UKPC/London PCN

Cisse913

Hi Guys

Is anybody able to further advise on the above?

Coupon-mad

You've shown us your defence but not your draft WS based on the one whose posting username I linked.

1505grandad

"8.1.2.  The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory.."

A heads-up  -  if the above was in the D filed, it is an error  -  make sure CoP of the BPA AoS is stated/used in WS yet to be filed and served.

Cisse913

My witness statement is below as follows, happy to receive any feedback. Deadline for WS to be submitted is this Weds. I will edit a reformat before then:

1.       I am xxxxx of xxxxxxxxxxxx, , 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 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

 

.

 

3.       It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxxx which is the subject of these proceedings. The vehicle is insured with xxxxxx with one of named drivers permitted to use it on public land.

 

4.       It is denied that the Defendant was the driver of the vehicle. The Claimant is to put strict proof

 

5.       The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"). The Claimant has failed to provide clear and relevant photography of the parking enforcement signage where the vehicle was parked at the point of the PCN being issued (as per documentation included within the Claimants Subject Access Request dated 8th November 2022). Furthermore, the Claimant has failed to provide sufficient time for unloading/loading of goods at the point of issuing the PCN. Notwithstanding, the possibility that any person/persons associated with the vehicle may have a disability, a protected characteristic under the Equalities Act 2010. Thus, the Claimant has behaved in a discriminatory manner.

 

6.       Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that: 7.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and 7.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.

 

7.       To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

 

8.       It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the former tenant/guests (at the time of the alleged contravention) of xxxxxxx xxxxxx, xxxxxx . Such information has also been confirmed in writing by the freeholder xxxxxxx Maintenance Company (APMC), who own and manage the public parts of xxxxxxxxxx, which is a private road with irregular public access. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle within the grounds of xxxxxxxx, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease has been provided to the Court as part of this witness statement bundle (Exhibit 1), together with witness evidence certifying that the freeholder to date remains happy to have the PCN in question cancelled (Exhibit 2), however despite the attempts, UKPC remain adamant that they cannot cancel the PCN. This is in fact a untrue, and merely a ploy to unlawfully extract monies from the Defendant or lawful users of his/her vehicle. The claimant maintains the ability to cancel the PCN and subsequent claim

The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016 – Exhibit 3) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. In August 2016, Judge Charles Harris QC found that private parking firm Home Guard Services (who trade as 14 Services) had acted unreasonably in a parking dispute at Miss Jopson’s block of leasehold flats; and in a way that was incompatible with the terms of the lease. On June 29, Judge Harris ordered Home Guard Services to drop the fine and pay £2000 towards the defendant’s costs.

In June 2015, Laura Jopson was unloading furniture and parked directly in front of the communal entrance to the flats on Wolverton Park Road, rather than use her designated parking space because it was too far away. She returned to her car after a few minutes and a week later, received a Penalty Charge Notice of a £100 fine from Home Guard Services, who control parking on behalf of the block’s owners Places for People Homes Ltd. Laura Jopson, 29, of Trevithick Court, Wolverton Park Road, Milton Keynes had her fine dropped and received £2000 in costs in a ruling by Oxford County Court.

 

 

9.        Accordingly it is denied that: there was any agreement as between the Defendant or driver of the vehicle. The Claimant there was any obligation (at all) to display a permit; and  the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

10.    I refer to Exhibit RS1 (included within the claimant’s witness statement bundle) which from the timestamps on photographs taken by UKPC’S enforcement officer at the time of the alleged contravention show that just under a 30 second grace period was provided from my vehicle being identified, to a PCN being issued. Section 13.1 of the British Parking Association (BPA) Code of Practice sets out processes that operators should put in place when entering onto private land. The BPA code of practice explains a ‘consideration period’ should be given which is time for a motorist to decide if they wish to stay accepting the terms or leave rejecting them. To quote, ‘The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but choses to leave the car park/road, you must provide them with a reasonable consideration period to leave, before ethe driver can be bound by your parking contract. The amount of time in these instances will vary dependent on site size and type but it must be a minimum of 5 minutes’. The vehicle in question was stationary for well under 5 minutes during the loading and unloading process. As such, this PCN has been remains non compliant.

11.    Referring to Exhibit RS1 (Page 2) of the claimant witness statement bundle shows an alleged photo of the signage on the evening when the PCN was issued. The photo itself is incredibly blurry, to point when one cannot identify the terms and conditions of the limited signage which hangs approximately 7ft 5m from the ground. The sign is not positioned at a readable height and is poorly lit by the limited lighting on the cul-de-sac. The claimant’s suggestion that appropriate signage was present on the night of the alleged contravention is false. The claimant is unable to evidence their assertions. As such, the claimant has submitted various stills of once again blurry signage taken from different locations at the aforementioned location of the alleged contravention dated October 2012. Again, these signs are non-compliant and bare no relevance with this claim. From the claimant’s photos the design and no doubt terms and conditions of their signage has changed in between the years of October 2012 – February 2021. On the same page, the claimant has taken a photograph of a grey Peugeot, a vehicle which was parked nearest to the only parking enforcement sign on xxxxxxxx. This signage is located approximately 10 meters away from where the vehicle in question was loading.

12.    I refer to pages 20, 21 and 22 of the claimant’s bundle. The claimant alleges that they have held a contract with xxxxxxxxx, to manage parking at the location since 1st October 2012. The contract was for an initial period of 9 months, with no specified renewal date or rolling contract being stated. UKPC have not demonstrated that they have specific authority to operate on the site in question since the initial 9 months had lapsed from the commencement of contractual service on 1st October 2012. The contract also states that UKPC have the ‘ability to cancel specific parking charges from time to time’, which lies in contradiction to what UKPC relayed to the land owner when it was requested the PCN in question should be cancelled.

13.    I refer to pages 6 and 8 of the claimant’s bundle Exhibhit RS1. Both pages represent copies of the alleged reminder notices sent to the registered keeper of the vehicle. However, in both of the notices the vehicle and vehicle registration remain blurry and non visible. Therefore, it is reasonable to once again question the legitimacy of the PCN.

14.    I refer to Exhibit 10.1 which is a copy of the email exchange between the defendant and the land owner where he clearly states that UKPC have refused to cancel the incorrectly issued PCN on request.

 

15.   As there was no visible signage, this is in contravention of the British Parking Association (BPA) Approved Operator Scheme (AoS) version 6 - October 2015 section 18.3, 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://www.britishparking.co.uk/BPA-Members (See Exhibit xx-13).

 

 

16.   Again, I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 6 - October 2015 section 18.3 (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 I parked on, already shown in the six Exhibits referenced in paragraph 9.

 

 

17.   It is therefore denied that I entered a legally binding contract, as no signage existed on the road I was parked upon. For the last 3 years of parking on the same road and on the date of the xxth of November 2017, at no point did I believe any permission to park was needed.

 

 

18.   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 The British Parking Association (BPA). The BPA Code of Practice says “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand” It also states that “Signs play an important part in establishing a parking contract” with drivers.

 

I then continue with rest of Aphex007 WS version 3 as advised. From what I can see version 3 was the latest version of the WS.

KeithP

I'm just going to pick a few words out of that Witness Statement.

Can you rephrase this sentence in paragraph 3?...
The vehicle is insured with xxxxxx with one of named drivers permitted to use it on public land.
What does 'with one of named drivers' mean?

Paragraph 4 states...
It is denied that the Defendant was the driver of the vehicle.
...but how does that fit with paragraph 17...
17.   It is therefore denied that I entered a legally binding contract, as no signage existed on the road I was parked upon.
...which seems to be saying that the Defendant was driving.

Perhaps it would help if you decided whether to write in the first person, e.g. I did this, or the third person, e.g. the Defendant did this, rather than mixing to two.
Traditionally, Witness Statements are written in the first person.

Coupon-mad

Have a look at the one I just posted in the Template Defence thread (a suggested new WS template). 

Cisse913

Coupon-mad said:

Have a look at the one I just posted in the Template Defence thread (a suggested new WS template). 

Great, would you advise using your new suggested WS template?

Coupon-mad

You can be the first one to adapt it - don't copy irrelevant bits of it if course but instead put your own stuff where suggested.

To find the usual exhibits, like Excel v Wilkinson and quotes from Beavis, etc., look at other recent WS full bundles like the final WS posted by @aphex007

1505grandad

"4.   It is admitted that on **/**/2021 the Defendant's vehicle was parked at ***************"

If that is the date of the parking event as stated in your D then make sure WS uses/quotes from BPA CoP version 8 dated January 2020 (you quoted V6 in the above draft WS)

Cisse913

My hearing for this claim took place earlier this morning.

The claimant (UKPC) young rent a lawyer turned up to court. He introduced himself outside of the hearing prior, and asked what I was looking to get out of the hearing. We then proceeded to enter court.

The rent a lawyer tried to consistently troed to claim that adequate signage was in place at the site at the time of the contravention.

The alleged contravention happened at night, and the frenzied, hap hazard photo taken by stupid parking operators agent was taken in a frenzied manner. The photo of the signage was blurry and ineligible. No other photos of signage were taken at the time of the alleged contravention. UKPC instead tried to rely on a PDF of the signage which was allegedly in place on the day. However the judge spotted a diffeence in the two signs. Brazenly UKPC also tried to use photos of aignage from 2012!! Claiming that the signage was identical to that in place in 2022.

The judge dismissed questioning the authority to operate based on no permission being given by landowner. He said permission from managing agent was sufficient proofs (not sure about that). I fought vwry hard on other points such as data breaches etc as I wasn't named driver at time and challenging under POFA.

Also I had email evidence of managing agent asking for the PCN to be cancelled, and UKPC refusal. However that carried limied to no weight with him (for whatever reason who knows). The cancellation was sent prior to proceedings being instigated. 

Also fact that vehicle wasn't parked at time but loading and unloading. Although UKPC were unable to demonstrate for how long my 'vehicle' had been parked. The judge pretty much dismissed my entire defence despite being valid. I got the sense he didnt understand the law with private parking companies. He also dismissed the BPA Code Of Conduct as being largely irrelevant...

(Make of that as you wish)

I could tell the rent-a- lawyer had a flimsy argument and was nervous. However as I started to make my valid points, he grew increasingly frustrated often retorting on a smug arrogant manner.

Needless to say, I stuck to my guns and honed in on the non compliant signage point at the time which the claim was issued. The rent-a-lawyer tried his best to claim the PDF was identical to signage at the time, however even he was unable to really fight that point despite his best efforts.

Judge too an age to sumamrise, however insisted that main point was unclear signage taken at time of alleged contravention, therefore he wasn't sure whether a breach had taken place.

Case was subsequently found in my favoir and struck out ☺️!

It was tough as we were in the court room for approximately 1hr 45 in total.

As soon as the judgement was given the rent a lawyer wasnt so smug, and slithered off back into his sewer! Therefore I didn't get the chance to ask the judge to consider costs which were evidenced in my witness statement. When I asked, the judge stated both parties needed to be present for the consideration of costs, however the rent-a-lawyer had ran away.

Is there anyway I can still claim costs followingthe judgement , i.e. £95 for time off work, travel to work and time it took me to complile my paperwork? This was all listed in my Witness Statement.

Also, I believe UKPC have breached the use of my data. They have refused to provide me with all my data despite multiple requests, and keep trying to refer me to their bogus solicitors, claim the data ia encrypted therefore it doesn't need to be supplied etc. They even included othwr peoples data in my court bundle. I have reported UKPC to the ICO and await their response. However is there anything else I can do, perhaphs instigate my own legal proceedings? Or they may decide to settle.

Another loss for the bogus, incompetent UKPC and the rest, keep up the fighg people!