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Following on from this thread - https://legalbeagles.info/forums/for...etter-received
Now had allocation, a hearing date and invitation to submit witness statement and supporting evidence.
Witness statement, if anyone has time to run over it. From what I can see, you only have to reference defence points and can then expand on them further using your defence statement?
Now had allocation, a hearing date and invitation to submit witness statement and supporting evidence.
Witness statement, if anyone has time to run over it. From what I can see, you only have to reference defence points and can then expand on them further using your defence statement?
I am XXX of XXXXX, and I am the Defendant in this matter, and will say as follows.
Attached to this statement is a paginated bundle of documents marked NR1 to which I will refer.
1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.
2. I confirm that I was the Registered Keeper of the vehicle in question in March 2016
3. I confirm that the vehicle was left in the residential car park at xxxxx at the time of this parking charge being issued.
4. The signage in place at the above time was under the name of “UK Parking Patrol Office”, a trading name of a sole trader and a British Parking Association accredited operator (Exhibit A). The Notice to Driver (Exhibit B), Notice to Keeper (Exhibit C) and further communication including this court action are from a company “UK Parking Patrol Office Limited”, a limited company and an IPC accredited operator. Therefore I would state that the company pursuing these claims has never had the opportunity to form any sort of contract with the driver, as they had no signage displaying their name or credentials in place. Thus, the claimant has no interest in this matter.
5. The signage in the car park (Exhibit A) is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
6. The driver was a resident of the premises at the time. Within the driver’s tenancy agreement (Exhibit E) there was absolutely no requirement for any permits or restrictions of use in relation to the communal parking areas. The driver was provided with a key card that provided access to the secure indoor vehicle parking area; therefore, I would argue this is an implied right to unfettered access. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant’s right to park by requiring a permit to park. In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant’s right to park by requiring a permit to park.
7. The claimant has indicated that they intend to rely on judgement from ParkingEye vs Beavis [2015] UKSC 67 to justify these penalty charges as enforceable. In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye vs Beavis does not apply to residential parking, therefore this excessive claim should be considered a penalty and unfair consumer charge unless it is found the charge is a genuine pre-estimate of loss or there is commercial justification.
8. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
9. The claimant has confirmed to me in writing (Exhibit D) that they are pursuing me as the registered keeper of the vehicle only.
a) Considering this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA2012)
b) It is averred that the claimant has failed to do this on numerous points
10. In reference to above, the claimant seeks to transfer liability to myself as the registered keeper and in doing so must follow the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA2012) exactly. They have failed to do so in the following ways:
a) Paragraph 5, (1) (a) “The creditor has the right to enforce against the driver”. The driver was at the time of issue a resident of the premises. The driver’s tenancy agreement offers absolutely no requirements for permits to be displayed to park in the spaces which they had been given unfettered access to.
b) Paragraph 7, (2) (a) offers a requirement for the period of time to which the notice relates to be clearly noted on the notice to driver. This is not present. The only time included is the time of issue, which is a separate requirement to the period of parking.
c) 7, (2) © “inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f);”
The claimant is attempting to reclaim costs higher than that which is contained within the notice to driver.
d) Paragraph 8 (2) (a) the Notice to Keeper again fails to specify the period of parking to which the notice relates. The only time included is the time of issue, which is a separate requirement to the period of parking.
11. The claimant is attempting to claim charges significantly higher than can be reasonably justified as genuine costs to themselves. As confirmed in the Letter before Claim (Exhibit F), the claim is made up as follows: £100 Principal Balance, £60 Recovery Costs, £33.88 interest charges, £50 Legal representatives costs, £25 court fees.
12. The claim includes a principal debt of £100 and £60 ‘Recovery Costs’ which as confirmed in the Letter before Claim (Exhibit F) includes a sum of £60.00 as a ‘debt collection charge’, which appears to be an attempt at double recovery.
13. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
14. The claimant is attempting to claim for £33.88 in interest charges from 02/03/2016 to 20/10/2020. This excessive time period is a result of their own tardiness as bringing about a claim and thus cannot be reasonably justified as an unavoidable loss.
15. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim.
I believe that the facts within this statement are true
Defendant
Attached to this statement is a paginated bundle of documents marked NR1 to which I will refer.
1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.
2. I confirm that I was the Registered Keeper of the vehicle in question in March 2016
3. I confirm that the vehicle was left in the residential car park at xxxxx at the time of this parking charge being issued.
4. The signage in place at the above time was under the name of “UK Parking Patrol Office”, a trading name of a sole trader and a British Parking Association accredited operator (Exhibit A). The Notice to Driver (Exhibit B), Notice to Keeper (Exhibit C) and further communication including this court action are from a company “UK Parking Patrol Office Limited”, a limited company and an IPC accredited operator. Therefore I would state that the company pursuing these claims has never had the opportunity to form any sort of contract with the driver, as they had no signage displaying their name or credentials in place. Thus, the claimant has no interest in this matter.
5. The signage in the car park (Exhibit A) is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
6. The driver was a resident of the premises at the time. Within the driver’s tenancy agreement (Exhibit E) there was absolutely no requirement for any permits or restrictions of use in relation to the communal parking areas. The driver was provided with a key card that provided access to the secure indoor vehicle parking area; therefore, I would argue this is an implied right to unfettered access. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant’s right to park by requiring a permit to park. In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant’s right to park by requiring a permit to park.
7. The claimant has indicated that they intend to rely on judgement from ParkingEye vs Beavis [2015] UKSC 67 to justify these penalty charges as enforceable. In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye vs Beavis does not apply to residential parking, therefore this excessive claim should be considered a penalty and unfair consumer charge unless it is found the charge is a genuine pre-estimate of loss or there is commercial justification.
8. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
9. The claimant has confirmed to me in writing (Exhibit D) that they are pursuing me as the registered keeper of the vehicle only.
a) Considering this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA2012)
b) It is averred that the claimant has failed to do this on numerous points
10. In reference to above, the claimant seeks to transfer liability to myself as the registered keeper and in doing so must follow the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA2012) exactly. They have failed to do so in the following ways:
a) Paragraph 5, (1) (a) “The creditor has the right to enforce against the driver”. The driver was at the time of issue a resident of the premises. The driver’s tenancy agreement offers absolutely no requirements for permits to be displayed to park in the spaces which they had been given unfettered access to.
b) Paragraph 7, (2) (a) offers a requirement for the period of time to which the notice relates to be clearly noted on the notice to driver. This is not present. The only time included is the time of issue, which is a separate requirement to the period of parking.
c) 7, (2) © “inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f);”
The claimant is attempting to reclaim costs higher than that which is contained within the notice to driver.
d) Paragraph 8 (2) (a) the Notice to Keeper again fails to specify the period of parking to which the notice relates. The only time included is the time of issue, which is a separate requirement to the period of parking.
11. The claimant is attempting to claim charges significantly higher than can be reasonably justified as genuine costs to themselves. As confirmed in the Letter before Claim (Exhibit F), the claim is made up as follows: £100 Principal Balance, £60 Recovery Costs, £33.88 interest charges, £50 Legal representatives costs, £25 court fees.
12. The claim includes a principal debt of £100 and £60 ‘Recovery Costs’ which as confirmed in the Letter before Claim (Exhibit F) includes a sum of £60.00 as a ‘debt collection charge’, which appears to be an attempt at double recovery.
13. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
14. The claimant is attempting to claim for £33.88 in interest charges from 02/03/2016 to 20/10/2020. This excessive time period is a result of their own tardiness as bringing about a claim and thus cannot be reasonably justified as an unavoidable loss.
15. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim.
I believe that the facts within this statement are true
Defendant
