Witness Statement Advice Please! VCS

Christie2692

Hi,

I have been following the brilliant advice on this board so far and am now almost ready to submit my witness statement to the court, and will post below. I have zero legal knowledge and would be very grateful for any advice / improvements I could make.

Also I am slightly confused about how I file the documents, I know there are lots of strict rules about filing by email, and have read the practice direction.. am I able to send them via recorded royal mail post ? or is email best?

Thanks Again

Many Thanks

Christie2692

Witness statement
I, ****************** of **************, *********, ***********, **** *** am the defendant in this case.
The exhibits which the defendant intends to rely upon are as follows:

Ex. 1. Protection of Freedoms Act, 2014, schedule 4
Ex. 2. Code of Practice ("CoP") of the British Parking Association – Page 12, 13, 15
Ex 3. Code of Practice ("CoP") of the British Parking Association – Page 9
Ex 4. Civil Practice Direction 16 STATEMENTS OF CASE – para 7.1 -7.6 Other matters to be included in particulars of claim
Ex 5. Civil Procedure Rules Part 16, Rule 16.4
Ex 6. Practice Direction 18 – Further information
Ex. 7. Notice to Keeper (NTK)
Ex. 8. Copy of correspondence sent to claimant on receipt of NTK
Ex 9. Copy of the Email received from Claimant in Response to Ex. 6
Ex. 10. Copies of demands for payment letters received from claimant
Ex 11. Letter Before Claim
Ex 12. Letter sent in response to the claimants Letter Before Claim.
Ex. 13. Print screen of the myparkingcharge website
Ex. 14. SAR request sent to claimant
Ex 15 Database screenshots provided as part of the SAR response
Ex 16. Copy of the Claim Form,
Ex 17. Defence statement
Ex. 18. Newspaper article outlining the changes to the car parking terms and conditions

I am an unrepresented consumer who has never attended the County Court before and I have been provided with insufficient information by the Claimant in order to defend this claim; however I will do so to the best of my ability. I have no knowledge of the terms and conditions, times, or signage terms other than those provided by the claimant to this date.

1. I will elaborate on these points further throughout the statement however I would like to confirm that the essence of my statement is as follows:
A) I deny any liability for the alleged breach of any Terms and Conditions with the claimant. Keeper liability is not applicable to this case as the Claimant has failed to fulfil the conditions set out in the Protections of Freedom Act (PoFA) (Ex.1) and as required by the British Parking Association (BPA) ( Ex.2)
b) The Claimant states the breach of contract as - Parked for longer than the maximum period permitted. The claimant has not evidenced the time period that the vehicle was parked. The vehicle is in motion on both ANPR images provided, The conditions and terminology as to what is permitted during this period is unclear and I am assuming that the exit and entrance time does not allow for a reasonable grace period as outlined in the BPA code of practice (Ex.3)
c) The Claimant has failed to provide a copy of the contract or documents constituting the alleged agreement. Therefore the Claim fails to comply with Civil Practice Direction 16, paras. 7.3 to 7.5. (ex 4.) or with Civil Procedure Rule 16.4 (Ex. 5)

2. I have not received a copy of the contract displaying the alleged agreed terms and conditions or any evidence that these terms were prominently on display at the time of the alleged breach. I have tried to obtain this information for myself however the terms and conditions and signage of the car park in question – Berkley Centre, have since been updated so the information which is currently on display is irrelevant to this case. (Ex.18)

3. The Claimant has not evidenced whether the permitted maximum free parking period included time entering the site, looking for a space and parking, as well as exiting the car park via a junction that leads on to a very busy main road – Eccellsall Road. If the terms and conditions do state the parking period permitted is the full period of time spent within the car park and not the time the vehicle is parked as stated on the LBC (Ex. 11 ), consideration should be given to the prominence and clarity of this condition. I also wonder if it is unreasonable to assume that any driver would fully understand the implications between whether entrance / exit time is included within the permitted parking period by the terminology used on the signage and contract that was displayed at the time, or if indeed they could be led to believe the time stated is merely the period of time a vehicle is parked upon the premises.

4. In relation to this condition I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member and in order to be an accredited member of the BPA, compliance with the CoP is compulsory. Paragraph 13 of the CoP (ex 9) clearly states that a grace period must be allowed in addition to the parking event before enforcement action is taken. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space, to read the signage, and to exit the car park once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of parking (Ex9 paragraphs 13.2 and 13.4). The ANPR photographs of my vehicle were taken upon entry at 10:42 and exit at 13:04. If the maximum parking period permitted is 120 minutes I would request that the 20 minute grace period should also have been additionally taken into account.

5. As outlined in my defence (ex17) – it has not yet been stated by the Claimant whether they are pursuing myself as the registered keeper or by presuming that I am the driver of the vehicle on the day in question.
A) No evidence has been supplied by the Claimant as to who parked the vehicle. Under the Protection of Freedoms Act (ex1) there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver.
Under the Protection of Freedoms Act 2014, Schedule 4 (POFA), a registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper' (a sum which is less than this claim). This depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. As outlined in my defence, the claimant has failed to fulfil the PoFA obligations as the NTK was not compliant. (Ex1 paras 5, 6, 11 & 12 and Ex 7)
C) The BPA CoP also requires that the Claimant pursues the Keeper of the vehicle under the obligations set out in the PoFA (ex1 ) the process for this is defined clearly within the CoP (ex2) and as outlined previously in order to be an accredited member of the BPA, compliance with the CoP is compulsory. Therefore the claimant does not have the right to pursue myself as the keeper of the vehicle.
D) If the claimant states that “if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving.” I would like to quote this excerpt from Barrister Henry Greenslade on Understanding keeper liability:
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. 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.'' E) As evidenced in the points a-d above the Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified.

6. I would like to draw attention to the fact that the Claimant has failed to act on Notice 18 requesting further information with regard to the claim (EX6). Upon receipt of the NTK I wrote to the claimant to appeal the claim and requested further information. (Ex8). However the response I received was insufficient and clarified that they were not only unwilling to provide further information they would not accept an appeal without myself naming the driver or accepting liability for the driver which is not an obligation by law. I received multiple threating Debt Collection letters from the claimant (ex 10) informing me that further information of this claim could be found on the myparkingcharge website. Please see Ex13, for a screenshot of the website and the information which it contained. Following the Letter Before Claim (ex 11) I wrote to the claimant and further requested that more information be provided (ex12). I received no response other than the Claim Form notifying myself that I would now have to defend this claim in a court case. I have then placed a formal Subject Access Request (ex14) as a final attempt to obtain the full accurate information required in order to review my position and to defend this case. The claimant has still only provided vague and inconclusive amounts of information in response. This response consisted of copies of letters previously received (ex – Ex) and a screenshot of their Litigation database (ex. )

7. I am defending the Particulars of Claim as it stands at present both via the LBC (ex ) and Claim Form (Ex ): - The Claim fails to comply with Civil Practice Direction 16, paras. 7.3 to 7.5. (ex) or with Civil Procedure Rule 16.4 (). In this regard I wish to draw the Courts attention to the following matters;
a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts nor does it enclose a copy of the contract or documents constituting the agreement.
b) No particulars are offered in relation to the terms and conditions of the contract; the alleged breach; how the sum has risen from £100 to £160; It has not been stated as in which manner the claimant is pursuing myself (driver or keeper); or any other matters necessary to substantiate the Claimant's claim.

8. I believe the term for such conduct is ‘robo claims’ as evidenced by the database viewed in (ex) this procedure is against the public interest; demonstrates a disregard for the dignity of the court and is unfair on unrepresented defendants. I have reason to believe that this is a claim that will proceed without the facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant. There has however been an overbearing amount of information and demands provided by the claimant in terms of payment of the charge. I believe this is deliberate in order to intimidate myself into payment of this charge whether I am liable or not and without providing myself with the full facts or knowledge of the claim.

9. I believe that the Claimant requiring payment of £185 is an unenforceable penalty charge. The Claimant has added unrecoverable sums to the original parking charge of £100. The claimant has not explained how the claim has increased from the original parking notice and on their own systems (ex) has the ‘Value’ of the PCN stated as £160. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that these costs were incurred. During the course of correspondence the costs that the claimant were happy to receive as proportionate for the Parking Charge have altered from the original fee of £100 to a ‘discounted’ fee of £60, then to £160 for ‘additional costs’ incurred. There has been no explanation for the calculation of these fees and that of the £185 fee that is now being claimed other than the £25 court fee. The Defendant believes that Vehicle Control Services Ltd has artificially inflated this claim. The Defendant denies that the Claimant is entitled to any interest as the defendant has not been provided sufficient information in regards to the contract.
Statement of Truth: I confirm the facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

Fruitcake

Christie2692 wrote: »

Hi,

I have been following the brilliant advice on this board so far and am now almost ready to submit my witness statement to the court, and will post below. I have zero legal knowledge and would be very grateful for any advice / improvements I could make.

Also I am slightly confused about how I file the documents, I know there are lots of strict rules about filing by email, and have read the practice direction.. am I able to send them via recorded royal mail post ? or is email best?

Thanks Again

Many Thanks

You can always do both, but I believe email is perfectly acceptable. You can always ring the court after sending by either method to check that they have arrived, but expect a long wait on the 'phone. I think bargepole talks about this in post 2 of the NEWBIES.
Always send an email to your own email address, and keep it safe as proof of sending.

Coupon-mad

am I able to send them via recorded royal mail post ?

NEVER use any signed-for postal service to any parking firm, solicitor, court, or debt collector as a lack of a tracked signature (for whatever reason) would just give you proof of NON delivery.

or is email best?

For Vehicle Control Services Ltd, yes and no! They should accept service by email but the other week they told a poster here that they didn't. Therefore I would keep proof of all your postal costs (to claim at the hearing after filing a full 'costs schedule' a couple of days before) and post your WS and evidence in a strong envelope to VCS, reinforced with brown parcel tape.

As for your local court, search the forum for Ring Binder contents page!

Take it in person with the claim number & hearing date written on the front of the file.

Now, your WS reads far too much like a defence, so let's backtrack.

A WS should tell the story in the first person, either along the lines ''I was the driver and this is what happened'' or ''I was the registered keeper and the driver has not been identified, but I received a NTK which was not worded as required under the POFA and cannot be held liable (see Exhibit xx - the POFA Schedule 4 - and Exhibit xx - POPLA Lead Adjudicator and expert parking law barrister Henry Greenslade's words...blah blah).

First, show us EXACTLY what you put in defence, word for word (don't be shy even if it was brief), and what the Particulars of Claim said (left of the N1 claim form) and how much is being sought (bottom right total on the N1)?

Overstay? How long? Which car park?

bergkamp

Coupon-mad wrote: »

As for your local court, search the forum for Ring Binder contents page!

Take it in person with the claim number & hearing date written on the front of the file.

The theory is sound CM.
My experience of the practice was not!

https://forums.moneysavingexpert.com/discussion/5739126/uk-car-park-management-try-very-hard-to-enable-shedule-4&page=4#69

Christie2692

Thank you all for your replies, I will look into the Ring Binder contents page and I'll have a go at re working the WS think I'm struggling as I'm relying more on them breaking certain protocols and procedures than the events of what happened in terms of parking if that makes sense.

It was a free car park for 2 hours max stay. The ANPR cameras have the car clocked as being on the site for 2 hours and 22 minutes in total.

My defence was as follows:
DEFENCE

1. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.

2. The Defendant denies entering into any contract with the Claimant. The Claim relates to an alleged debt relating to a parking charge from a driver's alleged contravention of contract. It is admitted that the Defendant is the registered keeper of the vehicle but it is not known who was driving and the Claimant has provided no evidence in this regard. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to the Claimant. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured.

4. 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. An operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12 of the PoFA.
The claimant has failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

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.”

The applicable section here is (b) as the NTK was delivered by post. Furthermore, paragraph 9(5) states:
“The relevant period… is the period of 14 days beginning with the day after that on which the specified period of parking ended”
The NTK sent to the Defendant as Registered Keeper was issued on the 31/05/2018 this is 19 days after the alleged contravention had taken place (12/05/2018.)

9(4)(b). This means that The Claimant failed to act in time for keeper liability to apply.

4. The Letter before Claim does not state whether the Claimant believes the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, (and failed to reply to subsequent requests for this information.) 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.

5. The LBC also fails to identify the facts that caused a charge to arise. The Claimant states: breaching of terms and conditions, however the Claimant has failed to provide a copy of these terms and conditions. The LBC then further states Reason: 80) Parked for longer than the maximum period permitted. I refute the eligibility of this claim on the grounds that
i) This alleged breach could only have been made by the driver of the vehicle, as these terms and conditions have so far only been displayed to the driver (apparently on entry to the site) and could only have been accepted by the driver.
ii) The Claimant has failed to provide any evidence regarding the amount of time the vehicle spent PARKED upon the premises. Both photos provided by the claimant show the vehicle in motion and I do not believe it to be an unreasonable assumption that the vehicle may have remained in motion, entering and exiting the car park throughout the additional claimed 18 minute period. Therefore I see no evidence of this alleged breach.

7. Should the Claimant provide evidence to substantiate their claim then it is denied that the defendant was properly informed about any parking charge, either by signage or by a CN. Therefore, it is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

8. The Claimant requiring payment of £185 is an unenforceable penalty clause. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £60 costs were incurred. The Defendant believes that Vehicle Control Services Ltd has artificially inflated this claim. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £185.00 minus the court costs of £25.00. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

9. With no POFA and no law of agency to rely on, the Claimant has no cause of action.

35. It can also be noted that the Claimant has failed to act on Notice 18 requesting further information with regard to the claim. As requested twice previously (included in the defence).

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.

I believe the facts contained in this Defence are true.

The Particulars of Claim read as:

The claimants claim is for the sum of £160 being monies due from the defendant to the claimant in respect of a Charge Notice (CN) for a contravention on (date) at Berkeley Centre.
The CN relates to a MAKE and MODEL under REG NO. The terms of the CN allowed the Defendant 28 days from the issue date to pay the CN, but the defendant failed to do so. Despite demand having been made the Defendant failed to settle their outstanding liability. The claimant seeks the recovery of the CN and interest under section 69 of the County Courts Act 1984 at the rate of 8% at the same rate up to the date of Judgement or earlier payment.


Thanks again for all your help It's safe to say I am currently terrified, we are off on holiday for three weeks before the court date so I'm having to wrap this all up and submit earlier than I would like too which I think has added to the pressure and really want to make sure I get this right.

BrownTrout

Why are you including code of practice for the BPA

The_Deep

They are obviously trying to scam you so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Coupon-mad

Thanks again for all your help It's safe to say I am currently terrified, we are off on holiday for three weeks before the court date so I'm having to wrap this all up and submit earlier than I would like too which I think has added to the pressure and really want to make sure I get this right.

OK, no worries, at least this WS will be done in time!

You do NOT have to file these (although have them in YOUR bundle if you like):

the Beavis case
CPRs
Practice Directions
Your SAR request
letters demanding money along the way
the claim form
The LBC
Your defence
or,
as Brown Trout says, the BPA CoP seeing as VCS are in the IPC!

Which car park is this again? We know about some VCS car parks.

Christie2692

Coupon-mad wrote: »

as Brown Trout says, the BPA CoP seeing as VCS are in the IPC!
.

OOPs! good catch Brown Trout, Thank you. I seem to have become muddled along the way I had found VCS on the BPA website listed on the approved operator scheme.
However I can see now on the VCS website that they are IPC, I'll have a dig see if there's anything similar / relevant from them and remove all the BPA stuff.

The car park is the Berkeley Centre in Sheffield

Thanks again

Christie2692

I've had a go at cutting down the witness statement, I am also planning to draft a Skeleton argument and moving some of the legal points over to there. If you could have a quick cast over and see if there's any pointers I would be very grateful:
Witness statement
I, ****************** of **************, *********, ***********, **** *** am the defendant in this case.
The exhibits which I intend to rely upon are as follows:
EX1 Protection of Freedoms Act (PoFA), 2014, Schedule 4
Ex2 Expert from Annual POPLA report – Lead Adjudicator Henry Gleenslade
Ex3 Civil Practice Direction 16 Paragraphs 7.1 – 7.6
Ex4 Newspaper article outlining the changes to car parking terms and conditions
Ex5 International Parking Community (IPC) Code of Practice – Part C
Ex6 International Parking Community (IPC) Code of Practice – Part B, 15 - Grace Periods
Ex7 myparkingchargewebsite screenshot

I am an unrepresented consumer who has never attended the County Court before, I have been provided with insufficient information by the Claimant in order to defend this claim, however I will do so to the best of my ability. I have no knowledge of the terms and conditions in question, or signage that was on display at the time of the alleged incident.

I deny any liability for the alleged breach of Terms and Conditions with the Claimant.

I am the registered keeper of the vehicle. I received a Notice to Keeper which was not sent within the time frame required under the Protections of Freedom Act (Ex1) therefore The Claimant does not have the right to claim unpaid charges from myself as the registered keeper. (Ex1 PoFA paragraph 4). I have been unable to identify the driver on the date in question. As outlined by Harry Gleenslade in the POPLA Annual Report (Ex2) there is no requirement or presumption in law for myself as keeper of the vehicle to identify the Driver at the time in question. If the Claimant is not able to provide evidence to substantiate this presumption then none can be made. The International Parking Community code of practice (of which the claimant is an Accredited Operator and therefore must abide by) also outlines the importance of the Protection of Freedoms Act. (Ex5)

The details of the breach of contract that occurred are unclear. I am yet to see a copy of the terms and conditions or any evidence that these were in fact clearly on display at the time of the alleged incident. I have tried to obtain this information for myself however the terms and conditions and signage of the car park in question – Berkley Centre, have since been updated so the information which is currently on display is irrelevant to this case. (Ex4)

My vehicle is in motion on both of the ANPR images however the Claimant has stated the breach of contract as Parked for longer than the maximum period permitted. The Claimant has not evidenced whether the permitted maximum free parking period of 120 minutes included time entering the site, looking for a space and parking, as well as exiting the car park via a junction that leads on to a very busy main road (Eccellsall Road.) If the terms and conditions do state the parking period permitted is the full period of time spent within the car park and not the time the vehicle is parked (as stated on the Letter Before Claim,) then I question the prominence and clarity of this condition. I also find it unreasonable to assume that any driver would clearly understand the implications between whether entrance / exit time is included within the permitted parking period by the terminology used on the signage and contract that was displayed at the time, or if indeed they could be led to believe the time stated is merely the period of time a vehicle is parked upon the premises.

According to the IPC code of practice (Ex6) a grace period should be applied in addition to the maximum permitted parking period. This is to allow drivers time to find a parking space, to read the signage, and to exit the car park once they have finished parking. The ANPR photographs of my vehicle were taken upon entry at 10:42 and exit at 13:04. If the maximum parking period permitted is 120 minutes I would not find it unreasonable to say that a 20 minute grace period should also have additionally been taken into account.

The Claimant has failed to provide myself with the information needed with regard to this claim. Upon receipt of the Notice to Keeper I wrote to the claimant to appeal the claim and requested further information. However the response I received was insufficient and clarified that they were not only unwilling to provide further information they would not accept an appeal without myself naming the driver or accepting liability for the driver. I received multiple threating Debt Collection letters from the claimant informing me that further information of this claim could be found on the myparkingcharge website. Please see Ex7 for a screenshot of the website and the ‘information’ which it contained. Following the Letter Before Claim, I wrote to the claimant and further requested that more information be provided. I received no response other than the Claim Form notifying myself that I would now have to defend this claim in a court case. The particulars of claim were vague and did not contain a copy of the contract in question.

The fees outlined by the claimant have also been inadequately described. The original amount accepted by the claimant would have been a ‘discounted’ amount of £60 this then rose to the amount of £100 and then with an additional charge the final ‘charge’ is now up to £160 (+court fees) without any explanation or breakdown as to how the additional £60 has been calculated.
I believe the lack of information and facts in regards to the case plus the overbearing amount of payment ‘advice’ given along with the artificial inflation to the charge is deliberate in order to intimidate unrepresented defendants like myself into paying these charges without question. The Claimant has shown complete disregard for the correct procedures and protocols of both the court and the IPC which I find ironic in a case that relates to breach of contract.

Statement of Truth: I confirm the facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.