UKPCL ANPR PCN claimform - overstay - MCDONALDS· WAKEFIELD 2 569, DEWSBURY ROAD WAKEFIELD WF2 9BY ***Claim Discontinued***

[RyanB96]

I've been having a look into the Wakefield mcdonalds for planning permission, and I found a search by property, so currently looking through these (

000SLGQQBU000 | Mcdonalds Restaurant Dewsbury Road Wakefield WF2 9BL

PLANNING.WAKEFIELD.GOV.UK

. Ive reached out to both friends again 

 

Well, I had a look through a lot of the McDonalds plans, drawings, cases etc. and I see nothing about UKPC or UKPC Signage. Likely because it doesn't exist right

 

1 hour ago, FTMDave said:

Can your mate who is away not just look at their on-line bank statement for 22 April last year?

Plus if they simply send a photo of a signature you can easily knock up a Witness Statement with them saying they were unwell.  It would be two paragraphs.

Can this be something as simple as: 

Quote

 

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

2.  I was party to the vehicle during the infringement in this claim 

3. On 17th April 2022, the defendant drove me to McDonalds for food & liquid. I was feeling unwell and needed the hydration. I bought McDonalds goods at <TimeStamps> (Exhibit 1-Bank Statement)

Signature <Signature of Witness> 

 

 

[lookinforinfo]

Dave if you mean "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;" that part of S9[2][f] then yes. 

In fact it still annoys we now that I didn't take a copy of one case where a cagger won on that missing part in parenthesis alone.

As far as the Council Planning times go, they usually give 3 hours though not always. However when there is not planning permission the parking rogues then decide themselves how long one can stay in their car parks and you ca bet that it will be to a time that will make them money rather than being a benefit to the motorist.

Edited December 31, 2023 by lookinforinfo

[FTMDave]

@lookinforinfo Thanks for the confirmation.

@RyanB96 Yes, that WS from your friend would be enough, it just needs the Statement of Truth and signature at the end.  Change "infringement" to "alleged infringement".

More in the morning.

[dx100uk]

for ref and interesting reading...

 

G4QZ465V Excel v Wilkinson.pdf

[RyanB96]

17 hours ago, FTMDave said:

@lookinforinfo Thanks for the confirmation.

@RyanB96 Yes, that WS from your friend would be enough, it just needs the Statement of Truth and signature at the end.  Change "infringement" to "alleged infringement".

More in the morning.

Awesome, thank you. 

Quote

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

2.  I was party to the vehicle during the alleged infringement in this claim 

3. On 17th April 2022, the defendant drove me to McDonalds for food & liquid. I was feeling unwell and needed the hydration. I bought McDonalds goods at <TimeStamps> (Exhibit 1-Bank Statement)

Statement of Truth 

4. 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.

Signature <Signature of Witness> 

 

Will keep you posted on if I can get friend to get those timestamps! 

 

Hi - Happy new year!

It doesn't look like the friends will be coming through this time round. 

I am preparing the letters to send now, I've printed copies of the 4 Exhibits for both court & DCB Legal. Any final tweaks to the WS? If not, I will send first thing tomorrow 1st Class. Since this will likely arrive the day after rather than before the 4pm deadline, is it worth me also emailing it across? I have the email from discussing the lack of notice of hearing. 

Final draft: 

Quote

Witness Statement of XXXXX

INTRODUCTION

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

2.  I was the registered keeper of the vehicle: XXXXXX.

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

BACKGROUND

4.  The Defendant received the Parking Charge Notice (PCN) on 22nd April 2022 (Exhibit 1) following the vehicle being parked at McDonald's - Wakefield 2 - 569, WF2 9BY on 17th April 2022 which is 5 days after the contravention. The car park in question was almost empty and being used for the sole purpose of purchasing McDonald's goods. The driver "overstayed" as two friends were not feeling well, so continued to stay in McDonald's until they felt better, frequently purchasing McDonald's goods. 

LOCUS STANDI

5  There is no Locus Standi.  I do not believe a contract exists with the landowner that gives UK Parking Control Ltd a right to bring claims in their own name, no contract has been produced after my CPR request (Exhibit 2). A picture of a sign (Exhibit 3) stating they are acting on behalf of McDonald's is not the same as producing a contract.
 
6.  The 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 Companies Act 2006, Section 44. 

44 Execution of documents

(1)Under the law of England and Wales or Northern Ireland a document is executed by a company—

(a)by the affixing of its common seal, or

(b)by signature in accordance with the following provisions.

(2)A document is validly executed by a company if it is signed on behalf of the company—

(a)by two authorised signatories, or

(b)by a director of the company in the presence of a witness who attests the signature.

(3)The following are “authorised signatories” for the purposes of subsection (2)—

(a)every director of the company, and

(b)in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

(4)A document signed in accordance with subsection (2) and expressed, in whatever words, to be executed by the company has the same effect as if executed under the common seal of the company.

(5)In favour of a purchaser a document is deemed to have been duly executed by a company if it purports to be signed in accordance with subsection (2).

A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.

(6)Where a document is to be signed by a person on behalf of more than one company, it is not duly signed by that person for the purposes of this section unless he signs it separately in each capacity.

(7)References in this section to a document being (or purporting to be) signed by a director or secretary are to be read, in a case where that office is held by a firm, as references to its being (or purporting to be) signed by an individual authorised by the firm to sign on its behalf.

(8)This section applies to a document that is (or purports to be) executed by a company in the name of or on behalf of another person whether or not that person is also a company.

NO KEEPER LIABILITY

7.  The PCN does not mention or specify the period of parking at all, only the duration of the stay defined by arrival and departure times. The duration of the stay includes driving to a space, parking, leaving the space, slow service at e.g. the drive thru, delays by traffic and is not the same as specifically the period of parking. In addition, there is a 5-minute consideration period and a further 10-minute grace period which are minimum times not rigid times. 

Schedule 4 of the Protection of Freedoms Act 2012 . Under Section 9 [2][a] it states  

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

8.  The lack of a Parking Period means that the PCN does not comply with PoFA. and so the charge cannot be transferred from the driver to the keeper. Only the driver is liable.

9.  Schedule 4 of the PoFA, Section 9 [2][f] states: 

f. warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

10.  The Claimant's PCN does not include the words in Section 9 [2][f] ii and therefore cannot transfer liability from the driver to the keeper.

11. The Claimant's Particulars of Claim state that the Claimant is pursuing the driver or the keeper. Given that the Claimant has no evidence who the driver is, the Claimant can pursue the Defendant only as the keeper, but cannot claim the Defendant is the driver as they have absolutely no proof. In this matter, the Defendant puts it to the Claimant to produce strict proof as to who was driving at the time. 

12.  As the Claimant cannot prove who was driving at the time, they can only pursue the Defendant as the keeper as being liable. It has already been ascertained that the keeper is not liable because UKPC have failed to comply with the Act.

UNFAIR TERM

13.  Under the Consumer Rights Act 2015 a term is unfair if it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.

14.  Ninety minutes is sufficient time to eat a normal meal in a fast-food restaurant.  It would not be sufficient time, say, in which to hold a child's birthday party (during which of course purchases would be made far exceeding a normal fast food meal).

15.  In this case one member of the the driver's party made purchases at 09:34:32, 09:35:14 and 10:10:57 (Exhibit 4).  Other members made further purchases up until around 11:50.  Not one member of the party ever left McDonald's or stayed in the restaurant after consuming food.

16.  It is an unfair term to expect customers who were consuming food for nearly two and a quarter hours to only stay for one and a half hours.  They would have to consume the food before it was prepared or ordered!

FRUSTRATION OF CONTRACT

17.  The reason for purchasing so much food was that two of the party were feeling unwell and it was thought that by taking in nutrition and liquid it may have helped them feel better.

ILLEGAL SIGNAGE

18.   At the time of writing the claimant has failed to provide the following, in response to the CPR request from myself, and has provided no Witness Statement with evidence. 

19.  The legal contract between the Claimant and the landowner (which in this case is McDonald's) 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.

20.  Proof of planning permission granted for signage etc. under the Town and Country Planning Acts 1990 and 2007.  Lack of planning permission is a criminal offence under these Acts and no contract can be formed where criminality is involved. 

21.  Due to the failure to produce the documents in the 14-day duration following my CPR 31.14 Request dated 31/03/2023, or at all, I do not believe the claimant possesses these documents 

ABUSE OF PROCESS

22.  The Claimant has not complied with paragraph 3 of the PAPLOC (Pre-Action Protocol).  They failed to serve a letter of claim pre claim pursuant to PAPLOC changes of the 1st October 2017.  It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPLOC.

23.  The Claimant has not respected the court deadline for filing and sending a Witness Statement.  I, as a lay person, have, despite having to compile the Statement during the Christmas period.  I respectfully request that the court disallow any Witness Statement by the Claimant which may be filed after the deadline.

DOUBLE RECOVERY

24.   As well as the original £100 parking charge and £85 allowed court/legal costs, the Claimant seeks recovery of an additional £70.

25.   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.

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

27.   Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery i.e. Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since the 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.

28.  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 all the letters.

29.  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 practise 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.”

30.   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 Judgement 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 judgement in Parking Eye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for a 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.

31.   The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

32.   It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4).

33.   The Defendant is of the view that the Claimant knew, or should have known, that to claim in excess of £100 for a parking charge on private lands is disallowed under the CPRs, the Beavis case, the PoFA AND THE CRA 2015, and that relief from sanctions should be refused.

IN CONCLUSION

34.  I respectfully request that the Court dismiss this claim.

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.

I have left the section 44 quote in, but I don't necessarily need it as you have suggested Dave, but I figured it can't necessarily hurt, and I have space for it, so have left it in - wrong decision? 

Edited January 1 by RyanB96

[FTMDave]

You can save a few bob on postage by e-mailing the court.  Make sure that in the subject line you put the claim number, the names of the two parties, and "Witness Statement".  Obviously click on "return receipt" when you send it.

Send DCBL's theirs second class - as they are second class solicitors .- and get a free Certificate of Posting from the post office.

I've had a last read through and it looks great.

You need to put a heading at the start with the names of the parties, the name of the court and the claim number.

Have a look at the attachment in post 110 here and copy the same style  https://www.consumeractiongroup.co.uk/topic/421775-vcs-spycar-pcn-paploc-now-claimform-no-stopping-east-midlands-airport/page/5/#comments

If it's not in post 110 it'll be a couple of posts above or below, sometimes the post count goes wonky.

[lookinforinfo]

Dave what have you done ? You have upgraded DCBL to second class.

[RyanB96]

Perfect, all done! Sending now! 

 

Thank you so much for all of the help so far!! 

[honeybee13]

Don't forget to update us, please.

HB

[RyanB96]

I will do! 

[RyanB96]

Hi all, 

I have just received this email from the county court as a response to me sending the WS to them: 

 

Quote

 

Good morning

The court has now received a notice of discontinuance from the Claimant, which should have also been sent to yourself. The court will not be taking any further action in this matter.

Kind regards

Alison Honour

Admin Officer

Enforcement Team | HMCTS | County Court at Lincoln | Lincoln | LN5 7PS

 

 

If I understand this correctly, UKPC / DCB Legal cancelled the claim, and its done and dusted? 

Given the WS letter was received 22 Dec (Friday), 23/24 (weekend), 25/26 (Bank Holiday), 27/28/29 (Working days), 30/31 (weekend), 1 (Bank Holiday) ... Presumably, the Judge giving only 3 working days to compile the WS and even then, they were over the Christmas period meant that they did not have enough time to do their own WS, so backed off? 

 

[dx100uk]

you only get ONE extra day for the holiday period.

the claim is now dead.

well done, thread title updated

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dx

 

 

[Nicky Boy]

     

[FTMDave]

Well done on your victory! 

I was hoping that their lack of a WS meant discontinuance was a possibility, but in any case it's always better to prepare too much than too little!

[honeybee13]

Excellent news  well done. 

HB

[RyanB96]

Amazing!!

Thank you so much for everyone's help and particularly Dave for all the hours spent helping me on that Witness Statement!! Awesome! 

A Happy New Year indeed! 

[lookinforinfo]

Great news Ryan. Didn't even have to go to Court to win. 

PS to Dave. I told you second rate was too high for DCBL.  Not noticing that they had not filed clients WS is just one of their weaknesses. 

Perhaps Ryan you could send them a nice letter thanking them for their ineptitude. It's a small gesture but all companies appreciate a show of gratitude towards them.

[andydgg]

a happy ending, well done