Court for tickets x 3 for parking at home address

StillSkint

It does look like more of a defence though doesn’t it.... he wasn’t sure what to do as BW Legal gave so little details until their response to the defence, even then there is little info - how else does he go about responding to that? No doubt their witness statement will arrive with huge amounts of irrelevant info shortly before the deadline .... he can make it shorter if he does it first party and less formal.

StillSkint

Is the time limit on the skeleton defence the same, or does my partner send it off at the same time as the witness statement? Should he keep hold of it to contend anything mentioned in their witness statement when eventually received. Witness statement has to be in by the 12th.



WITNESS STATEMENT

1. I, xxxxxxxx am the defendant in these claims and the registered keeper of the car registration xxxxxx. The facts in this statement come from my personal knowledge and experiences.

2. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

3. 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. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as these events have been resurrected from almost two years ago, it is impossible to expect a keeper to recall who might have been driving. The Defendant denies being the driver at the time of the supposed event, and therefore puts the Claimant to strict proof that any contract can exist between me and the Claimant.

4. At least two other people in the household had access to my car at that time as well as friends who had travelled by train who had use of the car over the holiday period. Furthermore, I use a work vehicle for my daily commute and working day – this is why my car is often available to others. My car is insured fully comprehensively, the other drivers are insured to drive under the terms of their own insurance. On the balance of probability it is highly unlikely that I was the driver of the car.

5. There was no requirement upon me as keeper to respond to what appeared to be junk mail, in 2018, and in any event was not a matter where a registered keeper could be in anyway legally liable. No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

6. Having not heard about this matter for over a year, suddenly in May 2019 I received three court claims out of the blue, on the same day; I have researched this and discovered that the Claimant is issuing robo-claims indiscriminately for archive 'parking charges' in their thousands, without even viewing evidence until a claim is defended. It has become apparent during my correspondence with the Claimant’s legal representative that they have not viewed the signage and are not familiar with the contents on the signage.

7. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties, despite the Claimant asserting that they do not adhere to the Protection of Freedoms Act 2012 (page 24).

8. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I have made a formal complaint regarding the conduct of BW Legal to the Information Commissioners Office for misuse of my data. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for over a year then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £240 including the legal insult of interest, for what was apparently an unproven £100 charge, allegedly incurred by another party, if incurred at all.

9. This is a private car park (page 6 & 7) containing a number of allocated parking, and some visitor bays. There is one allocated permit for a parking bay for Apartment xx which is in the name of my partner as the tenancy holder. I reside at that address and have permission from the freeholder and the management company to enter and use the car park. This permission is by way of an assured shorthold tenancy in my partner’s name, and an agreement with the management company which allows access for occupants, their families and their invited guests to use the car parking.

10. The car park is accessed via a keypad controlled gate (page 8, pictures A and which residents have the code for. This code changes regularly and is supplied to residents. The Claimant’s operatives do not have the code to enter the car park and park their vehicle outside the gated area and use the pedestrian gate to enter the car park. The Claimant’s involvement on this car park is supposedly to prevent parking by uninvited persons, for the benefit of the actual residents, their families and their invited guests. Instead the Claimants carry out a predatory operation on those very people whose interests they are purportedly there to uphold.

11. The Claimant does not own the land – the land is owned by Xxxxxxx Ltd (page 19a). The Claimant has failed to properly respond to my request made on 10th May 2019 (page 19) by royal mail postal service, requesting any documentation and relevant contracts with the land owners that allow the Claimant to issue claims upon the landowner’s behalf against residents existing at the time of the Parking Charge Notice (PCN). The Claimant has refused to provide this, maintaining that the document is under legal privilege (page 23). I put the Claimant to strict proof to provide evidence to the court that the landowner has given them permission to issue charges to, enforce, pursue and litigate against residents of the apartment building on their land.

12. The Particulars of Claim lack specificity and are embarrassing. I found it odd when I received and acknowledged the court papers that this Claimant could bring a claim against me without actually referring to anything specific. I am prejudiced and am unable to prepare a full and complete defence. I reserve the right to seek from the court permission to serve an amended defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars. I attempted to gain further details of these Particulars from the Claimant in my defence, which resulted in an lengthy explanation of the shortcomings of the 1080 character limit of Money Claim Online (page 22), but still does not confirm the Particulars of the Claim. At no stage thus far has the Claimant clarified whether the claim is for breach of contract, trespass, financial loss or any other reason.

13. The signage is in a poor condition, and visitor bay signage does not state that there will be a penalty or charge of £100 for overstaying or returning within a 24 hour period (page 12, sign 5) –in fact there is no mention of any charge contained on the visitor bay signage, nor any no mention of visitor bays or related charges on the main terms and conditions sign sited at the visitor bay area (page 10, sign 4),
The signage is ambiguous and misleading, and some cases is in very poor illegible condition – it is noted that on evidence provided by the Claimant the photograph of the signage provided is in good condition (page 18) although this is some distance away and too small to read from the visitor bays (page 14, sign 7). I am questioning why the Claimant provided a picture of this particular signage, rather than a photograph of the signage which is sited immediately next to the visitor bays (page 10, sign 4); none the photographs provided by the Claimant have a clear legible picture of the contents of the visitor bay signage (page 24-29). I put the Claimant on strict proof to evidence where it explicitly states on the signage that there is a charge payable for overstaying or returning to visitor bays, and how much that charge would be.

14. I put the Claimant on strict proof to provide details and verification of the calibration system of the hand held device/mobile phone / camera used by operatives, and what is in place to prevent the date/time stamp from being altered by the Claimant’s operatives. There is a strong financial incentive for the operative to issue PCNs; during a conversation with an operative my partner and I were told they were paid per parking charge that they issued and had to issue at least five a day to make a “living wage”. My partner can attest to this conversation taking place.

15. The Claimant is attempting to recover legal costs from me prior to judgement, which is not permitted on the small claim track (page 20, 24).

16. 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 admits they have no such right as they do not adhere to POFA 2012, and to submit such incomplete particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

17. I believe that the facts stated in this witness statement are true.







SKELETON DEFENCE

1. The original Parking Charge Notice (PCN) (exhibit 4) posted by this Claimant states a Full Charge of £60.00 (£40.00 discounted) however the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at quadruple recovery, taking the most recent PCN of 06.06.18:
1. £100.00 Principal debt
2. Armtrac’s Initial legal costs £60.00
3. Interest £6.62
4. Solicitors fee’s £50.00
5. Outstanding balance to pay now £241.62

2. It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in this Claimant's undue haste to issue robo-claims in their thousands, scraping the barrel of archive cases to bring to court, under excuse of jumping on the bandwagon started by the (completely different and complex) case in Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').

3. The Claimant had no locus standi at the time of this parking event and at best, were the contractors of a principal, the landowner. They have failed to show a cause for action by way of sight of a copy of the contract they have with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name, in 2017/2018.

4. This Claimant fails to fulfil the requirements of CPR16.2 for particulars of claim in that they have neglected to set out any facts or state what it is they are claiming monies for. Their particulars of claim just state "parking charge notice of £106.62" and do not say whether the sum is due as a contractual sum, damages for breach of contract or money due for something else, such as a liability for a failure of duty of care or trespass under common law tort.
If the Claimant is alleging breach of contract, the Defendant puts the clamant on strict proof to provide a breakdown of the financial loss the Claimant has suffered, and how each particular loss arose from the driver’s use of the car park at the keeper/s residence. If the Claimant is alleging trespass, the Defendant puts the Claimant on strict proof to provide evidence that the driver was trespassing somewhere that the driver has permission for his car to enter, and proof of the damages alleged and the calculation of this sum. If the Claimant is alleging a “contractual fee”, the Defendant puts the Claimant on strict proof to provide the daily rate for parking and service provided for that fee as the visitor bays signs do not state a fee, and do not require a permit.

5. The Claimant places reliance on its provision of signage at the site and upon the content of that signage. However, the Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. It is contended that visitor bay signs do not clearly state that there will be a penalty or charge of £100 for overstaying or returning within a 24 hour period – there is no mention of any charge contained on the visitor bay signage.
There is no mention of visitor bays or visitor bay charges on the main terms and conditions sign sited at the visitor bay area, terms entirely relate to permit holders and not visitor bays. It is not enough to expect the driver to guess what terms and conditions and a parking charge “might” be for a visitor bay. The signage is ambiguous and misleading, and some cases in very poor illegible condition.

6. It is contended that the signs in place were incapable of forming a contract, and the driver would be unable to enter a contract unless they knew the specific terms and conditions and potential charges for visitor bays. The words “contract” or “agreement” do not appear anywhere at all within any of the signage. The phrase “terms and condition” are not synonymous with a contract as was recorded in Pace Recovery and Storage Ltd v Mr Zoltan Lengyel C7GF6E3R 24/05/2017 (exhibit 6).

7. The Claimant's evidence relies solely on a photograph of the car parked in a visitor bay, taken by a manual handheld device used by the Claimaint’s operatives. There is no photograph of who was driving the vehicle at the time of the alleged breach. The defendant puts the Claimant on strict proof to provide details of the authenticity and veracity of the date stamp on these photographs as requested, and evidence as to what measures are in place to prevent operatives changing the date/time stamp.

8. The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report (exhibit 3, pages 12-13) where he stated:
“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. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."
As the keeperthe defendant is under no obligation to disclose the identity of any potential drivers, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their response to the defence, a reverse burden of proof.

9. Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA, in this case because of the indisputable fact that the Claimant has asserted that they do not adhere to POFA 2012. As the Claimant states that they do not adhere to the Protection of Freedoms Act 2012 (exhibit 1) there is no legal presumption of driver identity as was recorded in Excel Parking v Mr Ian Lamoureux C3DP56Q5 17/11/2016 (exhibit 2). This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

10. The Claimant cannot rely on Elliot v Loake ('EvL') to claim that the driver and the keeper can be 'assumed' to be the same, since this was a criminal case and referred to the owner, not the keeper. In any event, in EvL there was overwhelming forensic evidence from other sources that the Defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption.

11. The Claimant is attempting to recover legal costs from the defendant prior to judgement, which is not permitted on the small claim track. The initial claims for £100 now stand at and £241.62, £244.70 and £244.90; the amounts differ due to interest charges requested; as the Claimant does not own the land, and has not incurred any actual financial loss or outlay it is unclear as to exactly why interest is requested. It is reported on the response to my defence from BW Legal that the initial amount claimed was £100.00 for the PCN and the claimant’s “initial legal costs of £60.00” (see page 20, 24). Taking the lead claim of F8DP51X0, the Claimant requests £166.62 (£100 PCN + £60 legal costs + £6.62 added for interest) and then another £50.00 added on for “legal representative’s costs”, with the court fee of £25.00 this then comes to £241.62 – for a PCN of £100. No calculation or explanation is given of these costs; this appears to be an attempt at quadruple recovery.
Court Procedure Rules 27.14 state:
Costs on the small claims track:
(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except
(a) the fixed costs attributable to issuing the claim which –
(i) are payable under Part 45; or
(ii) would be payable under Part 45 if that Part applied to the claim;
The amount requested by the Claimant should not exceed the £100 PCN and the £25.00 court fee - £125.00 in total, with interest at the judge’s discretion. The defendant pust the Claimant on strict proof to provide a detailed breakdown of both costs to and financial losses incurred by the Claimant due to the defendant’s car being parked on land that they have permission to access and use.

12. It is contended that the money requested is not a charge, but a penalty which is not permitted. As the car park is free to residents, the defendant’s car being parked there causes no consequences to the Claimant of any financial significance. Because residents never have to pay to park in the car park, there would never be a financial loss sustained because the parking is free. The situation is that a penalty charge is purely a penalty, as was recorded in Parking Eye v Mrs Natasha Collins-Daniel 3JD06533 24/01/2014 (exhibit 5).

13. It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.

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

Umkomaas

There's no such document as a 'Skeleton Defence', there's a 'Skeleton Argument' which is basically the Defendant's script/aide memoir to make sure he/she has all the significant points they wish to argue in front of the Judge, it is also a reminder to the Judge (and Claimant) of the key points of the Defence - but don't be at all surprised if the Judge gives you no time at all to use it.

The SA is submitted to all parties about 3 days before the hearing alongside a draft cost order that the Defendant wishes the Judge to agree to award should the Defendant be successful.

StillSkint

Thanks, will get him to change it: does the job witness statement look ok to send off or should he leave it till last minute in case he gets theirs?

Le_Kirk

In the witness statement do you have evidence of your points 6 & 7? Presumably you could submit some extracts from the research you carried out and the public records?

StillSkint

This could be difficult to post evidence for 6 and 7 as it’s from research of various sites and is mostly anecdotal so he may have to remove those two.

StillSkint

Had a reply to my cease and desist letter and the invoice I sent using my schedule off fees for returning any mail sent after the cease and desist, with a load of waffle about now I had notified them they can remove the address -errr they have had at least ten letters and his defence mentioning he is not at this address. They have said in the last line:

“In light of the above we do accept your invoices”

Obviously this can’t be a typo can it? After all they are an award winning legal firm?

Am just penning a jaunty response, it is Friday after all and they accept my invoices!

StillSkint

Dear BW Legal

Thank you for your letter dated 06.09.19 stating that you accept my invoices; however you have not yet remitted your payment to me. I do have another invoice to submit, as in total following my letter of 06.09.19 you sent letters to Xxxxx at my address dated:

Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx

As stated in the cease and desist letter of 08.08.19 further correspondence constituted your agreement to my fee schedule; in addition to which you agree in your letter of 06.09.19 that you accept the invoices. As your administration seems quite lacking, to be helpful I have provided copies of my letter and your response, and highlighted the pertinent areas.

You have had it bought to your attention that Xxxxxxx does not live at this address on several occasions since May 2019, including it being mentioned several times within the defence to your county court claim from Xxxxx. I am completely mystified as to why a company who refers to itself as BW “Legal” does not appear to have actually read any of the county court legal documents relating to Xxxxx and where he resides, or the numerous correspondences relating to this. Could it be that you don’t even bother reading these documents in your haste to issue automated claims and threatening letters in the hope of intimidating members of the public to pay historic and spurious parking charges?

I shall await your remittance, as per your agreement to accept my invoice.

Yours sincerely

StillSkint

Partner had a letter today - BW Legal have sent a copy of their client’s Notice of Discontinuance of the claim, court date scheduled for 1 November. Shame, after he had just posted off his witness statement which had to be in for the 19th September.

Thanks to this site for all the useful info.

Coupon-mad

Oooh, ANOTHER ONE BITES THE DUST! Well done.

Now file a claim based on those invoices...it'll cost you £25 as a court fee punt. Make sure the right person who invoiced them, files the claim, and against the right party (who did you invoice?).

Would love to see the outcome and there is no downside, as they accepted the invoices.