way through demolishing theirs.

You can certainly say you cannot be held liable if the signs are unclear (due to 'adequate notice' being a pre-requisite of the POFA Sch4).

You need to evidence why/on what basis you are saying the area is outside the remit of the self ticketing area shown in their evidence. This is a vital point and painting a picture of uncertainty about the site enforcement boundary can win the case.

And your first draft WS doesn't reference any evidence! As bargepole said:

it is what leads your evidence.