Court Claim form from VCS

chris0147

Ok, I have someone helping me with my WS, so here it is:

1. I am XXXXXXXXXXXXXXXX and I am the Defendant in this matter. The claim is denied in its entirety.

2. This is my Witness Statement in support of my defence already filed.

3. I am the keeper of vehicle XXXXXXXXXXX.

4. I am not liable to the Claimant for the sum claimed, or any amount at all. Any alleged breach of contract was between the unnamed driver and the Claimant.

 

5. The Claimant has brought a claim for £160 as the principal sum, although the amount stated on their Notice to Keeper (NTK) is £100. Section 4(5) of Schedule 4 of the Protection of Freedoms Act mandates that the maximum sum which can be recovered is the amount specified in the NTK, in this case £100. It is denied that the Claimant has any entitlement to the additional sum, or to any interest thereon. This gross inflation of the amount is an abuse of process and not supported by the decision of ParkingEye v Beavis [2015] UKSC 67 (the Beavis case).

6. The arbitrary addition of a fixed sum purporting to cover 'recovery costs' is also potentially open to challenge as an unfair commercial practice under the Civil Procedure Rules, where 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.”

7. Alleging that the letters the Claimant sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is on the International Parking Community’s Annual Conference website where Debt Recovery

Plus, one of the conference sponsors boasts ''no recovery, no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming

reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

8. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under CPR 44.3.

9. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

10. ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more,since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

10.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. And at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

10.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

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10.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

10.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para

198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim

11. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also 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. It is submitted the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

The Consumer Rights Act 2015 ('the CRA') is against this claim

12. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

12.1. In the Caernarfon Court in Case number F0QZ79EY (Vehicle Control Services Ltd v Davies) on 6th April 2020, District Judge Jones-Evans stated:

“Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law and upon it being further recorded that this claim was issued on the 30th September 2019 and well after the 4th September 2019 when District Judge Jones-Evans struck out case number F2QZ4W28 and the Claimants knew or ought to have known at that stage that continuing to claim the sum of £160 was to be treated as an abuse of process by the court it is hereby ordered and declared:

1. This is a claim for the global sum of £ 160.

2. It is a penallt and unenforceable in law.

3. It is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis.

4.This standard order was issued by this court firstly in September 2019.

5. This claim was issued by the Claimant on the 30th October 2019 when the Claimant knew that this was an issue before this court and they continued to pursue the additional £60.

6. The claim is struck out and declared to be wholly without merit and an abuse of process.”

A copy of this order is provided as Exhibit 1. It should be noted that the claim against me was also issued on the 30th January 2020 , so the Claimant was well aware of DJ Jones-Evans’ previous ruling.

12.2. In Claim numbers F0DP806M and F0DP201T - Britannia Parking -v- Mr C and another, the courts made a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

12.3. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones Solicitors' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating:

“It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

12.4. BW Legal made an N244 application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

12.5. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the Consumer Rights Act 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).

(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.

(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

12.6. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

12.7. A transcript is provided as Exhibit 2. In his summing up, it was noted that

District Judge Grand stated:

''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

12.8. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says:

“2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).”

The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

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12.9.      The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20:

 "​'A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.'​'

13. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out another parking ticket claim. The Judge mentioned the POFA 2012 and the Beavis case, and determined that:

''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.''

Further, in issuing his Order without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

14. On the 27th February 2020, DJ Wright sitting at Skipton County Court dismissed an appeal brought by this Claimant’s sister company Excel Parking Services against the strike-out of 6 different claims (F6QZ77K2, F3QZ38JK, F3QZ37NF, F9QZ40PA, F4QZ98NC, F5QZ06NC). DJ Wright was critical of the Claimant’s conduct and awarded £331 costs to the Defendant in attendance that day for the Claimant’s unreasonable behaviour.

15. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

16. The Defendant is of the view that the Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused

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17. The Claimant states that my vehicle attracted a “charge notice” for being parked in breach of their terms. I will show the reasons why they cannot enforce this charge against me.

18. On the 28th August 2019, my vehicle was photographed by an unknown person apparently parked in the location specified by the Claimant.

19. It should be noted that all of the photographs that the Claimant has produced in evidence are timed within a very short (2 minute) period. The photographs also show that the driver was present in the vehicle and contradict the Claimant’s Witness Statement as they do not show a card affixed to the vehicle.

20. The Claimant’s Witness Statement, which was prepared by one of their legal team and contains no statement from their parking attendant, makes no mention of the driver’s presence and goes on to state that a small card was left on the vehicle, which to the best of my knowledge was not the case.

21. I would therefore question why the attendant on the day did not mitigate the Claimant’s loss by informing the driver that they were on private property, or observe the vehicle for a sufficient time before issuing the charge notice. There is no contemporaneous account of the event, so it is difficult to tell.

22. It is my belief that the Claimant has not shown that the driver was actually parked in contravention of the terms.

23. The IPC Code of Practice states that drivers must be allowed a “consideration period” before enforcement action is taken. The Claimant has not evidenced that the driver was given this opportunity and it is my belief that the attendant was operating in a predatory manner, which is also contrary to the code.

24. The Claimant sent me a charge notice (Notice to Keeper) some days after the parking event.

25. In their Witness Statement, the Claimant states that I had ‘failed to act upon’ each notice. This is not the case. I have contacted the Claimant asking for further information to be provided with evidence in regards to the claim so that I could review my position and act appropriately. The only option provided by the Claimant has been for myself to accept all liability and pay the charge or to name the driver of the vehicle on the day in question. As this is not a legal requirement therefore it is unreasonable to claim that I have failed to act.

26. Instead of engaging with me, the Claimant issued a Claim via the Money Claim website dated 30th January 2020. I responded by acknowledging the claim and filed a defence.

27. The Claimant is in breach of the pre-action protocol which requires them to engage with a defendant following the issue of Letter Before Claim. The Claimant failed to address my questions and request for further information and proceeded with a Claim. I believe that this is unreasonable behaviour.

28. My understanding is that the Claimant is a notorious “serial litigator”, has no interest in engaging with individuals who respond to a Letter Before Claim and makes the minimum effort to respond (or does not respond at all) before issuing a claim should the charge not be paid.

29. The Claimant is unable to enforce the charges they allege apply, for reasons including, but not limited to, their own failure to abide by the Protection of Freedoms Act (the POFA) 2012 Schedule 4 - not abiding by the statutory timescales and prescribed wording not present on their NTK.

29.1. The POFA is legislation introduced by the government to provide a mechanism for a parking firm, provided it fully complies with the strict terms of the statute,to acquire the right to recover debt from the keeper of the vehicle if the identity of the driver is unknown. It was the intention of the government that this would be the only lawful means that parking charges could be recovered from the keeper.

29.2. Although the British Parking Association Limited (BPA) and the International Parking Community (IPC) Codes of Practice are not statutory, the BPA code of practice was given a quasi-statutory status in the Judgment handed down by the Supreme Court, in ParkingEye Ltd v Beavis [2015] UKSC 67, where at

[95] and [96], Lord Neuberger refers to the need for compliance with a code of conduct in order for parking operators to obtain data from the DVLA, and to the BPA Code being a detailed code of regulations applicable to private parking. This should transfer and be the case for the alternative Accredited Trade Association (IPC) and their code of practice also.

29.3. Contrary to the Claimant’s assertions, no notice was left on my vehicle. Even if a notice was left and hidden from me by the driver, the “card” described in the Claimant’s Witness Statement is obviously intended to be a Notice to Driver.

29.4. It is my opinion that the Claimant is playing fast and loose with the rule book. The failure of the elusive card to have any of statutory information present upon it in turn means that the keeper cannot be held liable for any breach undertaken by a driver of the vehicle.

29.5. The Claimant allows drivers five days to pay or submit an appeal. This five-day limit specified in which the driver has to appeal is also not covered by the IPC Code which states that appeals should be able to be undertaken for a period of 21 days. This 21 day allowance is also against the Alternative Dispute Resolution (ADR) for Consumer Disputes (Competent Authorities and Information) Regulations 2015 which states Alternative Dispute Resolution should be permitted access for a period of 12 months.

29.6. The ADR service offered by the claimant does not comply with this regulation.

29.7. The Claimant’s NTK refers to an incident date of 28/08/19 and the issue date of that notice is less than 14 days later. This is not compliant with Paragraph 8 of the POFA which states:

“(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) 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) state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

(d) if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is--

(i) specified in the notice to keeper, 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, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i) the amount of the unpaid parking charges (as specified under paragraph (c) or (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 (if it is sent by post) or given (in any other case).

(3) The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).

(4) 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.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.

(8) In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—

(a) any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and

(b) any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.

29.8. The method and timing of communication for when the Notice to Keeper is supposed to be delivered in less than fourteen days is for when the use of automatic number plate recognition systems are in place. This is not the case for this parking area. Any images are taken by patrolling enforcement personnel and have not at any point been issued to the defendant.

29.9. If it is agreed that a notice was left on the vehicle, the Claimant has incorrectly used Paragraph 9 of the Protection of Freedom Act 2012, Schedule 4, when in reality they should have used sections 7 and 8 that apply in this instance for charges issued via an on-site attendant.

29.10. If it is agreed that no notice was left on the vehicle, the Claimant still fails to comply with the Protection of Freedoms Act as it fails to use the statutory warning text and instead states that the keeper is liable for the charge “within 28 days of issue” which is at least 2 days sooner than the Act allows.

29.11. The Claimant may state that nothing in Paragraph 4(6) of the POFA affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges, but this fails to account for Paragraph 4 (2) which states:

“The right under this paragraph applies only if—

(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and

(b)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.”

Paragraph 6 goes on to state that:

“1) The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

 

(b) has given a notice to keeper in accordance with paragraph 9.

(2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.”

As the Claimant has failed to abide by the requirements of paragraph 7 and 8 or 9, then they fail to abide by paragraph 6 and consequently paragraph 4 so they have no alternative remedy against me, the keeper.

29.12. Given that all applicable statutory conditions have not been met, the Claimant cannot recover any charges from the keeper under the POFA. And given that I cannot be presumed to be the driver there is no cause of action against me.

29.13. It is my understanding that if any part of the Claimant’s claim shall fail then the claim should be dismissed in its entirety.

29.14. The POFA also states that the only sum a registered keeper can be pursued for (if Schedule 4 is fully complied with, which it was not) is the sum on the NTK. The Claimant cannot add additional arbitrary sums when pursuing the keeper.

30. I, the registered keeper, am under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The Claimant has shown no evidence that I was the driver on the date in question.

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31. Mr Greenslade’s wording from the POPLA Annual Report 2015 - (Exhibit 1, Page 9, Keeper Liability):

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. Any evidence in this regard may therefore be highly relevant.

32. I refer to the persuasive appeal case of Excel Parking Services v Smith M17X062 (appeal) Stockport, 08/06/2017
 a ruling which established that outside of the POFA, the only alternative course of action against a defendant is if the keeper is a company entity and the driver an employee engaged on company business (as was the situation in the case of Combined Parking Services v AJH films). I dispute the Claimant’s assertion that this case is distinguished when it is clearly not.

33. I also refer to the case of Excel Parking Services v Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”.

34. In the case of Vehicle Control Services vs Quayle C1DP010H, in front of DDJ Gourley at Liverpool on 4th May 2017; the claim was dismissed on the grounds that keeper liability did not apply as the Claimant was not compliant with POFA and they offered no evidence of who was driving.

35. The Defendant refers to Excel Parking Services v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper elected to offer no evidence, and put the claimant to strict proof that he was the driver. This of course was an impossibility for the claimant. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the keeper.

36. Failure to set out clear parking terms, ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished.

 

36.1. The Claimant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a private land car park of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights to park, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

37. It is my belief that the parking signage in this matter was, without prejudice to the primary defence, inadequate.

37.1. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory.

37.2. The IPC code states that entrance signs should be visible to drivers on their way into a controlled area. To date, the Claimant has not provided any photographic proof of their entrance sign.

37.3. The IPC code also states that the main signs should:

“Advise drivers that if a charge remains unpaid for a period of 28 days after issue then an application will be made for the Keeper’s details from DVLA, or, that they may be requested immediately such that a notice may be served on the keeper by post;”

There is no such wording on the signs at this location, only a vague warning that keeper details may be requested from the DVLA.

37.4. As well as not complying with the IPC requirements, the signage is “forbidding” in nature. The signs offer parking for “Valid VCS Permit Holders Only”. There is no offer to park for an agreed sum of £100. It would not be possible to enter into a contract for something which is not on offer. The matter then becomes one of trespass.

37.5. I refer to the cases of Parking Control Management v Bull, Lyndsay and Woolford, Claim No. B4GF26K6 & 2 other claims. The parking company relied on a sign also saying:

“By parking or remaining at this site otherwise than in accordance with the above you, the driver, are agreeing to the following contractual terms: You agree to pay consideration in the form of a parking charge in the sum of £100 to be paid within 28 days of issue”.

District Judge Glenn at High Wycombe on 21st April 2016, concluded that:-“On each occasion when the defendants parked on the roadway they trespassed against the interest of Thames Valley Housing Association Limited and Thames Valley Housing Association Limited would have been entitled to seek an injunction from doing it and would have been entitled to sue them for damages and those damages might have represented a reasonable charge for doing what they had done. However, in my judgment, there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM were not giving to people who parked on the roadway.”

37.6. I refer to PACE Recovery -v- Lengyel, Claim No. C7GF6E3R examined by District Judge Iyer, sitting at Manchester County Court. In paragraphs 13 to 15 of the Judgment, it is held that if there was any contract, it would have been impossible for the Defendant to perform.

37.7. Given the similarity of the causes of action between the referenced cases and the present case, the District Judges’ rulings may be regarded as persuasive.

37.8. The signs displayed at this location have similar wording to those in the cases above. There is an implied agreement to pay £100 if one parks without displaying a permit but, like the case above, this is not a contract. No offer to park has been extended to non permit holders therefore making it forbidding.

37.9. You may forbid people if you own the land and seek damages but you can not ask a parking company on one hand to forbid and then on the other hand to ask for £100. There is no offer made in these circumstances that any driver is able to accept.

38. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

39. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.

40. The Claimant is put to strict proof in the form of a valid contract, between Vehicle Control Services and the landowner, that shows it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.

41. If in the alternative it is the Claimant's case that his claim is founded in trespass (which is in any event denied) then any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.

42. Only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves.

43. The Claimant’s Witness Statement is signed as a statement of truth by Ambreen Ashad. I submit that this individual has no direct knowledge of this car park, was not present at the time of the parking event and therefore cannot accurately state what happened on the material date. I again note that there is no contemporaneous statement from the attendant who photographed my vehicle.

44.  I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

I believe that the facts contained in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature: 

Defendant’s name:

Date: 

chris0147

Can you please let me know what what I need to add/remove and if there is anything else is missing in the paragraph??

chris0147

Anyone????? 

Coupon-mad

The transcripts from:
Excel v Smith
Excel v Lamoureux
PCM v Bull
and E1QZ7X7C VEHICLE CONTROL SERVICES V ADAM BURZYNSKI (a case about the 'card on the windscreen')
https://www.dropbox.com/s/peh3uwf1wnrwq5g/APPROVED -E1QZ7X7C-VCS-BURZYNSKI.pdf?dl=0
need to be added as exhibits.

Your 1 - 16 should be separated off and called a supplementary witness statement, like in @Chefdave's thread, so that the actual WS is your #17 onwards.  Both need signing and dating, as will your costs assessment.

chris0147

Thank you. Can you please explain what I need to do with my 1-16?
Do I need to move them to after the #17 or what?
As for the transcripts, I have look at the link you sent but I cant find the paragraphs for Excel v Smith, Excel v Lamoureux, PCM v Bull so I need your help.
And also you state that both need signing and dating, as will my costs assessment, do I need to add these paragraphs on my WS?
If so where I can find these??

Coupon-mad

 I have look at the link you sent but I cant find the paragraphs for Excel v Smith, Excel v Lamoureux, PCM v Bull.

They are all easy to find in the Parking Prankster's case law pages.

Make 1 - 16 a separate supplementary witness statement with a statement of truth, signature and date and all the headings at the top, same as you see in @Chefdave's thread which is why I gave you his name.  Copy what he did, that's the point.  His thread shows you the documents you need to create.