Need My Witness Statement Checking Over

Umkomaas wrote: »

OK, we're moving forward. Now, what was the issue date (top right-hand side) on the form sent to you by Northampton CCBC please?

Just found a Notice fo Transfer of proceedings that states that a defence has been filled - this im presuming is just me stating im going to contest the entire claim by the Claimant. Just the form was filled in as advised by BMPA.

I'll reply shortly as heading home now.

Many thanks for you help/assistance.

Umkomaas wrote: »

You are well beyond submitting a defence; you must have written something in the defence box on the form.

So sorry!! Found it...it was filed in after working with BMPA and they checked it through....aned ok'd sending it on. I have a court letter letter stating it has been filed.

Here it is...APOLOGIES ONCE AGAIN!!! Was done in January 2018!

**

Defence Statement

Introduction
1. I am xxxxx, the defendant in this matter. My address is xxxx
2. This is my statement of truth and my defence.
3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
4. For the avoidance of doubt on the relevant date I was the registered keeper of a xxxxx, registered number xxxxx and not the driver on the day.
5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at Gateway Park, New Hall Lane, PR1 on Date1 + Date2 2016.

Purported Basis of Claim
6. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:

a. There was a contract formed by the defendant and the claimant on Date1 + Date2 2016.
b. There was an agreement to pay a sum or parking charge.
c. That there were Terms and Conditions prominently displayed around the site including the boundaries of the parking space to be controlled.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
g. Further that the defendant has not paid the alleged debt.

Rebuttal of Claim
7. It is denied that:

a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site and that the area allegedly under the control of the Claimant was unequivocal.
d. That in addition to the Parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
g. That I am liable for the purported debt.
8. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
9. The claimant is put to the strictest proof of their assertions.





My Defence
My defence will rely principally upon the following points:
10. That the signs erected on site (see attached) are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed. The signs erected on site state !!!8220;customers only!!!8221; !!!8211; this is unclear, ambiguous and fails the !!!8220;red hand rule!!!8221; as set down by Lord Denning or the test set in Thornton v Shoe Lane Parking. The signs in ParkingEye v Beavis were clear and unambiguous unlike the claimant!!!8217;s defence. Therefore, drivers would have little knowledge of these hidden terms.

11. a. The car was not present at time stated and have doubts about the quality of the systems used by ES Parking at the site.

11. b. That the area the Claimant says was within their control wasn't clear as the boundaries were unclear and open to misinterpretation. The IPC Code of Practice says on this point:

2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.!!!8221;
2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
The ability of a driver to recognise what the code calls !!!8220;a controlled zone!!!8221; is fundamental to any alleged contract. Schedule 1 of the Code shows the signs that must be present on entry to the !!!8220;controlled zone!!!8221;. None of these signs were present and any driver would be unaware of the boundaries of any zone.

12. Should the claimant rely on the case of ParkingEye v Beavis, the defendant wishes to point out that there is a test of good faith.
Para 205: !!!8220;The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.!!!8221;
13. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
14. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
15. Section B.1.1 of the IPC Code of Practice outlines to operators:
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the !!!8220;Creditor!!!8221; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.
16. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
17. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
18. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c;
8(2)d, 9(2)c or 9(2)d of the Act).
19. In view of all the foregoing the court is invited to strike the matter out of its own motion.
20. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.
This statement is true to the best of my knowledge and belief.

Signed ______________________
Name
Dated 21-01-2018



**

Hi mad-coupon. Phew lol.

I know need to look at witness statements on the Newbies thread as advised previously. There are quite a few. I did find one with similar points / disputes as mine but cant find it now! Ill keep looking!

Any help would be much appreciated.

In a nutshell the situation, the 2 PCNs were received in a Lidl car park (free for customers) through post but the timings were incorrect. Attendant was sat in the car taking pictures. Left the car park each time for.about 5/10 mins and got snapped.