Parking Control Management UK Gladstones Court Claim

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

[MENTION=5354]mystery1[/MENTION] [MENTION=39331]ostell[/MENTION]

Are you able to advise please? The deadline for the court's request is in just over a week (4 May).

I've sort of written an evidence statement but should I be including things like the NTK and debt collection letters etc? I had basically ignored these having followed what seemed to be the prevailing evidence at the time.

Many thanks
F

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

Well this is weird... I've received PCM's witness statement. They seem to be writing it as a cross between re-pleadings and a defence by making admissions and denials and quoting case law.

[Kati]

Re: Parking Control Management UK Gladstones Court Claim

can you post up a copy?? or email it to me and I'll do it tomorrow morning??

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

Hi Kati,

That would be amazing - thank you so much. I will sanitise and email over very shortly.

BW
F

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

OK try for the life of me (for several hours) I cannot redact the witness statement and keep it in a manageable size to post or email. So I've copied and pasted the text below.

Many thanks indeed for all of your help and for this forum.
BW
F


I, Georgina Philpot, of [xxxxx] WILL SAY AS FOLLOWS:
1. I am the Employee of the Claimant Company (‘my Company’) and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

2. Exhibited to this Witness Statement at ‘GSL1’ are following documents which my Company 

. i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as ‘the Relevant Land’) 

. ii) The Sign (i.e. the Contract) 

. iii) TheSitePlan 

. iv) Notices 

. v) Photographs of the incident 


3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charge;

PCN NUMBER	DATE OF CHARGE	LOCATION	DESCRIPTION
PMxxxxxx PMxxxxxx	5th August 2015 7th May 2015	Gallions Approach Gallions Approach	Parked in restricted area Parked in restricted area

The Defence
4. The Defendant has not admitted being the driver at the time the parking charges were issued. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver. 


5. In the alternative, if the Court is not able to infer that the Defendant was, in fact, the driver then the Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 (‘the Act’) which states: 
“The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.” 


6. The relevant Notices were sent to the Defendant in accordance with the Act and the Registered Keeper (the Defendant) failed to nominate who was driving the vehicle prior to these proceedings (which is required under the Act (paragraph 5(2)). 


7. The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper. 


8. My Company relies on the case of ParkingEye v Beavis 2015. In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein. 


9. The signs on the Relevant Land area clear and unambiguous, all vehicles must be parked fully within the confines of the marked bays and fully displaying a valid green visitor permit at all times. The Defendant was parked in a restricted area and by parking in this manner, the Defendant parked in contravention of the sign. The parking charge was therefore correctly issued on each occasion. 


10. As the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Relevant Land on behalf of the Landowner. 


11. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186
1. “The Upper Tribunal’s reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this reasoning.
2. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. 


If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right. Thus in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held to have validly granted a tenancy of the land to a residential occupier. The tenancy would not have been binding on the landowner, but bound the two contracting parties in precisely the same way as it would have done if the grantor had had an interest in the land.

Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract. Having the power to enter into a contract does not, of course, mean that VCS necessarily did enter into a contract with the motorist to permit parking”

12. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. In the case of ParkingEye v Beavis 2015 it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is not, therefore, excessive. 


13. The recent decision of the Supreme Court also made it clear that the charges are not penal nor do they have to be reflective of the parking operator’s loss. Furthermore, they are entitled to be at a level that provides a deterrent effect. 


14. The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:- 

i) The date of the charge;
ii) The vehicle registration number;
iii) The Parking Charge Notice number;
iv) The amount outstanding;
v) That is relates to parking charges; and
vi) That it is debt.

15. Further, prior to proceedings being issued the Defendant was sent notices in accordance with
the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charges which are the subject of this claim. 

16. A Letter Before Claim was sent to the Defendant, which contained:-
. i) The date of the charge; 

. ii) The Parking Charge Notice Number; 

. iii) The location of the charge; 

. iv) The amount outstanding; 

. v) The Claimant; and 

. vi) That the balance relates to unpaid parking charge.
If there has been any minor deviation from the Civil Procedure Rules then it is (or would be) within the tolerances provided therein whereby the court is required to interpret any provision having regard to the ‘overriding objective’, namely to deal with matters in a just, proportionate and cost-effective way (rules .1.1 and 1.2)

17. It is denied that the contract constitutes a ‘distance contract’ within the meaning of the Consumer Contracts Information, Cancellation and Additional Charge) Regulates 2013 (“the 2013 Regulations”). In particular:-
i. It is denied that the Defendant was acting as ‘consumers’. The Defendant parked on the Land wholly or mainly for the purpose of their trade, business, craft or profession;
ii. It is denied that the contract was concluded by ‘means of distance communication’.
iii. The Claimant maintained a physical presence on the Land. 


18. The Defendant has averred my Company requires planning permission under the Town and Country Planning (Control of Advertisements) Regulations 2007 for the signage to be displayed. My Company would dispute that on the basis that the Relevant Land is private land. 


The Current Debt
19. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred. 


20. In view of the Defendant not paying the charge the matter was passed to my Company’s legal representatives, Gladstones Solicitors Ltd. The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

STATEMENT OF TRUTH 
I believe that the facts stated in this witness statement are true. Signed:
Print: Georgina Philpot
Dated: 27 April 2017

[mystery1]

Re: Parking Control Management UK Gladstones Court Claim

"Parked in restricted area"

So if it was restricted there was no contract and only trespass which the supreme court said in Beavis was only for the land owner/occupier to sue ?

Is this a private vehicle or a work vehicle as they seem to imply ? If work, how do they know the driver identity or are they saying the company is the driver (ROFL)

Are there flaws in the plan or paperwork ?

M1

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

The NTK said "Parked in a restricted area" I think because the vehicle wasn't within a marked bay as per the sign (I posted photos of these in my first few posts).

It definitely wasn't a work vehicle - it's my private vehicle and I was visiting an ex-girlfriend at the time whose parents held the lease for the property but who it would be impossible to obtain a second witness statement from because I've already submitted my DQ and because she's refused.

The vehicle is registered to my name name and I don't have my own company although at one point a long time ago I did have a company registered in my name that would not have offered any services wherein I visit people's properties. So they don't know the identity of the driver but they are assuming it's me because i'm the RK.

There don't seem to be any flaws in the plan particularly but:
1) In the NTK and the series of letters thereafter most likely due to some administrative issue with the DVLA, there is some strange formatting of my name. For example:

"Mr A Frui
Fruitbat
First line of address
Second
Etc.

Dear Mr A Frui,
"

2) The two photos that they have taken of the signage in respect of the two parking incidents show a) the first sign being in circumstances where it was basically too dark to read (being 11pm) and b) defaced - and therefore partially illegible (see one of my photos in the first 3 or so posts). Interestingly they have enlarged almost every photo in their evidence pack except for the defaced one.

3) In their evidence the title of the area my vehicle was parked in indeed is a satellite photo of the area but is entitled "Docklands Overground Signage Plan" but there are no further address details, although as I believe we mentioned in a previous post this area was not part of a railway station and therefore not subject to byelaws.

At present my witness statement is a messy statement of facts that doesn't include anything about the ticket or NTK or threatening letters (i.e. I'm not sure how I can justify not responding to these except that they were addressed to a truncated version of me). I haven't included any case law - would it even be appropriate to include this here?

I am also about to work 26 hours for the next two nights so essentially today and a sleepy and dazed version of me on Mon/Tues will be the only time I can work on this witness statment. I'm going to try to recover enough to finish the statement on Tues/Wed but any help/advice/templates on how to do this properly would be very much appreciated!

BW
F

[mystery1]

Re: Parking Control Management UK Gladstones Court Claim

What are the dates ?

Does it have either of these 2 sections covered ?

(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;



Or


(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;


M1

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

Hi M1,

Yes unfortunately the dates of both NTKs are between 28-56 days after the incidents and they do include all of the points mentioned in the legislation...

Beginning to think they are going to eat me alive...

BW
F

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

This is what I have so far as a work in progress...

Points 16/17/18 are potential options but I'm not sure if I should include these as part of the WS or whether having them in the defence should suffice.

BW
F

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

Perhaps of note...

I've just had a quick wander around the area on Google Streetview. Half of the signs they claim are present on their "site plan" (which consists of an undated incorrectly titled satellite photo that has been edited in software similar to Paint) are not actually present.

Since all of the actual legal argument they present is based on the witness statement and relevant exhibits would a misleading witness statement in this way be grounds for the court to dismiss the whole case?

BW
F

[mystery1]

Re: Parking Control Management UK Gladstones Court Claim

No but i hope you took videos and picture to submit as evidence to show their evidence is unreliable.

M1

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

I didn't. But there's nothing to stop me doing that now...

F

[Fruitbat]

Re: Parking Control Management UK Gladstones Court Claim

Hi M1,

Just a quick one...

Re the witness statement exhibits. If I link to any legislation / case law do I need to attach this to the end of the statement as an appendix?

Secondly if I would like to use any of the evidence in PCM's witness statement would I need to have copies in my own or would I need to specifically refer to their evidence in order to be able to use it?

Many thanks
F

[mystery1]

Re: Parking Control Management UK Gladstones Court Claim

Re the witness statement exhibits. If I link to any legislation / case law do I need to attach this to the end of the statement as an appendix?

No just take it with you on the day.

Technically case law shouldn't be in your witness statement. You didn't witness the case, it's legal argument which really belongs in a skeleton argument.

Secondly if I would like to use any of the evidence in PCM's witness statement would I need to have copies in my own or would I need to specifically refer to their evidence in order to be able to use it?

Evidence is evidence and it doesn't matter who submits it. You need to reference it so the judge can find and perhaps examine it.

M1