Defence letter

Jafface

coupon-mad could you take a look please, is this better ?

In the county court of xxxxx

Claim number xxxxx

Hearing date xxxx

Claimant xxxxx

Defendant xxxxxx 

Address xxxxxx

 

Witness statement of xxxxx defendant 

 

1.     I[ REDACTED ] am the defendant against whom this claim is made. I represent myself as a litigant-in-person, with no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional. Everything in the following statement is true to the best of my knowledge and belief.

 

2.     I have reviewed the Particulars of Claim and can categorically deny that I or the vehicle were at the location stated in the POC, 2nd April 2017. The Claimant has not made an application to amend their particulars so it is extremely difficult to address the POC accusation, when no such event took place on 2nd April 2017. The only parking charge that I know about is one from February 2017, two months earlier than the POC suggest the car parked. The original charge was for stopping on a roadway where stopping is prohibited , the latest letter states the  charge is for parking on private land. Should the court decide that the Claimant may amend their POC to switch the dates without sanction and the hearing proceeds, then the following is the sequence of events:

 

 

Sequence of events:

 

3.     On 04/02/2017 I was a passenger in my car registration xxxxx, I was the registered keeper at the time but was not the driver.

 

4.     My parents were in the car, they dropped me off at McDonald’s while they went to Home bargains which was just down the road on Pontefract race course retail park. When I phoned to see where they were they told me to start walking towards the car park, they saw me so pulled out of the car park stopped for me to get in the passenger seat and we left.

 

5.     The car was stationary for 24 seconds which shows on the photographic evidence provided on the PCN. My parents did not see any sign stating no stopping, this was an access road on a retail park for the car parks to the shops on site.

 

6.     After subsequently visiting the location where the PCN had been issued it was obvious why my parents had not seen the signage. It was not visible on entering Home Bargains car park or leaving the car park. (The sign was on the access road  I have included evidence, the sign is no longer there) you could not possible see or read the signage while driving, you would have to stop the vehicle and get out to read it.

 

7.      Private parking firms have access to the DVLA database on the basis of parking enforcement. They are not enforcing parking in this case, so arguably they are using data in ways they should not be. Private parking firms are required to adhere to there industry Code of Practice and that does not cover no stopping zones, so they are acting outside of it.

 

8.     Given private parking tickets are issued based on contract communicated by signage, the contract cannot be adequately read and understood without stopping to read it so you are not bound by it and therefore you cannot be liable to pay the charge.

 

9.     The Department for Levelling Up, Housing and Communities ('DLUHC') has published, as of 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with. 

10.  The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unreasonable and as such, is banned. In a very short section called 'Escalation of costs' the new Code says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  The Ministerial Foreword is unequivocal and robust, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

 

11.  In the new Code of Practice it states setting down or picking up passengers is not a breach/not parking, and that no stopping zones are strictly for Airports or other rare sites with extreme safety concern. Certainly not a category that includes a run of the mill retail park where normal parking management with consideration and grace periods would never allow a charge to be issued in 24 seconds flat and where there is little or no attempt to place prominent repeater (clearway/no stopping) signs and double red lines that could be seen and understood from a moving vehicle without having to stop first.

 

 

 

History of charge letters:

 

12.  21/02/2017- I received the first PCN on  for a charge of £60 if paid within 14 days.

 

05/04/2017- I received final reminder for £100.

 

18/05/2017- I received a letter from BW Legal who were representing VCS Ltd for £160.

16/06/2017- BW Legal still £160 but scare mongering saying I will get a CCJ which could affect my credit in the future.

 

17/07/2017- BW Legal now stating costa will increase fro £160 to £238.55

Principal debt + initial legal costs  £160.00

Estimated interest.                               £3.55

Estimated court fees.                     £25.00

Estimated Solicitors costs.                £50.00

Estimated Total.                                 £238.55

 

16/04/2019- Now passed to DCBL saying amount owed is £100 to Excel Parking Services Ltd not Vehicle Control Services Ltd plus £50 + vat for administration, total £160.

With the threats on their letters saying “can’t pay we’ll take it away.

 

18/06/2021- DCBLegal now claimant is back to VCS Ltd saying the charge is for parking on private land we were not parked the car was not left unattended. (no mention now of no stopping zone ) the photo of the sign I have enclosed is no longer there so they do not operate the no stopping charge anymore.

 

16/08/2021- County Court Letter total amount £279.30

 

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 t be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Kind regards 

Xxxxx 

 

23/02/2022

 

 

 

 

KeithP

I strongly recommend that you get out of the habit of quoting dates fully in numerics.

You are perpetuating the ambiguity that the Claimant has introduced.

Months have names. Use them.
You managed it in your paragraph 2. What's the problem?

Jafface

Thanks I’ll amend it.

1505grandad

With regard to the usual WS examples I referred to previously C-m has posted elsewhere:-

The WS by @jrhys and @Nosy are the best 2021 examples of how the bundle and exhibits should all look, with pages numbering and evidence, plus a costs assessment.

But if course there is now more to add to the 2021 efforts!

https://forums.moneysavingexpert.com/discussion/comment/79013061#Comment_79013061

https://forums.moneysavingexpert.com/discussion/6333036/breaking-news-government-has-announced-the-statutory-code-of-practice-and-enforcement-framework/p1

Coupon-mad

Don't write 'kind regards' under a statement of truth.

Remove the stuff that says the IPC Code of Practice doesn't cover no-stopping, because it does.

You should be quoting from the new incoming statutory Code and linking it and attaching it as an Exhibit.  For example the part with the words 'more than momentarily' which makes it clear that stopping is not parking if it is merely momentary.

You need a paragraph or three, stating that:

-  the lack of 'adequate notice' of parking charge (no prominent signs) and lack of 'relevant contract/obligation' or breach, renders this case outside of the keeper liability provisions of the Protection of Freedoms Act 2012, Schedule 4 'the POFA').

-  As you were not driving, you cannot be liable in a non-POFA case like this and the Claimant also failed to include the requisite timeline and wording from 9(2)f of Schedule 4 in their purported Notice to Keeper.

-  the Claimant instead wants to presume a keeper was the driver and appears to hope the Court won't notice that this is the opposite of the POFA provisions.  If it were that easy to hold keepers liable, there would have been no reason for Schedule 4 to be enacted. Further, the newly published Government Code of Practice is designed to weed out previous rogue practice like this, and in the note under 8.1 Notice of Parking Charge.  The Note says (my bold):

"Whilst the provisions of Schedule 4 of the Protection of Freedoms Act 2012 allow parking operators to issue a notice of parking charge to a vehicle keeper or vehicle-hire firm, operators must not when issuing or pursuing a notice of parking charge presume that the keeper of a vehicle was the driver at the time of that vehicle breaching conditions leading to issue of a notice of parking charge."


Remove the whole section about what letters you got & when.  Not needed!  Replace it with an adapted version of the WS by @Nosy and @jrhys because you've missed plenty of the usual arguments.

You have also not referred to a single piece of evidence or Exhibit number.  Thos is not a proper or useful (to you or the Judge) WS, without evidence and Exhibit numbers.

You need photos and case transcripts such as the Appeal case of 'Excel v Smith' to support what you are saying about not being liable when not the driver, in a non-POFA case.  That transcript is in the Parking Prankster's case law pages on his blog website.

Take this down from #2, to be separate, as paragraph 3:

2.     Should the court decide that the Claimant may amend their POC to switch the dates without sanction and the hearing proceeds, then the following is the sequence of events:

Jafface

Thank you coupon-mad and 1505 grandad for your advise I ll hopefully get there, I have got photos etc but haven’t tackled the exhibit and evidence yet .

Jafface

@Coupon-mad @1505grandad
i have still not done the exhibit numbers as I have been struggling to get all the documents in the right place but I  am trying I have found the excel v smith do I attach the full transcript 6 pages? Here is the latest amended, I have photos too 

In the county court of xxxxx

Claim number xxxxx

Hearing date xxxx

Claimant xxxxx

Defendant xxxxxx 

Address xxxxxx

 

Witness statement of xxxxx defendant 

 

1.     I[ REDACTED ] am the defendant against whom this claim is made. I represent myself as a litigant-in-person, with no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional. Everything in the following statement is true to the best of my knowledge and belief.

 

2.     I have reviewed the Particulars of Claim and can categorically deny that I or the vehicle were at the location stated in the POC, 2nd April 2017. The Claimant has not made an application to amend their particulars so it is extremely difficult to address the POC accusation, when no such event took place on 2nd April 2017. The only parking charge that I know about is one from February 2017, two months earlier than the POC suggest the car parked. The original charge was for stopping on a roadway where stopping is prohibited , the latest letter states the  charge is for parking on private land. 

 

3.     Should the court decide that the Claimant may amend their POC to switch the dates without sanction and the hearing proceeds, then the following is the sequence of events:

 

 

Sequence of events:

 

4.     On 4th February 2017 I was a passenger in my car registration xxxxx, I was the registered keeper at the time but was not the driver.

 

5.     My parents were in the car, they dropped me off at McDonald’s while they went to Home bargains which was just down the road on Pontefract race course retail park. When I phoned to see where they were they told me to start walking towards the car park, they saw me so pulled out of the car park stopped at the side of the road for me to get in the passenger seat and we left.

 

6.     The car was stationary for 24 seconds which shows on the photographic evidence provided on the PCN. My parents did not see any sign stating no stopping, this was an access road on a retail park for the car parks to the shops on site.

 

7.     After subsequently visiting the location where the PCN had been issued it was obvious why my parents had not seen the signage. It was not visible on entering Home Bargains car park or leaving the car park. (The sign was on the access road  I have included evidence, the sign is no longer there) you could not possible see or read the signage while driving, you would have to stop the vehicle and get out to read it. We also asked the manager of Home Bargains and Currys about who owned the land they did not know who owned the land and weren’t aware that the sign was there.. bearing in mind they work and travel and park  there daily.

 

8.     On the 21st of February 2017 I received a PCN for allegedly breaching Terms and Conditions of use of the Privately Operated Access Road at Race Course Retail Park, Pontefract. The charge was £60 if paid within 14 days or £100 if paid within 28 days.

 

9.     The case has been passed from BW Legal to DCBLegal the latest response from  County Court Is £279.30 on 16th August 2021.

 

Inadequate Signage

 

 

10.  Given private parking tickets are issued based on contract communicated by signage, the contract cannot be adequately read and understood without stopping to read it so you are not bound by it and therefore you cannot be liable to pay the charge.

 

11.  The lack of 'adequate notice' of parking charge (no prominent signs) and lack of 'relevant contract/obligation' or breach, renders this case outside of the keeper liability provisions of the Protection of Freedoms Act 2012, Schedule 4 'the POFA').

 

12.  As I were not driving, I cannot be liable in a non-POFA case like this and the Claimant also failed to include the requisite timeline and wording from 9(2)f of Schedule 4 in their purported Notice to Keeper.

 

13.  The Claimant instead wants to presume the keeper was the driver and appears to hope the Court won't notice that this is the opposite of the POFA provisions.  If it were that easy to hold keepers liable, there would have been no reason for Schedule 4 to be enacted. Further, the newly published Government Code of Practice is designed to weed out previous rogue practice like this, and in the note under 8.1 Notice of Parking Charge.  The Note says:

"Whilst the provisions of Schedule 4 of the Protection of Freedoms Act 2012 allow parking operators to issue a notice of parking charge to a vehicle keeper or vehicle-hire firm, operators must not when issuing or pursuing a notice of parking charge presume that the keeper of a vehicle was the driver at the time of that vehicle breaching conditions leading to issue of a notice of parking charge."

 

Government Code of Practice

 

 

14.  The Department for Levelling Up, Housing and Communities ('DLUHC') has published, as of 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with. 

15.  The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unreasonable and as such, is banned. In a very short section called 'Escalation of costs' the new Code says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  The Ministerial Foreword is unequivocal and robust, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

 

16.  In the new Code of Practice it states setting down or picking up passengers is not a breach/not parking, and that no stopping zones are strictly for Airports or other rare sites with extreme safety concern. Certainly not a category that includes a run of the mill retail park where normal parking management with consideration and grace periods would never allow a charge to be issued in 24 seconds flat and where there is little or no attempt to place prominent repeater (clearway/no stopping) signs and double red lines that could be seen and understood from a moving vehicle without having to stop first.

 

17.  I have attached  the appeal case Excel v Smith transcript as I believe I am not liable when not the driver in a non-POFA case.

 

 

 

 

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 t be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

 

Signed 

 

Date

 

 

 

 

Coupon-mad

The heading 'Inadequate signage needs to also say 'and no keeper liability'.

On the 21st of February 2017 I received a PCN.

Did you? Unless you wrote the date received on the PCN in 2017, that amazing recall!

Or was that just the date it was printed and you got it at the end of Feb (well outside the 14 day statutory period for keeper liability).

Either way, it arrived too late to hold a keeper who wasn't driving, liable.

Jafface

That’s what was printed also I have the SAR with dates.

KeithP

So you didn't receive that notice on 21st February 2017 then.