JUDGEMENT OR ORDER RE PRIVATE PARKING TICKET

1505grandad

The very very very latest WS via Newbies:-

"WITNESS STATEMENT - EASY STAGE - YOUR 'STORY' & EVIDENCE

A current good example of a Witness statement:

https://forums.moneysavingexpert.com/discussion/comment/77614685/#Comment_77614685

You can adapt that, and copy the style of index and how the photos are presented, and a lot of the wording, just putting your own narrative in your own words as the first few points. There is also a Costs Assessment shown there (and his defence, if you are at that earlier stage but reading ahead)."

Cannot see who your claimant is but obviously amend and adapt accordingly  -  as above WS relates to HX CPM 

Coupon-mad

Your numbering is odd, some are missing, and is it true that you are denying driving, is that right for your case? (I can't recall).

Change to 'Salisbury' = the right spelling (sorry, caused by my fat fingers...)!

AND - CALLING ALL NEWBIES!

Please now make a real difference because not enough people have yet, and time is running out.

An urgent task – deadline approaching in about ten days:

The Government is consulting for just a few more days, about a new statutory code of practice (CoP) and framework to rein in the rogue parking firms.  Read and comment on the draft CoP proposal and the enforcement framework consultation, and get everyone you know to do the same.

You will need to register then log in, to comment on the CoP and enter an occupation even if you are retired or a homemaker.  Submit comments as soon as you are happy with them.

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

You do not need to register to comment on the enforcement framework which can be found here. It has a link on page 5 to make comments.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/913272/Code_Enforcement_Framework_consultation.pdf

HOW TO DO THE SUBMISSIONS:

1. Read the cover letter

2. Read the cover letter again and note the suggested extra questions...and if you agree that, say, the 'loading/unloading and dropping off, asking for directions, and disabled people parking on double yellows as they can on street' activities listed should be exempt (not parking events, what do you think?) then please go to the Annexes at the end of the PAS Code and find the one about Exempt Vehicles and state what other activity you think should be added to the exempt list.  

 

If you do nothing else, please comment on:

- the amount of the parking charge levels

- the annexes at the end of the PAS (reading through the whole thing takes hours so if you have nothing to say about the definitions, for example, then skip to more vital points and the annex tables at the end.

- the bit about debt collectors and whether you think PPCs should be allowed to add 'costs' a second time, for the letters that are already within the rationale of the 'parking charge' sum...hmmm...

Responses into the PAS 232 and MHCLG framework documents are not completely straightforward:

On the MHCLG response, you have to answer the questions on a 1-5 scale from strongly agree to strongly disagree, and then put some commentary. No way to upload documents or alternatives but this doesn't take long.

 

 On the PAS 232, you have to click on each clause and sub-clause to put your comments, and a suggested rewording of their draft.  You can see comments which other people have written!   But, when you click ‘submit’, a message pops up to say your comments have been received, but that only applies to the particular clause you have just addressed.  

You have to go back up and find the next section, then the next...

You have to click ‘submit’ separately for each individual clause response.  Some people will be caught out by this but can revisit it and add further responses up to 12 October.

 

Things to think about:

A Speeding fine is £100.  A Local Authority lower rate parking penalty is £50.  Which do you think a private PCN should be like or do you think it should be something different?  

Do you think if all payment methods are not functioning that PPC can 'fine' you?

 

Do you think the examples mentioned in the cover letter are right and need adding to the Annex?

 

etc. etc.

 

 

roythefone

good morning, i will do it in correct numbers and innumber 2 i stated i was not the driver and will correct Salisbury,once this is all corrected is it good to go? and do i have to send the mcol defence as well?

1505grandad

On 15th September you posted:-

"is there another witness statement link to my actual situation? which was.....a unknown driver used  my business van   and parkerd on private land"

Yet in your WS you are talking about a car  -  change to vehicle?

Also para 11 -  " Hancock v Promontoria (Chesnut) Limited [2020] EWCA Civ 907...."

there is a "t" in (Chestnut).

Who is the claimant?

roythefone

sorry i ment van
claiment is horizon
 will change the t in chestnut
do i need to alter or delete the following paragraphs for my case.. para 6 para 8 para para 10 11 12 13 ??

this is my rough draft guys

In the County Court at XXXXXXXXXX

Claim No: xxxxxxxx

Horizon  Ltd (Claimant)

               v

xx 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 and not a passenger.  If necessary, I am willing to confirm this fact on oath.    

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.      

The POFA can be found here:  https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

4.The PCN notice was for parking in a no parking area.

 5.  I take issue with the Claimant's disingenuous and untrue words at page 11 in their witness statement (and the fact the signatory has altered the required statement of truth to de-personalise the duty he 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 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.  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.

7. In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) 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

8. 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. 

9.   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. 

10..  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 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 Horizon 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 Horizon 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.''  

11.  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. 

12.  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. 

13.   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.  .  That is another specific breach of Schedule 2 of the CRA.

.  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.    

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

PS  amount they are claiming is £150 plus court fee £25 plus solictor fee of £50

roythefone

hi guys can anybody look over this WS as need to get in by 4pm tommorrow 2/10/20

1505grandad

Two obvious observations:-

Make sure you stated in the heading the name of the claimant as it appears in the Court docs.

para 10  -  why have you put Horizon as well as ParkingEye.  The paragraph between the " " is the actual paragraph (419) contained in the ParkingEye v Somerfield Judgment and should not be amended from the template.

roythefone

ok many thanks grandad will sort para 10
what about the other paragraphs do i need to delete or edit anything else??

Le_Kirk

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'.     

Not sure why you are referring to law of agency - not saying you are wrong but if you are questioned by a judge, are you able to argue it?  Here is a rebuttal posted by Parking Cowboy that might suit better.

You refer to Elliot v Loake (1982) as case law which supports the view that the owner of the vehicle, if there is no contrary evidence, is the driver.
This is an incorrect representation of the case for the following reasons:
The facts of the case are that the appeal judge ruled that the appellant was the driver because of the ample evidence that he was the driver, and not, as you incorrectly state, because of the lack of evidence as to who the driver actually was.
In the case there was ample evidence that justified the magistrates to conclude that this man was driving his blue sports car on the night when it collided with the stationary car.
Additionally, a crucial part of the case was that forensic evidence showed that the appellant lied. Other material facts were that the driver had the only keys in his possession that night and that no-one else had permission to drive the car.
This case does not therefore introduce any binding legal principal as this case turned on its own facts. If any principle can be adduced, it is the well known principle that once a witness has been proven to have lied in one respect, it is likely that their evidence elsewhere is also false.
You are also reminded you of the general principle that the claimant has to prove their case. You have shown no evidence I was the driver. This is because you cannot, because I was not the driver.

roythefone

AMENDEd and sent before 4pm
many thanks for the help will let u know