DCB Legal on behalf of Highview Parking - Advice on Defence for Claim

Redman2186

Any thoughts on how I play this one? I can basically demonstrate that they are fabricating evidence!

Just noticed the following. Please see BOLD and the timings.
Yvette signed a Witness statement on 13th July and said: 

It is evident from the photographic evidence exhibited within this Statement at “EXHIBIT 3” that the Vehicle entered the Land at 11:55 on 01/10/2016 and exited the Land at 15:48 on 02/10/2016. The Vehicle remained on the Land for 1 day, 3 hours and 53 minutes, thus breaching the Contract. It is noted there is a typographical error within the Notices which state the Vehicle was parked on the Land for 3 hours and 52 minutes. No prejudice has been caused to the Defendant as a result of this simple error as the Defendant outlined the same within their Defence. A copy of the email from my Company confirming the error is exhibited at “EXHIBIT 5”;

Just to repeat Yvette signed her witness statement on 13th July 2021 - She is clearly a fortune teller! Her company never posed the question to Group Nexus until the 21st July! Gemma sent her email at 11:06 and conveniently Renata replied 11minutes later:

Exhibit 5 that Yvette includes in their Witness Statement is an email from claimant (Group Nexus) to her company (DCB Legal) - This email comes with some redacted text (BOLD question from Renata is redacted - when I highlighted the email on their witness statement, I could copy and paste

Sent: 21/07/2021 11:17 To: gemma@dcblegal.co.uk Hi Gemma, Thank you for your email. The duration recorded was 1 day 3 hours and 52 minutes, there were no errors with the time/date stamps on the images, just with the duration stated on the PCN. Do you think this will be an issue? Kind Regards, Renata Sakirova I Compliance Executive

Text below from Gemma to Renata was all redacted, again when I highlighted I could copy and paste

On Wed, 21 Jul 2021 at 11:06, Gemma Bramhall wrote: Your ref: 2000006510990 Good morning, I would be grateful if you could provide clarification on the above charge. As per the attached Charge Notice, the Defendant was found to have entered the land on 01.10.2016 at 11:55 and exited the land on 02.10.2016 at 15:48. The duration recorded was 3 hours and 52 minutes, however, the images appear to have been taken on different days.

Bottom of Gemma's email is missing (so no idea what it says) - can only see what I've pasted - none of Gemma's email to Renata is visible in the Witness Statement... 

Yvette's Statement of Truth

Evidence as it appears on Witness Statement:


Their evidence showing highlighting redacted text that I've have included above:

Le_Kirk

13.        In Paragraph 20 of the Yvette’s Witness Statement, she poses two questions, which I will respond to in turn in Paragraphs 15 & 16:
                              i.         “were they driving?”
                            ii.         “did they overstay?”
14.        In response to “were they driving” – As outlined in Paragraph 4, I was heavily pregnant at this time and on the balance of probabilities, I was likely not the driver on the 1st October when my Husband was with me. However, on the 2nd October, I likely was the driver as lunch appears to be quite cheap and thus could reasonably be expected to be for one person. Once again illustrating that this was two separate visits
15.        In response to “did they overstay? – The answer is No, I have outlined above in paragraphs 7 through 13 that the trips to Waterfields Retail Park were on consecutive days with visit and corresponding purchases at other locations away from the site in between. Furthermore, I was 7.5 months pregnant at the time, to suggest I would choose to drive my Car to Waterfields Retail Car Park on Saturday 1st October, make purchases there, then leave my Car all night whilst I went elsewhere to make purchases and return the following day to then make additional purchases on the Sunday 2nd October before finally leaving the Car Park is frankly ludicrous.

You state you will respond in paragraph 15 & 16 but actually responded in paragraphs 14 & 15.  Is it wise to admit to driving?  It is for the claimant to prove their case, not for you to do it for them.  What did you put in the defence?  Your WS should back up and support the defence.  If you have admitted to driving, you might as well carry on, as you can be an honest credible ACTUAL witness at the hearing as opposed to Yvette, who was not there!

Umkomaas

as opposed to Yvette, who was not there!

...... and won't be at the hearing either!

Redman2186

Le_Kirk said:

You state you will respond in paragraph 15 & 16 but actually responded in paragraphs 14 & 15.  Is it wise to admit to driving?  It is for the claimant to prove their case, not for you to do it for them.  What did you put in the defence?  Your WS should back up and support the defence.  If you have admitted to driving, you might as well carry on, as you can be an honest credible ACTUAL witness at the hearing as opposed to Yvette, who was not there!

It appears at 14 &15 because i've omitted 1st Paragraph from my copy and paste above which had personal data. Numbering appears correct on the WS.

I think I will update the wording to back up my Defence, the above as it stands, is purely speculation on my part - what do you think of update?

In response to “were they driving” – As outlined in Paragraph 4, I was heavily pregnant at this time and on the balance of probabilities, I was likely not the driver on either day. As outlined in my defence the identity of the driver(s) at the material time is unknown. I was not the only insured driver of the vehicle in question and I am unable to recall who was or was not driving on two separate visits to Waterfields Retail Park across two separate days 5 years ago.....

In response to “did they overstay? – No, as I have outlined above in paragraphs 7 through 13, this was two separate visits to Waterfields Retail Park across two separate days. For completeness, I can confirm that both visits were for less than the "2 hour max stay".

Then a separate bullet to show how ludicrous the situation would be: 

Furthermore, I was 7.5 months pregnant at the time, to suggest I would choose to drive my Car to Waterfields Retail Car Park on Saturday 1st October, make purchases there, then leave my Car all night whilst I went elsewhere to make purchases and return the following day to then make additional purchases on the Sunday 2nd October before finally leaving the Car Park is frankly ludicrous.

This then allows me to continue to challenge their POFA point from their Witness Statement - which i've copied below:

"My Company does not seek to rely on the Protection of Freedoms Act 2012 to recover the Charge. As previously stated, this claim is issued against the Defendant on the basis that they are the owner of the Vehicle and did not nominate. During cross examination, the Defendant will be asked to answer the question ‘were you the driver?’ It is respectfully suggested that the Defendant bear in mind that, under oath, he will need to answer that question truthfully. There is no sensible reason why, if the Defendant was not driving, they did not nominate the person who was. Once it is established, they were the driver, it is clear they entered the Contract and is liable;"

where I can just copy in 3iii, 4 & 5 from my original defence below.

For reference from my original Defence - I stated the following:

3.       It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied, and any breach of terms is also denied. The identity of the driver(s) at the material time is unknown to the Defendant, who was not the only insured driver of the vehicle in question and is unable to recall who was or was not driving on two occasions, across two days (note. [3ii] – where it is shown that recorded duration was across consecutive days) nearly 5 years ago.  The Defendant has just received the Claimant's reply to a Subject Access Request ('SAR') and it discloses the following key issues for the first time, which show there can be no cause of action against this Defendant and the claim is wholly without merit:

            i.       The Notice to Keeper, also known as a Parking Charge Notice ('PCN') dated 10/10/2016 went to an old address, hence why the Defendant had no recollection of the original - because it was never properly served.  At some point the Defendant's address has been updated as the Claimants did at least use the correct address on their N1 Claim Form.

           ii.        The Defendant's vehicle was recorded from ''01/10/2016 11:55 to 02/10/2016 15:48''.  The recorded duration of the stay is stated to be 03:52 (hh:mm), in other words, the PCN states incorrectly that the stay was almost 4 hours. In fact, the images are from consecutive days and by the Defendant's calculations that is actually a stay all day and all night for a total of 27:52. The court is invited to come to the same conclusion as the Defendant: something does not add up. The Defendant lives 15 minutes away and this is very likely to have been a family trip to the retail park on two consecutive days over the weekend (could also be two different drivers). The Defendant can definitively say that the family never slept in the car overnight and would have had no reason to leave the car there for two days; this is preposterous and robustly denied. The Claimant's SAR reply divulges a clear and well-known ANPR failure, and the burden was on the Claimant in 2016 to carry out manual checks of ANPR images which span two days, to identify one or both missing 'orphan' images of the vehicle leaving and arriving again the next day.  This is a requirement of the British Parking Association and it is well documented by them that ANPR systems have an inherent flaw of defaulting to the 'first in, last out' camera captures of a vehicle that visits a site twice in a 24 your period. Looking at the PCN and images, it took the Defendant about 1-minute flat to notice this clear and obvious error. This Claimant should have noticed it prior to harvesting data from the DVLA in 2016 and should never have issued a PCN in the first place.  Moreover, they have had nearly 5 years to realise their error and certainly should have done so before unlawfully processing and sharing the Defendant’s personal data with multiple third parties, preparing pre-action letters and then a claim.

         iii.       The PCN divulged for the first time in the SAR, shows that it was not compliant with the Protection of Freedoms Act 2012 ('PoFA'), and it was therefore incapable of invoking the ‘keeper liability’ provisions set out in the PoFA, Schedule 4.  The Defendant's research has revealed that Highview is a parking firm which has chosen never to use 'keeper liability' wording (primarily as set out in para 9 of the POFA Sch 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a non-POFA PCN like this one and because - on the balance of probabilities - this was a case of two separate visits across two days, incorrectly grouped together, there is no charge due and the Claimant had no reasonable cause to obtain the Defendant’s data from the DVLA, at all.

 4.       Following on from [3(iii)] where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's 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 Parking Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only does the POC include this misleading untruth, but the Claimant has also 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. Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £211.71. The Defendant has excluded the £25 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

 5.       The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015).

Le_Kirk

I would just change it to: -

two separate visits to Waterfields Retail Park across two separate unremarkable days 5 years ago.....

Also this, if that is what they said, there is no register of owners, just registered keepers.

this claim is issued against the Defendant on the basis that they are the owner of the Vehicle and did not nominate

Redman2186

Le_Kirk said:

I would just change it to: -

two separate visits to Waterfields Retail Park across two separate unremarkable days 5 years ago.....

Also this, if that is what they said, there is no register of owners, just registered keepers.

this claim is issued against the Defendant on the basis that they are the owner of the Vehicle and did not nominate

That is what they have said in their witness statement - it's a direct copy and paste.

Coupon-mad

We know and they can’t hold the keeper liable. If it was as simple as assuming every keeper was the driver, then there would never have been any need for Parliament to introduce Schedule 4 of the POFA.

You need to say that and add as an exhibit, Henry Greenslade’s POPLA REPORT 2015 words that I literally have no time to elaborate on yet again.

Your WS doesn’t support your counterclaim and you really need to look at better examples.  I am rewriting one for @Densta47 which will possibly be ready tomorrow and his case too, has a counterclaim. His WS is also far too weak right now.

You do realise that Ferguson v British Gas Etc, as relied upon in your counterclaim, have NOTHING to do with costs? You asked about those cases, of course you must go get the transcripts but it’s in support of your counterclaim not costs.

This has been left so late to work on. If you are going to do a counterclaim your WS must be a  humdinger and talk about your sleepless nights and distress.

Redman2186

1.           I am xyz of abc, and I am the Defendant against whom this claim is made. The facts outlines in this Witness Statement are true to the best of my belief and my account has been prepared based upon my own knowledge. 

 2.           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:

 Justification for length of Response to Claim & Witness Statement

 3.           In Paragraph 20 and 23 respectively of the Claimant’s Witness Statement, Yvette writes:

                        i.         " The case is simple. The Terms on the signs at “EXHIBIT 2” clearly state, “2 Hours Maximum Stay”. It is evident from the images at “EXHIBIT 3” that the Defendant overstayed on the Land, thus breaching the Terms and incurring the Charge. There can be no reason, other than to frustrate the matter, why the Defendant has submitted a 36 paragraph legally complex defence in response to that.”

                       ii.         “The Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my Company’s time”.

 4.           In response to the above, I am a litigant in person that had zero prior knowledge of UK parking law, I think it is wholly reasonable that I:

                        i.         researched to the best of my ability in the limited time that I’ve had since being made aware of Claim

                       ii.         made use of a widely available template which covered lots of bases – I have nothing to baseline against and therefore for completeness I have included everything which I deemed as potentially valuable in being able to represent my case

a. as I will demonstrate throughout this Witness Statement, I have tried on numerous occasions to point out the ANPR failings and it has fallen on deaf ears, leaving me with no other choice than to try and represent myself as best I can

 5.           For the length of this Witness Statement, I can only apologies in advance, however it has been produced in the knowledge that paragraphs 6-30 should suffice to support my defence with subsequent paragraphs to support my counterclaim. In the event paragraphs below are not sufficient I have included further counter arguments and illustration to support my case.

 Background & Change to Notice:

 6.           The PCN was issued for the alleged offence on 2nd October 2016 at Waterfields Retail Park, Watford. The PCN is exhibited to this Statement at “Exhibit 1” which show my vehicle entering and exiting as follows:

Date and Time of Entry – 1st October 2016 11:55

Date and Time of Exit – 2nd October 2016 15:48

 7.           I only became aware of the PCN sometime after the fact when letters from various debt collection agencies started to arrive. This was due to my address at DVLA being changed during the same time period. This did not afford me an opportunity to appeal via the normal process as I missed all windows.

 8.           At this time I was 7.5months pregnant with my 2nd Son who was born in December 2016 – I will further reference this point later in my witness statement.

 9.           I am extremely familiar with Waterfields Retail Park and frequent there multiple times on any given month, as such I am fully aware that there is a “2 Hours Maximum Stay”. Which neither I nor anyone with access to my vehicle has or would exceed.

 10.        The Claimant has proposed that the “Vehicle (for which I was the registered keeper breached) remained on private property in breach of the prominently displayed terms and conditions” i.e. The PCN “Exhibit 1” states that the  “Recorded duration of the stay was 03:52 (hh:mm) and the vehicle contravened the terms and conditions displayed on the signage. Over the following paragraphs I intend to demonstrate how this is factually untrue.

 11.        I’d like to point out that for nearly 5 years the claimant has pursued this claim based on the belief that my vehicle stayed on site for 03:52 (hh:mm).

 12.        The claimant has revised this belief and is now citing a“typographical error within the Notices which state the Vehicle was parked on the Land for 3 hours and 52 minutes” and that “The Vehicle remained on the Land for 1 day, 3 hours and 53 minutes”. This is untrue & quite frankly ludicrous as I will further demonstrate throughout this witness statement and I invite the court to reach the same conclusion.

 13.        The claimant came to the conclusion that there must be a “typographical error” nearly 5 years after issuing the PCN. This conclusion was reached only once I pointed out during my defence and in further correspondence with DCB Legal (Email to DCB Legal exhibited to this Statement at “Exhibit 5” and RESPONSE TO CLAIMANT’S “REPLY TO DEFENCE AND DEFENCE TO COUNTERCLAIM” exhibited to this Statement at “Exhibit 6”) that there was an issue with the images and that they had in fact made an error in issuing the PCN in the first place which is caused by a well-known inherent flaw with the ANPR system.

 14.        Extract from British Parking Association Website exhibited as “Exhibit 7” where it is well documented by the British Parking Association that ANPR systems have this inherent flaw of defaulting to the 'first in, last out' camera captures of a vehicle that visits a site twice in a 24 your period. The burden was on the Claimant in 2016 to carry out manual checks of ANPR images which span two days, to identify one or both missing 'orphan' images of the vehicle leaving and arriving again the next day. 

 Sequence of Events:

 15.        In Paragraph 20 of the Claimant’s Witness Statement, Yvette poses two questions, which I will respond to in turn over the following two paragraphs:

                              i.         “were they driving?”

                            ii.         “did they overstay?”

 16.        In response to “were they driving?” – As outlined in Paragraph 5, I was heavily pregnant at this time and on the balance of probabilities, I was likely not the driver on either day. As outlined in my defence the identity of the driver(s) at the material time is unknown. I was not the only insured driver of the vehicle in question and I am unable to recall who was or was not driving on two separate visits to Waterfields Retail Park across two separate two separate unremarkable days 5 years ago.

 17.        In response to “did they overstay?” – No, as I will outline in the sequence of events below, this was two separate visits to Waterfields Retail Park across two separate unremarkable days 5 years ago. For completeness, I can confirm that both visits were for less than the "2 hour max stay" and hence the terms of any contract with the claimant were not breached.

 18.        Through extensive research I have been able to ascertain that my family made purchases across the 1st and 2nd October at multiple locations.

 19.        On the 1st October 2016, my vehicle entered Waterfields Retail Park Car Park at 11:55–My bank statement covering the 1st and 2nd October 2016 is exhibited to this Statement at “Exhibit 2” and shows this purchase.

                              i.         Boots for £8.58

 20.        My vehicle then exited the Waterfields Retail Park Car Park prior to 13:55, which would have been significantly before the 2 Hour Maximum Stay. This is one of the orphan images that I’ve suggested that the claimant locates.

 21.        After visiting Boots Chemist, my vehicle excited the car park and drove to Tesco Car Park in Watford which is on an adjacent complex to Waterfields Retail Park. A plan of the Land (“Plan”) showing a portion of Tesco’s Car Park in the upper right of the image is exhibited to this Statement at “Exhibit 3”

 22.        I can be confident that the vehicle was no longer on Waterfields Retail Park on Saturday as being 7.5 months pregnant with a 1 year and buggy we would have certainly chosen to drive to the next location. My Husband’s Credit Card statement covering the 1st and 2nd October 2016 is exhibited to this Statement at “Exhibit 4” and shows 2 purchases at a location which is not Waterfields Retail Park.

                              i.         Giraffe 51, Watford for £25.19 – Restaurant where I actually remember having lunch

                            ii.         Tesco Stores, 3372 for £7.94

  23.        After Lunch at Giraffe (location which is not Waterfields Retail Park), my vehicle would have returned home for the evening and been parked on my drive.

Redman2186

24.           On the 2nd October 2016 around 11:30 we visited Delisserie in Mill Hill (which was a restaurant that is no longer open). We used to visit for brunch. Delisserie is approximately 8.4miles from Waterfields retail park, my bank statement covering the 1st and 2nd October 2016 is exhibited to this Statement at “Exhibit 2” and shows a purchase at Delisserie.

                        i.         Delisserie for £13.06

25.           Later in the day after Brunch at Delisserie (Mill Hill), my vehicle is recorded as entering the Waterfields Retail Car Park, I can safely say this was between 13:48 & 15:48 ensuring we would not have breached the 2 Hour Maximum Stay. This is the other of the orphan images that I’ve suggested that the claimant locates. My bank statement covering the 1st and 2nd October 2016 is exhibited to this Statement at “Exhibit 2” and shows a purchase at Next.

                        i.         Next, 532 for £9 – Small Instore purchase, which I remember as the primary purpose of this trip back to Waterfields Retail Park was to decide on a bed for my 1 year old son.

 26.          After visiting Next at Waterfields Retail Park, my vehicle exited the Car Park at 15:48 (a stay of less than 2 hours) and returned home. Whilst at home my husband then purchased the bed we had seen in-store. My Husband’s Credit Card statement covering the 1st and 2nd October 2016 is exhibited to this Statement at “Exhibit 4” and shows:

                        i.         Next Directory.co.uk for £395.38

 27.           Given the nature of small purchases made at Boots and Next (both of which are stores at Waterfields Retail Park) occurring at either end of the sequence of events, with purchases evidenced at locations away from Waterfields Retail Park i.e. Elsewhere in Watford and also Mill Hill in between the two book end purchases, I can safely say that the terms & conditions of parking at Waterfields Retail Park were not breached as my vehicle was never there for more than 2 hours let alone 27 hours 53 minutes.

 28.           As I’ve noted above and demonstrated through sequence of events, for the Claimant to suggest that my vehicle breach terms & condition of parking at Waterfields Retail Park and to go as far as suggesting the terms and conditions were breached for 25 hours 53 minutes (when max stay was 2 hours) is a complete nonsense. I invite the court to reach the same conclusion.

 29.           To further illustrate how ludicrous the suggestion is, I’ve included a Google Maps view showing distance between Waterfields Retail Park and my house and Waterfields Retail Park and Delisserie in Mill Hill which is exhibited to this Statement at “Exhibit 9” – Being 7.5 months pregnant with a 1 year old I am 100% certain that I would neither:

                        i.         decide to leave my car at Waterfields Retail Park, walk the 3.4 miles home, walk 5.4 miles from home to Delisserie in Mill Hill for brunch and then walk 8.4 miles to Waterfields Retail Park just to collect my car and return home. Nor,

                       ii.         choose to spend the night sleeping in the car at a Retail Car Park

 30.           It is my position that since correspondence began I have tried on multiple occasions to demonstrate to DCB Legal and the Claimant that this PCN was issued in error due to the ANPR flaws and that this whole circumstance could have been concluded weeks ago without the need to waste my time or the courts time. I am of the conclusion that this is unreasonable behaviour and continued harassment and it is respectfully requested that the Court considers whether they conclude the same.

 Random Email Appended to Claimant Witness Statement

31.           As a litigant in person, I would like to defer to the Judge’s understanding and expertise of “Legal Privilege” here.

32.           The claimant has appended an email on their Witness Statement “A copy of the email from my Company confirming the error is exhibited at “EXHIBIT 5” which I have further exhibited to this statement at “Exhibit 7”. This email has little or no probative value and which offends against the rules of evidence.

33.        When copying the email across to append as an exhibit of my own, it became apparent that there is redacted text. When pasting into Microsoft Word, I was presented with the redacted text (highlighted) in an email exchange between Gemma and Renata and I have exhibited to this statement as “Exhibit 8”.

34.        I have formerly asked DCB Legal for the unredacted email chain, to which they have refused, citing “Privilege”, hence me deferring to the Judge’s expertise on this matter.

 35.        My concerns are as follows:

                        i.         I find it strange that Yvette has signed a statement of truth on 13th July 2021 were in Paragraph 20 of the Claimant’s Witness Statement it is cited “A copy of the email from my Company confirming the error is exhibited at “EXHIBIT 5” –  The dates of the email from Gemma to Renata is 21st July 2021 and the response from Renata 11 minutes later is also 21st July 2021. This is 8 days after a signed statement of truth.

                       ii.         I find it strange that despite myself having pointed out an apparent ANPR flaw on numerous occasions, as demonstrated by Gemma’s email “Exhibit XX” there is no mention of this, she is just looking to corroborate the duration between two images which can only be for the purpose of citing a “typographical error”

                     iii.         Furthermore, this email exchange is between some completely unknown characters namely Gemma Bramhall and Renata Sakirova, for which there has never been any other mention. I have no idea who either are nor whether they will be available for cross examination.

 Non Compliance with POFA

 36.        The PCN issue by the Claimant “Exhibit XX” is not compliant with the Protection of Freedoms Act 2012 ('PoFA'), and it was therefore incapable of invoking the ‘keeper liability’ provisions set out in the PoFA, Schedule 4 exhibited to this statement as “Exhibit XX”.

 37.        The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort”. POPLA report 2015 Page 13 is exhibited to this statement as “Exhibit XX”..

 38.        My research has revealed that Highview is a parking firm which has chosen never to use 'keeper liability' wording (primarily as set out in para 9 of the POFA Schedule 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a non-POFA PCN like this one and as I have demonstrated above in Paragraph 13:

                        i.         I was heavily pregnant at this time and on the balance of probabilities, I was likely not the driver on either day. As outlined in my defence the identity of the driver(s) at the material time is unknown. I was not the only insured driver of the vehicle in question and I am unable to recall who was or was not driving on two separate visits to Waterfields Retail Park across two separate two separate unremarkable days 5 years ago.

 39.        This was a case of two separate visits across two unremarkable days 5 years ago, incorrectly grouped together due to an ANPR flaw, there is no charge due and the Claimant had no reasonable cause to obtain my data from the DVLA, at all.

 40.        Following on from the 3 points above, where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's 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 Parking Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.

 41.        The Claimant willingness to not comply to PoFA is further recognised in the Claimant’s own Witness Statement Paragraph 24iii (pasted in “” below) and as I’ve demonstrated throughout the Witness statement the identity of the driver(s) at the material time is unknown and therefore as the registered keeper the Claimant is in no position to suggest that I have entered into a contract:

                        i.         “My Company does not seek to rely on the Protection of Freedoms Act 2012 to recover the Charge. As previously stated, this claim is issued against the Defendant on the basis that they are the owner of the Vehicle and did not nominate. During cross examination, the Defendant will be asked to answer the question ‘were you the driver?’ It is respectfully suggested that the Defendant bear in mind that, under oath, he will need to answer that question truthfully. There is no sensible reason why, if the Defendant was not driving, they did not nominate the person who was. Once it is established, they were the driver, it is clear they entered the Contract and is liable;”

Redman2186

Abuse of process – the quantum

42.           In addition to the disputed Parking Charge Notice claim amount of £85, the Claimant has added a sum of £70 that is disingenuously described as 'debt recovery costs'. The added £70 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is exhibited to this statement as “Exhibit XX-04”). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

 43.           At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

 44.           The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP [2021] F83YX432 (the transcript of which is exhibit XX-04), where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to s62 of the CRA, as it created imbalance between the parties.  Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant.

 45.           Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied.

 Redacted Landowner Contract

 46.           The Claimant has appended a ‘Witness Statement” (Claimant’s Exhibit 1) as evidence of their company’s agreement with the Land Owner (“ Landowner Agreement”) This document has little or no probative value and which offends against the rules of evidence. The ‘Client’ signatory of the ‘Agreement’ could be anyone, even a stranger to the land, and the Claimant provides no evidence that the ‘Client’ is the landowner.

 47.           It is also clear that the document has not been signed by two Directors, nor by one Director in the presence of attesting witnesses, and as such cannot – according to the Companies Act – be considered a validly executed contract. 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.

 48.           Furthermore, the “Witness Statement” was arbitrarily executed on 20th October 2020 – A date which has no material meaning to this Claim.

 49.           In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 for which a link to the transcript has been exhibited to this statement as”Exhibit” the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. In this case the Claimant has failed to even provide a redacted Contract of their right to operate.

 50.           Full extract for pararaphs 74 & 75 is exhibited to this statement as “Exhibit''... ref to Paragraphs 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...''

 In respect of the Counter Claim

 51.        Exhibited to this witness statement is the attached letter-chain (exhibit x) which includes:

                        i.         All correspondences received and made to Group Nexus (Parent Company of Highview Parking Limited)

                       ii.         All correspondences and photographic images supplied by Debt Recovery Plus

                     iii.         All correspondences received and made to Direct Collections Bailiffs Limited & DCB Legal

 52.        During this whole process DCB Legal in particular have been particularly challenging to deal with – even to the extent that they have failed to supply me with all data requested when I submitted a Subject Access Request. My request was as follows:

                        i.         For the avoidance of doubt, I am requesting that ALL DATA that you hold relating to me is provided, included but not limited to:

a.  all letters/emails sent and received, including any previous correspondence

b. all data held

I would also like to know if you have shared my data with any third parties and if so, which third parties, which data and for which purpose.

 53.        As evidenced in Exhibit XX – DCB Legal we obstructive on the above point and provided none of the correspondence to which I was entitled under a SAR i.e. Letters/Emails that I requested. I have subsequently point this out to them and await their cooperation.

 54.        Having received letters from DRP - a letter from the Claimant’s Solicitors named DCB Legal arrived. Not included as I am unable to locate and DCB Legal have failed to provide at time of drafting Witness Statement. . It was a “FINAL NOTICE” with a last warning that if a payment was not forthcoming - a County court action may be issued against me. The threat of a CCJ is worrisome, and affected me in a number of ways. I was worried that it could ruin my credit worthiness and employability. The frequent letters brought a state of distress and anxiety, I was so shocked and angry to have to be put to defend against this false claim.

 55.        Demands after demands and threatening letter after threatening letter were sent. Always with varied amounts, I actually worried that these letters were some sort of scam and rightly or wrongly I chose to ignore them.

 The effect of the demands on myself and my family:

56.        Letters from DCBL provided in “Exhibit XX” which were headed as “Notice of Debt Recovery” were particularly worrisome. The letter contained such menacing wording “Can’t Pay? We’ll Take It Away!”. These notorious enforcement agents are seen on TV and my impression is that they just go out of their way with the sole aim to recover the monies for their client.  I didn't realise until this point that I was being pursued to court, that in fact these earlier letters were never from the DCBL 'bailiff arm' seen on TV because the wording was misleading and designed to intimidate me.  I honestly believed they were going to come knocking on my door and clamping my car.

57.        Finally at the point when a “Claim Form” arrived, I realised that this was not going to disappear and I would need to take action to defend myself. The threats at this stage were threefold in nature: those to start legal proceedings against me could cause considerable anxiety, distress and harm having bailiffs turn up at my door to remove goods and having a CCJ being recorded at the credit reference agencies for 6 years.

 58.        My employability was under threat , not only a CCJ would harm my employment prospects should I lose my current job. What matters most to me is the threat of my credit rating being destroyed causing significant problems applying for loans and mortgages.

 59.        I sought to outline in the Defence to the Claim as best I could that there was a Clear and Obvious ANPR failure and that not withstanding that the I had no recollection of who was or was not driving across two separate unremarkable dates nearly 5 years ago. This was all to no avail, the Claimant and the Claimant’s legal representative just ignored my pleas for them to take a closer look at the images and come to the same conclusion that I had. This was compounded when I saw the Claimant’s witness statement where they have now change track entirely from suggesting a stay of 03:52 (hh:mm) to an updated duration of 27:52 (hh:mm) in order to align with the flawed images which have defaulted to first in last out photos owing to return visit within a short time period.