UKCPM/gladstone 2*MNPR vanishing windscreen PCN's claimform - Ltd business hire out of our vehicle - PHOENIX AVENUE, GREENWICH PENINSULA (PATROL) SE10 0ER, - WS Stage

[citroenberlingo]

 I could only managed to draft the following to the best of my abilities after spending couple of hours typing  and I am sure this will definitely need your expert correction. 

I have attached both pdf and .doc format for you to amend as you see fit.

 

thanks in advance

witness statment of defendant CAG.pdf

[lookinforinfo]

C.B. the principal reason why you should win is that the PCN is not compliant with the protection of Freedoms Act 2012 for the reasons I said on post 5. Thus you as the keeper are not liable at all.  UKPCM have blown it totally. get that across to them in your WS and they may  not want to go to court .

Schedule4 Section 4 states-  Right to claim unpaid parking charges from keeper of vehicle

4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.(2)The right under this paragraph applies only if—(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met;

In Section 5 they fail also -Conditions that must be met for purposes of paragraph 4

5(1)The first condition is that the creditor—(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; 

UKPCM did not have the right to enforce against the driver because according to the contract in Schedule 2 drivers loading or unloading are not to be ticketed.

In section 6 it states  6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor) (b)has given a notice to keeper in accordance with paragraph 9.

The PCN was not given in accordance with paragraph 9  since the warning that the keeper becomes liable if the charge has not been paid is totally missed off  

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;

And of course they have not mentioned the period of parking .

So with all that it is clear that as the registered keeper you are not liable for the charge.

 

OOPs I see you have just posted your WS. Sorry mine was a bit late.

[FTMDave]

OK, your arguments are good but you jump from one to the other and back again.

Have a look at the attachment in post 110 here  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.

Look at how Alaska101 sets out the introduction and the conclusion.  And how the clear headings show the judge instantly which legal arguments are being used.  

Alaska101's case is very different from yours, so I'm not saying to copy the legal arguments.  It's more the style I'm on about.

So in your draft WS -

You've entitled the first part INTRODUCTION  Good.  Put it in capital letters and in bold.

The next section needs to be LOADING IS NOT PARKING  Under that put paras 3, 4, 6 (don't worry about silly numbering at the moment, that can be sorted later).

NO KEEPER LIABILITY  Paras 3 (duplicated for the moment), 5, 10, 11

CONSIDERATION & GRACE PERIODS  Para 7, 8

INSUFFICIENT SIGNAGE  Para 9

UNFAIR TERM  Para 13

Para 12 has to go

Add a new section INTEREST and state that it is unreasonable for the Claimant to delay litigation for two years and then artificiality inflate their claim by claiming interest at 10.25% in their Particulars of Claim, when Section 69 of the County Courts Act 1984 fix the amount as 8%.  Add that the author of the Claimant's copy & paste Witness Statement has obviously been too lazy to read the Particulars of Claim, as she too in the last line of her Witness Statement referred to the Act and 8%.

For the moment at least add a new section DOUBLE RECOVERY and copy everything from that section of Alaska101's WS.

You need to end with a STATEMENT OF TRUTH  Copy from Charlotte's or Alaska101's.

Please post up a revised draft based on the above.

What is being produced is not perfect, but is getting better bit by bit and hopefully a final version will smash the fleecers on 2 August!

 

Edited July 31, 2023 by FTMDave
Typo

[FTMDave]

Usual Night Owl deal from me - I will be on-line at 10pm UK time after work.

However, the sooner your upload a revised version the better.  There are other regulars on CAG who keep normal hours

[citroenberlingo]

Managed to draft this, thanks for your suggestions throughout. Amazing help I must say.

witness statment of defendant CAG.pdf

[dx100uk]

docx removed as it has all your pers details in file info/properties

dont use docx pdf only.

dx

 

[FTMDave]

Well, I don't know what to say really.

Yesterday you had the bones of a good WS yet today you've changed things totally and ignored the sequence of legal arguments we suggested.  I'd hoped to have had to correct a few things this evening, not chuck the whole lot in the bin.

You go on & on about there being no contract between the PPC and the landowner - when the fleecers have produced a contract.

Had you come here at least before last weekend there would have been time to rescue things, but it's far too late now.

Sorry, I'm the biggest glass-half-full person there is going, but you've made a huge mess of this and I don't see what can be done.

Edited August 1, 2023 by FTMDave
Typo

[FTMDave]

21 hours ago, FTMDave said:

Alaska101's case is very different from yours, so I'm not saying to copy the legal arguments.  It's more the style I'm on about.

So in your draft WS -

You've entitled the first part INTRODUCTION  Good.  Put it in capital letters and in bold.

The next section needs to be LOADING IS NOT PARKING  Under that put paras 3, 4, 6 (don't worry about silly numbering at the moment, that can be sorted later).

NO KEEPER LIABILITY  Paras 3 (duplicated for the moment), 5, 10, 11

CONSIDERATION & GRACE PERIODS  Para 7, 8

INSUFFICIENT SIGNAGE  Para 9

UNFAIR TERM  Para 13

Para 12 has to go

Add a new section INTEREST and state that it is unreasonable for the Claimant to delay litigation for two years and then artificiality inflate their claim by claiming interest at 10.25% in their Particulars of Claim, when Section 69 of the County Courts Act 1984 fix the amount as 8%.  Add that the author of the Claimant's copy & paste Witness Statement has obviously been too lazy to read the Particulars of Claim, as she too in the last line of her Witness Statement referred to the Act and 8%.

For the moment at least add a new section DOUBLE RECOVERY and copy everything from that section of Alaska101's WS.

You need to end with a STATEMENT OF TRUTH  Copy from Charlotte's or Alaska101's.

 

[lookinforinfo]

As this is an important legal document which is designed to avoid you paying any money to UKPCM you do need to proof read to make sure that it is clear. 

When you copy from other people's WS's you  do need to think how it fits into your case. For example you mentioned VCS 

in part of your statement but your parking company is UKCPM which would be confusing to the Judge.I appreciate this is all new to you and difficult to get your head round but if you don't , you may well lose in court when there is no reason to as you have a strong case.

I also understand too that Dave and I gave you different advice on how to lay out your WS which has been confusing.so   its down to you to understand what we are both pointing out then putting it all together into a cohesive argument to convince the Judge that UKPCM haven't got a chance of winning. It is important that you understand what you are saying so that you will not be bamboozled should their solicitor try and trip you up..

You do have  perfect reasons why you should win concentrate on those.

[FTMDave]

@lookinforinfo I think what has gone wrong is that the OP has used the legal arguments in Alaska101's WS, despite us saying not to do so as it's a completely different case.  Alaska101's case was for stopping in a no-stopping zone at an airport, nothing at all to do with residential parking, unloading and permits.

@citroenberlingo 1.  Go back to last night's version.

2.  Make the changes I suggested above.

3.  Add all LFI's stuff under NO KEEPER LIABILITY.

4.  Make damn sure that in LOADING IS NOT PARKING you mention that in the contract between the landowner and the Claimant it is specifically mentioned that  Motorists loading / unloading their vehicle are exempt from the parking rules  This is your ace.

5.  Send the WS off and cross fingers & toes.

6.  Please learn for the future, you cannot just magic up such an important legal document in a couple of days, you have had since you filed your defence in February - six months - to work on this.

[citroenberlingo]

2 hours ago, FTMDave said:

 

So sorry as I am all over the place, just getting confused with a lot of information. Appreciate all you guys helping me.

 

Anyway I am making the changes now. So to be clear I am using the last night version of WS now and the paragraph numbers you are referring to are from the last night's WS? 

[FTMDave]

Yes!

[FTMDave]

Last night's was not perfect, but on the right lines.  If you do what I've posted immediately above, the WS will be imperfect, with repetition, but who cares, you're not a lawyer, as long as the main points are clear, you've got a good chance of winning.

Your aces are -

LOADING IS NOT PARKING  Quote their contract Motorists loading / unloading their vehicle are exempt from the parking rules  This is your ace.

NO KEEPER LIABILITY  LFI is the expert here.  Put all his suggestions.

If it all gets too much for you, just finish at this point.  These are the two main arguments.  If you have time to do the rest, even better.

Make sure you put the STATEMENT OF TRUTH at the end.

[citroenberlingo]

6 minutes ago, FTMDave said:

Yes!

Thanks. I have made all the changes (hopefully) except for the "section DOUBLE RECOVERY and copy everything from that section of Alaska101's WS." 

a bit confused on this last bit

[FTMDave]

Hang on just a mo ...

[FTMDave]

Don't worry about producing a long section.  Just put.

DOUBLE RECOVERY 

XX  Under "The Claimant claims (iii)" Ms Atkinson refers to "instructing solicitors".  The claim already includes legal representative's costs at small claims.  Inventing a further £70 is a badly-concealed attempt at circumventing the small claims cap.  It is irrelevant what the Claimant's biased trade association (itself a breakaway from the British Parking Association, which dealt with appeals far too leniently for the likes of the Claimant) deem as lawful, it is the law in England & Wales which decides what is lawful.  The addition of fictitious sums to the original parking charge is also forbidden under Schedule 4 of the Protection of Freedoms Act 2012.

[FTMDave]

I see you have sent me a private message.

From the most superficial of read throughs, what you have produced is on the right lines.

I have a massive amount on in my life today and simply cannot deal with this.  Everyone here is an unpaid volunteer giving up their free time.  You cannot expect a lengthy document like a Witness Statement to be produced in a few days - when you have had six months.

So the choice is this.

1.  Send the document as is today.

2.  Wait for us all to tidy the WS up during the day when we have time, and send it 24 hours late.

I will have some spare time later, but precisely when I don't know.

Of the two options I would recommend the second.  The court is unlikely to get too shirty about a 24-hour delay.  Unlikely - but not impossible.  Your choice.

[citroenberlingo]

I appreciate your time and help. I will post it here as well for others to see.

witness statment of defendant CAG.pdf

[FTMDave]

Good move.

I have to go to my local airport now to pick up people who are staying with me - so you can imagine what that will do to free time.

They've already been delayed an hour.  It would be good if there were another couple of hours so we could work on the WS!

[honeybee13]

Some visitors arriving here were an hour late on Monday, Dave. I'm not sure if it's air traffic or another problem.

Fingers crossed.

HB

[Nicky Boy]

Looking at this in bits at work.

My first suggestion would be...

Change the heading LOADING IS NOT PARKING

to: LOADING/UNLOADING IS NOT PARKING

Replace the whole of section 6 with

6. In Jopson V Homeguard 9GF0A9E 29.06.2016

Although a residential parking case, Judge Harris makes persuasive observations on what constitutes "parking".

"The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it."

Judge Harris goes on to list examples...

"A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine."

Any thoughts from the regulars?

I'll try and look in a bit later.

NB

 

[citroenberlingo]

Thanks @Nicky Boy, @lookinforinfo ,  @FTMDave and others who have been helping me. Quite stressful to be honest. Never dealt with this situation in my life before

[Nicky Boy]

Suggestion for rewording Section 8?

8. In the claimant’s "Controlled Parking Agreement" with the landowner "Schedule 2" (P22 of witness statement) it states that “Motorists loading / unloading their vehicle are exempt from the parking rules.”
As evidenced in the attached document exhibits, the motorist was loading / unloading. Clearly under the terms of the Controlled Parking Agreement the PCNs should never have been issued.

 

[brassnecked]

Agree with Nicky Boy's suggetion regarding Judge Harris's examples, i it reinforces the argument that it was loading/unloading not parking.

[citroenberlingo]

Thanks team, I am going to submit what has been put together so far. I really don't want to miss the 4pm deadline. 

 

I will keep you updated with the outcome.

Much appreciated