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  • FIRST POST
    • Skyboss
    • By Skyboss 15th Oct 17, 8:58 PM
    • 26Posts
    • 19Thanks
    Skyboss
    Claim form issued - Gladstones / HX Car Park Management LTD PCN
    • #1
    • 15th Oct 17, 8:58 PM
    Claim form issued - Gladstones / HX Car Park Management LTD PCN 15th Oct 17 at 8:58 PM
    Hello,

    I'm new to this forum and would like some advice how to progress my defence for a Court Claim regarding PCN from 16/05/17.

    A sequence of events has meant that I now have to submit my defence before 20/10/17 so I apologise for the lateness of this post in advance!

    The first I heard of this matter was a letter from Gladstones Solicitors 'letter before claim' 26/07/17 advising that legal action had been commenced and charges of £160 were due.
    I replied to this on the 07/08/17 stating that this was the first I had heard about the parking charge.
    Gladstones responded to my letter on the 30/08/17 attaching copies of correspondence from HX Car Park Management LTD sent to me 30/05/17 (Parking Charge Notice), 28/06/17 (Outstanding Parking Charge Notice) and 13/07/17 (Final Demand Before Debt Recovery).
    I responded 14/09/17 stating that I had not received these previous communications from HX Car Park Management and requested a full breakdown of the charges with regard to the alleged overstay.

    The next thing I received was a Claim Form, issued 22/09/17.

    I submitted an acknowledgement of service 27/09/17 and this was acknowledged 28/09/17 so by my reckoning I have until the 20/10/17 to submit my defence?

    I have drafted a couple of paragraphs for my defence and as the third point I would like to try to prove the charge is a penalty. I have seen a number of posts around this and the Beavis vs PE case, which incidentally, Gladstones are quoting.

    My first two point are listed below and will help explain the situation around the parking and subsequent overstay:

    Firstly, the vehicle registration xxxx xxx was parked in Car Park 16/0517 on the understanding that free parking was allowed after 18:00hrs for patrons of a nearby restaurant.
    There was no signage or notice to the contrary and the vehicle was parked in good faith under these terms & conditions (that free parking would be afforded to patrons of nearby restaurant).
    Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of nearby restaurant no longer apply and that charges now apply after 18:00hrs. This signage was not in place 16/05/17.
    As there was no notification of the change in parking terms & conditions a parking charge notice cannot be enforced.

    Secondly, sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs tariff (80p per hour) would cover 1 hour of parking during that time period. However, the tariff changes at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which, if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
    There was no underpayment or overstay.

    I hope the above helps explain how this parking charge has arisen.

    I would be very grateful for any advice to help build my defence.

    Happy to answer any questions and post copies of correspondence and pictures of signage etc.
    Last edited by Skyboss; 16-10-2017 at 11:54 PM. Reason: Incorrect info.
Page 2
    • Skyboss
    • By Skyboss 24th Oct 17, 7:54 AM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Oh Dear. I've just checked my claim online and there is some text saved in the defence box. I have tried to delete but it gives an error saying please enter defence details. I haven't progressed through to confirmation stage so will this still register?
    • Skyboss
    • By Skyboss 24th Oct 17, 7:57 AM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Phew! I've managed to delete it, the option was available to delete the defence from the landing page of my case / claim. There is no defence online now related to my case, only the aos is registered. I'll rely on the defence submitted via email. Thanks.
    • Skyboss
    • By Skyboss 24th Oct 17, 8:16 AM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Just noticed.....I haven't dated my defence which is attached to the email and I haven't headed it 'Defence' although it does say summary of defence, excerpt below.

    'In the County Court Business Centre
    Claim Number Xxxxxx
    HX Car Park Management v Xxxxxxx

    Summary of Defence.

    It is admitted that the Defendant is the registered keeper, not the driver of the vehicle in question.'

    Should I amend and submit another copy, dated and headed 'Defence'? By email or registered post?
    Last edited by Skyboss; 24-10-2017 at 8:25 AM.
    • Skyboss
    • By Skyboss 25th Oct 17, 2:09 PM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Update - Defence submitted
    MCOL is now showing that my defence was received 24/10/17. I checked by calling the online help desk whether the defence they registered as received was the emailed version or an online submission, they confirmed it was the emailed defence which they were referring to which put my mind at rest.

    So, now I sit and wait to see whether Gladstones want to proceed.

    I'd just like to give my sincere thanks to everyone who's offered their advice so far, it is much appreciated, this site / forum is a fantastic source of information and a great community of like minded and very knowledgeable people who give up their time and effort to help others, thank you.
    • nosferatu1001
    • By nosferatu1001 25th Oct 17, 2:48 PM
    • 2,748 Posts
    • 3,400 Thanks
    nosferatu1001
    Or, you read ahead on post 3 of the newbies thread, for the next steps
    Gladstones will continue wandering aimlessly forwards.
    • Skyboss
    • By Skyboss 7th Nov 17, 8:50 PM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Update:
    So, as predicted, Gladstones wander aimlessly forwards.......
    I have received a letter from Gladstones stating the following:

    "We act for the claimant and have notified the Court of our Client's intention to proceed with the claim.

    Please find enclosed a copy of our Client's completed Directions Questionnaire, which will be filed with the court upon their request. You will note we intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing

    This request is sought simply because the matter is in our Client's opinion relatively straightforward and the costs incurred by both parties for attending an oral hearing would be disproportionate. We trust you agree.

    You will note our client has elected not to mediate. Its decision is not meant to be in any way obstructive and is based purely on experience, as mediation has rarely proven beneficial in these types of cases. Notwithstanding this, our Client would be happy to listen to any genuine payment proposals that you wish to put forward.

    Yours sincerely"


    Enclosed with their letter was a Directions Questionnaire but it was not completed. There was also an N159 form and a request to the court for special direction pursuant to PD27 (2.4), which asked that the court send the N159 form to the defendant.

    (The special direction request was expected as per the claim court procedure on the newbies thread).

    I then received a letter from the County Court Business Centre "Notice of Proposed Allocation to the Small Claims Track".
    This states that:

    "1. This is now a defended claim
    The defendant has filed a defence, a copy of which is enclosed
    2. It Appears that this case is suitable for allocation to the small claims track
    3. You must by 20 November 2017 complete the Small Claims Direction Questionnaire and file it with the court office and serve copies to all other parties."

    There was no copy of the defence but I assume this is only enclosed with the comms to Gladstones?
    There was only the Directions Questionnaire enclosed, no N159. There was also some literature about mediation (EX730).

    Should I go back the Gladstones and ask for a copy of the completed N180?
    Should I ask the CCBC for an N159 to complete?
    Or does none of this matter and I just need to complete and return the N180 from CCBC?
    It does state on MCOL that the Claimant has submitted a Directions Questionnaire.

    Any comments are appreciated.

    I can enter in D1 of the DQ:
    The Defendant opposes the Claimant!!!8217;s request for special directions, and requests that the case be listed for an oral hearing at the defendant!!!8217;s home court, pursuant to CPR 26.2A(3)!!!8221;.
    Last edited by Skyboss; 07-11-2017 at 8:58 PM. Reason: Additonal info.
    • Coupon-mad
    • By Coupon-mad 7th Nov 17, 9:23 PM
    • 58,368 Posts
    • 71,877 Thanks
    Coupon-mad
    Should I go back the Gladstones and ask for a copy of the completed N180?
    Should I ask the CCBC for an N159 to complete?
    Nope, you do not want a N159.


    Or does none of this matter and I just need to complete and return the N180 from CCBC?
    Yes, like in every thread you'll find when you Google:

    'Gladstones parking Special Directions straightforward'.


    This is all normal for G's. Read other threads.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • KeithP
    • By KeithP 14th Mar 18, 3:17 PM
    • 7,658 Posts
    • 7,365 Thanks
    KeithP
    It simply means that they are not seeking to transfer liability to the keeper.

    In other words, the defendant is being pursued as the driver.




    Edit: Oh, where has the post gone that I have responded to?
    Last edited by KeithP; 14-03-2018 at 3:26 PM.
    .
    • Skyboss
    • By Skyboss 14th Mar 18, 3:49 PM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Sorry, I deleted it. the witness statement goes on to state that "the criminal case of Elliot v Loake 1983 Crim LR 36 held that the registered keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption ......."

    The defendant was not the driver but is the registered keeper. They are trying to hold the registered keeper liable?
    • KeithP
    • By KeithP 14th Mar 18, 4:00 PM
    • 7,658 Posts
    • 7,365 Thanks
    KeithP
    They are trying to say that Elliot v Loake is sufficient justification to assume that the keeper was in fact the driver.

    Elliot v Loake was a criminal case and forensic evidence was used to prove the keeper was the driver.

    Nothing like your situation.
    .
    • Coupon-mad
    • By Coupon-mad 14th Mar 18, 5:14 PM
    • 58,368 Posts
    • 71,877 Thanks
    Coupon-mad
    Sorry, I deleted it. the witness statement goes on to state that "the criminal case of Elliot v Loake 1983 Crim LR 36 held that the registered keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption ......."

    The defendant was not the driver but is the registered keeper. They are trying to hold the registered keeper liable?
    Originally posted by Skyboss
    So (we hope) you searched this forum for the keyword 'Loake' and found what's been said before? We hope so, because it helps if we don't have to repeat the same old stuff every day, every week.

    We also want to know where you disappeared to and whether you have actually filed your own WS and evidence yet. What's your deadline to do this, from the court letter that told you to do so?
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Skyboss
    • By Skyboss 15th Mar 18, 9:21 AM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Unfortunately I have suffered a serious illness which hospitalised me for a couple of months and I am recuperating at the moment.
    I have my WS ready to file, which has to be submitted before the 19/03 (14 days prior to court case on 3rd April).
    • Skyboss
    • By Skyboss 15th Mar 18, 10:02 AM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Copy WS below. I have not entered page numbers yet where I refer to them (page????). The documents will include photographs of signage, T&Cs and correspondence.

    Please let me know what you think.

    Thanks.


    Witness Statement


    Claim Number XXXXXXX

    XXXXXXX (Claimant) v XXXXXXX (Defendant)

    XXXXXXX
    XXXXXXXX
    Postcode

    Dated 05/03/18


    I am the registered keeper of the vehicle XXXXX

    I was not the driver of the vehicle on 16/05/18.

    I request that XXXXXXX attend and act as my lay representative.

    On 16/05/17 the vehicle XXXXXXXX was parked in the XXXXXXX Car Park whilst visiting XXXXXX Restaurant. Patrons of XXXXX were allowed free parking after 18:00hrs.

    I received a letter before claim from Gladstones solicitors dated 26/07/17 on 28/07/17. Copy enclosed, page ? I had received no correspondence prior to this.

    I responded to this letter 07/08/17 requesting full details of the parking charge to which they were referring. Gladstones responded with their letter dated 30/08/17 and failed to address questions such as how the parking charge had been calculated, explanation of the !!!8216;letter before claim!!!8217; and also misunderstood other elements of my letter. Copy of my letter and Gladstones!!!8217; response are enclosed (page ? & ? respectively!!!8230;.)

    In my opinion it looks like a standard template letter response, roughly covering some of the points raised but not actually addressing them. It is apparent from online reports that this is common practice and cases are treated in a conveyer like / production line fashion.

    I responded to their letter of 30/08/17 and I addressed their points raised in my letter 14/09/17 and also asked that Gladstones address my original points and questions. Copy letter attached, page? !!!8230;.

    I received no response to my letter 14/09/17 and the next thing I received was a claim form on 24/09/17 with an issue date of 22/09/17. Copy enclosed, page?

    I received a further letter from Gladstones dated 31/10/17 advising that they had notified the court of their client!!!8217;s intention to proceed with the claim. They stated that they had enclosed a completed Directions Questionnaire, however, the Directions Questionnaire had not been completed, it was completely blank in all sections (page???). They also stated that their client had elected not to mediate. A request for special direction pursuant to PD27(2.4) was also enclosed. Copies enclosed, pages ???? This letter also looks like a standard template letter and that clients are routinely advised not to mediate.

    However, the Claimant is not able to bring this claim as they have no authority on the following grounds, any one of which fully negates the Claimant!!!8217;s case:

    The Protection of Freedom Act (PoFA) 2012, Schedule 4 has not been complied with:
    A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver, the keeper can only be held liable if the Claimant has fully complied with all requirements.
    Pre-empting Gladstones Solicitors and that they will quote the Elliot v Loake (EvL) case, it should be noted that EvL was a criminal case and forensic evidence was used to prove the keeper was the driver. Nothing like or similar to this case.
    The Claimant has not proven their case, they have shown no evidence that the registered keeper was the driver. This is because they cannot, because the registered keeper was not the driver.



    1. Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver. Contrary to PoFA 2012, Schedule 4, paragraph 9,2,f. (see page ?? for ref.)
    The Notice to Keeper only states !!!8220;Should the kegistered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver!!!8221;. (page???)

    2. The Notice to Keeper (page???) does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j). (page??)




    3. Notification Letter to Keeper (page????) does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3. (page??)

    4. XXXXX Car Park XX LTD are not the lawful occupiers of the land. Absent a contract with the lawful occupier of the land being produced by the Claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have reason to believe that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this matter.


    4.(i) No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper!!!8217;s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.


    4.(ii) It is the Defendant's case that there was no contravention of any term authorised by the landowner, regarding parking after 18:00hrs on the material date, because parking was free from that time. The Claimant is put to strict proof of their case.

    5.(i) The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not contain full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, !!!8216;Entrance Signs!!!8217;. Page????

    5.(ii)I am not ware of any signage being present drawing the recent change of restrictions to the attention of drivers relying upon the !!!8216;free after 18:00hrs!!!8217; on the 16/05/17, contrary to IPC Code of Practice, part E, Schedule 1 - Signage, !!!8216;Changes in Operator!!!8217;s Terms and Conditions (page ????).

    5.(iii) The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, !!!8216;Text size!!!8217;. See page ??? for reference.

    5.(iv) The signage at XXXXX Car Park is in coloured pale red font on a gold background which offers a very poor contrast and therefore cannot easily be read. My son is registered partially sighted and he struggles to read the signage due to the colours used and resultant poor contrast (IPC Code of Practice, Part E, Schedule 1 - Signage, !!!8216;Contrast and Illumination!!!8217; states that [...] !!!8220;Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired!!!8221.


    5.(v) The car park operates 24/7 and has no illumination for any signage except for the sign near to the ticket machine which has inadequate, indirect illumination contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, !!!8216;Contrast and Illumination!!!8217; which states that [...] !!!8220;If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated!!!8221;. (Page ??? for reference.

    5.(vi) There is no warning on any signage that if a charge remains unpaid for a period of 28 days after issue then an application will be made to DVLA for the keeper!!!8217;s details, contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, !!!8216;Other signs!!!8217;, condition 3.

    5.(vii) Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, !!!8216;Other Signs!!!8217;, condition 4. Example of signage where the vehicle was parked, page???? This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from floor to bottom of the sign). It is in my opinion far beyond the capability of a normally sighted person to read this sign from their vehicle when entering and parking their vehicle. Even stood close to the sign it is not fully legible due to the size of some of the text. page????

    5.(viii) Signage does not contain text appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. Page ???? contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, condition 6.

    5.(ix) There is reference to full terms and conditions on the entrance sign, at the pay machine and on repeater signs but these all show a different combination of terms & conditions. It is not apparent which terms & conditions apply. It is very confusing and not possible to determine what the full terms and conditions are. It cannot be expected that persons would understand what the full terms & conditions are and it is questionable whether they would have entered into a contract if it is not clear exactly what the full terms & conditions are.





    6. The vehicle registration XXXXX was parked in XXXX Car Park 16/05/17 on the understanding that free parking was allowed after 18:00hrs for patrons of XXXXX restaurant.
    There was no signage or notice to the contrary, it was not immediately apparent to the defendant that there had been a change in pre-existing contract / terms & conditions. The vehicle was parked in good faith under these terms & conditions as known to the defendant (that free parking would be afforded to patrons of XXXXX restaurant).
    Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of XXXXX no longer apply and that charges now apply after 18:00hrs. I do not believe that this signage was in place 16/05/17.
    As there was no notification of the change in parking terms & conditions, a parking charge notice cannot be enforced.

    7. Sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs rate (80p per hour) would cover 1 hour of parking during that time period. However, the rates change at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
    There was no underpayment or overstay. The ticket machine does not operate properly in this instance.

    8. The Claimant makes reference to Parking Eye v Beavis. The Claimant has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable unfair contract term and this case can easily be distinguished from Parking Eye v Beavis.

    The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and unfair contract term .

    a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

    !!!8220;97
    a. The need to provide parking spaces for their commercial tenants!!!8217; prospective customers; -

    b. The desirability of that parking being free so as to attract customers;- i

    c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

    d. The related need to prevent !!!8216;misuse!!!8217; of the parking for purposes unconnected with the tenants!!!8217; business, for example by commuters going to work or shoppers going to off-park premises; and
    I
    e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.!!!8221;-

    In this case the vehicle would have been fully entitled to park as it did had payment been made (provided the requirement to do so had been clearly brought to the motorist's attention). The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise.The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made, i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pence. The charge is clearly a penalty following the judgment of the Supreme Court.

    This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

    "43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
    park from overstaying beyond the free permitted two hours. So, Mr Hossain
    submitted, the case is clear and the parking charge provision is unenforceable.
    44. All the previous cases shown to us have concerned contracts of a financial or at least
    an economic nature, where the transaction between the contracting parties can be
    assessed in monetary terms, as can the effects of a breach of the contract by one party
    or the other. Sometimes such measurement is difficult because of inherent
    uncertainties, and in those an agreed liquidated damages provision may be upheld for
    those reasons. But, however difficult it may be to measure, it is clear that there are
    economic and commercial effects on the parties.
    45. The contract in the present case is entirely different. There is no economic transaction
    between the car park operator and the driver who uses the car park, if he or she stays
    no longer than two hours; there is no more than (for that time) a gratuitous licence to
    use the land. The operator affords the driver a free facility. That facility is, of course,
    of economic value to the driver, as well as of convenience, in assisting the driver to
    visit the shops in the shopping centre which the car park serves. It is thus useful to
    Judgment approved by the court for handing down. ParkingEye -v- Beavis
    the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
    encouraging visitors, and in particular in encouraging a turnover of visitors because of
    the two hour limit. A car owner cannot simply come to the car park and park there all
    day. To do that would be to clog up the facility and to prevent those arriving later
    from using the park for its intended purpose.
    46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
    which will make them tend to comply with the two hour limit. That is afforded by the
    parking charge of £85. It would not be afforded by a system of imposing a rate per
    hour according to the time overstayed, unless that rate were also substantial, and well
    above what might be regarded as a market rate for the elapsed time, even if the market
    rate were in some way adjusted to take account of the benefit to the driver of the first
    two hours being free.
    47. [...]: When the court is considering an ordinary financial or
    commercial contract, then it is understandable that the law, which lays down its own
    rules as to the compensation due from a contract breaker to the innocent party, should
    prohibit terms which require the payment of compensation going far beyond that
    which the law allows in the absence of any contract provision governing this outcome.
    The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
    6 Bing. 141 at 148:
    !!!8220;But that a very large sum should become immediately payable, in consequence
    of the non-payment of a very small sum, and that the former should not be
    considered a penalty, appears to be a contradiction in terms, the case being
    precisely that in which courts of equity have always relieved, and against which
    courts of law have, in modern times, endeavoured to relieve, by directing juries to
    assess the real damages sustained by the breach of the agreement.!!!8221;



    This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist.There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner, not the Operator, may be entitled. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty .

    b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pence that the Operator believes should have been paid.



    I believe that these facts stated in this witness statement are true.

    Signed



    XXXXX
    • Coupon-mad
    • By Coupon-mad 16th Mar 18, 12:00 AM
    • 58,368 Posts
    • 71,877 Thanks
    Coupon-mad
    I have my WS ready to file, which has to be submitted before the 19/03 (14 days prior to court case on 3rd April).
    Good! I was worried you had missed your deadline.

    So sorry to hear about your illness and hospitalisation, hope you are on the mend.

    Bumping your WS for others to comment on, if you get no replies please re=post but turn OFF your 'Smart Punctuation' which is causing the !!!8221; glitch that ruins your sentences in the above post.

    Please do re-post without that glitch, as it will help us see it. I didn't have time tonight to unpick it.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Skyboss
    • By Skyboss 16th Mar 18, 11:06 AM
    • 26 Posts
    • 19 Thanks
    Skyboss
    WS re-posted below without glitch. Thanks.

    Witness Statement


    Claim Number xxx

    xxx (Claimant) v xxx (Defendant)

    xxxxxx
    Postcode

    Dated 05/03/18


    I am the registered keeper of the vehicle xxx

    I was not the driver of the vehicle on 16/05/18.

    I request that xxx attend and act as my lay representative.

    On 16/05/17 the vehicle xxx was parked in the xxx Car Park xxx whilst visiting xxx Restaurant. Patrons of xxx were allowed free parking after 18:00hrs.

    I received a letter before claim from Gladstones solicitors dated 26/07/17 on 28/07/17. Copy enclosed for reference, page 9. I had received no correspondence prior to this.

    I responded to this letter 07/08/17 requesting full details of the parking charge to which they were referring. Gladstones responded with their letter dated 30/08/17 and failed to address questions such as how the parking charge had been calculated, explanation of the letter before claim and also misunderstood other elements of my letter. Copy of my letter and Gladstones’ response are enclosed, page 10 & page 11/12 respectively.

    In my opinion it looks like a standard template letter response, roughly covering some of the points raised but not actually addressing them. It is apparent from online reports that this is common practice and cases are treated in a conveyer like / production line fashion.

    I responded to their letter of 30/08/17 and I addressed their points in my letter to them 14/09/17 and also asked that Gladstones address my original points and questions. Copy letter attached, page 18/19.

    I received no response to my letter 14/09/17 and the next thing I received was a claim form on 24/09/17 with an issue date of 22/09/17. Copy enclosed, page 17.

    I received a further letter from Gladstones dated 31/10/17 advising that they had notified the court of their client’s intention to proceed with the claim. They stated that they had enclosed a completed Directions Questionnaire, however, the Directions Questionnaire had not been completed, it was completely blank in all sections. They also stated that their client had elected not to mediate. A request for special direction pursuant to PD27(2.4) was also enclosed. Copies enclosed, pages 20-24.

    However, the Claimant is not able to bring this claim as they have no authority on the following grounds, any one of which fully negates the Claimant’s case:

    The Protection of Freedom Act (PoFA) 2012, Schedule 4 has not been complied with:
    A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver, the keeper can only be held liable if the Claimant has fully complied with all requirements.
    Pre-empting Gladstones Solicitors and that they will quote the Elliot v Loake (EvL) case as they are not able to prove the registered keeper as the driver, it should be noted that EvL was a criminal case and forensic evidence was used to prove the keeper was the driver. Nothing like or similar to this case.
    The Claimant has not proven their case, they have shown no evidence that the registered keeper was the driver. This is because they cannot, because the registered keeper was not the driver.



    1. Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver. Contrary to PoFA 2012, Schedule 4, paragraph 9,2,f. (page 25/26 for ref.)
    The Notice to Keeper only states, Should the registered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the drive. Copy enclosed, page14.

    2. The Notice to Keeper (page 14) does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j). (page 27)




    3. Notification Letter to Keeper (page 15) does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3. (page 28)

    4. I believe xxx Car Park xxx LTD may not be the lawful occupiers of the land. Absent a contract with the lawful occupier of the land being produced by the Claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have reason to believe that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this matter.


    4.(i) No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.


    4.(ii) It is the Defendant's case that there was no contravention of any term authorised by the landowner, regarding parking after 18:00hrs on the material date, because parking was free from that time. The Claimant is put to strict proof of their case.

    5.(i) The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not contain full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, Entrance Signs. Copy enclosed, page 29/30.

    5.(ii)I do not believe that signs drawing the recent change of restrictions to the attention of drivers relying upon the free after 18:00hrs condition were in place on the 16/05/17, contrary to IPC Code of Practice, part E, Schedule 1 - Signage, Changes in Operator’s Terms and Conditions. Copy enclosed, page 31.



    5.(iii) The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, Text size. Copy enclosed, page 30. Photograph, page 32.

    5.(iv) The signage at xxxCar Park is in coloured pale red font on a gold background which offers a very poor contrast and therefore cannot easily be read, photographic examples, page 32/33. IPC Code of Practice, Part E, Schedule 1 - Signage, Contrast and Illumination (page 30) states The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. The photographs (page 32/33) are of the entrance sign and are aimed at drivers in a moving vehicle entering the car park. This signage is not, in my opinion, fit for purpose.
    Furthermore, my son is registered partially sighted and he struggles to read the signage due to the colours used and resultant poor contrast (IPC Code of Practice, Part E, Schedule 1 - Signage, Contrast and Illumination (page 30) states that [...] Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired).

    5.(v) The car park operates 24/7 and has no illumination for any signage except for the sign near to the ticket machine which has inadequate, indirect illumination, contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, Contrast and Illumination (page 30), which states that [...] If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated.

    5.(vi) I do not believe that there is any warning on any signage that if a charge remains unpaid for a period of 28 days after issue then an application will be made to DVLA for the keeper’s details, contrary to IPC Code of Practice, Part E, Schedule 1 - Signage, Other signs, condition 3. Copy enclosed, page 31. Photographs of signage, pages 33,35,36,38.

    5.(vii) Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, Other Signs, condition 4. Example of signage where the vehicle was parked, page 37. This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from pavement to bottom of the sign). It is in my opinion far beyond the capability of a normally sighted person to read this sign from their vehicle when entering and parking their vehicle. Even stood close to the sign it is not fully legible due to the size of some of the text. Page 38.

    5.(viii) Signage does not contain text appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. Pages 32,37,38, contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, Other Signs, condition 6. Copy enclosed, page 31.

    5.(ix) There is reference to full terms and conditions on the entrance sign, at the pay machine and on repeater signs but these all show a different combination of terms & conditions. It is not apparent which terms & conditions apply. It is very confusing and not possible to determine what the full terms and conditions are. It cannot be expected that persons would understand what the full terms & conditions are and it is questionable whether they would have entered into a contract if it is not clear exactly what the full terms & conditions are.


    6. The vehicle registration xxx was parked in xxx Car Park 16/05/17 on the understanding that free parking was allowed after 18:00hrs for patrons of xxx restaurant.
    I do not believe that there was any signage or notice to the contrary, it was not immediately apparent to the Defendant that there had been a change in pre-existing contract / terms & conditions. The vehicle was parked in good faith under these terms & conditions as known to the Defendant (that free parking would be afforded to patrons of xxx restaurant).
    Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of xxx no longer apply and that charges now apply after 18:00hrs. I do not believe this was in place 16/05/17.
    As there was no notification of the change in parking terms & conditions, a parking charge notice cannot be enforced.

    7. Sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs rate (80p per hour) would cover 1 hour of parking during that time period. However, the rates change at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
    There was no underpayment or overstay. The ticket machine does not operate properly in this instance.

    8. The Claimant makes reference to Parking Eye v Beavis. The Claimant has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable unfair contract term and this case can easily be distinguished from Parking Eye v Beavis.

    The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and unfair contract term .

    a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

    97
    a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

    b. The desirability of that parking being free so as to attract customers;- i

    c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

    d. The related need to prevent misuse of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to off-park premises; and
    I
    e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.-

    In this case the vehicle would have been fully entitled to park as it did had payment been made (provided the requirement to do so had been clearly brought to the motorist's attention). The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise.The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made, i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pence. The charge is clearly a penalty following the judgment of the Supreme Court.

    This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

    43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
    park from overstaying beyond the free permitted two hours. So, Mr Hossain
    submitted, the case is clear and the parking charge provision is unenforceable.
    44. All the previous cases shown to us have concerned contracts of a financial or at least
    an economic nature, where the transaction between the contracting parties can be
    assessed in monetary terms, as can the effects of a breach of the contract by one party
    or the other. Sometimes such measurement is difficult because of inherent
    uncertainties, and in those an agreed liquidated damages provision may be upheld for
    those reasons. But, however difficult it may be to measure, it is clear that there are
    economic and commercial effects on the parties.
    45. The contract in the present case is entirely different. There is no economic transaction
    between the car park operator and the driver who uses the car park, if he or she stays
    no longer than two hours; there is no more than (for that time) a gratuitous licence to
    use the land. The operator affords the driver a free facility. That facility is, of course,
    of economic value to the driver, as well as of convenience, in assisting the driver to
    visit the shops in the shopping centre which the car park serves. It is thus useful to
    Judgment approved by the court for handing down. ParkingEye -v- Beavis
    the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
    encouraging visitors, and in particular in encouraging a turnover of visitors because of
    the two hour limit. A car owner cannot simply come to the car park and park there all
    day. To do that would be to clog up the facility and to prevent those arriving later
    from using the park for its intended purpose.
    46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
    which will make them tend to comply with the two hour limit. That is afforded by the
    parking charge of £85. It would not be afforded by a system of imposing a rate per
    hour according to the time overstayed, unless that rate were also substantial, and well
    above what might be regarded as a market rate for the elapsed time, even if the market
    rate were in some way adjusted to take account of the benefit to the driver of the first
    two hours being free.
    47. [...]: When the court is considering an ordinary financial or
    commercial contract, then it is understandable that the law, which lays down its own
    rules as to the compensation due from a contract breaker to the innocent party, should
    prohibit terms which require the payment of compensation going far beyond that
    which the law allows in the absence of any contract provision governing this outcome.
    The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
    6 Bing. 141 at 148:
    But that a very large sum should become immediately payable, in consequence
    of the non-payment of a very small sum, and that the former should not be
    considered a penalty, appears to be a contradiction in terms, the case being
    precisely that in which courts of equity have always relieved, and against which
    courts of law have, in modern times, endeavoured to relieve, by directing juries to
    assess the real damages sustained by the breach of the agreement.

    This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist.There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner, not the Operator, may be entitled. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty .

    b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pence that the Operator believes should have been paid.

    I believe that these facts stated in this witness statement are true.
    • nosferatu1001
    • By nosferatu1001 16th Mar 18, 11:47 AM
    • 2,748 Posts
    • 3,400 Thanks
    nosferatu1001
    That does not read as a witness statement, as it includes arguments.

    A witness statement should only really include facts that you, the witness, know. Dates, times, copies of documents recieved, etc.
    • Skyboss
    • By Skyboss 16th Mar 18, 5:57 PM
    • 26 Posts
    • 19 Thanks
    Skyboss
    Amended WS below. I've included PoFA and IPC stuff. Can I include these as facts or should I leave them out at this stage?

    Witness Statement


    Claim Number xxx

    xxx (Claimant) v xxx (Defendant)

    xxx
    xxx
    Post Code

    Dated xxx


    1. I am the registered keeper of the vehicle xxx

    2. I was not the driver of the vehicle on 16/05/18.

    3. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my knowledge.

    4. I request that xxx attend and act as my lay representative.

    5. 16/05/17, the vehicle xxx was parked in the xxx Car Park whilst visiting xxx Restaurant. Patrons of xxx were allowed free parking after 18:00hrs.

    6. 28/07/17, I received a letter before claim from Gladstones solicitors. Copy enclosed for reference, page 9. I had received no correspondence prior to this.

    7. 07/08/17, I responded in writing to Gladstones requesting full details of the parking charge to which they were referring.

    8. 30/08/18 Gladstones responded to my letter 07/08/18 but failed to address questions such as how the parking charge had been calculated, explanation of the letter before claim and also misunderstood other elements of my letter. Copy of my letter and Gladstones!!!8217; response are enclosed, page 10 & page 11/12 respectively. Gladstones enclosed a copy of the Notice to Keeper dated 30/05/18, a Notification Letter to Keeper dated 28/06/18 and a final demand notice dated 13/07/18. Pages 14,15,16.

    9. 14/09/18, I responded to their letter of 30/08/17 and addressed their points and also asked that Gladstones address my original points and questions. Copy letter attached, page 18/19.
    I received no response to my letter.

    10. 24/09/18, I received a claim form. Copy enclosed, page 17.

    11. 31/10/17, I received a further letter from Gladstones advising that they had notified the court of their client!!!8217;s intention to proceed with the claim. They stated that they had enclosed a completed Directions Questionnaire, however, the Directions Questionnaire had not been completed, it was completely blank in all sections. They also stated that their client had elected not to mediate. A request for special direction pursuant to PD27(2.4) was also enclosed. Copies enclosed, pages 20-24.

    12. The Protection of Freedom Act (PoFA) 2012, Schedule 4 has not been complied with:
    A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver.
    The Claimant has not proven their case, they have shown no evidence that the registered keeper was the driver. This is because they cannot, because the registered keeper was not the driver.
    Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver. Contrary to PoFA 2012, Schedule 4, paragraph 9,2,f. (page 25/26 for ref.)

    13. There are several contraventions of the International Parking Community (IPC) Code of Practice. Xxx Car Park xxx is a registered member of the IPC.
    Notice to Keeper (page 14) does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j). (page 27). Notice to Keeper only states Should the registered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver. Copy enclosed, page14.
    Notification Letter to Keeper (page 15) does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3. (page 28)
    The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not contain full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, Entrance Signs. Copy enclosed, page 29/30.
    I do not believe that signs drawing the recent change of restrictions to the attention of drivers relying upon the free after 18:00hrs condition were in place on the 16/05/17, contrary to IPC Code of Practice, part E, Schedule 1 - Signage, Changes in Operator!!!8217;s Terms and Conditions. Copy enclosed, page 31.
    The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, Text size. Copy enclosed, page 30. Photograph, page 32.
    Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, Other Signs, condition 4. Example of signage where the vehicle was parked, page 37/38. This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from pavement to bottom of the sign).
    Signage does not contain text appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. Pages 32,37,38, contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, Other Signs, condition 6. Copy enclosed, page 31.


    14. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper!!!8217;s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.

    I believe that these facts stated in this witness statement are true.
    • Skyboss
    • By Skyboss 16th Mar 18, 6:24 PM
    • 26 Posts
    • 19 Thanks
    Skyboss
    WS with better formatting...

    Witness Statement


    Claim Number xxx

    xxx (Claimant) v xxx (Defendant)

    xxx
    xxx
    Post Code

    Dated xxx


    1. I am the registered keeper of the vehicle xxx


    2. I was not the driver of the vehicle on 16/05/18.


    3. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my knowledge.


    4. I request that xxx attend and act as my lay representative.


    5. 16/05/17, the vehicle xxx was parked in the xxx Car Park whilst visiting xxx Restaurant. Patrons of xxx were allowed free parking after 18:00hrs.


    6. 28/07/17, I received a letter before claim from Gladstones solicitors. Copy enclosed for reference, page 9. I had received no correspondence prior to this.


    7. 07/08/17, I responded in writing to Gladstones requesting full details of the parking charge to which they were referring.

    8. 30/08/18 Gladstones responded to my letter 07/08/18 but failed to address questions such as how the parking charge had been calculated, explanation of the letter before claim and also misunderstood other elements of my letter. Copy of my letter and Gladstones response are enclosed, page 10 & page 11/12 respectively. Gladstones enclosed a copy of the Notice to Keeper dated 30/05/18, a Notification Letter to Keeper dated 28/06/18 and a final demand notice dated 13/07/18. Pages 14,15,16.


    9. 14/09/18, I responded to their letter of 30/08/17 and addressed their points and also asked that Gladstones address my original points and questions. Copy letter attached, page 18/19.
    I received no response to my letter.


    10. 24/09/18, I received a claim form. Copy enclosed, page 17.


    11. 31/10/17, I received a further letter from Gladstones advising that they had notified the court of their clients intention to proceed with the claim. They stated that they had enclosed a completed Directions Questionnaire, however, the Directions Questionnaire had not been completed, it was completely blank in all sections. They also stated that their client had elected not to mediate. A request for special direction pursuant to PD27(2.4) was also enclosed. Copies enclosed, pages 20-24.


    12. The Protection of Freedom Act (PoFA) 2012, Schedule 4 has not been complied with:
    A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver.

    a) The Claimant has not proven their case, they have shown no evidence that the registered keeper was the driver. This is because they cannot, because the registered keeper was not the driver.

    b) Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver. Contrary to PoFA 2012, Schedule 4, paragraph 9,2,f. (page 25/26 for ref.)

    13. There are several contraventions of the International Parking Community (IPC) Code of Practice. Xxx Car Park xxx is a registered member of the IPC.
    a) Notice to Keeper (page 14) does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j). (page 27).
    Notice to Keeper only states Should the registered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver. Copy enclosed, page14.

    b) Notification Letter to Keeper (page 15) does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3. (page 28)

    c) The entrance sign mentions terms and conditions and lists them but does not go on to mention all of the terms and conditions. It references the sign at the pay & display machine for full terms & conditions. The pay & display sign does not contain full terms and conditions, there is only reference to full terms & conditions. This is contrary to the IPC Code of Practice, Part E, Schedule 1 - Signage, Entrance Signs. Copy enclosed, page 29/30.

    d) I do not believe that signs drawing the recent change of restrictions to the attention of drivers relying upon the free after 18:00hrs condition were in place on the 16/05/17, contrary to IPC Code of Practice, part E, Schedule 1 - Signage, Changes in Operators Terms and Conditions. Copy enclosed, page 31.
    The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage, Text size. Copy enclosed, page 30. Photograph, page 32.

    e) Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Part E, Schedule 1, signage, Other Signs, condition 4. Example of signage where the vehicle was parked, page 37/38. This sign is fixed to a wall some 7ft 10inch (236cm) high (measured from pavement to bottom of the sign).

    f) Signage does not contain text appropriate to position and relative position of the person who is reading it, this is particularly apparent with the entrance sign and repeater signs around the car park. Pages 32,37,38, contrary to IPC Codes of Practice, Part E, Schedule 1 - signage, Other Signs, condition 6. Copy enclosed, page 31.


    14. No evidence has been provided that a valid ticket was not purchased. Photographs of the keepers vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.

    I believe that these facts stated in this witness statement are true.
    • Fruitcake
    • By Fruitcake 16th Mar 18, 6:39 PM
    • 36,799 Posts
    • 83,269 Thanks
    Fruitcake
    Unless you have a TARDIS, the date at 2 is wrong.

    At 8, the NTK is dated the 30th of May. It cannot possibly have arrived by day 14, beginning with the day after the event, so is another POFA 2012 failure.
    Last edited by Fruitcake; 16-03-2018 at 6:46 PM.
    I married my cousin. I had to...
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    • Coupon-mad
    • By Coupon-mad 16th Mar 18, 7:37 PM
    • 58,368 Posts
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    Coupon-mad
    I've included PoFA and IPC stuff. Can I include these as facts or should I leave them out at this stage?
    I think they are OK as facts in a WS, and the POFA is a very important issue to include, if the NTK was served too late for 'keeper liability'.
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    Advice to ignore is WRONG, unless in Scotland/NI.

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