PCN from UKCPM Gladstone - URGENT help with witness statment

Coupon-mad

Obviously that's all got to go, as I already said.

I still see no denial of driving in para 2 (it's not your first para because you are using the Template Defence).

Brightlinks

Coupon-mad said:

Obviously that's all got to go, as I already said.

I still see no denial of driving in para 2 (it's not your first para because you are using the Template Defence).

can i deny as a driver as per below - 

1.    I confirm that I am the Registered Keeper of the vehicle in question on the June 2020 to till date and denied that the I was the driver at the time PCN was issued. The Vehicle is insured with 1st Central Insurance with 2 of the named drivers permitted to use it.

Brightlinks

I am attaching my lease copy, do i need to redact the personal detail from the copy ?

Coupon-mad

Put 'but I deny, not 'and denied'.

Don't redact anything for court except something like your phone number or DOB.

Brightlinks

Coupon-mad said:

Put 'but I deny, not 'and denied'.

Don't redact anything for court except something like your phone number or DOB.

Thanks for suggestion. 
I need to send copy of WS to Gladstone with Exhibit and I can not trust them.

Coupon-mad

You have to supply the same to them as goes to court.

Brightlinks

Final WS -

I am Mrs xxx of xxx, 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.

 

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:

 

Sequence of events and facts

1.    I confirm that I am the Registered Keeper of the vehicle in question on the June 2020 to till date, but I deny that the I was the driver at the time PCN was issued. The Vehicle is insured with 1st Central Insurance with 2 of the named drivers permitted to use it.

 

2.    I am the leaseholder of flat at Atlip Road where the PCN was issued and   paying ground rent to the landowner L&Q. UKCPM issued us a parking permit by charging £5 but then cancelled advising that issued in error. (Exhibit – 1) When we moving to the flat, few occasions we received PCNs from UKCPM while doing unloading. We contacted L&Q and they have cancelled them (Exhibit – 2)

 

3.    At the end of March 2020, Government announced the Lockdown in the whole country. We spoke to the manager at Birkdale clinic next to our block of flat, to allow us to park our vehicle during the lockdown. The manager verbally allowed us to park our vehicle due to lockdown, since than we parked our vehicle at their non marked bay.

 

4.    It is denied that the original PCN was issued to notify me of this alleged contravention on that particular day or any further direct notice from the claimant. I was served debt recovery notice from their agents. While checking of Debt recovery agent’s legitimacy, I found that the agent details are not genuine and bad reviews found from Google. (Exhibit – 3)

 

5.    It is my position that this amounts to serial predatory ticketing of residents and visitors of the block of flats located at this location. The Claimant is put to strict proof that, at the time of the parking event that the signage was evident, correct and clearly visible on this road in question.

 

6.    As the claimant has repeatedly failed to clarify the nature of the claim, then I have assumed that it relates to an alleged breach of contract.

 

7.    Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (Exhibit 4 – Lease agreement) that exists between the tenant and their landlord extends to the use of the  space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage. The tenant’s contract makes no assertion that a permit must not be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so. The Lease agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.

 

8.    I contend, therefore, that the tenant’s agreement provides an unfettered right to use of common area for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016], where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

 

9.    The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and tenants are unaware of any such vote having been passed by the residents, including myself which I was resident of the Flat for 3.5 years till date.

 

10. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would notify tenants of the existence of any contract between the property management company and provide the parking permits to the tenants, here most of the tenants have never received any permits.

 

11.  Car was parked on non marked bays by verbally authorised by the Clinic Manager. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way. I deny having breached any contractual terms whether express, implied, or by conduct.

 

12.  My vehicle clearly was verbally 'authorised' by Clinic manager and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

 

13.  The claimant may argue that driver parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit ), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

 

14. I refer to Exhibit xx-01, xx-02 and xx-03 provided by claimant which clearly shows no signage on either side of road where car was parked on. I also further refer to Exhibit xx-04, xx-05 and xx-06 which now recently taken photos of the road where car was parked on, which now clearly shows signage on the road.

 

15. As there was no visible signage, this is in contravention of the International Parking Community (IPC) Approved Operator Scheme Code of Practice V7 November 2019-V1-V2, Page 31, see Exhibit xx-12 (this is the version that is applicable to the date of issue of my PCN) under which the claimant is an active member as per https://portal.theipc.info/aos-members/u (Exhibit xx-13).

 

16. Again, I refer to International Parking Community (IPC) Approved Operator Scheme Code of Practice V7 November 2019-V1-V2, Page 31 (Exhibit xx-12). This specifically states that signs with specific parking terms must be placed throughout the site, so that drivers are given the chance to read them at the time of parking or leaving the vehicle. It is clear no such signs exist on the road where car was parked on, already shown in the Exhibits xx.

 

17. A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in Exhibit xx-14 in comparison to any alleged Claimant sign. In the alternative, if the Claimant alleges signage was present, I aver the signage fails to adhere to the standards laid out by International Parking Community (IPC). The IPC Code of Practice says “The Operator must adequately display any signs intended to form the basis of contract between the Creditor and the Motorist. Such signs must (in addition to the requirements above):

 

a. be in sufficient number so that they are clearly visible to Motorists on the Controlled Land;

b. inform the Motorist of all the Terms and Conditions applicable to the use of Vehicles on the Controlled Land;

c. identify yourself as ‘the Creditor’;

d. identify the amount of any charge and explain when it becomes payable; e. advise Motorists 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, or, that they may be requested immediately such that a notice may be served on the keeper by post;

Brightlinks

second part

The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

18.    ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach (Exhibit xx-14).

19.    Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

 20.    The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests (Exhibit xx-15 for paragraphs of ParkingEye v Beavis).

21.    In the alternative, if the Claimant alleges signage was present, I aver that the small signs had vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains my position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

 1.    Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

 2.    Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

 both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

 (ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

 

where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio)

22.    Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved - it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." If the Claimant alleges a sign was present, my position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 POFA and CRA breaches

                 

23.    Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have   complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').

24.    Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

 25.    Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a

   'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signs must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. If the Claimant alleges signage was present, I aver that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

 Lack of landowner authority evidence and lack of ADR

  

26.    DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

27. I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.

 

Abuse of process - the quantum

28. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well- known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable.

 

29. My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here:

 

30. Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 27), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no 8 reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the robo-claim race to court and to side-step the £50 legal fees cap set in the Small Clams Track.

 31. Adding debt recovery/costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

 32. This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

 33. The Code's Ministerial Foreword is unequivocal about abusive 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."

 34. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response (also in February 2022), they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/ robo-claim law firms operate on a 'no win, no fee' basis, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

 35. This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

 36. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.

 37. These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

38. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

 39. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

 40. It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit xx-16) where she went into great detail about this abuse.

 41. The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much- needed clarity for consumers and Judges across England and Wales.

 42. In case this Claimant tries to rely upon those old cases, significant errors were made. Evidence - including unclear signage and Codes of Practice - was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy). In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC.

  

 

 

 

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.

 

 

SIGNATURE

B789

Brightlinks said:

B789 said:

Brightlinks said:

1.    I confirm that I am the Registered Keeper of the vehicle in question on the June 2020 and thereafter date.

[Pedant mode ON]

What has the "thereafter date" got to do with the price of eggs in China?

[Pedant mode OFF]

Till date.

[Pedant mode ON (again)]

What has "Till date" got to do with the price of eggs in China?

[Pedant mode OFF]

Coupon-mad

Paragraph 3 needs to add that there are no signs at all on that side of the area, which (beside the building) is believed to fall outside of the enforcement boundary.  This is also supported by the fact that a ticketer for the Claimant stated this; that is why there are no contractual signs on the business side.

Remove para 11 as there are no "signs within".  Not on that side.


Paragraph 31 is wrong to say:

" Adding debt recovery / costs/ damages / fees (however described) onto a parking charge is now banned.

it isn't (yet).  Why do people keep copying this version?  The right wording is in the Template Defence thread.