Defence v. TSP/Gladstones

TheDefender

Yup. I mentioned POFA in the defence I submitted but only in as far as to dispute the claim they make for more than £100. In my witness statement, I'm wondering if I should make the point about the uncertainty as to the identity of the driver and the claimant not invoking POFA.

My question is "Can they rely on POFA in court having not mentioned it before?" And, does the date of the NtK which came so many months after the windscreen ticket, invalidate their use of POFA should they try to use it in court?

Coupon-mad

My question is "Can they rely on POFA in court having not mentioned it before?" And, does the date of the NtK which came so many months after the windscreen ticket, invalidate their use of POFA should they try to use it in court?

Yes they can, if they complied, but no they can't, if the NTK was later than day 56 (para 8 of the POFA must be put into evidence).

I'm wondering if I should make the point about the uncertainty as to the identity of the driver and the claimant not invoking POFA.

Yes. And the Defendant (not you of course!) should also say this:

(In their WS Gladstones refer to the keeper as if she was the driver by misquoting our defence "The Defendant's assertion that she was parked etc" when the defence actually said that the car was parked, not that she had parked it).

Our main defence is that the unilluminated signs were illegible. We can show that their 'map' of signs is a lie. They indicate there were signs where there were none. They have produced only one photo of a sign and that sign doesn't comply with IPC guidelines - it's unlit at 1am.

And the D also needs to append as exhibits, the IOW and Caernarfon case judgments about the fake added costs, as are linked in post #14 of beamerguy's abuse of process thread, where I have pre-written the word to use about costs. It looks neater to submit that as a supplementary WS just about their costs on a separate sheet, so as not to clutter up her actual WS of events.

And it is also a good time to file & serve her COSTS SCHEDULE, like this:

https://forums.moneysavingexpert.com/discussion/comment/76445468#Comment_76445468

Not for your costs as lay rep (you do that for love)! Her costs as Defendant.

TheDefender

Any suggestions for improvement gratefully accepted! I have until tomorrow to register this WS.


In the MANCHESTER County Court

Case Number xxxxxx

________________________________________
PARTIES - TSP CAR PARK MANAGEMENT LTD CLAIMANT - xxx xxxxxxxxxxxxxxxxxx DEFENDANT
________________________________________

WITNESS STATEMENT

1. I, xxxxxxxxx of xxxxxxxx, xxxxxxxx xxxxx, xxxxx, am the defendant in this claim. I am unrepresented, with no experience of Court procedures.

2. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

3. The facts of the case are as set out in my Defence, dated xxxxxxxxx, filed and served in response to the original N1 Claim Form, and verified by a Statement of Truth. They do not bear further repetition here, but this document will lead the evidence to support my case.

NO KEEPER LIABILITY
4. I was the Registered Keeper(RK) of the vehicle at the time of the event in question, however, I do not think I was the driver. I have never retrieved a windscreen notice from my car at the place the incident took place

5. The claimant has produced no evidence of who was driving.

6. The claimant has failed to comply with the conditions of POFA 2012 (EXHIBIT 1) which would allow the transfer of liability for an alleged private parking contravention from the driver to the registered keeper (RK). As such only the driver can be held liable in this matter, if any contravention has even occurred. This claim has nothing whatsoever to do with the RK.

7. 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

NO “REASONABLE PRESUMPTION”

8. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention. For the following reasons:

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

10. The defendant asserts under ‘statement of truth’ that she was not the driver. This will be repeated in court should this claim proceed to a hearing.

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") . I adduce as evidence (exhibit 2) 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.

12. Other family members and friends had use of the vehicle around the time in question, through the ‘Driving Other Cars’ (DOC) extension on their own fully comprehensive car insurance policies.

FRAUDULENT CLAIM OF COSTS

13. As the RK, in xxxxx 2018 I received a letter from the claimant’s solicitor - Gladstones, threatening to pursue me for a £100 parking charge and additional legal costs should their claim proceed to court.

14. In this matter the claimant is not being honest. This is an attempt by the claimant to fraudulently claim costs that, under CPR 27.14 they are not entitled to.

15. 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...''

16. 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 Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''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.''

17 In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

18. As a serial litigant with professional legal representation the claimant knows they cannot claim these costs. Therefore, by attempting to do so they are deliberately misleading the defendant and the court.

INADEQUATE, ILLEGIBLE SIGNS

19. The claimant's Witness Statement refers to signs in the area where the alleged contravention took place. My photographic exhibits (x) show that their exhibit on page 15 of their WS, is an invention. There was not a sign in a position near where the car was parked although the exhibit claims that there was one. It may be significant that no photographic evidence has been produced to prove the veracity of the asterisks which are supposed to mark positions of signs at Woodlands Chase.

20. TSP is a member of the independent parking community (IPC), a trade body which regulates businesses in this field. It's code of practice states that if its members are seeking to enforce parking restrictions at night they should ensure signs are illuminated (exhibit x).

21. The signs at xxxx were not illuminated. My exhibit (x) shows the area at 12:40 am on 4th November 2019. Without any illumination it would be impossible to read any of the signs at the time of the alleged contravention so the driver could not have been aware of the parking restrictions or terms and conditions of any contract the claimant is relying on the driver having entered into by reason of reading a sign.

22. My exhibit (x) shows that the only sign anywhere near to the position in which the car was parked unlit. The contravention is alleged to have taken place at 1am in February which my exhibit shows was in a waxing phase of the moon with a 13% lit moon (x) and so it would have been a relatively dark night although it's unlikely the sign could have been read had it been a full moon that night.

CONCLUSION

23. For all of the reasons stated above, 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 registered keeper when the Claimant has no right in law to do so borders on fraud but, in any event, to expect a driver of a car to have read a notice in the dark of night, as their own trade body agrees, is completely unfair.

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

Signed xxxx Dated 05 November 2019

TheDefender

Is it still advised that a hard copy of the WS should be delivered to court? If so, how important is this? It will be a major inconvenience for me to do this before the deadline of November 6 (on behalf of the defendant who is unable to do so) though I could send the docs in electronically then deliver the hard copy later this week.

Le_Kirk

If you send by e-mail to the court, you are reliant upon their good will to print and collate all your WS and evidence - will they get it right?

Umkomaas

TheDefender wrote: »

Is it still advised that a hard copy of the WS should be delivered to court? If so, how important is this? It will be a major inconvenience for me to do this before the deadline of November 6 (on behalf of the defendant who is unable to do so) though I could send the docs in electronically then deliver the hard copy later this week.

Phone the court and ask them.

nosferatu1001

4) Never retrieved? Dont you nmean you were unaware of any notice to driver?

If you are unsure who was driving, maybe support it - it was an unremarkable day, no NtK recieved etc?

6) Doesnt explain how they have failed to meet POFA. This is a fac tin your knowledge so you state it. Dont let the court have to work it out. You dont even list the specific para.

10) contradicts 4) DId you read or just copy and paste? You cannot be unsure and sure at the same time.

Move the paras at 16) on underneath the signage. The signage is relevant on the day, not the info afterwards

Yo uneed to establish no NtK served, no NtD on windscreen etc. You cannot just leave this info absent.

Umkomaas

10) contradicts 4) DId you read or just copy and paste? You cannot be unsure and sure at the same time.

I agree, and especially as the signed Statement of Truth is emphasised to back the veracity that the RK was not the driver. Thin ice!

TheDefender

Move the paras at 16) on underneath the signage. The signage is relevant on the day, not the info afterwards

Not sure what this means!

Coupon-mad

The claimant has failed to comply with the conditions of POFA 2012

You must say how they failed, as you will be expected to have chapter & verse about that and should cover it now.