County Claim CP Plus/ DCB Legal

Coupon-mad

He needs to append the DFT Mandatory Circular as evidence.

And append some GSV pics of each site, saying there is no evidence of any signage on GSV and nothing to tell him what the signs looked like 5 or 6 years ago.  

Object to the cynical attempt to scrape the barrel with a dubious multiple claim filed hastily and out of the blue, just before the statute of limitations would have prevented the claim, and the attempt to enhance the claim with an exorbitant sum in interest, despite no letters being served.  A Claimant cannot wait in silence for 5 years then throw a claim together just because they are still holding a keeper's data.

And given CP Plus has never used the POFA wording, why are they still silently holding DVLA registered keeper data 5 years later?  They knew they could not hold the keeper liable and are chancing their arm of finding a victim keeper who might just pay in terror at the court claim.

Explain that he has researched the matter due to this alarming claim and has found that CP Plus NTKs are (and always have been) non-POFA 'driver only' documents, most easily seen due to the omission of the required wording in para 9 of Schedule 4 of the POFA, including but not limited to 9(2)f.  Append Schedule 4 as an exhibit too.

Although you don't have to append primary law it might assist the Judge in the 30 minutes, to dismiss the claim on the spot because a keeper can't be pursued, nor assumed to be driver, nor can any adverse inference be drawn by someone not naming the driver(s).    

Append to support that, Henry Greenslade's section about KEEPER LIABILITY, from the POPLA Annual Report 2015 which says the above.  That is vital, to stop the Judge jumping to the conclusion that a keeper can be held liable outwith the POFA. Of course they can't, otherwise the legislation would have been superfluous.

Also append Excel v Smith and Excel v Lamoureux, transcripts from the Parking Prankster's Case Law (Google it), to show that a keeper cannot be held liable by a non-POFA NTK and the first case, Excel v Smith, is persuasive because (your OH must point out) it is ON APPEAL to a higher Judge.

Base the WS on the one in the NEWBIES thread and get him to do a costs assessment as well, as shown there.

Number all pages and all exhibits, to make it nice & easy to refer to a page when talking to the Judge.  Contents page as well, as seen in the example WS in the NEWBIES.

Typo here:

However, if Compliant Notices to Keeper (‘NTK’) are not properly served in strict accordance with Schedule 4 Section 9 of the POFA then there is no keeper ability.  liability.

Umkomaas

Just a quick skim of the WS. 

In 20 (iv) the statement says they are managing a shopping centre, yet within the same paragraph, it's a motorway service station. 

In 20 (v), they reference the IPC Code of Practice, yet they are not, and never have been, IPC members. In fact the opening gambit to the WS confirms BPA membership. The signatory to the WS has been with the company for 6 years, and as Head of Enforcement must surely know to which ATA they are affiliated?  The WS has all the hallmarks of a template thrown together by a third party, which rather pushes Ms Yates towards the cliff edge having signed the Statement of Truth.  In such a senior position, is she prone to signing legal documents which are, at best, contradictory?

https://groupnexus.co.uk/our-team

D_P_Dance

Is she not liable to be charged with CLTPTCOJ?  Can CC judges do this or do they refer to criminal courts.  

Le_Kirk

A witness statement is written in the First Person; yours/your husband's is a mix of First and Third.  Remove all references to "the defendant" and insert "I"

BellieBe

Thank you Umkomass, good spot. Strange as she seems to have such a disdain for templates. The pot calls the kettle black... 

Thank you Coupon-mad. That is so helpful. We will look to add those bits this evening after a very wet day of Halloween fun.

I was thinking back to the time period and at that time we would have had toddlers, babies, been pregnant... so it would have added a lot to the amount of time it would take to do non 2 hour parking things. Is that worth mentioning in section 8?

Coupon-mad

Yes; the Judge considers real issues too.

BellieBe

Still need to add site pictures, but thought I'd put up what we have so far to make sure I've not gone off anywhere. Thanks if anyone has a chance to give it a look. Sorry the numbering has gone all wrong when I copy paste here.

1. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

1. The claim is very difficult to make sense of as the Particulars of Claim do not correspond with PCN’s. In the first point, the Judge is respectfully asked to strike out the following PCN’s which are not even included on the Particular of Claim: xxx, xxx, xxx (QUESTION HERE: They say their Letter of Claim is fine since I didn't complain with pre-action protocol. Is that correct? ) 

1. I object to the dubious multiple claim filed hastily and out of the blue, just before the statute of limitations would have prevented the claim, and the attempt to enhance the claim with an exorbitant sum in damages and interest, despite no letters being served. The Claimant has sat in silence for 5 years and thrown together a claim together just because they are still holding a keeper’s data. And indeed it was hasty as the particulars were all wrong by their own PCN’s.

1. I was the registered keeper of this vehicle but was not the only insured driver at that time. Several members of my family also drove the vehicle throughout this time period. The Claimant says I “simply need to answer the questions “Were they driving?” “Did they overstay?” That is not a question I can answer simply, indeed I doubt anyone could after 5 years. There is no right to assert that I am liable based on some sort of assumption that I was driving. A Keeper cannot prove a negative several years after an event and the burden of evidence rests with the Claimant, none of which has been given.

Non-POFA NTK

1. That aside, the Claimant also states that the claim is issued against myself on the basis that I am the Registered Keeper and did not nominate the driver, (Witness Statement Yates pt. 16). The Claimant also states they do not seek to rely on the POFA 2012 to recover these PCN’s. I question that this is because they cannot establish that they have properly served Compliant Notices. 

1. Excel v Smith and Excel v Lamoureux, (Exhibit XX) clearly show that a keeper cannot be held liable by a non-POFA NTK. If Compliant Notices to Keeper (‘NTK’) are not properly served in strict accordance with Schedule 4 Section 9 of the POFA then there is no keeper liability. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue me in this capacity.

1. I have researched this matter, after receiving this exorbitant claim. CP Plus NTKs are (and always have been) non-POFA ‘driver only’ documents, most easily seen due to the omission of the required wording in para 9 of Schedule 4 of the POFA, included but not limited to 9(2)f. They say that ”on the balance of probabilities, it is submitted that if the Registered Keeper was not the driver, they would explain that or nominate”, however Henry Greenslade’s section about Keeper Liability, from the POPLA Annual Report 2015 (Exhibit XX) establishes that a Keeper can’t be pursued, nor assumed to be the driver, nor can any adverse inference be drawn by someone not naming the driver(s). If NTK’s are non-POFA ‘driver only’ documents there is no requirement to supply the Drivers’s details.

1. As CP Plus has never used the POFA wording, and therefore have no right to pursue the Keeper, why are they still holding DVLA registered Keeper’s data 5 years later? They knew they could not hold the keeper liable  are chancing at finding a victim keeper who might just pay in terror at the court claim with exorbitant and fraudulently added interest and “damages”. 

Signage

1. The Claimant’s signage evidence is not sufficient. The Department of Transport DfT Circular 02/2013 B19 stipulates: At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building. Drivers must at all times be afforded the opportunity to pay the charge on the site, before leaving and without the necessity to use a mobile phone. Cash payments must be accepted. I was only able to revisit the Pease Pottage site and could not locate any signs within the premise. Equally, I could not find instructions on how or where to pay within the premises. 

1. This Claimant has failed to provide adequate notice of any terms on their signage. 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. 5 years after the fact, it is impossible to say what signs were on display. Even the Claimant can not do this- They have included Roadchef Maidstone Sign Locations & Key in Claimant’s Exhibit ppt 80 from 2019. This site location map would not be a true representation for 2014 and 2015.

1. The over-sized dots on the site maps, are misleadingly designed to give the impression that signage is plentiful. Several blobs are in the middle of the boys, giving the impression that the signage is placed in positions where it will be easily visible.All signage is facing 90 degrees from the direction of travel, apart from the entrance signs which are not possible to stop and study due to other cars behind. Many signs are on very high poles and difficult to read.

1. Claimant’s exhibit 4 shows signs with a maximum of £100 (or in some locations, £90 (pg 23). The global sum or indeed, any additional claimed was not shown on any and makes no mention of additional costs which the Claimant have repeatedly added. Nowhere do any signs mention these additional costs.

Time Period

1. At least one PCN looks like a double visit (or a visit one side of the motorway followed by a visit on the other side of the motorway on the return journey). This is a very common flaw of ANPR.

1. Additionally, the total time would have included time spent filling up with petrol/air/water which would have been especially difficult for my wife on occasions when she may have been a driver, as she would have had a toddler, baby and been pregnant during this 2014/2015 time period. Imposing a total stay over an entire MSA site is not lawful, because the Government policy requires a mandatory minimum ‘two hours free parking’ I.e. parking and leaving the car in the car park section) as set out in the Department of Transport DfT Circular. Exhibit XX 

Abuse of Process

1. The Claimant has added a sum disingenuously described as ‘damages’ or ‘debt collection costs’. The added £70 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process- see exhibit xx- transcript of the Approved judgment in Britannia Parking v Crosby (Southhampton Court 11.11.19). That case was not appealed and the decision stands.

1. Although another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Julien 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-Julien 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 the hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

1. The Judge at Salisbury 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 Somervield (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 lords vale 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.”

1. 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.

1. This Claimant knew or should have known, that by adding £70 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 (exhibit XX), 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.

1. 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 term 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.

1. I twice emailed the Claimant asking them what their legal authority to add unlawful amounts was. (Exhibit XX) I was told “ As per the site terms, you are liable for the PCN plus debt recovery charges, Court fees and costs.” However, these are most definitely NOT the site terms.

CPR 44.11- further costs and fixed witness costs...

Coupon-mad

Looks good.

1505grandad

Not sure where you have copied and pasted from but there are at least two typos which would not appear in the NEWBIES example:-

"the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somer(v)ield (ref para 419):........"

should be "Somer(f)ield"

"Although another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Julien 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-Julien facts of the case.........."

"Jullien" is double LL

BellieBe

Thanks Coupon Mad

Thanks 1505- thanks for your close reading & pointing that out- I didn’t copy & paste as it’s a pdf so I typed it out. (There was probably an easier way!)