Defence v. TSP/Gladstones

TheDefender

Now Updated after suggestions..


WITNESS STATEMENT

1. I, xxxx of xxx, xxx, xxxx, xxx, 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 xxxx 2019, 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. The reason I can't absolutely rule out having been the driver is that it was an unremarkable day and I don't remember where I was that day. I know for sure that I am unaware of ever having received a windscreen notice on my car at the place the incident is alleged to have taken 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 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. My exhibit (x) highlights the relevant part of POFA which the claimant has failed to comply with. Specifically the claimant failed to submit the Notice to Keeper (NTK) in time;
"POFA 2012

(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given" (Exhibit x)

7. The Notice to Driver is dated xx xxx 2018. The Notice to Keeper was issued on 14 xxx 2018. That is a gap of 176 days.

8. 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. 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.

11. Another family member and a family friend had use of the vehicle around the time in question as a named driver on the insurance policy and through the ‘Driving Other Cars’ (DOC) extension on their own fully comprehensive car insurance policy.

FRAUDULENT CLAIM OF COSTS

12. As the RK, in September 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.

13. 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.

14. 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...''

15. 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.''

16. 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.

17. 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

18. 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, is an invention. There was not a sign in a position 'Z' near where the car was parked. 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 xxxx xxxx.

19. 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).

20. The signs at xxxxxx 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.

21. 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

22. 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.

Coupon-mad

That is better, but the IPC name is wrong (old name here):

19. TSP is a member of the independent parking community (IPC)

TheDefender

In Court later today!

Any last minute tips?

I'm going to try to be the one doing the speaking on behalf of my daughter-in-law! (I know that she'll be the one who must answer the questions). I've printed the relevant lay rep document. Do I show this the usher or the judge, or both?

When it's my turn to present our case, should I run through her witness statement in detail or just highlight our most important points?

Umkomaas

Do I show this the usher or the judge, or both?

Only if there's any doubt thrown on you undertaking the role. It's not normally required, but useful to have up your sleeve.

When it's my turn to present our case, should I run through her witness statement in detail or just highlight our most important points?

You mean - if you're given the opportunity to speak? Sometimes the Judge doesn't invite comments. But from reading the many court reports on here and other forums, you will get around 5 minutes to speak, so you won't be able to read out the WS (in any case all the parties involved have already had a copy a couple of weeks ago), so personally, I'd distil the key points and work to those - for as long you're allowed.

Some of your time might be questioning things said by the advocate in his/her submission.

TheDefender

An hour in court.

The case was decided on POFA 2012.

Gladstone's solicitor's claim was that there was a fair bet that the driver was the keeper; more than a 50% chance he said!! I nearly laughed out loud! The judge was fairly incredulous too. She asked if she was being asked to reverse the rules for burden of proof and infer what the claimant wanted her to.

Interesting to note for future litigants that the Gladstone's solicitor attempted to use Section 2 of POFA 2012 in order to negate or confuse the issue in relation to keeper/driver responsibility. Our defence was that they were out of date when they issued the NTK so couldn't rely on POFA to pursue the driver and that they didn't know who the driver was. The solicitor attempted to say that they could still hold the keeper liable.

The judge was unimpressed especially because Mr Pickup produced this Section 2 'evidence' in a 2nd witness statement which they claimed to have sent the court and us last week. Neither I nor the judge had received it! I was given the option to object to it but I was asked in such a way by the judge that it was obvious she was dismissing its contents so it wasn't worth objecting!

We hardly touched on the unlit or indistinct signs and didn't touch on anything else. The judge questioned the defendant for 2 minutes simply to ask her if she was the driver. When she answered that she was pretty sure she wasn't, she then asked me if I had anything to add - I was the defendant's lay representative. I mumbled something and she more or less interrupted me and began her judgement!

She dismissed the claim on the basis that no one knew who the driver was and it wasn't for the judge to infer from the claim that the keeper was the driver.

You lot are brilliant and this forum is a fantastic resource for the victims of the PPC scammers.

Cheers

beamerguy

Well done :beer:

GLADSTONES SPANKED AGAIN:rotfl:

Fancy Mr Pick-me-up trying that on ??

Gladstones really must be a good laugh with the judges now

Umkomaas

Excellent result, well done, and thanks for giving us the details of the proceedings.

ANOTHER ONE BITES THE DUST!