UKPC/DCBL County court business center claim - customer leaving site

Hayleigh1982

After looking through some suggested posts for witness statements i came across the following from @Bobthethird
it appears he also got a parking ticket for the same thing (driver left site) , in the exact same car park (Stevenage leisure park) albeit some 5 years later.

I was wondering if i could use his 'Letter to  UKPC' as part of the witness statement for my partners case as it reads very well and is to the point.

I will copy it below:-

1.    Insufficient evidence of the alleged contravention - No evidence that the driver ‘left the site’

2.    No site boundary defined.

3.    Non-Compliant Signage

4.    Lack of standing / authority from landowner

1.    No evidence that the driver ‘left the site’.

The notice to keeper states that the reason for issuing the charge notice is: “Driver left site designated for customer parking only.” 
No evidence has been provided from UKPC showing the vehicle driver leaving the site and I require UKPC to provide this. Such evidence should include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left.The burden of proof shifts to UKPC to prove otherwise and to explain why their attendant (presumably):

1.Watched a driver or occupant walk towards the edge of an undefined boundary,

2. Did not attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises.

The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012 District Judge McIlwaine stated:
‘you say he left the premises...where does the premises start and where does the premises finish?....there is a duty to mitigate the loss.’

In this case now under POPLA appeaI, contend that UKPC have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

2.    No site boundary defined.

Nowhere on the signage does it state:
- What the site boundary is.
- Show any map of where site boundary begins and ends.

No explanation has been provided as to what constitutes “leaving the site” and it has not been established whether the driver was on site all along. The only evidence provided are pictures of the car parked within a parking bay.

If no such sign or evidence exist, then I contend that the driver could not have known where the car park site boundary began and ended and in the absence of proof, I deny that there was any contravention. As a result, there was no contract formed with the driver to pay a charge in exchange for going off site; there was no consideration, offer or acceptance and no site boundary defined.

Even if a sign says a charge can be issued for 'leaving the site', this means nothing if 'the site' is not defined. This could include any number of shops, a cash point, toilets, cafe, drop-off areas, delivery area, the car park itself, rest area/benches and any other section of a retail park.

3.The signage was not compliant so there was no valid contract formed between UKPC and the driver.

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

 As such, the signs were not so prominent with their terms and conditions that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park in the event that they left the site- and therefore I contend the elements of a contract were conspicuous by their absence. The signage is not a contract or offer of a contract but an invitation to treat.

Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

If a driver can't read the sum of the parking charge (£100) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

4. No Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.

As this operator does not have proprietary interest in the land, then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is vital evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

 Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA, but in this case, I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

Section 7.1 states:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”
Section 7.2 states: 

“If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”

Section 7.3 states:

“The written authorisation must also set out:

a.             the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.

b.             any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.

c.             any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.

d.             who has the responsibility for putting up and maintaining signs.

e.             the definition of the services provided by each party to the agreement”.

I put UKPC to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

Some parking companies have provided "witness statements" instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow UKPC to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So, if the operator produces a witness statement mentioning the contract but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers setting foot beyond the boundary of a car park.

I require UKPC to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically worded contract with the landowner, not merely a 'standard business agreement'; with a non-landholder managing agent which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 Parking Eye v Clarke 19th December 2013.

Coupon-mad

No, that looks like an old POPLA appeal.

Have you received a WS bundle from the claimant? You had the same deadline.

You (if you are the Defendant) MUST email yours to the local court & solicitors tomorrow. You are late.

Obviously just see the NEWBIES thread.  Dead easy stage but stop searching for stuff. Use the resource thread you already knew was there.

Hayleigh1982

No not had anything from the claimant.

Could this mean they have discontinued?? (fingers crossed)

Looking through the advised witness statement templates i am seeing that they use sentences such as 'The Claimant has stated in their Witness Statement'

As I haven't had a WS from the claimant there isn't much i can use.

The original PCN was for leaving site, which i have rightly been told not to mention throughout defence stage and assume the same is at WS stage, and looking through the paperwork i have DCBL don't mention this either.

In their claim form under 'Particulars of Claim' it just states 'The PCN was issued on private land owned or managed by C. The vehicle was parked in breach of terms on Cs signs (the contract) thus incurring the PCN'
Signed by the notorious Yasmin Mia 

Also on  the breakdown of costs it shows
Amount claimed £209.92
Court Fee £35.00
Legal representatives cost £50

yet on the court date letter it says the claimant must pay the court the trial fee of £27.00 so where does the £35.00 come from?

Hayleigh1982

If there is anyone available to help, i understand people are busy but i would be grateful

i have copied a majority of the other WS templates but just wanted to make sure a few things were ok to go then i can send to the court and to DCBL

Table of Contents 

1Witness Statement of Defendant

2 Exhibit 01 - Civil Enforcement v Ming Tak Chan Judgment  

3 Exhibit 02 - Parallel Parking v Anon.  

4 Exhibit 03 - Another Badly Pleaded Parking Claim

5 Exhibit 04 - Another Badly Pleaded Parking Claim

6 Exhibit 05a & 05b & 05c – Sign posting on entrance to site & sign posting throughout site 

7 Exhibit 06 - Excel v Wilkinson Case Transcript  

8 Exhibit 07 - The Beavis case sign for comparison. 

9 Exhibit 08 - ParkingEye Limited v Beavis.  

UK Parking Control Ltd (Claimant)

V

 (Defendant)

 

Witness Statement of Defendant

 

1.       I am defendant, address and I am the defendant against whom this claim is made. The facts below 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 1-9) 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:

 

Preliminary matter: The claim should be struck out

3.       The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

4.       A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16.  On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4. (See Exhibit 01)

 

5.       Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit 02)

 

6.       Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit 03)

 

7.       Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit 04)

 

8.       The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

 

Facts and Sequence of events

9.     It is admitted that on the material dates, I was the registered keeper of the vehicle VRN. It is unknown who the driver of the vehicle was on the date of the claimed PCN, given the PCN dates back to 2019.

 

10.   Multiple individuals were authorised by me to use the vehicle at the times of the alleged contraventions via their own comprehensive insurance policies, which allowed them to use another private vehicle for which they were covered on a third party only basis.

 

 

11.  I do not recall receiving any pre-claim correspondence relating to the PCNs in question and I am currently unaware of the nature of the claim due to the length of time since the initial claim was made.

 

12.  I do not recall why the vehicle was at the claimed site of the PCN back in 2019. The Defendant recognises the site as a car park for a leisure facility, which includes restaurants and Entertainment complex which I attended occasionally with family and friends.

 

13. At no point during this process has the claimant stated what the PCN was for other then ‘the vehicle was parked in breach of the terms on Cs sign’.

Upon revisiting the site it is noted that there are 2 different signs one near the entrance stating to ‘Park in marked bays’ and the other dotted throughout with small unclear writing setting out ‘Parking Terms’ (See Exhibit 05a, 05b & 05c)

then i follow on with everything in the table of contents.

Thank you in advance

1505grandad

"It is unknown who the driver of the vehicle was on the date of the claimed PCN, given the PCN dates back to 2019."

Did the Defence state that?

Hayleigh1982

Yes, that was in the defence that was sent off prior to this

Coupon-mad

No not had anything from the claimant.
Could this mean they have discontinued?

Yes...didn't you ring the court to ask this morning when you first posted this?

1505grandad

Hayleigh1982 said:

Yes, that was in the defence that was sent off prior to this

I was trying to clarify as according to the draft D posted on 30th May it stated:-

"2. It is admitted that on the material dates, the Defendant was the registered keeper and driver of the vehicle."

Still hopefully of no consequence if it is a disco.

 

beemax

Just picking up on the 'how do they prove they left the site' issue, I have a similar issue involving UKPC and a retail park including The Range.  I parked there for a  time well within the allocated two hours.  I did not buy anything in the Range so have no receipts.  A few days later I received a notice from UKPC claimg that the driver left the site.  They included varioius photographs of the car  (illustrating , if nothing else, there there were plenty of spare spaces around the car) but no photographs of me or my wife.  So my questions are:

- Do they photograph people leaving the site?
- Are they actually allowed to ? 
- If such photographs exist are they required to include them in the Notice or the associated webpage with the photographs of the car ?
-If one of us left the site but the other stayed onsite would that be OK (or does it depend whether it's the driver?)

This may belong to a new thread but I thought it relevant to the  discussion above  

LDast

@beemax, it should be in a new thread of its own, please.