Witness statement Draft for NTK

MissssyD

1.         I am XXX, and I am the Defendant against whom this claim is made. I was the registered keeper of the vehicle XXX. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief. 

2.         In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. I deny that the Claimant is entitled to relief in the sum claimed, or at all and my defence is repeated.  

3.         It is my position that the conduct of the Claimant is specifically unlawful and far more serious than just a hopeless claim.  The Court's attention is drawn to this and the Claimant's other conduct, including but not limited to: 

i)        multiple breaches of their Trade Body (the British Parking Association) Code of Practice ('the BPA CoP');           

ii)      breaches of the Protection of Freedoms Act (POFA) 2012 Schedule 4, where the Claimant has failed to follow the conditions set out for Notice to Keeper. 

iii)    breaches of the UTCCRs as applied at the time, distinguishing this case from ParkingEye Ltd v Beavis; 

 

I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed. 

Communication regarding the alleged PCN 

4.         I was the registered keeper of the vehicle in question in this case.   This is submitted in XX-01.   At the time of the alleged incident, the insurance covered more than one family member. I have no obligation to name to a private parking firm who the driver was. It remains the responsibility of the Claimant to prove their case.  

5.         As mentioned in my defence (4) I requested the previous debt recovery company to provide me with evidence of this alleged parking charge which I never received from XX Ltd.  The first time I was made aware of this was when I received the letter from a previous debt recovery company in X 2018. I had spoken to XX as soon as I received this letter and she demanded that a payment of £149.99 be made immediately and refused to send me the parking charge notice that apparently XX Ltd had sent me. I explained that I have never received a parking charge notice and I requested the information be sent by post. I never did receive a response and this appeared to be some sort of scam to me due to the threatening language used and lack of evidence provided and hence I disregarded their payment request and disposed of their letter. 

6.         From X 2018 until X 2020 there was no form of communication received from XX Ltd or the debt recovery company and I was surprised that new debt recover company issued demands again with no evidence of the alleged contravention. This again led me to believe it might be a scam and I wrote to the new debt recovery company. 

I responded to XXby letters requesting further information about this alleged parking charge notice as all I had was the date and location (it does not even have a post code) indicated on their letters. There was no evidence provided of the alleged incident and therefore I am unable to defend myself to the capacity I would have been able to if I had received the parking charge notice. The notice I feel was never issued or sent, as set out in Schedule 4 of the Protection of Freedoms Act 2012 Recovery of unpaid Parking Charges.  It was X Ltd that issued a letter demanding payment of £149.99 in X 2018. This can be viewed in XX-02.  Despite requests to X Ltd, XX Ltd and XXX Ltd, they have failed to provide me the evidence I have requested for.  In fact the Claimant provides no evidence of the time this alleged incident occurred or provide sufficient detail regarding in what manner the alleged contract was breached. 

POFA, BPA and Signage 

7.         The Claimant is relying on the signage at the site to establish a contract with the driver.  It is my understanding that there are three elements to a contract: offer, acceptance and consideration. The driver could not possibly have accepted any contract offered by the Claimant as they were unaware the site was monitored by APNR, lack of signage and restriction to 2 hour parking.  In order to create a contract, the signage must comply with BPA code of practice. In exhibit XX-07 you will see there are 2 different image submissions of signage at the entrance by the Claimant which then leads me to question the validity of an actual sign being present on X 2017.    

 

8.     (I am not sure if I should include this? As this would be applicable if a parking charge was sent to the driver but I don’t think it has as it is monitored by APNR) BPA code of practice states that the signage MUST “Advise drivers that if a charge remains unpaid for a period of 28 days after issue then an application will be made for the Keeper’s details from DVLA;” Looking at the copies of the signage the claimant has supplied exhibit- XX 07, whilst they do state they may request details of the vehicle’s Registered Keeper from the DVLA and may send a parking charge notice to the registered keeper by post, they fail to include the time period of 28 days, which is not only against BPA Code of practice but also against POFA regulations. 

 

9.         Upon investigation since receiving the county court claim, POFA 2012 Schedule 4 paragraphs 9 (4) and (5) stipulates that notice to keeper must be sent within a certain time frame depending on the type of charge being issued. It seems to be that the parking area is operated not by parking ticket machine but by APNR. This is identified in exhibit XX-07 -   If this is the case, then as keeper of the vehicle, I would have expected to receive the parking charge notice within14 days after the alleged incident of X 2017.  This was never sent by the Claimant within the time frame set out by POFA and its further evident in point 10 below. 

 

10.       Upon requesting SARS from DVLA, I received a response (refer to exhibit XX-05) and I would like to draw your attention to the date the first time notice to keeper was obtained from DVLA on behalf of XX Ltd, X 2018 by XXXX Ltd which is 150 days from X 2017 when the alleged intervention occurred. This clearly indicates that XX Ltd did not follow POFA to ensure that the notice to keeper was submitted in the time frame required by law and also proving that I as notice to keeper never received this alleged parking charge within 14 days as set by POFA. 

 

MissssyD

11.       As XX Ltd are members of BPA, their guidelines also cover a wide area of how parking tickets should be issued along with parking signs. In exhibit XX 04- Keeper Liability – BPA states the “creditor must follow the procedures set out in POFA Schedule 4 to achieve the benefits of ‘keeper liability’ as described”.  XX Ltd did not request the registered keeper details until X 2018.  

 

12.       I was able to investigate and further support my word statement by reviewing the images of the display signs submitted by The Claimant. I would like to point out the photographs provided do not have a time and date.Any photographs purporting to show such signage on a different date cannot be considered sufficient to evidence their presence on the date in question. This is evident as highlighted in point 13 below. Any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance. I have introduced my own images from google images to substantiate and support my case. 

 

13.       From my observations using google maps (please refer to exhibit XX-07), you will notice that the sign at the entrance is on the right side. This is not ideally positioned especially where oncoming traffic exiting the car park will obscure the sign for drivers entering the car park. There is also an anomaly in the entry sign image under the no entry sign outside the store. This is different to another image which XXX included as a sign (also with the store in the background) has the same no entry sign but a different sign displayed beneath. Exhibit XX-07 page xx shows two completely different notices.   The other 3 signs are displayed on the wall by the disabled bay (please refer to exhibit XX-07) and another on the wall and a lamp post right next to it side by side, these are areas that the drivers are very unlikely to access unless they were aware that the parking time is restricted as they entered the car park. I cannot confirm when the images provided by XXX on behalf of the Claimant were taken but in exhibit XX-06 obtained through google maps, the sign is facing the other way in comparison to the no entry sign. You will also see the lampost in the middle of the car park where drivers are likely to draw their attention to, to look for parking signs but instead are greeted with advertisements please refer to exhibit XX-06 pages xx.

 

14.       In ‘Vine v Waltham Forest’(Exhibit XX-08, case CCRTF 98/1290/B2– EB07. The Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. I would say this is relevant to my case as the terms and conditions displayed by the Claimant was missed by the driver as it was situated on the side where cars were exiting the car park. The other signs were not fairly located and offered poor visibility to motorists. (Provide image of their sign versus the sign XX and page number) It is denied that the driver would have agreed to the terms and conditions of the contract if the signs had been properly displayed and accessible, thus the driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. 

 

 

15.       I would like to draw attention to exhibit XX-09, Henry Greenslade's words as Lead Adjudicator in the POPLA (Parking on Private Land Appeals) Annual Report 2015 'ANPR’ where he states that “the notice to keeper must be sent within the strict provisions of Schedule 4, which is within 14 days for this particular type of notice”. This has not been evident in my case as pointed out previously.  I have never received the evidence so do not have a time of when the alleged contravention occurred. If I had been provided the evidence, I would be in a position to examine it in further depth and would have pursued this with POPLA. As the Claimant has failed to provide this, I can only rely on photographs of the poor signage and an instant when the driver visited the site twice in one day. As Henry Greenslade pointed out, “I have previously mentioned that sometimes two cameras are used at the same time and thus two images are produced, one showing the vehicle and the other a close focus image of the registration plate. However, whilst this may be common with on-street contraventions, operators should not assume it is readily understood. It is not at all uncommon for an Assessor to have before them an appeal in which the appellant says that that although there is a picture of the number plate, the registration mark cannot be seen in the image showing the whole vehicle at the location. In these cases the burden is on the operator to explain how this has come about. Again, another issue still arising in ANPR cases is where the appellant accepts that they entered and left as alleged by the operator but claims also to have left and returned between the two times, the Assessor will have to determine this particular issue, like others, on the evidence produced”. In my case, the driver would have entered the car park and left but then returned the same day. There are no restrictions on the signs XXX have submitted to say that customers cannot return to the site. The Claimant would need to prove to the Judge and I, the Defendant that this is not the case and hence an error in the ANPR system used. 

 

16.       In the well-known parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated: 

96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.'' 

Additional Charges Added 

17.       In addition to the disputed Parking Charge claim (the original amount being claimed by The Claimant is still unknown but based on the sign I am assuming it is £85), the Claimant demanded a total charge of £149.99 through X and then XXX that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’. The added amount constitutes double recovery through a series of automated demands sent to myself the notice to keeper 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 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. 

 

 

18.       After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.  

19.       More recently at Skipton County court on 27.2.2020 - an area where Judges are also summarily striking out every parking charge case where £60 has been falsely added - Excel Parking Services failed to overturn six strike-out orders, in a mirror image application hearing just like the one BW Legal lost in Southampton.  They were refused leave to appeal, the application to set aside was dismissed and the Claimant was found to have behaved unreasonably . Costs of £331.10 were awarded to a lead Defendant in claim no F3QZ38JK (one of the six) because the District Judge Fay Wright held that the Dammerman test was met by the conduct of the parking firm.   

20.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.( Add website address here!!!)

 

 

My fixed witness costs  

18.       Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e). In the event of Notice of Discontinuance, I, the Defendant seek further costs pursuant to CPR 46.5. 

CPR 44.11 – further costs 

19.       As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain and more importantly loss of quality time spent with my family.  This detailed cost assessment is in XX- and I would like to invite the honourable Judge to include these, pursuant to the court’s powers in relation to misconduct as stated in CPR 44.11. 

Statement of Truth 

 

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. 

Questions 

1. Do I need to attach my defence as I make reference to it in my Ws?

2. Do I need to provide letters sent to the debt recovery company as evidence?

3. I have included the image of yellow and black parking sign vs the parking company sign and drawn comparisons. Do I need to add any more images? I do not have the APNR images as this was never issued. Will they have to issue this to me before the hearing for examination?

4. I will be including copies of Pofa, Beavis (though need to find it and attach to my exhibits) case? Do I need to include all the other cases that I have mentioned and do I include consumer rights act?

5. Do I need to add anything else please? Have I covered everything?

Thank you 

MissssyD

@Coupon-mad hi, here is the WS I have drafted. Thank you 

Coupon-mad

We will all have a look over the weekend I hope.

1505grandad

Who is the claimant?

MissssyD

Hello sorry I didn’t mention the claimant as I need to submit my WS shortly and don’t want to give them an advantage Incase they are on here. Hope that’s ok?

Le_Kirk

MissssyD said:
Questions 

1. Do I need to attach my defence as I make reference to it in my Ws?

2. Do I need to provide letters sent to the debt recovery company as evidence?

3. I have included the image of yellow and black parking sign vs the parking company sign and drawn comparisons. Do I need to add any more images? I do not have the APNR images as this was never issued. Will they have to issue this to me before the hearing for examination?

4. I will be including copies of Pofa, Beavis (though need to find it and attach to my exhibits) case? Do I need to include all the other cases that I have mentioned and do I include consumer rights act?

5. Do I need to add anything else please? Have I covered everything?

Thank you 

1.  It is not normally required to attach a defence as it is "already filed" as you state in your WS.
2.  You should provide evidence of whatever you refer to in the WS
3.  Add whatever images help YOU.  The claimant should provide "whatever images it seeks to rely on in court" within their own WS.
4.  I don't believe you need to include anything that is law, so CRA and PFA not required but it might help the judge if you included the relevant parts of them.  Everything else, just the relevant parts.

D_P_Dance

Have you complained to your MP?

MissssyD

@Le_Kirk thank you for your feedback. I have submitted and analysed the images. They have submitted pictures of the sites with the signs but there is one in particular that contradicts another which I have pointed out to indicate the two signs are different but at the same location. 

MissssyD

@D_P_Dance no I haven’t had the chance but will it help in anyway? Thanks 

MissssyD

@Le_Kirk sorry to bother but is point 8 valid in my case? Thanks