Highview Parking ANPR PCN Claimform - Urban Exchange Manchester ***Claim Dismissed***

[FTMDave]

I think there's some confusion because the draft defence was recently updated.

 

Fellow Site Team member Andyorch suggested the part about the PoCs being vague and generic.

 

So include it if you want, the important thing is to get a defence in on time.

 

 

[JackD13]

I have received a letter from Highview's solicitor explaining that they intend to proceed with the claim after reviewing the defence.

 

They have also offered to settle the case within the next 7 days.

 

[dx100uk]

nothing like trying to intimidate and harass ...yes std letter 

[JackD13]

I have now been sent the Notice of Proposed Allocation to the Small Claims Track. I have been directed to fill out a Directions questionnaire.

 

They have also explained that both parties should make every effort to settle their case without having to go to a hearing. There is an option on the form in section A1 "Do you agree to this case being referred to the Small Claims Mediation Service?" Should this be something  should explore?

 

Section C1 "Do you agree that the small claims tack is the appropriate track for this case?" I'm assuming this would be yes?

 

I have taken a look through the forums to find similar situations but I am unable to find any that have gone this far? Any advice on next steps would be much appreciated!

 

 

 

[AndyOrch]

 

[dx100uk]

use our enhanced google search box 

PCN Claimform

 

every thread has N180 reply details

 

dx

 

On 21/12/2021 at 13:24, dx100uk said:

use our enhanced google search box.

 

pcn claimform

 

part of the idea of CAG is self empowerment and selfhelp, everything is always here and open for everyone to use and see.

 

[JackD13]

@Andyorch Thanks for you response - I will fill out the form following the instructions you have provided.

 

@dx100uk  I am not seeing all these threads you mentioned with the N180 replys, the very closes one I have found is the below but this has no N180 reply on it:

 

 

 

Another one that might be helpful for thread readers in future but again doesn't get past Directions Questionnaire:

Although there is a handy link in the thread to the PPE success stories which is worth reading if anyone is struggling and wasn't made aware of the thread initially!

 

  

[dx100uk]

no to mediation

1 wit you

the rest is obvious.

 

3 copies

1 to the court

1 to their sols (minus email/phone/sig)

1 for you records file

 

its that simple

 

[JackD13]

Thanks dx got that from the information Andyorch sent. Will send before the weekend and keep you updated.

[JackD13]

I have received the Notice of Transfer of Proceedings explaining that it has now been transferred to the county court for allocation. I am still awaiting the notice of allocation.

I assume that it is now likely I will need to attend court and therefore make a defence case. Any help on this or templates would be much appreciated!

 

@dx100uk I will use the advance search box in order to find previous examples but if you have any to hand please kindly post them on this thread for user who may be able to use in the future!

[dx100uk]

Await n157/allocation..

 

Probably be a video/phone hearing.

 

Lots of witness statements here but that's probably months away and ideally you need their's first 

 

Dx

[JackD13]

I have had the "Notice of Dispute Resolution Hearing" letter attached to the "General Form of Judgement or Order" delivered. 

 

It explains the date of the hearing will be the third week of April by Telephone and that I need to provide witness statements and evidence.

 

I will reach out to the court by email in order to give them a direct dial telephone number for them to reach me on. I know you mentioned in a previous message that i would ideally need their witness statement. How do I arrange this?

 

Thanks!!!

[dx100uk]

you wait for it

 

scan up the court stuff incase you've missed anything.

[JackD13]

Hearing.pdf

[FTMDave]

Yep, Witness Statement time.

 

Draft yours but be ready to change it to challenge the bilge that will certainly be in theirs.

[JackD13]

Got a response to my evidence request... I have attached the .pdf to this Reply.

 

One thing that immediately  stands out to me is that the duration of my stay was 1 hour 16 minutes and the sign states that free parking is permitted for 1hr 30 mins for customers. This seems so obvious that I am doubting if I have misinterpreted something?

 

I will begin writing my witness statement this afternoon.

 

It's the first time I have written one, what sort of detail should I write in there?

 

Will the judge be interested in hearing my reasons for parking there etc? Or should I just focus on the legal aspect of why the parking charge isn't correct?

 

I have provided the court with a telephone number to reach me on. It states on the hearing.pdf that they must receive my evidence no later than 14days before the hearing.

 

The hearing is scheduled for the 20th does this mean that they need to receive my witness statement by the 6th?

 

What other things would be good to included with my witness statement?

 

I have just received a witness statement from Yvette Yates (an employee of Highview) I will read through this and pdf and upload later this afternoon.

 

A slightly lengthier witness to digest. It looks as though they have conveniently moved the goalposts to fit the time with the signage. 

 

In this witness statement it say 1 hour free parking where as the evidence they have set out previously contradicts this as 1hr 30 mins of free parking.

 

I am looking at conveying this in my witness statement along with the first pcn falling outside of the allowed times scale.

 

I will look to draft my witness statement and post here.

 

Any help or pointers would be greatly appreciated!

 

Claimants WS .pdf

[FTMDave]

I'm at work now but promise to read everything in detail late this evening.

[JackD13]

@FTMDave Thank you so much!

 

I am part way through reading this thread which is a great help.

 

I will keep reading other posts and wait for your reply!  

[JackD13]

Hi All,

 

See below a first draft of my witness statement. I leant on Justice143's post so some points may need refining/removing. 

 

I have inserted comments in red below.

 

Is there anything else that I might need to include? Appreciate the help!  

 

Witness Statement

1.      The facts from this statement come from my personal knowledge except where I have indicated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my knowledge they are true to the best of my information and belief.

 

2.      I have included a pack of evidence with this statement.

 

3.      The claimant has failed to show a cause for action by NOT responding to a CPR 31.14 request for documents and I think the claim should be summarily dismissed under CPR 16.4(4) This was included in the post by Justice143 unsure whether this applied to me? They did respond to an evidence request should, should I take this point out?

 

4.      The defendant was not the driver at the time and the claimant does not rely upon the Protection of Freedoms act (POFA) 2012 to create a keeper liability in this matter so the defendant puts it to strict proof as to who was driving at the time.

 

5.      The claimant has not complied with the IPC code of practice in one instance by not adhering to the POFA 2012 amongst other errors. See evidence Is there any evidence of this in the WS?

 

(Members of the IPC who issue parking charges within the private parking sector are required to subscribe to the AOS and adhere to this Code which defines the core standards necessary to ensure transparency and fairness.

 

The Code complements the existing laws concerning parking enforcement on private land. It is designed to enhance the conduct and culpability of members in order to increase consumer confidence and raise standards within the industry.

 

It remains the duty of the operator to appraise themselves with any legal provisions concerning their operations and to adhere to them. In particular, operators should have a sound working knowledge of the following areas:

 

·        The Protection of Freedoms Act 2012 (for operations in England and Wales)

·        Contract - with particular reference to unfair contract terms.

·        Tort – In relation to trespass.

·        Occupiers Liability – both in statute and tort.

·        Data Protection

·        Consumer Protection and Disability Discrimination)

 

6.      The POFA 2012 (Copy supplied) is the relevant law in respect of transferring liability to the keeper in the event of a legitimate parking charge. The claimant, in their submissions, accepts that the defendant was not the driver[JD1] , and confirms that they do not rely on POFA 2012 as the basis of holding the keeper liable. In the defendant's view, not only is this fatal to the claimant's case, but is likely a breach of GDPR with potential damages due. In any event, the defendant is confused about the relevance of the 'law of agency' which the claimant relies solely upon for creating keeper liability - particularly as they have not supported it's relevance and suggested application within their submissions. This was included in the post by Justice143 unsure whether this applied to me? They did respond to an evidence request should, should I take this point out?

 

 

 

7.      The claimant did not send the Notice to Keeper (NTK) in sufficient time according to the POFA 2012. The defendant received the NTK on the 1^st November 2022 which is 71 days after the contravention. The NTK clearly states it did not get posted until the 27^th October which is 66 days after the event.

 

Protection of Freedoms Act 2012

 

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.

 

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

 

8.      The contract for parking states it is for customers only and so patrons of the retail park can never be offered the terms without the certainty that they will be breached, the signage represents an unfair contract under s62 of the Consumer Rights Act 2015

 

Consumer rights act 2015 Section 62

 

Requirement for contract terms and notices to be fair

(1)    An unfair term of a consumer contract is not binding on the consumer.

 

(2)    An unfair consumer notice is not binding on the consumer.

 

(3)    This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.

 

(4)    A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

 

(5) Whether a term is fair is to be determined—

(a) taking into account the nature of the subject matter of the contract, and

(b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.

 

(6)    A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.

 

(7) Whether a notice is fair is to be determined—

(a) taking into account the nature of the subject matter of the notice, and

(b) by reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends.

 

9.      At the time of receiving the NTK the defendant telephoned the Supermarket and Gym, both said that they are unable to do anything about it retrospectively.

 

10.   When I requested evidence from DCB Legal I received Exhibit 1(Exhibit 1 will be the Hearing.pdf). This illustrates signage that there was 1 hour 30 minutes of free parking accompanied along side this was the NTK’s that were sent, explaining the duration of the drivers stay was 1 hour 16 minutes. 14 minutes within the free parking time permitted.

 

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

---

 [JD1]

[FTMDave]

I was in the middle of a post but you seem to have zoomed ahead of what I was writing!

 

 

Well done on all the reading up.

 

Have a read through Zimbird's WS here  https://www.consumeractiongroup.co.uk/topic/439264-unknown-vcs-ccj-bristol-airport-stopping-in-a-zone-where-stopping-is-prohibited-was-abroad/page/10/#comments  Now Zimbird's case is very, very different from yours, so I'm not suggesting you use the same arguments.  It's more the way the WS is laid out in a clear way for the judge.  That said, you can use virtually all of Zimbird's section DOUBLE RECOVERY as in your case too the PPC have made up £65 Unicorn Food Tax.

 

Your arguments need to be:

NO LOCUS STANDI

NO KEEPER LIABILITY - the PCN does not respect the timescale of POFA

UNFAIR PCN - it doesn't say what you did wrong de facto removing any chance to appeal, the Claimant also did not respect PAPLOC and never sent you a Letter Before Claim

ILLEGAL CONDUCT - NO CONTRACT FORMED - you do not believe Highview have planning permission for their signage

DOUBLE RECOVERY

[FTMDave]

OK, I've read the lot.  Sorry, but a lot of what you have produced is out of date and omits key arguments.  You need to focus on -

 

NO LOCUS STANDI - you do not believe a contract exists with the landowner that gives Highview a right to bring claims in their own name, no contract has been produced either after your CPR request or in this WS (a letter saying a contract exists is not the same thing as producing a contract).

 

ILLEGAL CONDUCT - NO CONTRACT FORMED - you do not believe Highview have planning permission for their signage, none has been produced either following your CPR request or in the WS.

 

UNFAIR PCN - it doesn't say what you did wrong de facto removing any chance to appeal.  Ditto the reminder letters.  The Claimant also did not respect PAPLOC and never sent you a Letter Before Claim.  It is also unreasonable to delay litigation for so long and claim nearly five years' interest.

 

NO KEEPER LIABILITY - the PCN does not respect the timescale of POFA.

 

NO BREACH OF CONTRACT - when you left the car park you felt you had respected the signage, the PCN did not state what you had done wrong, Highview's solicitors' reply to your CPR request shows signage indicating a limit of 90 minutes' free parking which you respected, then suddenly after nearly five years Highview have ambushed you with a new story that there was only one hour free parking.

 

DOUBLE RECOVERY - all the Unicorn Food Tax arguments.

 

Edit - I've moved the suggested sections round so the first few argue no contact was formed, then later if the judge disagrees and rules a contract was formed you can go on to argue that you didn't break it.

Edited April 4, 2022 by FTMDave
Extra info added

[brassnecked]

Is it worth putting in a line in No Contract putting them on strict proof as to when the signage changed to 60 minutes as the Solicitor's letter  stipulated90 minutes was indeed the time permitted at the time ddefendant parked and include the letter as an Exhibit?  Just looking for belt and braces.

[JackD13]

Thank you both for getting back to me! I'm pretty confident I can put this into words and get the updated witness statement back on here.

 

With the hearing date set for the 20th, does this need to be sent by EoD today or can it be sent on the 6th?  

[FTMDave]

It should be sent tomorrow, 14 days before the hearing.

 

However, as you are a Litigant in Person and allowed some leeway a day's delay won't matter.

 

However, you are cutting it fine.

[JackD13]

I agree I am cutting it fine.

 

I have most of the day tomorrow to work on this so hopefully I can get it close to a place to being finished. If not I will let the court know I need an extra day to provide the witness statement.

 

I am going to have another read of Justice143's post as I still need to add the double recovery and no breach of contract. Here's what I have so far.

 

I will look to spend another couple of hours on this tonight.

 

Appreciate the help so far!!

 

Witness Statement of XXXXX

 

Introduction

 

1.     I, XXXXXX am the Defendant in this claim. I represent myself as a in-person, with no formal legal training. Everything in the following statement is true to the best of my knowledge and belief.

 

2.     In my statement I shall refer to exhibits within the evidence section supplied in this bundle, referring to page and reference numbers where appropriate.

 

3.     I was the registered keeper of the vehicle: XXXXXXX

 

4.     Background

 

Defendant received the Parking Charge Notice (PCN) on the 1^st November 2022 following the vehicle being parked at Urben Exchange, M4 on the 22^nd August 2022 which is 71 days after the contravention. The PCN (Exhibit 1 ) clearly states the Date of Notice was the 27^th October which is 66 days after the event. This contradicts Point 8 of their witness statement where it is explained the Issue date was the 22^nd August 2022, this is incorrect.

5.     Contract

5.1 No Locus Standi, I do not believe a contract exists with the landowner that gives Highview a right to bring claims in their own name, no contract has been produced either after my CPR request or in the Claimants Witness Statement (a letter saying a contract exists is not the same thing as producing a contract).

Definition of “Relevant contract” From PoFA 2 [1] means a contract Including a contract arising only when the vehicle was parked on the relevant land between the driver and a person who is-

(a) the owner or occupier of the land; or

(b) Authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land. According to https://www.legislation.gov.uk/ukpga/2006/46/section/44

For a contract to be valid, it requires a director from each company to sign and then two independent witnesses must confirm those signatures.

The fact that no contract has been produced with the witness signatures present means the contract has not been validly executed. Therefore, there can be no contract established between Highway Parking and the motorist. Even if “1 Hour Free Parking” could form a contract (which it cannot), it is immaterial. There is no valid contract.

5.2        As stipulated in Exhibit 2  sent by DCB Legal following the defendants CPR request the signage displayed in their evidence clearly shows 1 hour 30 minutes. The defendant puts it to the claimant a request for strict proof when the signage changed to 1 hour as the DCB Legal’s letter stipulated 1 hour 30 minutes was indeed the time permitted at the time defendant parked and included the letter as a letter in Exhibit 2.[JD3] 

6.     Illegal Conduct – No Contract Formed

6.1        At the time of writing, the Claimant has failed to provide the following, either in response to the CPR request from myself, or in their Witness Statement.

6.2        The legal contract between the Claimant and the landowner (which in this case is Town Centre Securities) to provide evidence that there is an agreement in place with landowner with the necessary authority to issue parking charge notices and to pursue payment by means of litigation.

The Claimant has produced a one page “Witness Statement” Exhibit 3  but this does not seem to be a contract. It certainly does not give them permission to litigate on behalf of the Town Centre Securities.

6.3        Proof of planning permission granted for signage etc under the Town and country Planning Act 1990. Lack of planning permission is a criminal offence under this Act and no contract can be formed where criminality is involved.

6.4        I also do not believe the claimant possesses these documents.

7.     Unfair PCN

7.1       The PCN provided as part of the Claimant's Witness Statement does not establish what the defendant was being charged for. This de facto removes any chance for the defendant to appeal as there is no explanation for the charge. 

 

7.2        This also applied to the subsequent reminder letters on the 13/11/2017 and 30/11/2017. 

 

7.3        The Claimant did not respect PAPLOC and never sent me a Letter Before Claim. 

 

7.4        It is also unreasonable to delay litigation for so long and claim nearly five years' interest.

 

8.     No Keeper Liability

 

8.1        The defendant was not the driver at the time and date mentioned in the PCN and the claimant has not established keeper liability under schedule 4 of the Protection of Freedoms Act 2012. In this matter, the defendant puts it to the claimant to produce strict proof as to who was driving at the time.

 

8.2        The claimant did not send the PCN in sufficient time according to the POFA 2012. The defendant received the PCN on the 1^st November 2017 which is 71 days after the contravention. The PCN clearly states it did not get posted until the 27^th October which is 66 days after the event.

 

Protection of Freedoms Act 2012

 

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.

 

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

  

8.3  At the time of receiving the PCN the defendant telephoned the Supermarket and Gym, both said that they are unable to do anything about it retrospectively.

 

8.4  When I requested evidence from DCB Legal I received Exhibit 4(Exhibit 4). This illustrates signage that there was 1 hour 30 minutes of free parking accompanied along side this was the NTK’s that were sent, explaining the duration of the drivers stay was 1 hour 16 minutes. 14 minutes within the free parking time permitted.

 

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

Edited April 5, 2022 by FTMDave
Typos corrected