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

Coupon-mad

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

Double wording typo above. 

I have finished the counterclaim I was helping the other poster with and will now try to amalgamate it with your version and suggest a final version for you later tonight once I've merged the two to make sense.

Redman2186

Coupon-mad said:

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

Double wording typo above. 

I have finished the counterclaim I was helping the other poster with and will now try to amalgamate it with your version and suggest a final version for you later tonight once I've merged the two to make sense.

Thanks CM...

I've spent some time this afternoon revising the first half whilst cleaning it all - will drop in here so you have it.

I've not touched anything from "Abuse of process – the quantum" onwards - I will just continue to clean up the exhibits.

I'll continue to update any spelling/grammar as I spot it.

Redman2186

1.           I am xyz of abc, and I am the Defendant against whom this claim is made. The facts outlined 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 response to the Claimant’s belittling comments about me in their witness statements from Paragraph 20 and 23 (copied below for reference). 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 parking law to the best of my ability in the limited time that I’ve had since being made aware of the claim

                       ii.         made use of a widely available template which covered lots of bases. I have no baseline for what would be considered a legally complex defence and as such I took the decision to include everything which I deemed as potentially valuable in being able to best represent my case and demonstrate that this claim is without merit

 Para 20: "…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.”

Para 23:“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.           I will demonstrate throughout this Witness Statement, that I have tried on numerous occasions to point out to the claimant that this claim is without merit and that it is as a result of a well-known ANPR failing. This 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 apologise in advance, however it has been produced in the belief that paragraphs 6-30 should suffice to support my defence with subsequent paragraphs to support my counterclaim. In the event that paragraphs 6-30 are not sufficient, I have included further counter arguments and illustrations to fully support my case.

 Background & Change to Notice:

 6.           I never received the original PCN as it was sent to a previous address.

 7.           I only became aware that a PCN existed sometime after the fact when threatening letters from various debt collection agencies started to arrive at my current address.

 8.           The PCN was issued on 2nd October 2016 at Waterfields Retail Park, Watford. The PCN is exhibited to this Statement at “Exhibit BL-01” which shows images captured by ANPR cameras that I would like to draw your attention to of my vehicle entering and exiting Waterfields Retails Park with Date and Time stamps as follows:

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

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

 9.           The PCN “Exhibit BL-01” incorrectly states that the “Recorded duration of the stay was 03:52 (hh:mm). I invite the court to reach the same conclusion that I did something does not add up here. Clearly the images attached to the PCN have recorded my vehicle entering and exciting on 2 separate days and this does not tally with the recorded duration. I will offer that this itself should render the PCN void and this claim without merit.

 10.        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). Nearly 5 years later, they are claiming something entirely different.

 11.        This change of course from the Claimant only occurred to them when I pointed out during my defence and in further correspondence with DCB Legal (Email to DCB Legal exhibited to this Statement at “Exhibit BL-02” and my RESPONSE TO CLAIMANT’S “REPLY TO DEFENCE AND DEFENCE TO COUNTERCLAIM” exhibited to this Statement at “Exhibit BL-03”) that the PCN was clearly issued in error. The images are from 2 different days and that they had in fact made an error in issuing the PCN in the first place.

 12.        This error was caused by a well-known inherent flaw with the ANPR system. Extract from British Parking Association Website is exhibited to this statement as “Exhibit BL-04”. 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. Prior to issuing me with a PCN, 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.

13.        The fact that the PCN initially state 03:52 (hh:mm) is a clear indication that in 2016 the Claimant never spotted the different dates on the images, solely focussed on time and hence never bothered to check for the ‘orphan’ images of the vehicle leaving on the 1st October or arriving on 2nd October. Had they done so they would have realised that the vehicle never breached the contractual terms and conditions and subsequently no PCN would have been issued.

 14.        Fast forward to 2021, when I pointed out this clear and obvious error on numerous occasions to the Claimant, namely in my Defence and subsequent communications “Exhibit BL-02” & “Exhibit BL-03”. Rather than investigate my finding, the Claimant frankly chose to ignore and quickly came to the conclusion that there is “typographical error” on the PCN.

 15.        The claimant is now citing that the PCN is incorrect as it contains 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”. I’d offer that this admission in itself should render the PCN void and this claim without merit.

 16.        Notwithstanding, the point above, I will demonstrate how the Claimant’s accusation of a 27:52 (hh:mm) overnight stay at a retail car park, which is 3.4 miles from my house, is simply preposterous and untrue and I invite the court to reach the same conclusion.

 17.        The Claimant’s legal representative poses two questions in Paragraph 20 of the Claimant’s Witness Statement, which I will respond to in turn over the following two paragraphs:

                         i.         “were they driving?”

                       ii.         “did they overstay?”

 18.        In response to “were they driving?” – I was heavily pregnant (7.5months – my 2nd Son was born in December 2016) 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.

 19.        In response to “did they overstay?” – No, as I will outline in the sequence of events below, this is simply a case of 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.

Redman2186

Sequence of Events:

 20.        At the material time in question time I was 7.5months pregnant with my 2nd Son who was born in December 2016 – I think this point is important to note as frankly this makes the Claimant’s accusations even more absurd. I will revisit this point later in my witness statement.

 21.        I am extremely familiar with Waterfields Retail Park and the surrounding Watford area. I frequently visit the area multiple times in any given month. As such, I am fully aware that there is a “2 Hours Maximum Stay” at Waterfields Retail Park, which neither I nor anyone with access to my vehicle has ever or would exceed.

 22.        To illustrate the frequency with which I visit the Surrounding Watford area inclusive of Waterfields Retail Park, my bank statement covering transactions from this time period is exhibited to this statement as “Exhibit BL-05”. I’ll point out some interesting transactions from around this time period which illustrate the frequency with which I visit the Retail Park in question and surrounding area and which also establish a pattern of behaviour:

 

Transaction Date	Description	Location	Amount
14 Sep 2016	Tesco Stores 3372	Watford	£72.83
23 Sep 2016	Intu Shopping Centre	Intu, Watford	£3
23 Sep 2016	Boots	Intu, Watford	£13.98
29 Sep 2016	Tesco Stores 3372	Watford	£72.89
01 Oct 2016	Boots	Waterfields Retail Park, Watford	£8.58
02 Oct 2016	Delisserie	Mill Hill	£13.06
02 Oct 2016	Next 532	Waterfields Retail Park, Watford	£9.00
06 Oct 2016	Delisserie	Mill Hill	£18.32
06 Oct 2016	Tesco Stores 3372	Watford	£33.15
08 Oct 2016	Intu Shopping Centre	Watford	£2
08 Oct 2016	Zara	Intu, Waford	£32.99
23 Oct 2016	Next 532	Waterfields Retail Park, Watford	£26.05
24 Oct 2016	Boots	Intu, Watford	£10.00

 23.        As can be seen from the above during 14th September 2016 and 24th September 2016 I made purchases in Watford on at least 9 separate dates. 3 of which were at Waterfields Retail Park. This does not take into account purchases made on my Husbands Credit or Debit cards, some of which are also included in later paragraphs.

 24.        Furthermore, on two separate dates within 1 week, I visited Delisserie (Café) in Mill Hill and made purchase in Watford on the same day. This clearly establishes a pattern of behaviour.

 25.        On the 1st October 2016, my vehicle entered Waterfields Retail Park Car Park at 11:55, this is documented on “Exhibit BL-01”. My bank statement “Exhibit BL-05” shows a purchase at Boots for £8.58.

 26.        My vehicle then exited the Waterfields Retail Park Car Park, this would have been significantly prior to 13:55, i.e. “2 Hour Maximum Stay”. This is one of the orphan images that I’ve suggested that the claimant locates due to the ANPR flaw.

 27.        After the visit to Waterfields Retail Car Park we ended up at Tesco Car Park in Watford. I can be confident of this because my Husband’s Credit Card statement covering the time period in questions which is exhibited to this statement as “Exhibit BL-06” and shows 2 purchases from this location:

                              i.         Giraffe 51, Watford for £25.19 – Restaurant where I actually remember having lunch as my Son was infatuated with the statue of Giraffes outside.

                            ii.         Tesco Stores, 3372 for £7.94 – As is evident, in comparison to my Statement this is the same Tesco store number.

 28.        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.

 29.        On the 2nd October 2016 around 11:30 we visited Delisserie in Mill Hill (Café which is no longer open). We used to visit for brunch. My bank statement “Exhibit BL-05” shows a purchase at Delisserie for £13.06.

 30.        For context Delisserie is approximately 8.4miles from Waterfields Retail Park. Later in the day after Brunch at Delisserie (Mill Hill), my vehicle re-entered Waterfields Retail Park 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 due to the ANPR flaw. My bank statement “Exhibit BL-05” shows a purchase at Next, 532 for £9. I distinctly remember this visit as the primary purpose of this trip back to Next at Waterfields Retail Park was to decide on a bed for my 1 year old son.

 31.        After visiting Next at Waterfields Retail Park, my vehicle exited the Car Park at 15:48, this is documented on “Exhibit BL-01”, culminating in a stay of less than 2 hours.

 32.        Whilst at home my husband then purchased the bed we had seen in-store. My Husband’s Credit Card statement “Exhibit BL-06” shows this purchase on the 2nd October 2016 from Next Directory.co.uk for £395.38

 33.        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 would never have been there for a period of more than 2 hours let alone the preposterous 27 hours 53 minutes that the Claimant is suggesting.

 34.        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 this duration i.e. an overnight stay is a complete nonsense. I invite the court to reach the same conclusion.

 35.        To further illustrate how ludicrous the suggestion is, I’ve included a Google Maps view showing distance between locations is exhibited to this statements as “Exhibit BL-07” showing distance between:

                         i.         Waterfields Retail Park and my house – 3.4 miles

                       ii.         My house and Delisserie in Mill Hill – 5.4 miles

                     iii.         Waterfields Retail Park and Delisserie in Mill Hill – 8.4 miles

 36.        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

 37.        It is my position that since correspondence began I have tried on numerous 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 the Claimant and their legal representative have continued to demonstrate unreasonable behaviour and continued harassment and it is respectfully requested that the Court considers whether they conclude the same.

 38.        This was simply 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.

 Random Email Appended to Claimant Witness Statement

 39.        As a litigant in person, I would like to defer to the Judge’s understanding and expertise of “Legal Privilege” for the following paragraphs (41-44).

 40.        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”. It is my belief that this email has little or no probative value and which offends against the rules of evidence. Furthermore, this email exchange is between some completely unknown characters namely Gemma Bramhall (on behalf of the Claimants legal representatives) and Renata Sakirova (Claimant). They have not been part of any other communications and have never been mentioned to me. I have no idea who either are nor whether they will be available for cross examination.

 41.        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) from the email exchange between Gemma and Renata both of which is have exhibited to this statement as “Exhibit BL-8”.

 42.        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. From my limited understanding, none of the redacted information could be considered “Privileged” or “Confidential”. I find this to be purely obstructive from the Claimant’s legal representative.

 43.        I have the following concerns with the whole situation surrounding this email:

                         i.         The Claimant’s legal representative has signed a statement of truth on 13th July 2021 where 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”. However, the dates of the email exchange between Gemma & Renata is from the 21st July 2021 some 8 days after a signed statement of truth.

                       ii.         Despite having pointed out the ANPR flaw on numerous occasions, as demonstrated by Gemma’s email “Exhibit XX”, there is no mention of this to the Claimant. As outlined in Paragraph 16 rather than spend 30 minutes to investigate my suggestion, the Claimant frankly chose to ignore and quickly came to the conclusion (11minutes), that there is there must be a “typographical error”.

Claimant’s Non Compliance with PoFA:

 44.        The PCN issue by the Claimant “Exhibit BL-01” 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 are exhibited to this statement as “Exhibit BL-09”.

 45.        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 BL-10”.

 46.        My research has revealed that the Claimant, Highview Parking Limited 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 noted above in Paragraph 19:

                         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.

47.        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 Particulars of Claim 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.

 48.        To demonstrate the extent to which the Claimant recognises this shortcoming and actively seeks  (for want of a better word) to “Trap” registered keepers I have included my communications to the Claimant for a Subject Access Request and their response with “In House” Form which is exhibited to this statement as “Exhibit BL-11”. As can be seen from the image of the form the Claimant asks the following “Were you the Driver at the Time of Incident”. I put to the court that there can be not purpose other than to “Trap” the registered keeper for this question to be included in a Subject Access Request.

 49.        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:

 “My Company does not seek to rely on the Protection of Freedoms Act 2012 to recover the Charge…”

 50.        As I’ve demonstrated throughout this witness statement, this point around who was or was not the driver should be completely mute. The evidence I’ve included show without doubt that the incident never occurred as the Claimant has alleged and the PCN should never have been issued.

Umkomaas

50.        As I’ve demonstrated throughout this witness statement, this point around who was or was not the driver should be completely mute.

Just jumped out as I glanced by. Moot.

Redman2186

Umkomaas said:

50.        As I’ve demonstrated throughout this witness statement, this point around who was or was not the driver should be completely mute.

Just jumped out as I glanced by. Moot.

Been a long few days! Only 53,000 words in the document. Cheers for the additional eyes!

Umkomaas

Redman2186 said:

Umkomaas said:

50.        As I’ve demonstrated throughout this witness statement, this point around who was or was not the driver should be completely mute.

Just jumped out as I glanced by. Moot.

Been a long few days! Only 53,000 words in the document. Cheers for the additional eyes!

I'd worry what effect that will have on the Judge.  That's 3 hours of basic reading - pushing on half a day's work. How much will be digested is debatable. Dangers of skim reading and missing important points. But it's your call ....

Redman2186

Umkomaas said:

Redman2186 said:

Umkomaas said:

50.        As I’ve demonstrated throughout this witness statement, this point around who was or was not the driver should be completely mute.

Just jumped out as I glanced by. Moot.

Been a long few days! Only 53,000 words in the document. Cheers for the additional eyes!

I'd worry what effect that will have on the Judge.  That's 3 hours of basic reading - pushing on half a day's work. How much will be digested is debatable. Dangers of skim reading and missing important points. But it's your call ....

95% of that is other transcript appended as exhibits.
I have 90 bullet points in my witness statement which cover my defence against the claim and justify my counterclaim. Is that excessive? 

Umkomaas

And how many pages?  Over 100 I'd guess.  Whatever, for one ticket from 5 years ago, Highview will almost certainly discontinue. 

Redman2186

Umkomaas said:

And how many pages?  Over 100 I'd guess.  Whatever, for one ticket from 5 years ago, Highview will almost certainly discontinue. 

The witness statement runs to about 12 pages.

Then about 170 pages of exhibits with all of those transcripts.

Hopefully they discontinue!