Help and guidance please

Hi


Draft WS for review. Many thanks.


Court Bundle
1 DEFENCE
2 WITNESS STATEMENT OF [MY NAME]
3 EXHIBIT 1 POPLA ANNUAL REPORT 2015
4 EXHIBIT 2 PROTECTION of FREEDOMS ACT 2012, SCHEDULE 4
5 EXHIBIT 3 EXCEL PARKING SERVICES LTD VS MR B -C7DP8F83 [14/12/2016]
6 EXHIBIT 4 EXCEL PARKING SERVICES LTD VS MR C -C8DP37F1 [31/10/2016]
7 EXHIBIT 5 EXCEL PARKING SERVICES LTD VS MR LAMOUREUX - C3DP56Q5 - 17/11/2016 (x2)
8 EXHIBIT 6 PARKING APPEAL RESPONSE FROM EXCEL PARKING SERVICES LIMITED
8 EXHIBIT 7 PHONEY FINES AND DODGY SIGNS (MARTIN CUTTS)
9 EXHIBIT 8 IPC CODE OF PRACTICE
10 EXHIBIT 9 EXCEL CAR PARK SIGNS
11 EXHIBIT 10 VCS v QUAYLE- C1DP0H0J [04/05/2017]
12 EXHIBIT 11 EXCEL vs SMITH (ON APPEAL)- C0DP9C4E/M17X062 [08/06/2017]
IN THE COUNTY COURT - Claim No.:

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

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

I, ****** ************** 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 there 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. I was the registered keeper (RK) of vehicle XXXX XXX on XX/XX/XXXX, however I was not the driver of the vehicle when the alleged parking contravention took place.
4. The RK has not been proven as the driver. Yet the Claimant submits that the Defendant was the driver of the vehicle on the Contravention date. The claimant has produced no evidence of who was driving and is put to strict proof. I aver that I was not the driver of the vehicle when the alleged parking contravention took place.
5. The Claimant cannot presume that the Defendant and RK was the driver at the time of the alleged contravention for the following reasons.
6. There is no law that allows them to do this.
7. I assert under Statement of Truth that I was not the driver on the alleged contravention date. This will be repeated in court should the claim come to a hearing. I aver that I was not the driver.
8. The Claimant submits that !!!8216;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!!!8217;.
9. The claimant has no right to assert that the defendant is liable based on a !!!8216;reasonable assumption!!!8217;. Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no !!!8216;reasonable presumption!!!8217; 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 1 POPLA 2015).
10. The Claimant also submits that !!!8216;any driver of the Vehicle on the Contravention Date had the authority of the Defendant [the principal] to drive the Vehicle. Therefore, it is the Claimant!!!8217;s position that any driver [the agent] possessed the actual and/or requisite ostensible authority to bind the principal by its actions and the Defendant is liable for the same!!!8217;.
11. With no route in law to transfer liability for any alleged contravention, by a driver !!!8211; 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. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016 (Exhibit 3). 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.
14. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimants!!!8217; 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 5 Excel Vs Lamoureux).
17. The paragraph numbers mentioned below relate to the Particulars of claim filed by the Claimants paralegal, Philip Byers-Nolan;
18. At #5 The Claimant submits that the defendant was the driver of the vehicle on the contravention date.
19. This is denied by the defendant and the claimant has failed to provide any proof of who the driver was.
20. 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 4 proves the Notices were not worded accordingly.
21. at #6: The claimant submits that if the defendant avers they were not the driver and excuse #4 probably meaning #5.
22. The defendant points out that there is no duty on them to disclose the driver!!!8217;s identity as it is the claimants claim to make and not the defendants.
23. 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.
24. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit 3, the POPLA Annual Report 2015.
25. 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.
26. 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 and can be supported by VCS v Quayle and also Excel v Smith (on appeal). (See Exhibit 10 VCS v Quayle and Exhibit 13 (Excel v Smith, on appeal).
27. At #8.1 and #14 the claimant states that the defendant was entering into a contract with the claimant and at #8.2 then states that the defendant agreed to pay a PCN for any action breaching the Terms and Conditions, i.e. parked without payment of the parking tariff for the VRM of the vehicle on site. Then at #8.4 the claimant states that they would be entitled to take legal proceedings against the defendant to recover the charge(s). The defendant would also be liable for interest and any additional costs incurred.
28. This is denied, as only the driver can enter into the contract and agree to pay a PCN. There has been no proof of who was driving on any occasion and attest that I was not the driver. The claimant would be 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. The Claimant is put to strict proof of their claim to prove driver identity.
29. At #12 The Claimant has extracted data from a Pay and Display (PDT) machine/terminal within the Gym (annexed) which indicates that no ticket/Vehicle Registration Mark (VRM) matching my vehicle!!!8217;s registration number was purchased or input at the touch screen terminals located in the Gym.
30. There are several photos of Cavendish Retail Park car park in the Claimants Particulars of Claim (PoC). These photos are dated 3/2/2016 and 26/4/2015. I believe that these photos do not reflect the car park at the time of the alleged contravention, on XX/XX/XXXX.
The Claimant confirmed in a letter to me on XX/XX/XXXX (Exhibit 6) that there are three pay and display (PDT) machines situated in the car park. The location of two of these machines is pinpointed in an overhead map of the car park that the Claimant has also submitted as evidence in their PoC. Their outdated photos show two PDTs together (near the entrance/exit). The other location is near to the Sports Direct store. However, the Claimant then contradicts themselves in their PoC, when they confirm that there was a PDT inside the Sports Direct Gym. The location of this machine is not pinpointed on their map.
The Claimant has also provided 13 pages of data from the PDT inside the Sports Direct Gym. The Claimant has confirmed that their PDT machine/terminal indicates that no ticket/Vehicle Registration Mark (VRM) matching my car!!!8217;s registration number was purchased or input at the touch screen terminals located in the Gym. I can confirm that no one who is insured to drive my car is or has ever been a member of this Gym. There was no clear signage in the car park to confirm the location of a third PDT inside the Gym nor has the Claimant provided any. I believe that only members of that Gym would have been aware that a PDT was located inside. From the knowledge I have of this car park, based on my previous visits to it, I wasn!!!8217;t aware of the location of a third PDT and as no one insured to drive my car was a member of that Gym (and as far as I am aware, has never set foot inside of it), the driver on the day of the alleged contravention would not have had access to pay at that machine, which appears to have been the only PDT in operation that day. If this was not the case, then why has the Claimant not provided data extractions from the PDT machines in the car park, in with their PoC?
When the Claimant refers to a PDT machine in their PoC, they only mention the machine located within the Gym. The two PDTs in the car park are never mentioned.
This is clearly an admission from the Claimant that two of their machines were not working. As these were the only PDT machines located in the actual car park, the driver clearly had no means of paying, and no way of knowing about the third machine inside the gym.
The two PDTs situated in the car park were out of action for some time during 2017. I know this to be true, as I have already confirmed to the Claimant that I was driving my wife!!!8217;s car on XX/XX/XXXX. I returned to this car park (taking care to park on Cavendish Road and not in the car park itself) after my wife received a Parking Charge Notice (PCN) Notice To Keeper (NTK) which was issued by Excel on XX/XX/XXXX. I took several photos of the PDTs and signs in the car park, which I used to submit an appeal to Excel. I emailed my appeal to Excel on XX/XX/XXXX, two days before the alleged contravention took place. I can confirm that there were only two PDTs in that car park at that time and both were still out of order.
I would like to confirm that the issue I refer to above with my wife!!!8217;s car, was for a completely different Parking Charge Notice (PCN XXXXXXXXXXX) and was struck out of court (Claim Number XXXXXXXX).
31. At #14, the Claimant asserts that the Defendant, by his conduct, entered in to a contract with the Claimant and accepted the terms and conditions as the incorporate terms.
32. At #15, the Claimant asserts that the Defendant left his vehicle and the vehicle remained parked as per the annexed evidence.
33. This is denied, unless the Claimant is able to provide proof that I was the driver of the vehicle. The claimant is put to strict proof of their claim to prove driver identity.
34. At #18. The Claimant submits that the Defendant entered in to a contract on the displayed Terms and Conditions (T&C) for the following reasons:
At #18.1 The signage is so obvious that they must have been read by the Defendant and accepted by him via the act of part performance and/or!!!8230;
At #18.2 Because the objective observer would consider that the defendant, who had the opportunity to have read the prominent signage but failed to make sufficient enquiries as to the specifics of the T&C, willingly assumed that the T&C would apply to him by continuing to park the vehicle within the car park.
At #19. The Defendant, by physically entering and leaving the vehicle within the car park on the contravention date accepted the T&C, thereby entering into a contract with the Claimant.
35. Both the IPC and BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background. Both also recommend black on white as a good example (Exhibit 8).
36. I submit that Excel!!!8217;s signs do not comply with IPC or BPA Code of Practice (CoP). The dominant colours on Excel signs are blue and yellow against a background packed with confusing patterns and symbols.
37. The sign is a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden in the small print at the bottom of the sign. It is prominent or obvious as they assert and is not easy to see by a motorist driving, even very slowly, past the sign.
38. In support of the above 3 points I enclose Exhibit 8 the IPC code of practice and Exhibit 9 an Excel sign from the car park in question.
39. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.
40. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
41. This judgment is binding case law from the Court of Appeal.
42. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.
43. At #33 the claimant asks the court to come up with an alternative remedy if there is no contract.
44. 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.
32. In the case of Bagri v BW Legal, the solicitors boast of handling one million claims with only six 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.
33. I was never shown the alleged signage contract or have been sent any photographs of the signs so as registered keeper, I never saw the contract they are trying to hold me liable for, until DJ Wright ordered Claimant to serve amended PoC on 4 April 2018. I then received some photos, including an aerial map, which is no proof of the signs on the day of contravention. I have no idea of the alleged 'contract' terms, but I am aware that this operator buries onerous terms and charges in the small print. Since it is my honest belief that any circumspect driver of your car would not have accepted any terms to park for £100(?) thus, it is likely that the terms were not prominent or clear or close to where the car was parked. The Claimant is put to strict proof.
35. The claimant may state that the principles of the Parking Eye [PE] vs Beavis [2015] case apply here.
36. This is not the case. There are many significant and crucial differences between this and PE vs Beavis, as laid out in my defence. In the Beavis case one of the key factors was the clear and prominent signage in the car park the parking charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge.
37. The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:
38. The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it and they must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.
39. But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85. The entry sign to the Cavendish Retail Park Car Park does not even mention the PCN.
40. 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.

41. The claimant understands the importance of clear and prominent signage. The sign referred to in the Beavis case is enclosed as Exhibit 9. When compared to the excel car park sign, I submit that no reasonable person would agree that their terms are brief, clear and prominently proclaimed.
42. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.
43. Both the IPC and BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background. Both also recommend black on white as a good example (EXHIBIT 8).
44. I submit that Excels do not comply with IPC or BPA CoP. The dominant colours on Excel signs are blue and yellow against a background packed with confusing patterns and symbols.
45. The sign is a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden in the small print at the bottom of the sign. It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.
46. In support of the above 3 points I enclose Exhibit 8 the IPC code of practice and Exhibit 9 an Excel sign from the car park in question.
47. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.
48. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
49. This judgment is binding case law from the Court of Appeal.
50. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.
51. Conclusion. No evidence of contravention, No compliance with Pofa 2012, No proof of who the driver was and the Particulars lack any basis for a claim.
52. The Court is invited to dismiss this Claim. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking evidence is wholly unreasonable and vexatious.
53. I believe the facts stated in this Witness Statement are true.

(add name and sign)

(add Date)

Hi


Any feedback on my second draft WS?


I'm sorry to repeat myself but I've only got until Wednesday to submit it...


Many thanks