EPS ANPR PCN - ignored LOC now Claimform - - 29 sec stay! - Shoulder of Mutton , Birmingham ***Claim Discontinued***

[kfdh1962]

thanks FTMDave  and Nicky Boy , will take a look at all of that now 

[kfdh1962]

taking on board the suggestions i have amended the WS as follows. Would like to know if section 11 requires more beefing up and also if i have the correct beavis reference in  what what is now 10.0 as per Nickyboy's suggestion 

 

IN THE COUNTY COURT                                         Claim No.: xxxxxxx

 

Between

 

 

EURO PARKING SERVICES LIMITED

(Claimant)

 

- and –

 

 

xxxxxxxxxxxxxx

(Defendant)

 

 

_______________________

WITNESS STATEMENT

¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

 

1. I, xxxxxxxxx of xxxxxxxxxx am the Defendant in this claim. I represent myself as a litigant 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 registered keeper of the vehicle in question in this case.

 

4. I received a Parking Charge Notice (PCN) Notice to Keeper (NTK) Issue date 23/02/2021. (Exhibit XX01). The PCN states: “ Contravention Reason: PARKING FOR PATRONS ONLY WHILST ON THE PREMISES. The PCN then goes on to state that the driver of the vehicle is liable to the Parking Charge. Following several months of a number of intimidating letters from the Claimant including mention of additional costs, debt collection, court proceedings, CCJs and effects on employment. I received an N1 Claim Form on 08/07/2022.

  

NO KEEPER LIABILITY

 

5. The Particulars of Claim do not clarify in what capacity they believe I am liable but state that the Defendant is “liable as the driver or keeper” of the vehicle. This appears to be “fishing” for liability.

 

5.1.  To transfer liability of the alleged debt from the driver to the keeper, in their PCN the Claimant must include the wording at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)" but they have not. That in itself makes it non-compliant.

  

INCORRECT PCN , PoFA schedule 4 Non-compliance

 

6. The PCN NTK  (exhibit XX-01)issued by is pursuing the driver/keeper under section 14  Section 4 of PoFA. The vehicle is not a hire car and so the PCN should have been issued under section 9 of schedule 4. The time identified for payment states 21 days  is provided for the driver/keeper to make the requested payment. The required time period provided for payment should be 28 days. The PCN is non compliant with the requirements under PoFA

  

 

LOCUS STANDI

 

7. The Order for Parking Management Services between Euro parking Services (hereby known as EPS) and The Shoulder of Mutton Pub dated 02/07/22 with a defined period of 4 years thus covering the date of the alleged offence. (exhibit XX-02).

 

7.1. 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) authorized, 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. In the contract the Claimant is unable to distinguish whether the client is the land owner, the legal occupier or the managing agent.  The Claimant is put to strict proof of the person/company who signed as the client and whether or not they are the landowner, and if not the landowner then the Claimant is put to strict proof that the signee had permission to sign on behalf of land owner

 

7.2. According to Companies Act 2006, Section 44, a contract to be valid requires a director from each company to sign and then two independent witnesses must confirm those signatures.

 

7.2.1. The fact that no witness signatures are present means the deed has not been validly executed. Therefore, there can be no valid contract established between Euro Parking Services and the motorist in any event.

 

7.2.2  The names and positions and signatures on the Order for Parking Management services, for both the “client” and EPS, have been redacted.  The Claimant is put to strict proof of who actually signed the document and that they are directors of the client company and EPS.

 

7.3.  The contract is governed by the law of England and Wales so is unlawful since it contains a notification that extra charges of £60 can be charged.  This is contrary to Schedule 4 of the Protection of Freedoms Act 2012

 

GRACE PERIOD

 

8.0  The order for parking management services (exhibit XX-02) defines a free stay period, against which it states that non patrons have a grace period of 5 minutes, and that parking charges will only apply if that term is breached.  Therefore, even if a valid contract existed (which it does not), no breach would have occurred as the EPS PCN identifies the time period of the alleged breach to be 29 seconds.

8.1  The government Code of Practice, set up under the Parking (Code of Practice) Act 2019, allows (Table B.1) a 5-minute consideration period while the motorist reads the signs and decides if they wish to accept the contract offered and park. The Code is currently subject to legal challenge regarding (a) the amount of parking charges and (b) the addition of debt collecting costs.  The rest of the Code is not under any legal challenge, including the consideration period.
 

8.2  The Claimant is a member of the British Parking Association, whose Code of Practice states (para 13): "The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes".

8.3  The Claimant is also a member of the International Parking Community who in their Code of Practice states (para 13.1) "Motorists must be allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land" which common sense suggests should be longer than a ridiculous 29 seconds.

8.4  Even if none of the four documents above existed, a breach of 29 seconds would be legally "de minimis".

 

 

ILLEGAL SIGNAGE

 

9.0 After receiving the claim form I subsequently submitted my CPR 31.14 request, in which I requested copies of the claimant's planning permission granted for car park signage etc  under the Town and Country Planning Act 2007. That proof was not provided with the claimant simply stating that it could be provided if required. Surely if the claimant had such permission there is no reason not to supply the information requested, other than to avoid exposing that no such permission exists.  The Claimant is put to strict proof that such planning consent for the site in question.

 

9.1. After checking Sandwell Councill’s website for details of planning permission, I have found out that there is NO planning permission granted for car park signage or ANPR/CCTV for the Shoulder of Mutton Pub therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.

 

9.2.  The Claimant is supposed to comply with the law and the IPC Code of Conduct and they have done neither.  The new government Private Parking Code of Practice draws attention as well to s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."

 

INADEQUATE SIGNAGE

 

10.0 The claimant has provided prints of the car park signage rather than actual pictures. These images provide no real context or picture of what the motorist actually sees when approaching the land in question.

The Claimant claims accreditation by both The IPC and The BPA, so compliance with both Codes of practice is required to form any contract. Parking Eye Ltd vs Beavis (2015) UKSC 67
The signage is not complaint with the requirements of the IPC and BPA Codes of Practice both in respect to placement and visibility both in daylight or after dark. 

 
The IPC Code of Practice:
Part E Schedule 1:
"Signs should, where practicable, be placed at the entrance to a site."
"If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting."

 

The BPA Code of Practice:
Appendix B, "Mandatory entrance signs"
"A standard form of entrance sign must be placed at the entrance to the parking area."
"Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times."

 

10.1  I have provided photos which show the reality for the motorist (exhibit XX_04) when approaching along the Birmingham Road from the direction of the Market PlaceTraffic island (as the driver did). The photos clearly show a total absence of entrance signage breaching both IPC and BPA codes of practice requirements identified in 9.1. There is no indication to on approaching from that this is private parking land, and therefor the driver did not know the terms or restrictions at the time they committed themselves to enter the car park.

 

10.2 I Use the terms “entrance” and “car park” loosely. As well as an absence of entry signage, there is no boundary fencing or barriers that would indicate the land belonged to the Shoulder of Mutton Pub or the café , nor were there any clearly marked spaces to identify it as a car park and not simple hard standing. With an absence of appropriate signage at the entrance, no obvious perimeter fencing or clearly marked spaces, to the casual observer (and/or  a stranger to the area ) it is unclear that this is a private car park. It is also unclear to which business (if any) that the land belongs to (see exhibit XX-05).

 

10.3  Additional signage and lighting around the car park is also inadequate. Placing a small number of signs where they are difficult to spot shows that EPS Parking's objective is not to sensibly manage a car park, but rather to find excuses to send out as many of their PCNs as possible.

 

10.4 At the time of the incident 6:18pm and it was dark. Any signs present were not clearly visible due poor placement and lack of lighting. Signs 1, 2 and 3 indicated on the site plan (exhibit XX-06) were  too far away from the position of the to be clearly visible. Those signs were not illuminated in any way, there was no direct lighting on them , and no  indirect lighting on the car park. Lighting from adjacent buildings does not sufficiently illuminate the areas where these signs are placed.

 

10.5. The large “patrons only” sign is mounted on an external wall of the pub. As well as not being visible when approaching from the direction from Market Place island it’s placement on the wall makes it difficult for the driver to see from within the car depending on the vehicles position on the car park.  From the picture (Exhibit XX-07) you can see that the lower edge of this sign is approximately 8 feet from ground level. The car in question stopped parallel to this sign at a distance of around 10 feet away and this sign was not visible to the driver from inside the car due to the height at which it was mounted

 

 10.6.  The vehicle parked on the site in question because they needed to access a cashpoint and spotted the adjacent Barclay’s bank ATM as they drove towards it. The driver had to reason to not abide by parking rules, and they would have followed what was written on any sign - but there were no entrance signs for the driver to see, nor were any other signs visible before entering the site from their direction of travel.

 

                                                                                                           ABUSE OF PROCESS

 

10. The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs and interest” or “debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4.

 

10.1. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100.

 

10.2. Unless the Claimant can clearly demonstrate how these alleged additional costs have been incurred this would appear to be an attempt at double recovery

 

10.3. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September 2019, District Judge Jones-Evans stated ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

 

10.4. In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton  Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in Parking Eye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

 

  

CONCLUSION

  

11.0 EPS have failed to comply with numerous requirements of both IPC and BPA codes of practice and associated legislation. Their failure to provide adequate and appropriate placed signage to warn of the parking restrictions is clearly intended to entrap the unsuspecting motorist and extract as much money from them as possible rather than to efficiently manage and control the parking on the site for the client.  

 

 11.1 A court claim for a stay of 29 seconds, is contrary to numerous Codes of Practice and even the Claimant's own contract with the landowner, and is clearly vexatious".

 

11.2 I invite the Court to dismiss this Claim in its entirety, and to award my costs of preparation for this hearing, such as are allowable pursuant to CPR 27.14 (see Section 04 – Schedule of Costs).

 

                                                                                                  STATEMENT OF TRUTH

 

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[Nicky Boy]

Beavis reference...

Parking Eye Ltd vs Beavis (2015) UKSC 67

Judgment, para 111:

"And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA."

[Nicky Boy]

And how about...

11.1 A court claim for a stay of 29 seconds which is contrary to numerous Codes of Practice and even the Claimant's own contract with the landowner, is clearly vexatious and "de minimis".

[kfdh1962]

Nicky Bot yes ill add the diminis wording to the conclusion

 

i was also thinking the beavis reference could go in the conclusion as well as section 10 , 

 

something like "The ability of EPS to obtain details of the driver of a vehicle and recover charges is conditional on compliance with IPC and BPA codes of conduct Reference Parking Eye Ltd vs Beavis (2015) UKSC 67 Judgment, para 111:"And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA." EPS have failed in this obligation and are therefor rendered unable to pursue the driver for charges... (or something along these lines

 

what do you think ?

[Nicky Boy]

Not sure about repeating stuff in a WS.

Although, I can see the argument that it might help to hammer the point home.

See what the others think...

[kfdh1962]

just wondering if there are any guides here on the requirements for the court bundle format and contents just so i can check i am doing that correctly 

[dx100uk]

not really worth it

just look at a few on here there are 100's 

 

as long as you get the top few bits in the correct forum

and your statement correct at the end

 

the bit in between simple need to be numbered in order

 

and then a list of ALL your exhibits

 

[FTMDave]

The WS looks absolutely superb.

 

Your section 11 is short, hard hitting and makes it clear why you should be awarded extra costs.

 

If the fleecers have any sense they will discontinue, especially with this extra costs threat, but you never know, their greed might push them to hang on to the bone till the bitter end.

[brassnecked]

Its brilliandt, they wil have great difficulty countering that. 11 just re-emphasises they are being vexatious for 29 seconds.

[kfdh1962]

thank you everyone for the input it's been really helpful.

 

for the bundle i have my index page  , WS, then exhibits in order (which includes the PCN/NTK) , all pages numbered from page 1 for index through to the last exhibit.

 

Do l need to sign and date the WS ?

 

Is there anything else i need to include?

 

sorry if these seem obvious questions  just don't want to get anything wrong at this stage 

 

 

[FTMDave]

That's absolutely fine.

 

Yes, you have to sign the WS,.

 

Do you have a court date and dater to file the WS by yet?

[kfdh1962]

thanks for the feedback FTMDave , court date march 10 2023 , WS date is next week December 13th hence me trying to get it finished off today 

and get them posted 

[kfdh1962]

the postal strikes could be a potential problem , will the courts make allowances if these cause late deliveries of WS etc 

[FTMDave]

No problem at all.

 

E-mail the court their copy.

 

Send the fleecers theirs by 1st class post and get a free Certificate of Posting from the post office, so you have proof you respected the court order.

 

Personally I'd wait till the very last minute, that way if the fleecers are late with their WS you can include a para about you respecting court orders while the charlatans do not, and request any late WS from them not be admitted as evidence.  On the other hand, if the fleecers' WS does show up, it gives you a chance to demolish it in your WS.  Win win.

 

. 

[brassnecked]

Yes email it in then the Court have a copy, as FTMDave says as long as you post it First Class with free proof of posting before the deadline to fleecer's all should be OK.

[kfdh1962]

perfect, sounds good and i will do exactly that. If i e-mail it in to the court does that negate the court to have a hard copy ?

 

 

[FTMDave]

Exactly.  E-mail is enough.

[kfdh1962]

copy of witness statement and evidence e mailed today to the county court business centre. Copy sent to the fleecers by 1st class post today so they should not receive that until tomorrow at some time , maybe even later with all of the strikes and weather related travel disruption 

[AndyOrch]

Quote

copy of witness statement and evidence e mailed today to the county court business centre

 

Is that where it stated to file/return it? ...normally your Local County Court ?

 

 

 

.

[FTMDave]

Missed that.

 

Well spotted Andy.

[kfdh1962]

there is an address listed for postal returns ,

the only e mail address listed anywhere on the notice of allocations to small claims track (hearing) in the paperwork specifically for northampton is an enquiries e mail, would i send it to that one ?

 

[email protected]

  

excuse the type o's

 

[email protected]

 

will check again now

[kfdh1962]

in the absence of any other e mail addresses i sent it through  to that e mail... [email protected], i had a similar automated response as from the business centre so i am guessing its correct .

[FTMDave]

No, it's not.

 

Andy is right.

 

When you got the order with the WS deadline, it should have been from a local court.  Again, you will have written the name of your local court on the top of the WS.

 

Google that court, get the e-mail address, and send the WS there.

 

Make sure you put the claim number and the names of the two parties in the subject field, and click on "Return Receipt".

 

 

[kfdh1962]

FTMDave,  accepting that the business centre address is incorrect i looked for an alternative. The only e mail address for northampton county court anywhere online, court website etc  is the one listed in the last 2 posts above  [email protected] which is where i have sent now e mailed to

 

i included claim number and claimant and defendant details both in the subject box and in the body of the e mail