Private PCN

Lakoko

Please see my draft witness statement for your suggestion and comments

IN THE COUNTY COURT AT WILLESDEN (WITH HEARING TAKING PLACE AT ROYAL COURTS OF JUSTICE, STRAND, LONDON WC2A 2LL)

Between

UK PARKING CONTROL LIMITED

(Claimant)

- and -

xxxxxxxxxxxxx

(Defendant)

_________________

Witness Statement

_________________

 

1.     I am xxxxxxxx of the address xxxxxxxxxx, and I am the defendant against whom this claim is made against. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge. As a preliminary matter, I would like to bring to the Court's attention that the Claimant's Witness Statement, signed by [Paralegal or Solicitor's Name] of [Solicitor Firm name] Solicitors, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As [Paralegal or Solicitor's Name] does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this non-compliance, the Defendant respectfully requests that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

2.     In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. Exhibits 1, 2, 4 and 5 are evidence downloaded from the claimant website (https://paycharge.co.uk/Payment/Review ) on the 19th of May 2024 with reference number xxxxxxx. My defence is repeated, and my witness statement is outlined below:

Sequence of events

3.     Firstly, I have appended the actual signage at the location Exhibit 1. The Defendant had gone to pick her daughter in a primary school (Advance Education) which was part of the complex that have access and use of the car park area where the Defendant parked the car.

 

4.     The signage (Exhibit 1) was fixed to a wall, far away from the position, I parked the car. The signage which states that: No Roadway Parking with reference to car parking bays (No parking on yellow lines or in an area with hatched markings).

 

 

 

Exhibit 1

 

 

 

5.     The driver parked on the side of the road with the signage far away from where I parked,  as there were parking bays very close to the signage, I originally thought the signage relates to the car parking bays (See Exhibit 2, my position in relation to the distance of the signage on the wall and Exhibit 3 showing the parking bays and the signage).

Exhibit 2

 

Exhibit 3

 

6.     Additionally, the sign is confusing and contradictory as it is not very clear where parking is restricted due to the following reasons:

 

7.     The writings on the signage (Exhibit 1) are not very legible from the position of where I parked my car.

 

8.     The “No Roadway parking” writing on Exhibit 1 has an image of a road with “white markings and a red cross” on the image to denote no parking. The road where I parked has no “white dotted and bold lines markings” on it. See Exhibit 4. This shows clearly that the road I parked on is not the road referenced in the roadway image on the signage (Exhibit 1). The signage (Exhibit 1) is therefore not in line with the BPA Approved Operator Scheme Code of Practice section 19, Signs: subsection 19.5 of the version 8 dated January 2020 which clearly stated that “The wording you include on your specific parking terms signage is your decision. However, you should try to use plain and intelligible language in all your signs and information”.

 

Exhibit 4

 

 

 

9.     It is therefore denied that the signs used by the claimant can have created a fair or transparent contract with a driver in any event hence incapable of binding me to as the claimant failed to comply with the BPA code of practice   signs requirements subsection 19.3, “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. I have already demonstrated above that the sign in Exhibit 1 is not clear and not of intelligible wordings and images.

 

 

10. The signage Exhibit 1 states that No parking ON yellow lines… I did not park “ON THE YELLOW LINES”. Exhibits 4 and 5 indicates clearly that I parked the car BESIDE THE YELLOW LINES.

Exhibit 5

 

 

 

 

11. The signage Exhibit 1 states that No parking in an area with hatched markings. Exhibit 4 indicates clearly that I did not park the car in an area with hatched markings. The whole basis of the claimant claims as detailed in the Particulars of Claim (Exhibit 6) was that I parked on yellow lines/hatched area. Evidence downloaded from the claimant website Exhibit 2, 4, and 5 shows clearly that was not the case. These exhibits 2, 4, and 5 are enough justification for the claim to be struck out.

Exhibit 6

 

12. Different photos of my parked car as downloaded from the claimant website Exhibits 1, 2, 4,5 shows the same timing (15:32:49) for all the four different photos taken of my parked car. This clearly indicated that my car was parked for a very brief period to collect my daughter from the school.

13. In addition, the presence of the yellow lines where I parked is evidence that I thought that this section of the highway was a public highway because there are no traffic regulations, byelaws, and traffic orders regulating or enforcing double yellow lines on private roads or land. So, this is another confusion and I thought I was parking on a public highway.

 

14. The BPA Approved Operator Scheme Code of Practice section 14 Misrepresentation of authority subsection 14.1 of the version 8 dated January 2020 clearly stated that “You must give clear information to the public about what parking activities are allowed and what is unauthorised. You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority. You will be breaching the Code if you suggest to the public that you are providing parking enforcement under statutory authority”. Exhibits 1 and 2 are CLEAR EVIDENCE that the claimant has breached this section of the code by using “double yellow lines” on a private road to misrepresent public authorities use of double yellow lines. Hence, the claim should be struck out because the claimant has not complied with the code of practise regulating parking on private lands.

15. The signs present on the site are perplexing and actually work against the formation of a contract. Not only do we encounter restrictive signs, which are incapable of constituting a contract as seen in the case of PCM-UK v Bull et al B4GF26K6 [2016], but they are juxtaposed with "No Parking" signs which similarly fail to establish a contract. Displayed in Exhibit 1 is one such sign from the site at that time. Once more, I urge the Court to acknowledge that no contract has been established, rendering any breach irrelevant. In the previously mentioned case above, the signage was ruled as prohibitive, thereby denoting a mere act of trespass that falls under the jurisdiction of the landowner.

 

16. Furthermore, the same signage as displayed in Exhibit 1 corresponds to the signage showcased in PCM-UK v Bull et al B4GF26K6 [2016], The judge presiding over the case concluded that this sign does not carry the weight of creating a contract, leading to the dismissal of the case. Therefore, it can be inferred that the driver did not engage in any 'charge agreement,' nor did any form of consideration pass between the parties, ultimately resulting in the absence of a contract. The establishment of a contract mandates an offer, acceptance, and consideration between the parties involved. What, then, is actually being offered by that sign?

 

17. The foundation of contract law relies on the principles of offer, consideration, and acceptance. Given the lack of any offer concerning parking, the absence of consideration to be acknowledged is apparent, thereby eliminating any possibility of acceptance.

 

18. The Defendant denies that the signs at this location meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. For a driver any terms relating to a parking contract would have had to have been extremely clear in all places within the site, in very large letters to ensure all drivers were 'bound to see' the terms. The text used to display the £100 PARKING charge is very small and unreadable compared to the ‘NO ROADWAY PARKING’ text.

 

19. The claimant has not produced any evidence to show that they have the written authorisation of the landowner to carry out parking management of the land in question as required by the BPA Approved Operator Scheme Code of Practice section 7 and all its subsections of the version 8 dated January 2020.

 

20.  As part of the BPA Approved Operator Scheme Code of Practice subsection 22.4 of the version 8 dated January 2020, the claimant is obliged to follow the guidelines from the Information Commissioner’s Office on the use of CCTV since the parking charge was issued relying on the use of CCTV. One of the ICO guidelines is that operators of CCTV must tell people they may be recorded, usually by displaying signs, which must be clearly visible and readable. The signage (Exhibit 1) only has a tiny image of CCTV at the corner of the signage with no readable wordings warning the public of CCTV in operation. Therefore, the signage has not made the CCTV sign clearly visible and readable to comply with both the BPA code of practise and the ICO guidelines on use of CCTV.

 

21. According to the BPA Approved Operator Scheme Code of Practice subsection 22.5 of the version 8 dated January 2020, the claimant is obliged to sign up to the Surveillance Camera Commissioner’s Code of Practice and adopt the Guiding Principles which are detailed in Appendix F of the Code. The guiding principles detailed in Appendix F required the claimant to carried out a privacy impact assessment (PIA) and publish the PIA. I trawled the claimant website https://www.ukparkingcontrol.com/ on the 6th of June 2024 at 16:49 hrs and I cannot find any published PIA document on their website. This shows the applicant have not complied with the legal basis to use the CCTV images for this claim. Therefore, the claim should be struck out.

  

23. Note on the version of the BPA Approved Operator Code of Practice quoted in my witness statement – British Parking Association (BPA) on their website https://www.britishparking.co.uk/code-of-practice-and-compliance-monitoring has confirmed that BPA Approved Operator Code of Practice 2012 Version 8, January 2020  will be referred to in relation to any issues of non-compliance taking place up to but not including 1st February 2024.  I am referring to this version 8 because I am citing the claimant non-compliance with the code of practise before 1st February 2024.  

 Exaggerated Claim and 'market failure' currently being addressed by the Government.

 

 

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:

 

 

Date

KeithP

A few comments...

You have left the Claim Number clearly visible.

The phrase "I parked my car" in paragraph 5 might not be wise.

The vehicle's registration mark is shown in paragraph 5.

What is the reference number in paragraph 2? Does that also identify you?

Paragraph 4 also identifies the driver.

Paragraph 10 also identifies the driver - twice.

The vehicle's registration mark is shown in paragraph 10.

The vehicle's registration mark is shown in paragraph 11.

Paragraph 11 also identifies the driver.

There are more, but I'll stop there.

Coupon-mad

Remove paragraph 22 which doesn't help you. £170 is extortionate and is NOT OK but the added court fees are allowed (so you have this argument back to front).

Instead, the second half of your WS from para 22 onwards - much more than you have in the draft - should be a copy of those seen in the NEWBIES thread which make the point about the 'extortion' properly.

You are adducing PCM-UK v Bull et al B4GF26K6 [2016] but you haven't attached it as an exhibit.  It is on the forum somewhere.

You haven't appended any of the a-f list of suggested exhibits that I carefully explain and link to, for people at WS stage (in the NEWBIES thread).

Lakoko

@KeithP I have removed all info that identifies me. Thanks for that. What other phrase can I use to replace I parked my car? I already confirmed in the defence that I was the driver and they have my photo parking the car.

@ Coupon mad. Thanks I have removed para 22 and I will go back to the newbie thread to obtain all the exhibits you have suggested.

KeithP

Lakoko said:

@KeithP I have removed all info that identifies me. Thanks for that. What other phrase can I use to replace I parked my car? I already confirmed in the defence that I was the driver and they have my photo parking the car.

Maybe "the driver parked...".

LDast

Have you received the Claimants WS yet? If so, you should now include this as a preliminary matter in your WS:

As a preliminary matter, I would like to bring to the Court's attention that the Claimant's Witness Statement, signed by [Paralegal or Solicitor's Name] of [Solicitor Firm name] Solicitors, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As [Paralegal or Solicitor's Name] does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this non-compliance, the Defendant respectfully requests that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

If you haven't yet received the Claimants WS and you are not yet at your deadline for filing yours, it may be prudent to wait until as late as possible for the Claimants WS/bundle and then hitting them with the above preliminary matter.

Lakoko

Thanks@LDast . I still have about two months to file the WS. Yes I am playing the waiting game waiting for them to file theirs first. And then file mine. I just want everything ready now so that I do not have to rush when the time comes. I will definitely make use of your preliminary matter advice if it is their solicitor that is filing the WS. Regards

LDast

Even if you don't get a chance to see their WS before you have to file yours, you can still raise that point at a hearing or even send a SWS pointing out their non-compliance.

Le_Kirk

I cannot see your pictures!

Lakoko

@ Le_ Kirk see them below