Horizon parking court claim

winner1111

I had to get the whole thing sent off by Sat 29th Feb to get it to the court and claimant by Mon 2nd March (2 week deadline before hearing). Going by the normal quick responses from people on here, I was hoping to receive some feedback earlier to amend anything else before having to send it on the 29th, as mentioned on my post on the 28th-but this is my responsibility. Well it is what it is at this time as I can't amend it. With this in mind, do you think I will need to mitigate this at the hearing?
Today, the WS from the claimant was received and dated the 6th March. Will this be accepted at the hearing because of the deadline being missed by 5 days?

Coupon-mad

It will be if YOU let it!  Haha.

Start making notes and your preliminary submission needs to be to ask the Judge BEFORE the WS gets discussed by the other side, to disregard it due to the fact:

- it is a template defence written by Gladstones freelance statement writers

- it contains cut&paste errors (look for things said that are wrong, and 'her/she' by mistake, if you are actually male, or maybe saying you failed to appeal, if you did, stuff like that, or maybe it says you were driving - and you can't drive!)

- it is not signed by a person who has ever set foot in the car park

- the witness is not here and nor is the company, so you can't cross examine the so-called witness

- the witness statement and evidence arrived a week late, and ignored the court deadline

- Gladstones shared (until recently) by the same Directors who run the Trade Body for the parking firms (the IPC) and they often send late/template WS, in order to read the consumer litigant in person's account then attack it using a tweaked template prepared by Gladstones that never sees the light of day with the parking firm's supposed signatory;

- this is the subject of a current SRA investigation into this exact issue of allegedly forged WS by Gladstones, who use freelance statement writers, then allegedly, slap a facsimile signature at the bottom.  The SRA is actively looking at dozens of examples right now and are due to report back to some of the earliest complainants, this month.


Read the thread by TinMan45, here is page 10 of it (very like your case, then):

https://forums.moneysavingexpert.com/discussion/6034426/pls-help-court-claim-received-horizon-gladstones-office-car-park/p10

Send a complaint email to the SRA like he did, please - THIS WEEKEND. It will help your case and add weight to the current complaint about Gladstones doing this allegedly 'forged' WS for cases, again and again.

Coupon-mad

At the hearing, if the WS is allowed through by the Judge, promise us YOU WILL start with the POFA and the fact you can't be liable in law even though you missed that silver bullet in your WS?

You know you could send a skeleton argument attaching the things you missed, this week?!  I would, plus the observations above about the WS from Gladstones and telling the Judge you have reported this to the SRA (as you must, please!).

A skeleton argument is explained in the NEWBIES thread and can put right the things you got wrong in your WS and attach the POFA Sch 4 as well as deal with the dodgy WS from Gs.  You have to send a copy of a skelly to Gs as well.

winner1111

Great, thank you very much.

I emailed the SRA early this afternoon as it was the earliest opportunity for me to do so.
You mentioned 'preliminary submission'. Is this simply a verbal note to the Judge before the hearing commences or a physical document I hand over? If the (claimant's) WS is allowed through I promise to start with the POFA as you request! I will get cracking with the Skeleton and do what you say to the letter.

With regards to your post from the 1st March, where you suggested I added the points you raised to my evidence, this is no longer relevant I take it but would you still advise adding any of these points to the Skeleton or are they no longer relevant?

"- Henry Grenslade's words UNDERSTANDING KEEPER LIABILITY from the POPLA Annual Report 2015
- Excel v Smith as mentioned above, from the Parking Prankster's case law pages."

winner1111

Oh by the way, here's the NTK which appears to be non POFA compliant.

Coupon-mad

winner1111 said:

With regards to your post from the 1st March, where you suggested I added the points you raised to my evidence, this is no longer relevant I take it but would you still advise adding any of these points to the Skeleton or are they no longer relevant?

"- Henry Grenslade's words UNDERSTANDING KEEPER LIABILITY from the POPLA Annual Report 2015
- Excel v Smith as mentioned above, from the Parking Prankster's case law pages."

When I said 'You could send a skeleton argument attaching the things you missed' I meant the above!

With regards to your post from the 1st March, where you suggested I added the points you raised to my evidence, this is no longer relevant I take it 

What are you assuming is no longer relevant?  Nothing has changed.

You are right that the NTK is not written under the POFA, as it misses the wording in para 8, but that's only if that was the FIRST LETTER following a windscreen PCN, and yet it doesn't look like it was?  It talks about a previous PCN issued re 'ANPR overstay' that can't have been a windscreen PCN?

Must have been an earlier letter.  The first letter is the one to compare with the POFA.

winner1111

Okay, so here is the draft of the skelly. I need to have this posted tomorrow at THE LATEST in order for it to reach the court and Gallstones by this Friday. I would really appreciate it having the 'once over' if anyone can in the short notice?! I am unsure of the sub headings and just to be clear, the points Coupon-Mad said to highlight, I will do once it's approved, printed off and ready to go. Exhibit A1 I am not sure I can attach (is this allowed?) so I may need to include it as the text body? It's the transcript of Excel Parking Services v Smith. So w/o further ado....

IN THE COUNTY COURT AT BIRMINGHAM

CLAIM No: xxxxxxxx

BETWEEN:

        HORIZON PARKING LIMITED (Claimant)

              -and-

      xxxxxxx xxxxxxxx (Defendant)

______________________________________________

        SKELETON ARGUMENT ON BEHALF OF xxxxx xxxxxx

———————————————————————

PREAMBLE

1. This skeleton argument is to assist the Court in the above matter for the hearing dated [DATE].

2. The Claimant’s witness will not attend the hearing, presenting a significant disadvantage for the Defendant.

3. The witness and the accompanying witness statement is not credible. It contains invalid, false and vexatious statements which can be shown in this skeleton argument. Moreover, it displays a laissez-faire attitude towards submitting a truthful, factual witness statement.

4.  The Defendant will highlight to the Court that the claim is not only fundamentally misconceived and flawed, but that the Claimant behaved unreasonably.

5. The witness statement by William Dickson is contradictory, confusing, particularly troublesome and possibly including a fraudulent signature, as detailed below:

(a) The witness statement puts the Defendant as male in para’s #8 and #22(a), when clearly xxxxxxx xxxxxx is a female.

(b) Para 8 states that the Defendant read the sign in the car park when no such sign was seen upon entry to the car park or upon the vehicle being parked, either by the Defendant or whoever was driving at the time. The defendant was also not the driver since she does not have, and never has had a driver’s license.

(c) In para #13, the witness states that that his photographic evidence ‘suggests there to be only a single driver of the Vehicle upon entry to the the Relevant Land.’ The issue here is that there can only ever be one single driver of a vehicle, there can not be more than one single driver at any one time-no matter how many passengers are in the Vehicle. Furthermore, the photograph is unable to make out the front passenger compartment through the windscreen since the glass is reflecting the cloudy sky, thereby totally blocking any visual of the front passenger.

(d) In para #14, the witness again demonstrates their lack of research and therefore credibility when presuming that the keeper of the vehicle is the driver.

(e) In para #23, the witness states that ‘…my Company has an entrance to the private land which makes it clear that a 4 hour maximum stay is applicable…’. This is misleading and false since the car park has two entrances; one of which has a sign upon entry (off Regal Road) that is too small and high up to be read by any driver of a moving vehicle. The other entrance (off the Park Road roundabout) does not have a sign at all (the entrance used by the Defendant and detailed in her evidence).

(f) In para #22(b) the witness statement alleges ‘The Defendant did not offer any engagement in respect of attempting to settle the matter without the need for Court proceedings.’ The Defendant has the right to choose not to settle out of court, and since the Claimant’s attempts to settle were still asking the Defendant to pay a reduced amount, this was not accepted by the Defendant as a fair resolution. Plus, the Defendant did respond to the Claimant’s email on the 4th March, 2020 making this point.

(g) In para #24 the Claimant is clearly unfamiliar with his own signage since he states ‘…as my Company’s sign in large darkened text against a bright green back ground clearly conveys…’ Looking at his Evidence, the signs are not bright green at all, but white with a thin green border (within the car park) and with no green at all on their one sign situated at the Regal Road entrance.

 

SUBMISSIONS

6. The Defendant submits that they were not (and could not have been) the driver of the Vehicle at the material time of the PCN.

7. The Defendant submits that the bright, alarmist letters were seen as a scam or spam, and recognised at the material time that they were not from an authority such as local council or the police. The Claimant referenced nothing in relation to holding the Defendant liable under statute.

8. It is submitted that the Defendant did not appeal the PCN and was under no obligation to do so as keeper. The defendant correctly assumed at the material time (and to-date) that the issue was of no relevance to them.

9. The Defendant submits they did not receive the PCN either at the material time or otherwise.

10. The Defendant submits that it would not be in the interest of Court time to rebuff each and every individual accusation by the Claimant that the Defendant was the driver.

VALID POINTS

12. The Claimant’s witness statement is allegedly forged by Gladstones, who use freelance statement writers, then allegedly copy a facsimile signature at the bottom (it is not a penned signature from the Claimant)-see the Claimant’s witness statement.

13. The Claimant’s witness statement was received five days following the deadline. The deadline for receiving the witness statement is at least two weeks before the hearing and it was received on the [DATE] and dated [DATE]. 

14. Should the Operator try to suggest that there is any other method whereby a vehicle’s keeper (or hirer) can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer's) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“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.......

.......... However keeper information is obtained, 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”.

15. 10. Upon initial receipt of a parking charge notice from the Claimant via mail, I assumed that the ticket issuer had no legitimacy of issuing parking charge notices. The parking charge notice was therefore ignored, not least because I have no driving licence, did not park the car, was not bound by any contractual term as a passenger and Horizon did not appear to me to have complied with the mandatory requirements in para 9 of Schedule 4 of the Protection of Freedoms Act 2012, including but not limited to the prescribed words in 9(2)f, here: 

‘9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;

(d)specify the total amount of those parking charges that are unpaid, as at a time which is—

(i)specified in the notice; and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;

(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).’ If a parking firm chooses not to use the POFA wording (a few AOS member firms still do not) whilst the Notice To Keeper is not 'void' it is very limited, insofar as the Claimant is restricted to only pursuing an evidenced driver and cannot revert to the keeper under any rule of law (and not the law of agency as some parking firms try and fail to do - there is no possibility of an agent/principal relationship that day between the driver and myself).  A registered keeper is never liable or bound by a ''non-POFA'' (driver liability only) Notice to Keeper and this has been tested on appeal before - see Excel Parking Services v Smith, heard at Manchester Court on Appeal (see Exhibit A1).

16. The Claimant is attempting double recovery by demanding an extra £70 on top of the original claim of £80. The Defendant refers to the POFA’s 2012 Schedule 4 Recovery of unpaid parking fines, para 4(5), below.

4(5)The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified)

For and on behalf of the Defendant, xxxxx xxxxxx.

11/03/2020

KeithP

In para 14 you twice say "I draw POPLA’s attention to...".
You are addressing the court, not PoPLA.
That paragraph (at least) needs restructuring.

Coupon-mad

13. The Claimant’s witness statement was received five days after following the court's deadline. 

Remove the word 'fraudulent' - a Judge won't entertain that word.

winner1111

KeithP said:

In para 14 you twice say "I draw POPLA’s attention to...".
You are addressing the court, not PoPLA.
That paragraph (at least) needs restructuring.

Ah, yes! I was meant to address this but completely forgot. Thank you very much.