EDIT: WITNESS STATEMENT : Highview parking DCB legal

Redx

The defendant can say

The driver could not exit the car park

They don't have to say that the defendant could not exit the car park

Coupon-mad

The reason for the tactic of defending as keeper and citing the POFA, is that I reckon you have more chance of Highview discontinuing the claim later on, before the hearing, because they know that they don't comply with the POFA. Therefore I think this can be seen off without any hearing and of not, then you can always provide more facts at WS stage if you believe by then, that the C has provided enough evidence to 100% pin down this day to one when you know you were driving and what delayed you. 

At the moment, the claim is surely very vague and doesn't even identify the parking charge £sum, does it?  Have they managed to include the alleged breach? Have they remembered to identify the car VRM in the particulars of claim (on the left of the N1 claim form)?  We've seen some very vague ones.

So you can say in the defence that the Defendant has tried hard to determine what the issue could possibly have been and recalls that there was a day when the occupants of the car were delayed because (explain a bit without saying who was driving).  But the lack of evidence provided thus far from this Claimant has failed to identify either the driver or the circumstances that day, so the Defendant is in the dark about the issue and reserves the right to expand on the facts if the Claimant supplies any useful evidence.  

However, what is clear is that this Claimant has elected not to use the 'keeper liability' law (POFA 2012 Schedule 4) and yet has included a clear falsehood in their Particulars of Claim ('POC') which were signed under a statement of truth by a legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a Highview claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only do the POC include this misleading untruth, but also they have added an unidentified sum in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100.

Hpralmo

Coupon-mad said:

The reason for the tactic of defending as keeper and citing the POFA, is that I reckon you have more chance of Highview discontinuing the claim later on, before the hearing, because they know that they don't comply with the POFA. Therefore I think this can be seen off without any hearing and of not, then you can always provide more facts at WS stage if you believe by then, that the C has provided enough evidence to 100% pin down this day to one when you know you were driving and what delayed you. 

At the moment, the claim is surely very vague and doesn't even identify the parking charge £sum, does it?  Have they managed to include the alleged breach? Have they remembered to identify the car VRM in the particulars of claim (on the left of the N1 claim form)?  We've seen some very vague ones.

They have the VRM, PCN plus damages (as one total) and says the problem is that the vehicle was parked in breach of the terms on C's signs. 

Do you think this will do? I want to hand it in soon so it isn't hanging over my head.

3. The defendant has tried to determine what the PCN could be for and recalls a day on which the occupants of the car were attempting to leave the car park within the allotted time, but were prevented from doing so due to the number of cars trying to leave at the same time and the volume of slow moving traffic on the roundabout passing the exit of the car park. This amounts to frustration of contract. Terms of parking on the signs in the car park were not readable as the text was too small.  The lack of evidence provided thus far from this Claimant has failed to identify either the driver or the circumstances that day, so the Defendant is in the dark about the issue and reserves the right to expand on the facts if the Claimant supplies any useful evidence.  However, what is clear is that this Claimant has elected not to use the 'keeper liability' law (POFA 2012 Schedule 4) and yet has included a clear falsehood in their Particulars of Claim ('POC') which were signed under a statement of truth by a legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'. Not only do the POC include this misleading untruth, but also they have added an unidentified sum in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100.

Coupon-mad

I recommend the examples from @Redman2186 and @ld123 which say a bit more, I think?

You won't be handing it in, just emailing it as per the advice from @KeithP then following the next steps the TEMPLATE DEFENCE thread tells you.

Hpralmo

Hi Everyone, 

I am now at the point of writing my witness statement. I am struggling to understand parkingprankster's blog - I searched case law as indicated in the newbies sticky post, but I don't seem to be able to find what I'm looking for. 

I found something that says 'waiting to park is not parking', however I think their signage had reference to 'parking' and the signage they have sent me for this one says 'stay'. 

To what extent am I just repeating the points I brought up in my defence?

The claimant has been quite rude about my use of a templated defence, saying I am wasting the court's time! 

They are arguing back on every point I made, understandably. Should I argue each point they make in their WS?


Thank you so much for any help!! 

Hpralmo

Points they made in the WS: 

contract: in my defence I argue no contract, they think there is based on parkingeye v beavis

defendant allegation:" if the person knew they would not be able to adhere to the 2 1/2h limit they should not have parked "
"should have taken congestion into account if they are a reasonable person" * this is the main problem is that I could not have anticipated traffic of that magnitude!*

particulars of claim: they argue that the particulars are correct and they pursue as driver now

CPR compliance: said that they are compliant, and if defendant thought they were not they should have applied to the court but did not

signs/unfair contract terms: *potential key point* they included pictures of all the signs on the car park, but these signs are new and the photos aren't dated. is there anything I can do about this? I found one sign on google maps that shows they were of a different style at the time of the event. 

*double recovery* /penalty/amount claimed: ... my company is not seeking more than the original charge as the core debt... the core charge remains the same for each PCN (i.e. £100) *potential key point*   the PCN was actually £70 reducible to £42, with then a £40 debt recovery charge if not paid. Is there anything I can say on this point to the judge?

dismissal of claim: inclusion of debt recovery charge is allowed and does not fall foul of parkingeye v beavis. mentions britannia parking group v semark jullien 2020


Thanks for any help on any of these points at all!

Hpralmo

beamerguy said:

Hpralmo said:

I have had an email back 

In accordance with the appeal decision made on 29th July 2020 in Britannia Parking Group Ltd v Semark-Julien [2020] EW Mis 12 (CC), it is not correct to propose this claim should be struck out as an ‘abuse of process’ due to the contractual costs claimed. The contractual cost has been added correctly and will not be removed. You may wish to seek independent legal advice to access up to date information.

DCBL really do need to understand the Semark-Julien case.
The appeals judge said that a strike out should not be used because of Abuse of Process only

The judges around the country have taken this to heart and it is clear that once they see the fake add-on, they go much deeper into the evidence and that is why we see so many cases dismissed

You can see DCBL don't understand when they say "it is not correct to propose this claim should be struck out as an ‘abuse of process’ due to the contractual costs claimed". 
The only contractual amount is the parking ticket ....... anything else added is a fake scam and fails to form a contract.  Judges can still dismiss the case ... as "abuse of process" is actually "Double recovery" and against the courts own ruling

The Semark-Julien case as said many times is a damp squib and is meaningless and very foolish to use by a legal

And they say .. "The contractual cost has been added correctly and will not be removed".
Well it will be removed by a judge because it's a very feeble attempt of double recovery without any contract to support it.

They might even use the fairytale that the code of practice allows them to

It's fair to say that once most judges see the fake add-on, they are smart enough to use their powers to dismiss for other reasons, as they are doing.

Gone are the days that these legals can walk into court with fairytales. DCBL know already that a win for them nowadays is very low

Therefore, in your case, DCBL have failed to explain their legal authority and that makes their claim unreliable

hey, I got a witness statement from them which argues the case this way: as it says " failure to make prompt payment may incur additional costs" on a sign. they also say it is not double recovery and the costs are justified. Should I make reply to this in my witness statement? 

Overall I'm a bit confused about the difference between defence and witness statement!

Coupon-mad

The difference is explained on the NEWBIES thread but don't use the old robertcox example linked there, use the WS examples by @Nosy and @jrhys which will show you what to say and how the evidence looks.

You can get evidence of signs from that year from Google Streetview.

You can also say you still don't know for sure if you were driving as this was an unidentified, unremarkable date from 6 years ago (but don't lie...it is possible you were driving but equally possible it was a family member).

Point out again that Highview cannot hold you liable as registered keeper, due to their choice never to bother to use the POFA (para 9 of schedule 4 shows what the had to do if they were to opt to hold a keeper liable - put sch4 into evidence).

Say you can only recall a possible occasion when (blah blah).  Explain your story.  The car was held up, blocked by traffic (never parked for more than 2.5 hours and the Claimant is put to strict proof).  

Also, crucially, their ANPR records include the ability to retain a count, in order to report 'footfall' (car numbers in a car park, comparing busy days) as part if the landowner information.  It is telling that their evidence has omitted that report, which any ANPR car park operator has, which would corroborate the defence of this possibly being the day when there was very unusual congestion and cars took ages to find spaces as the car park was at capacity.

Defendant allegation:" if the person knew they would not be able to adhere to the 2 1/2h limit they should not have parked "
"should have taken congestion into account if they are a reasonable person" 

Obvious answer to that rubbish is, you could not have anticipated it but THEY COULD as they have the data to know the car park is full.  They should have anticipated it would take longer for arriving cars to park and could have adjusted the grace period to be flexible to the needs of customers of the shops.  

The BPA consideration/observation (grace) period on arrival is flexible (put in evidence the page on grace periods from the 2015 BPA CoP).

Also put in evidence the BPA's article on grace periods by Kelvin Reynolds (GOOGLE IT - USE IT!).

You should be saying that, in a car park offering free parking for customers for 2.5 hours, any reasonable and professional ANPR operator acting in the best interests of their client landowner, and consumers, would allow a longer grace period on very busy days, given that the BPA's mandatory 10 minutes is a minimum (ideal car park conditions) not a maximum.

To apply an inflexible policy is to unfairly fine all the drivers that day who had shopped for 2.5 hours but were caught up in the traffic issues.

Not only can that not be right, by any reasonable person's interpretation, and ignores the BPA's view about observation periods being flexible based on circumstances and need, not limited to disability' (Kelvin Reynolds, BPA top banana) but it is an unfair term and that's illegal under the CRA2015.  The court cannot uphold an unfair term that places a disproportionate burden on the consumer.

Finally, what has been described is clearly fully distinguished from the Beavis case because there can be no 'commercial justification' nor a (crucial to the Beavis case) overwhelming 'legitimate interest' in fining shoppers £100 each, on a day when this ANPR operator's records would show that the car park was over-full.  Highview knew.  This is not the same as in the leading Supreme court case of PE v Beavis, where there was no such congestion issue causing the purported overstay and he admitted to being parked for longer than the contract offered.  That did not happen here.

Le_Kirk

Hpralmo said:

Overall I'm a bit confused about the difference between defence and witness statement!

A defence is a series of short, punchy, legal/technical arguments setting out why (in law) you are defending and refuting the claimant's POC, whilst a witness statement is a narrative, the story of what happened on the day (and subsequently) and should back up and support your defence.  It is an opportunity add evidence (signage etc) and case law to which you referred in your defence.  Whilst you can use the examples pointed out to you by @Coupon-mad, they are examples of style and format and you should make sure that you tailor them to suit your circumstances.  Otherwise you might be accused by the claimant of copying from the Internet!

patient_dream

Hpralmo said:

beamerguy said:

Hpralmo said:

I have had an email back 

In accordance with the appeal decision made on 29th July 2020 in Britannia Parking Group Ltd v Semark-Julien [2020] EW Mis 12 (CC), it is not correct to propose this claim should be struck out as an ‘abuse of process’ due to the contractual costs claimed. The contractual cost has been added correctly and will not be removed. You may wish to seek independent legal advice to access up to date information.

DCBL really do need to understand the Semark-Julien case.
The appeals judge said that a strike out should not be used because of Abuse of Process only

The judges around the country have taken this to heart and it is clear that once they see the fake add-on, they go much deeper into the evidence and that is why we see so many cases dismissed

You can see DCBL don't understand when they say "it is not correct to propose this claim should be struck out as an ‘abuse of process’ due to the contractual costs claimed". 
The only contractual amount is the parking ticket ....... anything else added is a fake scam and fails to form a contract.  Judges can still dismiss the case ... as "abuse of process" is actually "Double recovery" and against the courts own ruling

The Semark-Julien case as said many times is a damp squib and is meaningless and very foolish to use by a legal

And they say .. "The contractual cost has been added correctly and will not be removed".
Well it will be removed by a judge because it's a very feeble attempt of double recovery without any contract to support it.

They might even use the fairytale that the code of practice allows them to

It's fair to say that once most judges see the fake add-on, they are smart enough to use their powers to dismiss for other reasons, as they are doing.

Gone are the days that these legals can walk into court with fairytales. DCBL know already that a win for them nowadays is very low

Therefore, in your case, DCBL have failed to explain their legal authority and that makes their claim unreliable

hey, I got a witness statement from them which argues the case this way: as it says " failure to make prompt payment may incur additional costs" on a sign. they also say it is not double recovery and the costs are justified. Should I make reply to this in my witness statement? 

Overall I'm a bit confused about the difference between defence and witness statement!

Don't be put off by their rubbish, it's all part of the plan to scare you.

The Semark case/appeal brought by BWLegal is now a damp squid .. WHY ? because judges in the Southampton area were dismissing cases for these fake add-ons and classing this as abuse of process. The district judge who heard the appeal basically said that judges should not dismiss cases on that basis alone.
BUT judges can still dismiss the case for double recovery attempts. And that is abuse of process.

The Supreme court with Beavis v Parking Eye said very clearly "that the parking charge includes the costs of recovery"  DCBL have never understood this???

WHY DO DCBL THINK THEY HAVE A RIGHT TO ADD A FAKE AMOUNT ?
The truth is nobody knows and that includes Judges as it's still abuse of process.

We can only assume that they are wrongly advised as they think the code of practice from both the BPA and IPC is THE LAW ??  
Laws are made by government and not by unregulated organisations like the BPA and IPC

WHICH DREAMER ADDED FAKE CHARGES
That's simple, a member of the BPA and on the board of the BPA ?
This is the OSNER dreamworld which you can read here. Talk about a scam

https://parkmaven.com/news/gary-osner-zzps-interview

Someone, a fool at the BPA thought this scam was lawful ..... 

Some judges do not understand what actually happens in the bowels of this scam industry and it's up to you and everyone to tell your judge

In your case,, DCBL are scamming you for a fake £70 only based on a unregulated code of practice who cannot make the law. 

As such, DCBL claims adding the fakes are unlawful and any sign stating the same is unlawful  and abuse of process. Fact of life DCBL must live with