County Court Defence - Overstay

wizzybee

Thanks!

I will have a look at the things you have recommended and hope that it is a wympathetic judge on the day.

wizzybee

Ok, so a quick scan seems to indicate that things like keeper liability and proof of authority from the landowner to operate are being dismissed so is it still worth putting these in?

nosferatu1001

Not really
A defence is an argument
A WS is a series of facts

I saw this... and htn i saw that and ...

wizzybee

I'd be really grateful if someone could have a look through the proposed WS to see if I'm on the right lines.

I noticed that new signs have appeared in the car park in question so I am going to have a look and see if they are different to the previous signs. I assume if there are material differences then pictures and a comment in the WS would help the case?

Here is the statement:

In the County Court at XXXXX
Claim No. XXXXXXXX
Between
XXXXX (Claimant)
and
XXXXX (Defendant)

---

Witness Statement

---

I am XXXX of XXXX, the Defendant in this matter. I will say as follows.

1. The facts set out in this statement are within my own knowledge save where I state otherwise. When I refer to facts that are not within my own knowledge I will give the source of my knowledge of those facts.

2. The Particulars of the Claim Form N1 SDT do not give any details of what this claim is for other than “a contravention on XXX at XXXX” See Exhibit A.

3. The Ministry of Justice Civil Practice Direction 16 paras 3.1 to 3.7 (See Exhibit state that if the particulars of the claim are not detailed on the Claim Form they may be served separately. I have not received any further details of the particulars of the claim.

4. Also, para 7.5 states that “Where a claim is based on an agreement by conduct, the particulars of the claim must specify the conduct relied on…” This is not included in the particulars of the claim nor have I received any further details separately.

5. I was the registered keeper of the vehicle at the time of the alleged parking contravention however there is no evidence that I was the driver.

6. As the keeper, I am not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4. See Exhibit C.

7. The photo in Exhibit B shows a copy of the ANPR photo obtained from ‘myparkingcharge.co.uk’. This does not show who was driving the vehicle and no other evidence has been supplied to show who was driving.

8. The signs in the car park were badly positioned and the terms and conditions on them did not clearly state when a ticket had to be obtained.

9. A sign was present on the left hand side of the entrance, see Exhibit D, which could not be easily read by the driver of a vehicle entering the car park. The entrance to the car park is on a busy main road close to a signal controlled pedestrian crossing, see Exhibit E. Drivers entering the car park are concentrating on traffic stopping and starting for the crossing and pedestrians crossing the car park entrance, not necessarily on the small sign to their left.

10. There was nothing on this sign indicating the costs for staying in the car park, only that the maximum stay was 2 hours.

11. On closer inspection this sign states ’Refer to the Terms & Conditions signs located at the Parking Meter(s)’. See Exhibit F.

12. At the parking meters signs were located so that information was easily obscured by other parked vehicles and you had to get out of your car to read them. See Exhibit G

13. The signs next to the parking meters stated ‘By entering this private land you agree to pay a Parking Charge if you fail to comply with the terms and conditions...’ See Exhibit H. Therefore, the driver had already agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. For a contract to exist, the elements of offer, acceptance and consideration both ways were therefore not been satisfied and so no contract could exist.

14. The wording on this sign did not make it clear that a ticket must be obtained if staying for less than 1 hour, see Exhibit I.

15. It stated ‘Tariff: Up to 1 hour FREE; Up to 2 hours £1’ It also stated that ‘To park in excess of the free 1 hour period a valid ticket must be purchased on arrival’. If a driver was not intending to stay beyond 1 hour it was not clear that a ticket must be obtained.

16. This sign also stated under the Terms and Conditions that “You must enter the… Vehicle Registration Mark (VRM)… when making payment”, and “A valid ticket must be purchased upon arrival for a duration of stay exceeding the 1 hour free period…” Again, there was no mention that a ticket must be obtained if staying for less than 1 hour. See Exhibit J.

17. This sign also stated that a “Parking charge notices will be issued for…Failure to enter the full and accurate VRM when making payment” See Exhibit K. Again, this did not give any indication that the VRM should be entered and a ticket obtained if not making a payment because you were intending to stay for less than 1 hour.

18. If a driver had intended to stay for less than an hour and believed that it was not necessary to obtain a ticket, but then stayed for more than 1 hour, the Claimant would have been satisfied with receiving £1 for up to 2 hours parking. The charge of £100 is disproportionate to the level of the Claimant’s loss and is therefore a penalty not a Parking Charge.

19. All Pay and Display parking facilities owned by XXX City Council, including many on-road spaces in the vicinity of the car park in this case, the charges for overstay are initially £25 compared to the Claimant’s £100. As the Claimant’s charge is 400% greater than that which a motorist could expect to pay for overstaying in a municipal facility it clearly disproportionate for the area.

20. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) (See Exhibit L) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

Statement of Truth

Le_Kirk

You were not the driver (or at least not admitted) yet you seem to have very good evidence of the state of the signs and you state that everything in you WS is "of your own knowledge." I think I would either rewrite it as driver or state that upon receiving the PCN etc., you, as RK carried out research where you discovered all the stuff about the signs or you could have been passenger in the car.

wizzybee

Thanks.

This is actually for my son not me.
There could be a dispute as to who was driving the car as the car was shared with his brother and they used it equally and it could easily have been either of them, but obvioulsy a vehicle can only haveeone keeper. This wasn't put in the original defence statement so I've assumed it can't be used in the WS.

Not sure why you wouldn't have good evidence of the signs as you go back afterwards to take photos.


Is the tone and language right though?

Le_Kirk

wizzybee wrote: »

Thanks.

This is actually for my son not me.
There could be a dispute as to who was driving the car as the car was shared with his brother and they used it equally and it could easily have been either of them, but obvioulsy a vehicle can only have one keeper. This wasn't put in the original defence statement so I've assumed it can't be used in the WS.

Not sure why you wouldn't have good evidence of the signs as you go back afterwards to take photos.

Is the tone and language right though?

I hope it is being submitted in our son's name and you are just helping him. Yes it is right to go back afterwards and get photos, do research etc., however, you have to lay it out for the judge. A witness statement is in support of the Defence, so you could introduce evidence that was more than one possible driver by producing insurance policy.

Le_Kirk

wizzybee wrote: »

Thanks.

This is actually for my son not me.
There could be a dispute as to who was driving the car as the car was shared with his brother and they used it equally and it could easily have been either of them, but obvioulsy a vehicle can only have one keeper. This wasn't put in the original defence statement so I've assumed it can't be used in the WS.

Not sure why you wouldn't have good evidence of the signs as you go back afterwards to take photos.

Is the tone and language right though?

I hope it is being submitted in your son's name and you are just helping him. It will have to be signed by him. Yes it is right to go back afterwards and get photos, do research etc., however, you have to lay it out for the judge. A witness statement is in support of the Defence, so you could introduce evidence that there was/is more than one possible driver by producing insurance policy.

Redx

Presumably the V5C has been mentioned regarding the keeper , plus POFA , plus the claimant sent papers and a court claim to the keeper ? , So by all means mention it in the WS

The WS is a statement of facts , and keeper details on a V5C is a fact, so use it , plus signage and discovery of facts

One court case on here was won recently over signage and different pictures of how it's changed over the years , possibly Berkeley precinct Sheffield ??

One was a 12 year old out of date contract

wizzybee

Yes it will be in my son's name. He is abroad with work which is why he can't get to the hearing.

I thought about including the insurance document to show there was joint use of the car but have the police statement thing about 'it may harm your defence if you do not mention something that you later rely on in court'

You've said...
One court case on here was won recently over signage and different pictures of how it's changed over the years , possibly Berkeley precinct Sheffield ??

Yes, this is the same place although I think the signs were updated before this incident. I di dgo down this morning and the sign at the entrance has been replaced with a much bigger one, so I will refer to this in the WS!