I am so relieved that the case has dismissed!!
I was only in the court room for approx. 1-2 mins, DJ only asked me weather the statement are true to my best knowledge and I confirm yes it is. And focused on the claimant party.
As my WS was set out clearly and claimant rep don't have any other prove so the keeper liability was not valid, so case is dismissed.
The claimant rep wanted to chat with me before we go in the court room and I said to him we can chat in the court room!
Inside the court room, first thing judge told the Rep. straight away the defendant WS state clearly there's no keeper liabity and rep understand it as he couldn't prove any other fact so he wanted to adjourn the case because he claimed he only received the bundle yesterday, (which is not true as I have the proof of postage which was signed for two weeks ago)
I didn't even have a chance to say it the judge refused straight away saying it will be a waste of time to all parties and court.
DJ then asked me how I travel there, I said drive approx. 80 miles one way, but then claimant rep argued that I could have chosen home court which is only 18 miles away from my home address, so my expenses were not granted by DJ.
But anyway the case is dismissed and I couldn't be any happier.
I would like a give a big thanks to all the site team which helped/ given advices!
Thanks you very much!
I hope you guys continues to help others and I given a small donations which hope to contribute to keep this site running!
My Witness Statement:
I NAME of Address being the defendant in this case will state as follow;
I make this Witness Statement in support of my defence in this claim.
With the limit of information / responses from Claimant, the matters set out below are within my own knowledge.
It is admitted that I was the registered keeper of the vehicle XXXX at the time of the event.
However I deny that I am liable to the claimant either as alleged in the Particulars of claim or at all.
It is not argued that the driver of the vehicle registration XXXX (‘the Vehicle’) incurred the parking charge(s) on 03/05/2017 although the validity of that claim is questioned below.
The Claimant has stated that the defendant was driving the vehicle and/or is the Keeper of the Vehicle. AND THE CLAIMANT CLAIMS £160 FOR Parking Charges/ Damages and indemnity costs of applicable, together with interest of £3.02 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgment at £0.04 per day.
Whilst it is not argued that I am the keeper of the vehicle, I was not the driver at the time of this event.
The claimant may argue that their claim for £160 is valid due to some condition on the signage that the driver has accepted. But as I was not the driver, I have accepted no such condition and no part of the POFA 2012. Schedule 4 (hereafter POFA) allows a Private Parking Company (PPC) such as the Claimant to transfer to the keeper any other charge than the original Parking Charge Notice (PCN). Therefore £100. Any claim made by the Claimant for any amount over and above that, bar the costs of bringing the claim which are recoverable in the event that the Claimant wins, must therefore be a penalty
However, the claimant in this case, either by act or omission has failed to create any keeper liability in line with the POFA and therefore has no cause of action against myself as the defendant.
No windscreen ticket (Notice to Driver (NtD)) was present on the vehicle when the driver returned to it and no NtD was given to the driver when he returned to the vehicle. This has been confirmed to me by the driver at the time.
In POFA. Section 7. Paragraph 4.b. It is clearly stated that a NtD must be issued, and affixed to the vehicle while it is stationary or handed to the driver.
(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,
by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.
In the absence of a NtD, POFA lays down very specific requirements for the PPC to transfer liability to the keeper of the vehicle.
It states in Section 8. Paragraph 2.c
(2)The notice must—
©state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), © and (f);
Along with other requirements as can be seen on your copy of POFA. (Item 1 in your bundle).
As no NtD was ever given, then we must look to POFA Section 9. Paragraph 4.b.
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
The relevant period where no NtD has been issued is 14 days, starting from the day after the parking event that caused the charge to be issued.
As the Claimant states that the event leading to the charge occurred on 3rd May 2017. A Notice to Keeper (NtK) must therefore have been delivered to my address on or before 18th May 2017.
No such NtK was received by me until 7th June 2017, or 35 days after the event. Therefore no keeper liability has been created.
Further. As it is claimed that the charge (Item 2 in your bundle) was issued at 22:11pm and images show the vehicle was running with lights on at 22:14pm. The Claimant is to put strict proof that they don’t know who the driver was or that they have not seen who was driving or that they were unable to issue a NtD at the time that the charge supposedly arose.
The Claimant has issued a Parking Charge Notice to the vehicle that has overstayed by only 9 minutes after the permitted period of parking has expired. Under the IPC code of practice for AOS member, on page 12 Para 15.2 (Item 3 in your bundle) which states:
‘Drivers MUST be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired.’
If a NtD was ever issued, which I contend is not the case, I deny that it is valid due to the Claimant being a Member of the International Parking Community (IPC) and therefore being subject to the IPC Codes of Practice for their Accredited Operator Scheme and having failed to comply with the same.
If there was a parking attendant at the site to take the pictures of the vehicle, then that same parking attendant should have spoken to the driver of the vehicle at the time to either issue an NtD or to mitigate the Claimants losses by asking the driver to leave. I would therefore argue that a matter of a minutes, once the driver was back with the vehicle would be de minimis.
On 19/08/2017 I informed the Claimant that I was not the driver at the time of the event and request the Claimant to drop the case as keeper liability has not been passed in accordance with POFA Paragraph 9.5.
Further to this I had no response from the claimant as per a CPR 31.14 request that was submitted before this case was allocated a track (Item 4 in your bundle), which asked for copies of any NtD, NtK and any other correspondence from Parking and Property Management Limited & Gladstone Solicitors to the Defendant that they intend to rely upon in court but Claimant declined to respond, along with other information which I required to negotiate with the Claimant.
Having received no reply I have had to cover all possible defences, causing significant distress and denying me a fair chance to defend the claim.
The Claimant’s solicitor is known to be a serial issuer of claims which arise from an automated template, with no due diligence. I believe that the Claimant’s conduct in pursing consumers through the small claim track, using an automated system is against the public interest and not something the courts should be seen to support.
I would humbly refer you to a Private Members Bill which is currently progressing through Parliament in which the Claimants Legal representatives are mentioned specifically. That can be found in Hansard dated 2nd Feb 2018. Second reading of the bill by Sir Greg Knight MP.
Some of the matters raised by MP’s in that debate regarding the shady tactics used by some PPC’s certainly make for alarming reading.
I have included some photographs of the location (Item 5 in your bundle).
There is no signage at the entrance. Taking a view from where the vehicle was parked there would have been only one sign visible to the driver but bearing in mind that it was dark at the time, it is unclear as to how visible this sign would have been as the sign is well away from any overhead or ambient lighting. The sign was certainly not obvious to me when I went to the area to take photographs.
This sign was also placed at well above eye level with terms / fees and conditions not prominent.
Therefore drivers are immediately placed at a disadvantage as the terms that they are supposedly agreeing to are not made clear.
This, once again, breaches the terms and conditions of the IPC in their CoP for AOS Members. On Page 22. Part E. Schedule 1. Signage (Item 6 in your bundle), it is clearly stated that:
Entrance signs should:
a) Make it clear that the motorist is entering onto private land.
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
And goes on to say on Page 23 (also item 6):
Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist.
Whilst on the subject of signs. I believe that any signs on display fall under classes in Schedule 1 or Schedule 3 of The Town and Country Planning Regulation 2007.
Therefore, the Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
With no proof from the Claimant, I have reasonable belief that the Claimant may have been and/or may be continuing to commit an offence and therefore, regardless as to all of the above, no contract could have been entered into as a contract cannot be formed as a consequence of an illegal or unlawful act.
Finally and further to all of the above, as it has been shown that the Claimant is not operating within the clear terms and conditions of the IPC CoP for AOS Members. I would draw your attention to the Claimants contract with the Managing Agent. Which is on Page 5 of the Claimants evidence pack.
Item 1 says that the Claimant: Is required to operate within an Accredited Trade Association's Code of Practice.
Which the Claimant has not done in this case.
I would argue therefore that the Claimant in this case, has operated outwith the clause in their contract with the Managing agent and has thereby rendered the contract unenforceable by their own actions.
The Defendant invites the court to dismiss the claim for the above grounds.
I believe that the facts stated in the witness statement are true and to my best knowledge.
signed and dated