Preparation of Defence HX / Gladstones

Umkomaas

The Car Park Entry Sign is wrong!  Is that for a different car park?  Did the IPC not notice it when they audited their signs?

MACRO ISLAND! 🥴

14. The signage at the site is clearly visible and the information on the signage informs the driver of

the parking conditions at the location. Signage is prominent throughout the parking area.

Signage location, size, content and font has been audited and approved by the International

Parking Community 

blancswann

Umkomaas said:

The Car Park Entry Sign is wrong!  Is that for a different car park?  Did the IPC not notice it when they audited their signs?

MACRO ISLAND! 🥴

Ha! Good spot! I need to re-visit the carpark to take my own photo's of the car park and signage, I do remember it was a dingy dark place with a terrible entrance.

KeithP

Is the Judge likely to look at that and throw this case out before it makes it to court?

You will need to point out the discrepancies in their Witness Statement and evidence.
You will need to explain why these discrepancies matter.
You cannot expect the judge to do that for you.

Coupon-mad

blancswann said:

Umkomaas said:

The Car Park Entry Sign is wrong!  Is that for a different car park?  Did the IPC not notice it when they audited their signs?

MACRO ISLAND! 🥴

Ha! Good spot! I need to re-visit the carpark to take my own photo's of the car park and signage, I do remember it was a dingy dark place with a terrible entrance.

Don't help them. 
Show lack of signs and distance shots; how it would look from a car seat on approach from either/both directions.

She (their witness) has changed the statement of truth, so that she is not confirming the statement herself. She can't change the set wording 'I believe' to 'The Claimant believes' so that's worth flagging up as an aside.

Here they say you 'failed' and were 'required' to nominate who was driving:

 ...The Defendant failed to nominate who was driving prior to these proceedings being issued (which is required under the paragraph 5(2) of the Act).

22. Notwithstanding the above, the Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver. 

Elliott v Loake is done to death all over this forum and we won't be repeating it - search!

You need to respond to the suggestion that you 'failed' a 'requirement' under the POFA because there is no such presumption nor obligation in law.  What they say is untrue.  Read, understand and append as an additional exhibit to your WS, HENRY GREENSLADE's words in the section about KEEPER LIABILITY in the 2015 POPLA Annual Report (no, I won't link it).

Obviously only say you weren't driving if that is TRUE.  Did you copy a defence that said you weren't driving? Why?

blancswann

Coupon-mad said:
Obviously only say you weren't driving if that is TRUE.  Did you copy a defence that said you weren't driving? Why?

I wasn't driving!

Umkomaas

blancswann said:

Coupon-mad said:
Obviously only say you weren't driving if that is TRUE.  Did you copy a defence that said you weren't driving? Why?

I wasn't driving!

If you have some proof, e.g. in work, at an appointment, at another venue, especially if you can get a Witness Statement from someone to corroborate, that would be really useful. 

Coupon-mad

Jolly good - you would be AMAZED how many times people just copy stuff...

I am happy to hear it, so one of your first WS points will be that you were the keeper but not the driver.  But if you were there as a passenger then say that because it puts you as a true witness.  Then start to put your exhibits together. 

Here is a suggested WS to work with:

In the County Court at (your town court name) Claim No: xxxxxxxx xx parking firm's name as on the claim form xx  Ltd (Claimant)                v xx your name as on the claim form xx  (Defendant)   WITNESS STATEMENT OF DEFENDANT FOR  HEARING ON xx/xx/2020   1. I am xxxxxx xxxxxx of (postal address) and I am the defendant against whom this claim is made.   The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.  My defence is repeated and I will say as follows:  2.  The Claimant already knows from the defence the fact that, whilst I was the registered keeper I was not the driver.  If necessary, I am willing to confirm this fact on oath.     (add to #2, saying if you were or were not a passenger and if you know what happened then say so from first hand experience.  If not, then say what the driver told you when they passed you the P&D ticket that you used to appeal). 3.  There was  a lack of 'relevant contract' and lack of clear and 'adequate notice' of the parking charge; as such the requirements of the POFA at Schedule 4 are not met and I cannot be lawfully held liable.    Appended at xx1 is a copy/screenshot of that car's insurance policy showing more than one driver (first names redacted to protect their personal data).   The POFA can be found here:  https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted 4.  I take issue with the Claimant's disingenuous and untrue words at #21 in their witness statement (and the fact the signatory has altered the required statement of truth to de-personalise the duty she is signing to confirm by changing it to 'The Claimant believes..').   In fact, there is no 'requirement' that I have 'failed' to adhere to.  I have no lawful obligation to name the driver and - unlike with a Police or Local Authority penalty issued under statutory rules of law - no adverse inference can be drawn.  This was confirmed by parking expert barrister and PATAS/POPLA Lead Adjudicator Henry Greenslade in the POPLA Annual Report 2015, in an article he included and circulated to the parking industry in order to put right misunderstandings about keeper liability (appended at xx2). 5.  Schedule 4 makes it clear that keeper liability is only possible where the strictly prescribed conditions are met - step by step and word for word - and also where there is 'adequate notice' of the parking charge (denied - see my later evidence about the signs) and where the driver was bound by a 'relevant contract' (denied).  Appended at xx3 is Excel v Smith  - a persuasive authority stemming from a parking charge case that was appealed due to a wrong first instance decision.  This is relevant because - exactly as happened in Excel v Smith - this Claimant has improperly tried to use Elliott v Loake - a criminal case where there was forensic evidence that the keeper was in fact driving - to argue that I am somehow liable under a twisted and incorrect interpretation of the law of agency'.   6. Talk about the signs and refer to your photo evidence in your own words.   Give each photo an exhibit number.  When finished, do an Index page for the front and give every page a number as well (except for transcripts like Excel v Smith, they represent one page). 7.   The Claimant could very easily have identified before even obtaining my data from the DVLA - and did identify at first appeal - that the driver had paid and that the partial VRM matched only this car in the car park.  They had ANPR images and knew the time of arrival and leaving and knew the full VRM all along, before even applying to the DVLA for my data.  ANPR parking charges by post must include sufficient human/manual checks of all data before issue, to avoid sending out unfair parking charges to keepers where the driver (as it can easily be seen) did pay the tariff.  The court is invited to consider the CRA test of fairness and the fact of this case and conclude that there was no cause of action beyond appeal stage and my appeal should have been accepted.    Indeed the current IPC Code of Practice and operational rules cover 'keying errors' and disallow an operator from pursuing the full charge in such cases.  The Claimant knows this and still proceeded to court. 8.   This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015[ UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.   9.  However, there is no such legitimate interest where registration details have been entered wrongly but the requisite fee has been paid.  As such, I take the point that the parking charge in my case is a penalty, and unenforceable.   This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one. 10.  The Claimant has appended a redacted 'landowner contract' which has little or no probative value and which offends against the rules of evidence.  There is nothing to show the boundary/map, nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?).  It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act.  The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent. 11.   In the recent Court of Appeal case of Hancock v Promontoria (Chesnut) Limited [2020] EWCA Civ 907 - link to the judgment here: https://www.judiciary.uk/wp-content/uploads/2020/07/Hancock-draft-judgment-final-14-July-2020.pdf   The Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract.  Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''   Abuse of process - the quantum 12.  The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit xxx - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19).   That case was not appealed and the decision stands.  13.   Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice.    The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.  14.  The Judge at Sailsbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419):  https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html  ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''   15.  This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both.  16.  This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198, the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.  17.  This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ, and a mock-up 'aerial view' where an unidentified person has dotted markings all over the image yet with no evidence that this is true. I am local and took the evidence photographs appended to this statement myself. I can state from my own knowledge that there are nothing like that many signs in this car park and nothing beside the Pay & Display machine about a risk of paying £100.  There is a tariff list in large lettering and nothing more at the machine where the keys are input.   18.   Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA.  Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA.   Not only is the added vague sum not stated on the notices at all, but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.  On top of that, the fact that the payment machine is programmed to accept a VRM that the operator's ANPR data knows doesn't fully match the data collected at the entrance, is unfair in itself by placing an unfair burden on the consumer, causing an imbalance in the parties' rights that caused the driver to take a transactional step they would not have done.  That is another specific breach of Schedule 2 of the CRA. My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 19.  As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave. 20.  My travel costs depend upon whether the hearing is in person but the fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.'' CPR 44.11 - further costs 21.  I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).   In support of that argument, I remind the court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.  This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone, as well as trying to mislead me and the court with a citation of Elliott v Loake which has already been held on appeal to be 'improper' in a parking case. Statement of truth: I believe that the facts stated 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. SIGNATURE DATE

1505grandad

Just checking:-

Para 13  -  "Salisbury Court (the Semark-Julien case)"  -   is the D name "Semark-Jullien"  -  i.e. double "L"

Coupon-mad

Never noticed but I think you are right!

blancswann

@Coupon-mad thank you so much, this is amazing- I really wouldn’t have known where to start! I also have emails from the landowner saying that they would get the fine cancelled & another email stating that they did not give permission to pursue this claim. Email:

Yes to confirm we did ask HX to cancel this charge as it was a simple mistake.

For some reason this was not done and the matter passed to Gladstones against my wishes.

Gladstones should not proceed with this.

Kind regards.

Simon