Gladstone's directions questionnaire

Coupon-mad

Yes, obviously you can't just copy his every word, or refer to paragraphs of a witness statement that doesn't exist.

I'd go as far as to say you'd be considered by the judge as wholly unreasonable if you copy stuff that makes no sense then sign under a statement of truth.

Shortcat

That's fine thank you for clearing it up :)

Shortcat

Okay, with what @Coupon-mad just said, these are the paragraphs I have left in from @JackR1's statement that I believe are relevant to my case. Obviously I need to edit them and stuff but if there are any points that I need to re-add or get rid of I figured it was best to do that before rewording/rephrasing things.

1.
I am XXX of XXX, and I am the defendant against whom this claim is
made. The facts below are true to the best of my knowledge 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 am a litigant in person with no formal legal
training. I have done my best to present my case and evidence clearly
and truthfully, and I respectfully ask the court to take this into
account. My defence is repeated, and I will say as follows:

Defective
Particulars of Claim

3.
The Claimant’s case is vague, lacking the detail required under
Civil Procedure Rule (CPR) 16.4, 16PD3 and 16PD7, which require a
claimant to set out all facts necessary to establish a complete cause
of action. The Particulars of Claim (POC) simply allege that “the
driver of the vehicle with registration XXX parked in breach of the
terms of parking stipulated on the signage”.
However, the Claimant provides no information on the specific terms
said to have been breached, the conduct that allegedly broke those
terms, or how any contract was formed. This absence of essential
detail fails to justify the claim and has also made it difficult for
me to respond to it effectively. Even
with the absence of any details provided, I have attached a bank
statement which shows a £10 payment to YOURPARKINGSPACE.CO.UKleaving
my accounton 3 November 2024, which
was the payment for 24 hours of parking at the car park.

4.
I draw to the attention of the Judge that there are numerous recent
and persuasive Appeal judgments to support dismissing or striking out
this claim (in these exact circumstances of typically poorly pleaded
private parking claims. The POC seen here are far worse than the one
seen on the below Appeals).

5.
The first persuasive appeal judgment in Civil Enforcement Limited v
Chan (Ref. E7GM9W44) would indicate the POCs fail to comply with CPR
16.4(1)(e) and Practice Direction Part 16.7.5. On 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”.
(Exhibit OW-01)

6.
The second recent persuasive appeal judgment in Car Park Management
Services (CPMS) Ltd. v Akande (Ref. K0DP5J30) would also indicate the
POCs fail to comply with Part 16. On 10th May 2024, in the cited
case, HHJ Evans held that “Particulars
of Claim have to set out the basic facts upon which a party relies in
order to prove his or her claim”.
(Exhibit OW-02)

The
Claimants Authority to Issue Parking Charges

9.
DVLA keeper data is only supplied on the basis of prior written
landowner authority. The Claimant (an agent) is put to strict proof
of their standing to sue and the terms, scope and dates of the
landowner agreement, including the contract, updates, schedules and a
map of the site boundary set by the landowner (not an unverified
Google Maps aerial view). The Claimant has provided no evidence to
prove landowner authority.

No
Valid Contract Formed

10.
It is neither admitted nor denied that any contract term was
breached. However, for a valid contract to be formed, there must be
an offer, acceptance, and something of value given in return —
which was not present here. Under section 71 of the Consumer Rights
Act 2015, the Court must apply a 'test of fairness' and this requires
contract terms and any “consumer notices” to be clear and
prominent.

Looking
at Schedule 2 (examples 6, 10, 14, and 18) and section 62, which
require fair, open dealing and good faith, the Defendant notes that
this Claimant is known to use unclear and potentially unfair terms
and notices. Based on the limited information provided in this case,
the situation appears to be similar. The Claimant is therefore
required to strictly prove their case with contemporaneous
photographs. (Exhibit OW-03)

18.
Without clear, accurate, and consistent evidence demonstrating the
location and visibility of contractual signage, the Claimant cannot
prove that the terms were effectively communicated. As such, no
contract could have been formed with the driver.

Keeper
Liability and the Protection of Freedoms Act 2012 (POFA)

19.
I confirm that I wasthe registered keeper of the vehicle with registration number XXX and
deny any liability.

22.
The Defendant has never been identified as the driver, nor has any
other person. The Claimant has provided no evidence whatsoever that
the Defendant was driving at the time of the alleged breach. Only the
driver—as the person who could have potentially seen and accepted
any terms on the signage—could possibly be the contracting party.

23.
The Claimant relies only on an assumption, claiming that an inference
should be drawn because the Defendant has not nominated another
driver. However, there is no legal requirement for a registered
keeper to name a driver in a private parking matter, and no such
presumption exists in law.

24.
If the Claimant wishes to pursue the Defendant as the driver, the
burden rests entirely on them to prove, on the balance of
probabilities, that the Defendant was in fact driving. Mere
speculation or assumption is not enough.

25.
In April 2023, HHJ Gargan sitting at Teesside Combined Court (on
appeal re-claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian
Edward (Exhibit OW-08) that a registered keeper cannot be assumed to
have been driving. Nor could any adverse inference be drawn if a
keeper is unable or unwilling (or indeed too late, post litigation)
to nominate the driver, because the POFA does not invoke any such
obligation. HHJ Gargan concluded at 35.2 and 35.3. "my
decision preserves and respects the important general freedom from
being required to give information, absent a legal duty upon you to
do so; and it is consistent with the appropriate probability analysis
whereby simply because somebody is a registered keeper, it does not
mean on the balance of probability they were driving on this
occasion..."
Mr Edward's appeal succeeded and the Claim was dismissed.

26.
If, instead, the Claimant seeks to pursue the Defendant as the
keeper, then they must meet the strict requirements of POFA 2012
(Schedule 4) to transfer liability from the unknown driver to me as
the keeper. (Exhibit OW-09)

28.
Accordingly, the Claimant has failed to comply with POFA and cannot
transfer liability to me as keeper. There is therefore no lawful
basis for this claim against me.

29.
The fact that parking firms cannot invoke ‘keeper liability in case
of non-compliance with POFA, has been tested on appeal in private
parking cases including in the case of Excel Parking Services Ltd v
Anthony Smith at Manchester Court (Exhibit OW-11), on appeal re-claim
number C0DP9C4E, HHJ Smith overturned an error by a District Judge
and pointed out that, where the registered keeper was not shown to
have been driving (or was not driving) such a Defendant cannot be
held liable without the POFA. Nor is there any merit in a twisted
interpretation of the law of agency (if that was a remedy then the
POFA Schedule 4 legislation would not have been needed at all). HHJ
Smith admonished Excel for attempting to rely on a bare assumption
that the Defendant was driving or that the driver was acting 'on
behalf of' the keeper, which was without merit. Excel could have used
the POFA but did not. Excel's claim was dismissed.

30.
The Claimant’s failure to comply with POFA 2012 is unsurprising, as
it stems from their own longstanding decision not to adopt the
requirements of Schedule 4 before early 2025. At the time of the
alleged contravention, Horizon Parking’s notices were deliberately
issued on a driver-liability-only basis. The Claimant was among the
small number of parking companies that chose not to use the statutory
wording or follow the strict timelines required to establish keeper
liability under Schedule 4. (Exhibit OW-09)

33.
It is entirely the Claimant’s prerogative—and permitted by the
DVLA—to choose not to comply with POFA 2012. However, a consequence
of choosing not to be bound by the statutory wording and timescales
of Schedule 4 is that keeper liability cannot arise. Where POFA is
not complied with, liability (if any) remains solely with the
unidentified driver. In this case, the Claimant has nevertheless
suggested to the court that keeper liability applies, despite
purposely issuing a non-POFA notice. This is misleading and wholly
inconsistent with their own established operating model at the time,
and with the legal requirements of Schedule 4.

Inflated
and Unlawful Charges

34.
In accordance with Schedule 4, paragraph 4(5) of the POFA 2012, the
Claimant is prohibited from recovering from the keeper any sum
greater than the amount of the alleged unpaid parking charges as they
existed at the time the Notice to Driver was issued. The sum claimed
in these proceedings exceeds that statutory maximum and is therefore
unrecoverable from the keeper under POFA. (Exhibit OW-09)

35.
Explanatory Note 221 to Schedule 4 confirms that a creditor “may
not make a claim against the keeper of a vehicle for more than the
amount of the unpaid parking related charges as they stood when the
notice to the driver was issued.”
Any added sums—such as “debt recovery fees”, “late fees”,
or other invented add-ons—are not “parking related charges”
within the meaning of POFA. These additional amounts do not appear on
signage, are not part of any contractual parking charge, and are
created solely by third-party debt recovery agents. POFA provides no
legal basis to impose keeper liability for such DRA-fabricated fees,
even if (which is denied) the Claimant had otherwise complied with
POFA’s conditions.

37.
To impose a PC, as well as a breach, the Claimant most show two
things: (i) a strong 'legitimate interest' extending beyond
compensation for loss, and (ii) 'adequate notice' (prominence) of the
PC and any relevant obligation(s). None of which have been
demonstrated. This PC is a penalty arising as a result of a
'concealed pitfall or trap', poor signs and covert surveillance, thus
it is fully distinguished from ParkingEye
v Beavis [2015]
UKSC67.

38.
This Claimant continues to pursue a hugely disproportionate sum; it
is denied that the quantum sought is recoverable, indeed it
represents a penalty. Attention is drawn to paragraphs 98, 100, 193,
198 of Beavis(an
£85 PC comfortably covered all letter chain costs and generated a
profit shared with the landowner); the court should also read
paragraph 3.4 of the original judgment by HHJ Moloney in Beavis,
confirming what that authority means by 'costs of the operation'.
(Exhibit OW-14)

39.
The binding judgment in ParkingEye
v Somerfield Stores ChD
[2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as
the only parking case law that deals with costs abuse. HHJ Hegarty
held in paras 419-428 (High Court, later ratified by the CoA) that
'admin costs' inflating a £75 PC (already increased from £37.50) to
£135 were disproportionate to the minor cost of an automated
letter-chain and 'would appear to be penal'. (Exhibit OW-14) The
court should note that HHJ Moloney referenced this case in Beavis.

40.
In addition to this, the ‘additional charges’ constitutes a
double recovery of capped legal fees (already listed in the claim)
and are not monies genuinely owed to, or incurred by, this Claimant.
The court is invited to find the quantum claimed is false and an
abuse of process as found by HHJ Jackson in Excel v Wilkinson in
which £60 had been added to a parking charge. (Exhibit OW-15)

41.
Exaggerated claims for impermissible sums are good reason for the
court to intervene. Following the beforementioned exaggerated costs
and charges, the court is invited to strike out or dismiss the claim
using its powers under CPR 3.4.

Conclusion

42.
For all the reasons set out in this statement, the Claimant has
failed to establish a valid cause of action. The Particulars of Claim
do not meet the requirements of the Civil Procedure Rules, fail to
specify which contractual terms were allegedly breached, provide no
details of the conduct said to amount to a breach, and give no
explanation of how any contract was formed. This lack of essential
information mirrors the defective pleadings repeatedly criticised and
struck out in persuasive appeal authorities and has made it difficult
to effectively and properly respond in one’s defence.

43.
The Claimant has also failed to demonstrate that any contractual
terms were prominently displayed, consistent, or capable of forming a
binding agreement with the driver. Without clear, reliable, and
contemporaneous evidence of the terms allegedly relied upon, no
contract could have been accepted and no liability could arise.

44.
Moreover, the Claimant has neither identified the driver nor complied
with the strict statutory requirements of the Protection of Freedoms
Act 2012 necessary to pursue the registered keeper. The Claimant’s
attempt to imply keeper liability despite issuing a non-POFA Notice
to Keeper is both legally unsound and inconsistent with their own
operating model at the time.

45.
The Claimant also seeks an inflated sum that includes unlawful and
unrecoverable additions. These extra charges have been widely
condemned in higher court decisions as disproportionate, penal, and
an abuse of process. Such exaggeration further undermines the
credibility and validity of the claim.

46.
In light of the defective pleadings, non-compliant notices,
unreliable and misleading evidence, and exaggerated charges, I
respectfully submit that this claim is without merit. I therefore
invite the court to strike out or dismiss the claim in its entirety.

Unreasonable
Conduct by Claimant(CPR 27.14(2)(g))

47.
In the alternative to striking out the claim, I respectfully invite
the Court to determine that the Claimant has behaved unreasonably
within the meaning of CPR 27.14(2)(g). This Claimant is
professionally represented by solicitors specialising in private
parking litigation and therefore cannot claim ignorance of the
statutory requirements governing their own industry.

49.
Additionally, the Claimant has advanced vague and defective
Particulars of Claim that fail to disclose the alleged contractual
terms, the conduct said to amount to a breach, or any cogent
explanation of how a contract was formed. They have also inflated the
claim with unlawful and unrecoverable additional sums, including a
£70 “debt recovery” add-on that has been repeatedly condemned in
higher court authority as abusive and penal. The persistence in
claiming such invented sums, contrary to POFA and contrary to binding
authority, further demonstrates unreasonable conduct.

50.
Taken collectively, the pursuit of a claim with no legal basis,
reliance on contradictory and misleading evidence, failure to plead a
coherent cause of action, and continued inflation of the claim with
unlawful charges amount to conduct that “transcends mere
negligence” and meets the high bar of unreasonableness established
in CPR 27.14(2)(g). Should the Court agree, I seek my
Liigant-in-Person costs for time reasonably spent researching,
drafting and preparing my defence and witness evidence, in accordance
with the applicable LiP rate.

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.

Coupon-mad

It's a bit late at night (even by my standards!) for me to think about all those paragraphs but I'd remove this sentence because there WAS a contract to pay £10 and you did conclude it.

" However, for a valid contract to be formed, there must be
an offer, acceptance, and something of value given in return —
which was not present here."

And beware of para 22 if you were driving.

What was the date of parking event?

Which car park site exactly?

Shortcat

Ahh good catch!

I was driving, I arrived on the 2/11/2024 and left on the 3/11/2024, was there for just over 23 hours

Mitchell lane Travelodge in Bristol :)

Coupon-mad

OK. Do you know for sure that your NTK was non-POFA?

I can't recall when Horizon started to sometimes use a POFA worded version but it was only year or so ago that they finally got the words at the top of the back page right, and they are still often non-POFA.

Read my NTK pictures thread as I think I documented the changes & dates of Horizon's poor efforts.

Shortcat

No I have no idea sorry I thought it was a generic thing where they all were. I don't have a way of verifying that, I don't have any of the documents anymore (I threw them away before I came to this forum). I guess it is best to remove those sections too

Coupon-mad

Nope, the opposite. No guessing needed.

I just told you where to look and that my thread plots the approx dates it changed. I don't have those dates in my head and none of us going to look at it, but you need to!

Shortcat

https://forums.moneysavingexpert.com/discussion/comment/82096384#Comment_82096384

Sorry I meant I looked at your examples of non-POFA and POFA, but as I no longer have the original letter they sent me, and I cannot with 100% certainty say when I got that initial letter, it seems like a bit of a gamble to include POFA compliance in the WS. All I can say is I parked on the 2/11/2024 and I think it was maybe a couple months before I got a letter? I mean if they have to send out a ticket within a certain timeframe then I can guarantee it was non-POFA if they only started doing that around 3/2025, or they didn't send me the ticket in time which also works.

Coupon-mad

Yes I know but we can be reasonably sure either way, because my thread plots the dates of changed wording. Obviously you don't drop that section, you allege it was non-POFA if your date is within a period where my thread tells you they still didn't get it right!