County court letter assistance

Do I base my witness statement around their PoC as in Post #46.

KeithP wrote: »

There is no PoC in post #46.

Do you mean their PoC as in Post #54?

My apologies, you are correct post #54.

IN THE COUNTY COURT - Claim No.:

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

*********** (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, ************ of **************************************** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my Defence as already filed.

3. The Defendant new nothing about the alleged offence until January 2018 when the claimants Solicitors posted a Notice of Pending County Court Claim to the vehicles registered keeper exhibit 1.

4. On **January 2018 the Defendant phoned the Claimants solicitors to try and discover more information as to how and why the claim had come about. I was simply told that they could not help as papers had been sent to court and I would have to call the court.

5. After many unsuccessful attempts to call the County Court Business Centre to find out more information, the Defendant sent a letter of further information to the Claimants Solicitors to gain more details of the alleged contravention . This information was only received after the claimants were ordered to submit further and better particulars by a General Form of Judgment or order from District Judge Wright at the County Court Skipton to address matters required by CPR 1998 PD 16.7 and the legal basis on which it claims the defendant is liable to it.

6. On said date and time of the alleged contravention I was at work on a secure military base some 17 miles from the contravention site and this is supported by exhibit IL1 (Date and time stamped CCTV footage photo's of defendant at work and leave sheet from 2016).

7. I assert that I am the registered keeper (RK) of the vehicle in question in this case. I was not the driver.

8. The claimant has produced no evidence of who was driving.

9. The Claimant cannot "presume" that the Defendant and RK was the driver at the time of the alleged contravention for the following reasons.

10. There is no law that allows them to do this.

11. The Defendant asserts under 'Statement of Truth' that he was not the driver on alleged contravention date. This will be repeated in court should the claim come to a hearing.

12. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

13. Barrister and parking law expert Henry Greenslade was the 'Parking on Private Land Appeals' ("POPLA") Lead Adjudicator from 2012 - 2015. This is an independent appeals service offered by the British Parking Assosciation ("BPA") and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) Mr Greenslade's opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. (Exhibit Popla 2015)

14. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)

15. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper. ( Exhibit - Excel Vs Mr

16. The claimant is known to use Elliot V Loake as part of their defence. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant. In dismissing the claim the judge stated amongst his reasons for doing so that - Excel did not adduce evidence of the driver, and - Elliott v Loake is not persuasive, and can be distinguished. (Exhibit Excel V Mr C).

17. The claimant may state that if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The claimant would wish to rely on the precedent of Elliot vs Loake (1982). This would not be applicable as it has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver (See Evidence A)

18. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant's attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated "I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012". (Exhibit Excel Vs Lamoureux ).

19. The paragraph numbers mentioned below relate to the Particulars of claim filed by the Claimant's paralegal, Philip Byers-Nolan:

20. At #5 The Claimant submits that the defendants was the driver of the vehicle on the contravention date.

21. This is denied by the defendant and the claimant has failed to provide any proof of who the driver was.

22. It is submitted that the main reason that the Claimant is 'unable to take steps to enforce' the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on the occasion). In the absence of such notices, there is no cause of action. It is noted that, at #2, the Claimant does not intend to rely on Registered keeper liability detailed under the Protection of Freedoms Act 2012, Exhibit IL3 proves the Notices were not worded accordingly.

23. Re #6: The claimant submits that if the defendant avers they were not the driver and excuse #4 probably meaning #5.

24. The defendant points out that there is no duty on them to disclose the driver's identity as it is the claimants claim to make and not the defendants.

25. At 6.1 the claimant states that it is reasonable to assume that the identity of the driver on the contravention date is known to the defendant, but he has unreasonably failed to disclose the same to the claimant.

26. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit IL2, an extract from the POPLA Annual Report 2015.

27. Barrister and parking law expert Henry Greenslade was the 'POPLA' ('Parking on Private Land Appeals' independent service offered by the BPA) Lead Adjudicator from 2012 - 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade's opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

28. At 6.2 the claimant states that the driver (the agent) of the vehicle on the contravention date had the authority of the defendant (principal) to drive the vehicle therefore the defendant is liable for the actions of the driver.

29. The defendant avers that a private individual lending a vehicle to another private person can be said to be bound by contracts they have made is nonsense and this can only be relevant in employer employee relationships or agency relationships which does not exist here.

30. At 8.1 the claimant states that the defendant was entering into a contract with the claimant. Similarly, at 8.2 the claimant states that the defendant agreed to pay a PCN for any action breaching the Terms and Conditions. At 8.4 the claimant states that the claimant would be entitled to take legal proceedings against the defendant to recover the charge(s) and that the defendant would also be liable for interest and any additional costs incurred.

31. These assertions are denied, as only the driver can enter into the contract and there has been no proof of who was driving on any occasion and attest that I was not the driver. The claimant would be potentially entitled to take legal proceedings against the defendant to recover the charge(s), if the defendant was the driver or if they had followed rules on Registered keeper liability detailed under the Protection of Freedoms Act 2012, which they have not.

32. This is denied, as only the driver can enter into the contract and there has been no proof of who was driving on any occasion and attest that I was not the driver. The claimant would entitled to take legal proceedings against the defendant to recover the charge(s), if the defendant was the driver or if they had followed rules on Registered keeper liability detailed under the Protection of Freedoms Act 2012, which they have not.

33. At #9, again the claimant makes the assumption that the defendant was the driver, which is denied by the defendant. The claimant is put to strict proof of their claim.

34. At #15 the claimant states that the defendant by his conduct, entered into a contract with the claimant and accepted the Terms and Conditions as the incorporated terms.

35. This is denied by the defendant as they were not the driver and the claimant has failed to provide any proof of who the driver was.

36. At #19, 19.1 & 19.2 the claimant states that the defendant is female. The defendant definitely denies this and questions any proof at all of who the driver of the vehicle was at on the contravention date. The Claimant is clearly using copy & paste documents.

37. At paragraph 35 the claimant asks the court to come up with an alternative remedy if there is no contract.

38. The defendant would like to point out that there is/was a remedy but the claimant chose not to use it in #2. This is clearly premised as has been pointed out already, that the defendant had a contract in the first place.

39. The defendant would like to point out in the case of Bagri v BW Legal, the solicitors boast of handling 1 mn claims with only 6 supervising solicitors. The Defendant asks the court that they provide a remedy to Defendants being exposed to shoddy vexatious claims and the abuse/misuse of the court process.

40. The Claimant states that the Defendants vehicle was captured by the claimants ANPR system having parked in the car park without purchasing a valid pay and display ticket. (that the ANPR camera) 'Identified that the vehicle was parked without purchasing a pay & display ticket'. This is denied and there is no evidence of any single period of parking, let alone evidence of not purchasing a ticket or not displaying it. An ANPR camera image shows none of these things