Need urgent help: County court claim private parking PCN

dk007

Thanks for the reply. This forum has been super fast in replying, hence I could not believe about no reply. My apologies if it gave a wrong message, certainly your time is more important, you are doing a very good job by helping others. Also can the WS be emailed to court and Claimant as I did with the defence earlier.

dk007

I also wanted to clarify, should I elaborate on my defence in the witness Statement or look at the reasons Claimant has given against my defence (in their witness statement) and provide my comments against their argument?

KeithP

Here is a quote from post #2 of the NEWBIES thread:

A WS is simple, it expands on your defence and tells the story from your point of view, and it is vital because it includes your evidence exhibits such as photos of obscured/tiny font signs, any relevant letters, permit/copy of your lease, copy of your authority to park, etc.

There's plenty more where that came from.

Le_Kirk

dk007 wrote: »

Also can the WS be emailed to court and Claimant as I did with the defence earlier.

dk007 wrote: »

I also wanted to clarify, should I elaborate on my defence in the witness Statement or look at the reasons Claimant has given against my defence (in their witness statement) and provide my comments against their argument?

Always recommended to hand deliver your WS and evidence file in a colour coded and indexed ring binder, courts will not print all your paper for you. You can, of course, e-mail it to claimants if they permit it, otherwise post with a FREE certificate of posting.

You can support and expand upon your defence but you cannot ADD new items to it.

dk007

Please could you review my WS as attached below, Please advse of any changes and what evidences can be included with this apart from 4 exhibits already mentioned in the WS.
Many thanks
I, ……. of ……………………………….. am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

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. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

4. I received a Notice to Keeper from the Claimant dated ……… asking me to pay the parking charge which took me to surprise as I did not drive and park the vehicle to this site on the material date and time.

5. I replied to their letter on ……….., Exhibit 1, stating that I was not the driver of the vehicle on the material dates and it’s the Claimant’s duty to send it to the driver of the vehicle. I also mentioned in my response to the claimant that it’s the Claimant’s duty to find out who the driver was else disclose to me, under which provision of the law, I am supposed to disclose to the claimant as a private entity that who the driver of the vehicle was on the material date and time. The claimant has failed to respond to me about this correspondence.

6. As far as I remember, car was parked at my home address at …………………… at the time mentioned in the notice to keeper and not at the site mentioned in the Notice to Keeper. I am not disputing that the car was not parked at the site at any other time, I am only disputing the date and time of parking mentioned on the photographs and put claimant to strict proof that the date and time on the photographs is correct and whatever instrument, claimant used to take them, had been tested and calibrated e.g. the instrument might have been adjusted for day light savings and not corrected, and to provide test reports of that.

7. The Notice to keeper, Exhibit 2 states that car was parked between the times 12.15.19 and 12.28.05, See. whereas the time on the first picture taken, Exhibit 3 was 12.15.20 and the time the last picture, Exhibit 4 was taken is 12:21:11 and there is no photographic evidence suggesting that car was parked until 12.28.15.

7. (i) As per the photographic evidence included by the claimant, the elapsed time between the first and last picture taken is about 6 minutes. The defendant denies that car was on site between 12.15.19 and 12.28.05 and not for more than 10 minutes which is further confirmed by the photographic evidence included by the claimant where the elapsed time is about 6 minutes. Claimant are supposed to offer the driver a grace period of about 10 minutes to enter, read the signs, decide not to accept the contract, and leave. The claimant is put to strict proof that the car was on site for more than 10 minutes.

8. Further, the time between the Claimant's photographs and the lack of any windscreen PCN served, suggests that this may have been an untrained and unauthorised 'self-ticketer' taking predatory photos for a 'bounty' payment - effectively an incentivised lurker.

8. (i). ANPR cameras were not used, and yet no windscreen PCN was placed by the person taking the images and no time was allowed for the driver to have had a fair opportunity to seek out any hidden/high signs and read the small print terms, and decide whether to stay or go, or even to obtain a permit/authorisation from the adjacent premises. It is believed that the site had no lines or markings on the tarmac to suggest there were permit-only bays.

8. (ii). It appears that this Claimant's photographers are lying in wait at this location for purported trespassers and instead of placing clear signage and/or warning a driver to move on, they are parking (or allowing to be parked) vans in front of the signage and then taking unsolicited photos to upload to the Claimant, who has no involvement, yet remains liable for these actions. This gives a motorist no opportunity to learn of the terms by which he/she has been bound until the registered keeper receives a letter weeks later. This is not in line with the will of Parliament, which only added paragraph 9 (postal PCNs) to Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') to allow for remote ANPR systems where there were no feet on the ground for a parking firm and did not envisage this predatory scenario.

8. (iii) Euro Parking Services Ltd are put to strict proof regarding whether or not an employee took these photos, when and how that person was trained and the site duly audited, and to explain why no windscreen PCN was issued, nor grace period allowed for the driver to read the signs, despite the photographer evidently standing near the car during the few minutes snatched to create the incriminating appearance of a contravention.

8. (iv). The Defendant interprets this conduct to be in breach of the International Parking Community (IPC) Code of Practice ('the IPC CoP') including the section regarding: 'grace periods', 'no predatory ticketing', 'no incentives' and 'rules on self ticketing'. The Claimant has (via their solicitors, who shared Directors with the IPC in a clear conflict of interests) signed statements of truth which say they adhere to the IPC CoP. It is averred that this Claimant does not. To sign a statement of truth on the claim form when it is not correct has significant implications and indeed the Supreme Court are on record as holding a parking firm to strict compliance with their CoP, which was held to be effectively 'regulatory'.

8. (v). The IPC has recently suspended self-ticketing for at least one AOS member and called an emergency IPC members' meeting this month (April 2019) due to predatory ticketing and serious breaches of the IPC Code of Practice by untrained and incentivised self-ticketers. Whilst the self-ticketer exposed on television for the most recent unauthorised and allegedly fraudulent conduct was not an employee of this claimant, Euro Parking Services Ltd are put to strict proof regarding whether or not an employee took these photos, when and how that person was trained and the site duly audited, and to explain why no windscreen PCN was issued, nor grace period allowed for the driver to read the signs, despite the photographer evidently standing near the car during the few minutes snatched to create the incriminating appearance of a contravention.


9. The terms on the Claimant's signage do not offer any kind of parking licence to anyone who isn't in a pre-authorised vehicle or holding a permit. If there is no offer of parking then the basic requirements for forming a contract with the driver are not present (in basic terms, 'offer', 'acceptance', and 'consideration'), and no contract can be formed. If there is no contract then there is no breach, and hence no charge for a breach. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

10. I believe that parking in what is now painted by the Claimant as effectively a 'no unauthorised parking' location would be a Trespass issue, for which only the landholder can take action (not some parking company) and only for nominal or actual damages, not some made-up £100 charge.

11. In addition to the above breaches, the Defendant denies that the signs at the location were in compliance with the IPC CoP and believes they were sparsely placed high on a wall or where a parked van could obscure the terms.

11. (i) Where a driver does not see the terms, the driver cannot be bound by them and the authorities for this are (a) Vine v Waltham Forest [2000] EWCA, in which Miss Vine prevailed due to unclear signs hidden behind vans and the fact she did not see them - the judgment from Roch LJ being quite different from the general presumption that the Claimant is likely to invite the Court to make - and (b) ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) described non-prominent signs and unclear terms as creating a 'concealed pitfall or trap' and further confirmed that a non-landowner parking firm could not have pursued a sum pleaded in damages, or for trespass, which remains solely in the gift of a landowner.

11. (ii). It is for the Claimant to show that their signage is capable of forming a contract and offering a lawful parking licence to non permit holders (and is not just dressing up possible trespass as if it were a matter of contractual agreement). The Claimant must also show that the positions of signs remain clear to all motorists before parking/leaving the vehicle for a length of time, even when vans are parked within this site.

12. The Defendant has asked the Claimants solicitor for a site map and photographs of the signs taken on the day. The request has been ignored.

13. The Defendant has the reasonable belief that the Claimant does not have the capacity to take legal action in this matter.

14. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

15. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). 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.

16. 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.


Costs on the claim - disproportionate and disingenuous

17. 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.

17. (i). Whilst quantified costs can be considered on a standard basis, this Claimant's 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 either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

17. (ii). The Claimant cannot reasonably recover an additional three figure sum in damages or costs to pursue an alleged £100 debt. The POFA states that the maximum sum that may be recovered is the charge stated on a compliant Notice to Keeper ('NTK') - in this case £100 - and it is denied that the NTK or the signage met the high bar set in the POFA for mandatory wording and adequate notice of the charge.

17. (iii). Even the purported 'legal costs' are made up out of thin air. No individual Solicitor has signed the Particulars of Claim - in breach of Practice Direction 22, and rendering the statement of truth a nullity - and this template roboclaim has clearly had no input from any supervising Solicitor, whether in house or externally. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff.

18. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

Statement of Truth:

I believe that the facts stated in this Defence are true.

Signed:

KeithP

Para 6 - "I am not disputing that the car was not parked at the site at any other time...".

Too many "not"s in there.

dk007

Is the below ok?

As far as I remember, car was parked at my home address at ........................ at the time mentioned in the notice to keeper and not at the site mentioned in the Notice to Keeper. The car may have been parked at the site at any other time. I am only disputing the date and time of parking mentioned on the photographs and put claimant to strict proof that the date and time on the photographs is correct and whatever instrument, claimant used to take them, had been tested and calibrated e.g. the instrument might have been adjusted for day light savings and not corrected, and to provide test reports of that.

1505grandad

Statement of truth states "Defence"

dk007

Hi, i was wondering if the evidences included so far are enough or do i need to include any other evidences based on my witness statement.

Coupon-mad

Yes, I'd suggest reading & using (from the Parking Prankster's case law pages):

PCM v Bull
PACE v Lengyel

They are both about similar signs and 'trespass' dressed up as contract.

And you need these pages from the CoP:

the International Parking Community (IPC) Code of Practice ('the IPC CoP') including the section regarding: 'grace periods', 'no predatory ticketing', 'no incentives' and 'rules on self ticketing'.

Also find the page in the IPC CoP that sets out the TWO ways that IPC members are allowed to issue PCNs! One says that they must put a windscreen PCN on the car, and the other talks about ANPR issued PCNs by post. You need to show the Judge that part of the CoP as well, as this case breached it, and followed neither of the allowed routes for AOS members.

Also add as evidence, a copy of the Beavis sign (Parking Prankster blog has it - Google it). Put it next to the PPC's sign in your case in one page document, as evidence that their sign does not meet the high bar set in Beavis, for 'a brief sign with the parking charge in the largest lettering'.

And add in the two judgment pages from the Caernarfon and IOW cases as linked in post #14 of beamerguy's Abuse of Process thread.

And paras 98, 197 and 198 from the Beavis case and highlight the bits in those paras (yes, the words are there and pretty plain to read) that say the parking charge already more than covers all the costs of the business mode and creates a profit, not a loss or damages, so the minimal costs for letters sent re such parking charge models can't be recovered twice.

This (below) needs removing and as I said to you ages ago, if you were driving then defend as driver and talk honestly about what happened - it comes across better than this:

I also mentioned in my response to the claimant that it’s the Claimant’s duty to find out who the driver was else disclose to me, under which provision of the law, I am supposed to disclose to the claimant as a private entity that who the driver of the vehicle was on the material date and time.