VCS/BW Legal - writing defence

Timothea wrote: »

This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: any ambiguity or uncertainty must be resolved in the consumer's favour.


This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: consumer contract terms must be fair and transparent; traders cannot enforce unfair or unclear terms.


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Is it enough just to say this? Or do I need to reference the schedule it came from?

Coupon-mad wrote: »

Some suggestions (unless you already have this stated clearly in the defence):



And strictly speaking none of this legal argument should be in a WS. Should be in a separate skeleton argument.



The UTCCRs were repealed and incorporated into the Consumer Rights Act 2015, in the section about 'Transparency'.

thanks... is it worth posting my whole WS up now... even though I am still working on it? I am out most of the weekend and all Monday leaving me only a couple of hours Monday evening. And a lot of my WS is legal arguement by the looks of it!

:rotfl: it's kept me busy for months now!! One way to stay out of more mischief.

What is the best way to post... dropbox or cut and paste job directly onto forum?

O.k. here goes

In some places I have written notes where I need to remind myself to do something or I still need help.

1. I am the Defendant in this matter. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise. Exhibited hereto is a bundle of documents to which I refer during this Statement, marked RH1.

2. I deny any liability to the Claimant for the sum claimed, or any sum at all. I set out below my various defences to the claim, and the relevant facts and evidence in relation to each aspect of my defence. Before I do so, I wish to draw attention to the Claimant’s refusal to particularise its claim in any meaningful way, and its contempt of the Order of DJ Caun made on 4 May 2017. In my Defence, I made it clear that because the Claimant had provided no cogent explanation of its claim, and because it had failed to comply with its pre-action obligations and CPR Rule 16 to provide such an explanation, together with core documentation evidencing the claim, I was in severe difficulties in filing a proper defence. DJ Caun therefore ordered the Claimant to file a Reply to my Defence, dealing with the matters raised therein. Such Reply was to be served by 18 May 2017 (well before the deadline for service of this Statement). The Claimant has ignored this aspect of the Order. I have received no Reply, and none has been filed at court, although I am aware that the Claimant has managed to comply with the deadline for payment of the hearing fee for the final hearing (listed to be heard on 4 July).

3. It is clearly against the rules of natural justice that I be denied the right to defend this claim to the best of my ability. In the absence of a Reply to the Defence I am left having to draft and file evidence in defence of a claim which I still do not fully understand, while the Claimant remains in contempt of court. There are core documents and information which it clearly should have produced by now which would have enabled me to understand and meet the claim – for instance, a copy of any contract giving it authority to operate on the land and to pursue these proceedings, copies of photographs taken by its operative which will show in what manner it is alleged that the vehicle was incorrectly parked, a copy of its signage displayed in the carpark at the relevant time which it asserts is the contract which forms the basis of this claim (such contract should in any event have been produced with the Claim Form, in accordance with paragraph 7 of Practice Direction 16). Presumably, the Court’s intention in ordering a Reply was also that the Claimant should respond to the absolute defence set out in paragraphs 2(a), 5, 6 and 7 of my Defence that the Railway Byelaws 2015 apply to the car park and that this claim must fail on that basis alone. All of this means that my defence and this statement are far lengthier than they need to be, because I have had to make assumptions and deal with all eventualities.

4. My various defences to the claim can be summarised as follows (paragraph numbers refer to the Defence):

4.1. Paragraphs 2(a), 5, 6 and 7: The car park is covered by the Railway Byelaws 2015 (“the Byelaws”) which, inter alia, concern the parking of vehicles. That being the case, any parking contravention was a matter only for the Railways/Train Operating Company (in this case Transport for West Midlands/ Centro) to bring before Magistrates Court within 6 months of the event (Byelaw 14). There is no provision for the byelaws to be overridden or circumvented with a civil claim for breach of contract. This aspect of my defence “absolute” - the mere fact that the land is covered by the Byelaws means that this claim has no basis and it should be struck out.

The remainder of my defences apply only if 4.1 is rejected. Whilst I am confident that the Byelaws apply and that this claim is ill-conceived, for completeness I deal with my other defences (although the court may wish to disregard them if it dismisses the claim on the basis that the Byelaws apply).

4.2. Paragraphs 9-10: There is no evidence that I was driving the vehicle at the relevant time and the Claimant has produced none. The burden of proof is of course the Claimant’s and without such evidence I cannot therefore be held liable as driver.

4.3. Paragraph 7: absent any evidence that I was driving, the only way in which I can be held liable for any parking charge is as the registered keeper of the vehicle, under the Protection of Freedoms Act 2012 (“POFA”). However, because the Byelaws apply to the carpark, POFA does not apply and liability cannot be transferred to me.

4.4. Paragraph 11: the Claimant is neither the lawful occupier of the land, nor its owner, and it has not shown that it has any authority to operate on the land, to issue parking charge notices or to issue and pursue proceedings to enforce such notices in its own right.

4.5. Paragraphs 12 and 14: No contract was offered to the driver by the Claimant, the signage which is in the car park now (I have no evidence of what signage was there 2 ½ years ago at the time of the parking event and the Claimant has not produced any evidence) is such that it cannot have offered any contractual terms capable of acceptance by a driver

4.6. Paragraph 13: even if there was a contract, there is no evidence that it was breached.

4.7. Paragraph 16: even if there was a contract (which of course is denied), it is unfair (pursuant to S62 of the Consumer Rights Act), and the concept of fairness requires the Claimant to have complied strictly with its ATA Code of Practice. The charge is a disproportionate penalty which is also an unfair contractual term.

The Byelaws

5. Exhibited at pages x to x of RH1 are the following documents:
5.1. Centro Report dated 28 April 2014 – Car Park Management (pages x to x)
5.2. Centro Report dated 5 June 2014 – Car Park Enforcement (pages x to x)
5.3. The result of a Freedom of Information Act request addressed to West Midlands Passenger Transport Executive dated 29 September 2016 (page x to x)

6. Transport for West Midlands (previously CENTRO) state in the document at page [clause 10.5- put in page no.] of RH1 (which I have highlighted for convenience) that they are aware that charges issued in car parks which fall under the Byelaws cannot be enforced by a private parking firm like the Claimant, and can only be a matter for CENTRO to enforce within 6 months, and only by way of proceedings in the Magistrates court.

7. Transport for West Midlands also state in the document at page [] of RH1 (relevant section highlighted for convenience): 'With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations” .

8. Transport for West Midlands further state in the document at page [] of RH1 (relevant section highlighted for convenience – I have added bold to the text below in order to emphasise the relevant wording):

“Centro’s legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed. Centro’s use of Byelaw 14 is something fully supported by Network Rail and London Midland. In relation to non-railway Park and Ride sites, whilst Centro as a private landowner has no power to immobilise or remove vehicles, it does have the ability to enforce inappropriate parking by way of issuing parking notices subject to member approval.”

The car park in question is clearly a railway (as opposed to non-railway) park and ride site, as identified in the signage present at the entrance to the site and within the site (I refer to the signage further below).

9. At page x of RH1 from is the published result of a Freedom of Information Act request regarding Railway Byelaws at Sandwell and Dudley Railway station, operated also by West Midlands Combined Authority/Transport for West Midlands. (Source https://www.whatdotheyknow.com). I refer to point 2 from the West Midlands Passenger Transport Executive:

“2. There are no car parks at this location to which WMCA believe the byelaws do not apply.”

10. It is clear therefore that the Byelaws apply to the car park and that this claim has been improperly brought. The Byelaws apply throughout the West Midlands Combined Authority/Transport for West Midlands network as indicated in the tender that was issued when outsourcing the parking contract [do you have this, if so exhibit the relevant extract – trying to find it].

11. From extensive research I have carried out since being served with these proceedings, into the issuing of parking charge notices on land to which the Byelaws apply, it appears that the Claimant is not an experienced operator at rail station car parks – it is only contracted by Centro/West Midlands. Other private parking companies, such as NCP, Indigo and APCOA, are employed widely by other train operating companies, and are not in the habit of issuing civil claims because they are well aware that they are unable to do so because the Byelaws apply.

12. It is not open to the Claimant to attempt to morph a Byelaws matter into a 'breach of contract' claim. The Claimant has no prospects of success in bringing to the small claims court a statute-barred claim in respect of a station car park which is under statutory control and is governed by the Byelaws, more than two years after the event. The claim should be struck out on this basis.

13. The remedy for any breach of these byelaws can only be pursued by the landowner, as a criminal prosecution through the Magistrates’ Court.

14. Not only does this Claimant have no claim possible in law (whether they are acting as agents on behalf of the Train Operator or attempting to paint themselves as the principal) but further, the County Court has no jurisdiction in the matter in any event. The claim should be struck out on this basis.

15. In case the Claimant asserts that the Byelaws no longer apply to the car park, I will dispute this. In the same way that the Byelaws (like all other byelaws) can only be enacted by way of formal legislation, neither can they be removed or amended other than by way of such formal legislation (by way of Statutory Instrument, as was the case with the 2005 amendments to the Byelaws), and such removal/amendments can be made only by those with the power to do so (ie the Secretary of State, not private parking companies such as the Claimant, or train operating companies). The train operating company in this case has in any event confirmed that the Byelaws are a) still in operation and b) haven't been removed by the Secretary of State.

The driver at the relevant time has not been identified and the registered keeper cannot be held liable

16. The Claimant has produced no evidence of who was driving the car at the relevant time. As this event occurred two and a half years ago, it is impossible to expect me, as its registered keeper, to recall who might have been driving. Whilst the Claimant has been unable to provide any evidence to show that I was the driver, it has seen fit, even after I have drawn this to its attention, to send me a multitude of aggressive chasing letters which amount to unwarranted harassment and now baseless litigation, which has resulted in significant alarm and distress to myself. It is of course for the Claimant to prove its claim, and this includes showing that I was the driver.

17. I did not reply to this correspondence, and no adverse inference can be drawn from this - there was no requirement upon me as keeper to respond to the harassing correspondence from the Claimant and its agents, all of which in any event appeared to me at the time to be junk mail.

18. Exhibited at page x of RH1 is a copy of the insurance policy for the vehicle, showing that two named drivers were included in the policy for the period in question. I confirm that both of the named drivers did regularly use the vehicle. Other individuals were of course able to drive the car if the terms of their own insurance allowed it.

19. I am not obliged to name the driver and it is incorrect to assert otherwise or that if I fail to do so then I become liable as if I were driving. There is no statutory provision or case law providing that a keeper must name a driver, nor that a presumption should be made that they were the driver:

19.1. POPLA’s Lead Adjudicator Henry Gleenslade, experienced Counsel, states in its 2015 Annual Report (under the heading 'Understanding Keeper Liability') that there is no presumption in law that a keeper of a vehicle is its driver, and keepers have no legal obligation whatsoever to disclose the identity of the driver to a private parking company. A copy of the relevant extract of the report is at page x of RH1 (in which I have highlighted the relevant extract).

19.2. Schedule 4 of POFA, enacted in October 2012 in order to introduce keeper liability if certain strict conditions are met, notably contains no obligation on a keeper to identify the driver of his/her vehicle on a given date. A copy of Schedule 4 of POFA is exhibited hereto at pages x to x of RH1.

19.3. I believe that the Claimant will rely on the case of Elliott v Loake, which it will assert is authority for the proposition that a registered keeper should be assumed to have been driving his/her vehicle, unless they can rebut that presumption. I am aware that the Claimant habitually relies on this case in similar claims against registered keepers where it cannot show who was driving. This is a feeble attempt to circumvent the Claimant’s evidential difficulties in proving who was driving. The Claimant (and its solicitors) must know Elliott is precedent for nothing of the sort, because this argument has been rejected countless times in other cases in other courts, most recently:

19.3.1. in case number C9DP7T5D between the Claimant and a Mr Smith, heard in Blackwood County Court on 12 June; and
19.3.2. in an appeal number M17X062 in Stockport County Court heard by HHJ Smith on 8 June between the Claimant’s sister company Excel Parking Services Limited, Excel and another Mr Smith (both companies being owned by the same individual and both instructing the same solicitors as are acting in this claim).

Elliott v Loake is in fact a criminal case in which there was overwhelming forensic and witness evidence which proved that the registered keeper was driving the vehicle. There was no “presumption”, and there was no onus on the Defendant to rebut any presumption, about who was driving. This claim is no different from any other – the burden of proof rests with the Claimant, not with the Defendant.

20. As there was no evidence that I was the driver, I cannot be held liable as driver. Turning to my liability as the vehicle’s registered keeper, this is not a matter where I can be held liable in such capacity. The only provision by which liability can be transferred from driver to keeper in respect of a private parking charge is under Section 56 and Schedule 4 of POFA. However, these provisions apply only to “relevant land” (paragraph 1(1)(a) of Schedule 4), and the car park in question is not relevant land because it is land to which the Byelaws apply. POFA defines relevant land as follows -the relevant paragraph is 3(1)(c), which I have highlighted in bold type:
“3(1) In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic authority;
(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

The Claimant was not the lawful occupier or owner of the land, has not shown authority to operate on the land, to issue parking charge notices or to issue and pursue proceedings to enforce such notices
21. The Claimant has not provided any documentation (eg a contract with the landowner/occupier at the date of the parking event) showing what authority it had in relation to the land (eg to issue parking charge notices or to enforce those by issuing claims on its own or upon the landowner’s behalf). I put the Claimant to full proof of its authority. This is the sort of documentation which the Claimant should have produced at the pre-action stage of the claim, because it is core information which proves that it has standing to bring a claim. Even if the Claimant has authority, the terms of that authority are crucial, a matter held recently in the case of Pace Recovery and Storage Limited v Zoltan Lengyel, case number C7GF6E3R heard by DJ Iyer in Manchester County Court on 24 May 2017. Without such evidence I can only assume that it does not have the required authority to have issued a PCN to the vehicle and brought this claim.
No contract was formed between Claimant and driver
22. In making this Statement, I have had to assume (although this is not entirely clear) that the Claimant will assert that the wording on its signage at the car park sets out the terms of the contract it claims was entered into between it and the driver, and which it is claimed the driver breached. However, the Claimant has produced no evidence of what signage was displayed the car park on the relevant date. I have therefore myself visited the car park in order to take a video on 20 January 2017 and to take photographs on 20 January 2017 and 10 June 2017, at different times of day and in different lighting. A disc containing the video and copy of the photographs is at pages x to x of RH1.

23. The Claimant has produced no documents to me at all, or any information about the claim, and so I must also assume for the purpose of this statement that the signage now displayed at the site (save for the entrance sign) is the same as that which was displayed on the date of the parking event – of course I should not be expected to second guess these matters and, particularly since 2 ½ years have passed, I put the Claimant to full proof as to the size and positioning of such signs and their precise wording (the Claimant is required by its ATA Code of Practice to keep meticulous records of these matters and so providing such evidence should put it to no trouble whatsoever).

24. The signage at the car park is incapable of forming a contract. To be capable of doing so, it must be capable of making, and it must have made, an offer, and that offer must be capable of being (and must have been) accepted. Dealing with each of these:

25. Offer:
For an offer to be made its terms must be clear and unambiguous. They must also be adequately communicated to the offeree (in this case the driver). Assuming that the Claimant will assert that the wording on the signage was the offer (although this is not clear), my case is that the signage did not make any offer because:

25.1. The signage was inadequately displayed and at least parts of it were illegible. Exhibited at pages x to x are a series of photographs/a video taken on the dates set out in paragraph 20 above, which show the signage at different times of day/in different lighting. It is important to understand the nature of the car park. At page x of RH1 is an aerial image of it which I have taken from Google Earth. It shows that the car park covers a large area, and I have marked on it the vehicle entrance/exit point, various pedestrian exit/entry points, and the station itself (reminder to mark these). In total there are 14 signs in the car park. (what about the double sided signs, should I count them as two or one? One. Whilst at first blush this is not an insignificant number of signs, they are not displayed in suitable positions so that they can be noticed, and read, by drivers:
25.1.1. There are 7 signs within the interior of the car park which can be seen (as opposed to the obscured ones on the perimeter which I deal with at paragraph 23.1X below). However, these are positioned so high up that they are impossible to read. The height at which they are displayed is 2.6 to 2.8 metres (I took these measurements myself, measuring from the ground to the bottom of each sign – in particular I refer to the photographs at pages x and x which show a man of 6 ft 2 and a woman of 5 ft 5 standing underneath the signs).
25.1.2. There are a further 2 signs which are at a lower height – however they are immediately next to the entry/exit points of the car park, which are positioned facing away from the entrance, so that they could only be noticed by drivers of cars exiting the car park, not those entering and parking in it (a driver using the station car park would walk from their vehicle to the station without walking past the entry/exit point signs) – see pages x and x of RH1. [Even these signs are high up and it would be difficult for a person to read the small print on them. Take out last sentence if untrue]
25.1.3. Apart from these signs in the car park interior, there are a total of 5 signs situated along the perimeter of the car park – these are at car height or standing height of 1.2meters (as measured by me from the ground to the bottom of the sign), but all are positioned in such a manner that they are obscured from sight (I deal with this at paragraph 23.1.4 below).
25.1.4. Although in theory these signs are at a height at which they can be read, they are all incredibly badly positioned being either at the very far corner of the carpark from the entrance or obscured/shadowed by the trees/undergrowth or hidden behind parked cars (this car park is usually full). A driver would be unable to see them (unless he/she parked directly by one of the signs or walked the entire perimeter of the carpark searching them out – and even then they might not see them). I emphasise that the car park is large, usually full and is used by commuters and travellers, who will generally have a train to catch and could not reasonably be expected to walk the entire perimeter of the car park searching for legible signs. In addition, as I have referred to, there are different pedestrian exit/entry points at the car park, meaning that a person parking and leaving their vehicle may well not pass near to any of these signs. It is of course the Claimant’s obligation to display signs that can be seen and easily read.
25.1.5. The extent to which the signs are obscured from view by parked cars can be seen in the photograph at page X of RH1. Signs at a height of 1.2metres would be totally obscured by larger vehicles (by which I mean service vehicles or 4x4 type cars) - even a small car partially obscures the sign in the picture. As can be seen from the aerial image at page X of RH1 (the birdseye view) this is a busy carpark, with rarely a free space (in fact, as a local resident I am aware that there is commonly an overspill, with rail users parking extensively along the street next to the car park because no spaces can be found inside the car park (see page x of RH1). This is also on birdeye view… can I use this too? yes
25.1.6. The extent to which the signs are also obscured from view in varying degrees by dense undergrowth and shadow can be seen from the photographs at pages x and x of RH1. The photographs show overgrown overhanging trees and undergrowth, including Japanese Knotweed, which result in the signs being hidden either behind plants or in shadow (or a mixture of both). This is a notoriously fast growing plant (according to the website https://www.japaneseknotweedspecialists.com it grows at a rate of 10-20cms a day and can reach 3-4 metres within just 10 weeks – see page x of RH1 - and the Environment Agency has described it as “indisputably the UK’s most aggressive, destructive and invasive plant”. The photograph at page X shows a sign which is almost completely obscured, so much so that I have had to draw a circle round it because it is almost impossible to spot in the picture.