Ok, I'll remove the ANPR Time and Signage Contract formation sections as the former is already covered, and the latter a bit of a weak argument. However, isn't it valid to raise the question of whether they do have the proper authority to issue and enforce parking charges given they only produced a witness statement and not the actual contract? Also, how about the paragraph regarding the additional charges, it's my understanding they shouldn't be able to claim these additional expenses?
From the guidance provided by the court in the Notice of Allocation letter, they have requested the witness statement to be set out in numbered paragraphs, and which I had misread to be in first person, but actually it states here in the witness's own language.
I think i would prefer keeping it in first person though if that's suitable for a WS.
The 'first person' is generally regarded to be the correct way.
However, it is VERY important to remember that it is essential that the driver is never revealed and therefore the first person wording needs to be particularly precise when discussing certain points since writing in the first person could easily be regarded as an admission that you were at least present - the joys of the English language!
Bear in mind that the Judge will know that you are a litigant in person and, as such, the Judge accepts that your submission might not be perfect in that respect.
A lot of Judge's like double spacing so I added that.
Obviously make sure all formal details are set out in the header.
I will say;
1. That the claim is denied in its entirety and that absolutely no debt is owed by the Defendant to the Claimant.
2. That it is accepted by the Defendant that they were the Registered Keeper of the Vehicle on the material date - this is not disputed.
3. That the Defendant robustly disputes that they have admitted being the driver of the vehicle at the material time.
4. That as the vehicle keeper there is no legal requirement for me to reveal who was driving and I will not be doing so.
5. That in his Witness Statement (WS), Mr Jake Burgess (JB) makes numerous unsupported assertions that indicate that I was the vehicle driver at the material time.
6. That in his evidence JB provides Exhibit 7 which is my initial appeal enquiry to the parking operator - I accept that this was sent by myself.
7. That in that appeal enquiry it is clearly shown that my appeal was made by myself but purely as vehicle keeper - I would specifically draw the Court's attention to the sentence on the Exhibit 7 which states; "Note : Keeper was the selected choice."
8. That when making an appeal, the appellant is specifically asked to choose the legal basis on which the appeal is made - the choice being 'Driver' or 'Keeper' - in this instance it is clear that I chose to make the appeal as keeper.
9. That, not withstanding the previous point, the wording in my appeal enquiry is made in the third person - Whilst I made a number of enquiries of the operator, I did not at any point reveal who was driving at the material time - I simply question the signage and specify that I understood that payment had been made.
10. That in the second document of Exhibit 7 the operator appears to deliberately claim that I had admitted to being the driver - this appears to be an attempt to force liability onto a keeper who has made no such admission in an appeal enquiry which was specifically made as vehicle keeper - I believe that this point demonstrates the Claimants predatory and bulling nature when pursuing a private parking charge.
11. That, therefore, it appears very obvious that the Claimant is not able prove who was driving at the material time.
12. That the Claimant's Witness Statement is actually fishing for liability.
13. That, at point 21 in his WS, JB states that the Claimant also believes that I was the driver 'because otherwise I would nominated another driver' - this point is firmly rebutted on the basis that there is no legal requirement for a vehicle keeper to provide driver information to a private parking operator.
14. That I will rely on the persuasive Appeal Court case of VCS Ltd v Edward if required - this case demonstrates that the Claimant is required to provide specific evidence to prove who was driving and that no assumption can be made as to who was driving - the same case also preserves the keepers right 'to say nothing' when a Claimant asks a keeper to identify a driver.
15. That, further to the previous point, the provision of driver details to the operator would, on the balance of probabilities, be the provision of the details of a family member / close friend / work colleague etc - why would a keeper provide those details when there was no legal requirement to do so?
16. That, based on the above, the claim made by JB in his WS regarding the identification of the driver is demonstrably false.
17. That, in the alternative, the Claimant appears to state that they will rely on Protection of Freedoms Act (2012) (PoFA) in order try and shift liability from an unknown driver to the vehicle keeper.
18. That liability under PoFA is robustly denied.
19. That in order to invoke keeper liability under PoFA, the Claimant must adhere to a particularly strict set of rules and regulations - these rules and regulations are set out in the legislation itself - most of these rules and regulations set out the requirements of information which MUST be contained on the parking operator issued Notice to Keeper (NtK) - this appears to be accepted by the Claimant.
20. That the Claimant states that their NtK is compliant with PoFA.
21. That this assertion is rebutted by the Defendant - the operator issued NtK is not complaint as it omits strictly required mandatory wording.
22. That the legislation demands that the NtK is TOTALLY compliant in order for keeper liability to be invoked and, therefore, the missing mandatory wording is immediately fatal to the Claimant's reliance on PoFA to transfer liability onto the keeper.
23. That, in particular, the parking operators NtK is not compliant with the requirements of PoFA because it fails to provide all the information which is required by PoFA Schedule 4 Paragraph 9(2)(f).
24. That Paragraph 9(2)(f) 'warning to keeper' requires that the operator issue the keeper with a series of warnings which set out the conditions of the legislation.
25. That in this instance the wording presented by the parking operator does not warn the keeper that the operator can only rely on PoFA if the parking operator's NtK meets all the applicable conditions under the Schedule.
26. That Paragraph 9(2)(f) specifies that;
The Notice MUST 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;
27. That the sentence "if all the applicable conditions under this Schedule are met" is missing from the Claimants NtK - the legislation states that the NtK MUST contain this information if this NtK is to be relied upon by the Claimant.
28. That liability under PoFA is therefore denied.
29. That the Claimant now has no legal route by which they can hold me liable.
30. That I contend that the Claimant may already be aware of the PoFA issues with their NtKs and this therefore explains the Claimant's keenness to persuade the Court that I had admitted liability as the vehicle driver when no such liability was ever admitted.
31. That not withstanding all the above, I reasonably suggest that the Claimant's behaviour in this matter is clearly predatory in nature given the tightness of the car park timings as set out in the Claimant's evidence.
32. That the Claimant is clearly using some kind of 'time on site' calculation in order to prove the alleged overstay in a situation where the 'time of site' argument is particularly tight when all things are considered.
33. That 'time on site' does not actually demonstrate the true time that a vehicle was actually 'parked' especially in circumstances where the car park is busy.
34. That this claim would clearly fall under the de minimis principle - this additionally demonstrates the predatory nature of the Claimant.
35. That the Claimant's own car park timings show that this dispute is actually a dispute over just a few minutes.
36. That the Claimant's own evidence shows that the driver purchased 2 hours parking and that the paid parking expired at 14.36 on the day in question - the parking operator Code of Practice specifies that drivers should be given a minimum of 10 minutes grace period at the end of a parking session - with the additional 10 minutes minimum the expiry time becomes 14.46 - the Claimant's own evidence shows the driver leaving the site at 14.49 - therefore the Claimant is pursuing the Defendant for what amounts to an extra 3 or 4 minutes on site.
37. The claim includes additional sums beyond the original parking charge. Such additional sums are commonly described as debt recovery costs.
38. In Excel Parking Services Ltd v Wilkinson (2020) the court held that such additional charges were not recoverable and amounted to an abuse of process.
39. That Schedule 4 Paragraph 9(2)(f) reinforces the previous point since the legislation specifically states that the parking operator will (when discussing the parking charge), "have the right to recover from the keeper so much of that amount as remains unpaid" - in this instance the Claimant is clearly trying to recover far more than the amount that remains unpaid.
Statement of Truth
I believe that the facts stated in this witness statement are true.
It looks like VCS have no intention of dropping the case as they have submitted a supplementary witness statement
PDF Host read free online - Supplementary Witness Statement - pag - undefined
in response to my WS. I don't see anything new raised there, so doesn't look like it needs responding back.
Is there anything in particular I should be aware of for the hearing, which is next week (27th of April), and are there any general tips you could offer, and what to expect?
I presume I'll have to provide an oral argument, which I think I'd just summarise my position as follows:
1) Claimant has failed to prove that I was the driver.
2) They have not complied with the strict requirements of PoFA, so cannot pursue me as keeper.
3) The alleged breach is trivial, only three minutes beyond grace period when considering actual parking time, not ANPR timestamps.
4) The Claimant has failed to produce the lease or any evidence demonstrating that VCS has authority from the landowner to issue and enforce parking charges.
Does that sound reasonable, anythin to add/remove?
It looks like VCS have no intention of dropping the case
VCS are one of the operators that actually goes all the way to hearings more often than many.
I think you would be wise to consider in advance how you will answer any questions relating to this new WS. At face value, a defence that in fair part relies on accusations of the claimant failing to comply with the CPR is somewhat weakened by the defendant also failing to comply with the same.
Therefore it would be reasonable to assume that the Defendant simply waited for my Company’s Statement before addressing the Claim in its
entirety.
Again, at face value, not an unreasonable conclusion, but on the other side of the coin, a defendant can only respond to the allegations levelled against him. Part of your argument is that the PoC were too sparse for you to respond in much detail, so you were unable to file a more substantive response until such time as you properly understood what their arguments were going to be.
This case may depend somewhat on which judge you get on the day.
I agree with the above.
You could also counter their argument regarding the non-nomination of an alternative driver with the argument presented in your WS.
JB's assertion regarding compliance with 9(2)(f) is totally unsupported and the required wording is clearly specified in the statute - why does the Claimant feel that this wording is not needed when the legislation says that it does?
They don't address the 'time on site' argument - you did not demand a 5 min free (consideration) period at the start of your parking session - it was the operator who calculated the 'expiry time' when you offered payment - if the operator wished to price their service based on 'time on site' then their computer software could easily do that - it's your confirmation of contract which will be central to the argument.
Good to see that they rolled over on the admission of who was driving - the Court will note this.
In his additional WS, JB makes a very basic miscalculation of the overstay - he says that it was 17 minutes but this is not the case.
Unfortunately the judge ruled in their favour.
She reasoned that they complied with Pofa as the NtK included the various statutes and they are allowed to paraphrase, and apparently that sentence within brackets isn't strictly required. Does anyone know if there are cases where judges have ruled otherwise for exactly the same worded Ntk's?
The judge also ruled the signs were clear enough as they state the contract is with VCS.
Agree x 1
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