As in common with all Roboclaims, they use the same nonsense from Gladstones.
IN THE XXXX COUNTY COURT AND FAMILY COURT CLAIM NO: XXXXXX
SIP PARKING LTD (CLAIMANT)
WITNESS STATEMENT OF XXXXXX
I, XXXX , of SIP Parking Limited, Peter House, M1 SAN 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 ‘GSLl’ are following documents which my Company wishes to rely upon;
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) The Site Plan
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
xx xx xx xx xx
The Defendant avers that they were not the driver of the vehicle
4. The Defendant alleges that it is not proven that he was driving the vehicle when it was parked on the Relevant Land on the date the charge was incurred. However, the Defendant has admitted he is the Registered Keeper.
5. My Company maintain our position that the Defendant was not only the Registered Keeper but with no evidence to the contrary also the driver of the vehicle. The burden of proof is on them and not you.
6. 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 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. This has been debunked by judges in many cases. It is not relevant as in EvL they had forensic evidence.
7. 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 whole section on Protection of Freedoms Act is false and misleading. You will need to check their paperwork against the Act to show the misleading statements. Also it not the court's place to infer anything but the claimant's job to provide proof.
”The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.”
8. The relevant Notice was 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)).
9. The Protection of Freedoms Act 2012, Sched4 (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.
10. The Defendant’s opinion on the fairness of the parking charge cannot impact their liability to pay. Quite simply, in parking in the manner they did, they understood a charge would apply. My Company’s charges are issued in accordance with the guidelines set out by its trade association and are industry standard. There is unlikely to have been any comment about "Unfair/immoral/unethical" but they put this in to mislead the court once again. Pull them up on this
11. Paragraph 108 of the Judgment in the recent Supreme Court case of Parking Eye and Beavis (2015) said “the concept of a negotiated agreement to enter a car park is somewhat artificial but it is perfectly workable provided one bears in mind it is objective...” ”in our view a reasonable motorist would have agreed to the term.” I submit that the term in my Company’s contract was no more, or no less unreasonable than that in the ParkingEye case.
12. 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.
13. The signs on the Land are clear and unambiguous. By parking in the manner in which they did, the charge was properly incurred. This again is misleading as a number of parking companies rely on the signs not being clear and being totally ambiguous.
Did not see the signs/the terms are unfair
14. My Company rejects any argument that the Defendant did not see the sign. It is evident from the site plan that there are sufficient signs.
15. What is more, without concession, even in the unlikely event the Defendant didn't’t see the signs I submit they ought to have done so. As Lord Justice Roch observed in the Court of Appeal case of Vine v London Borough of Waltham Forrest 2000,
”Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property”
There is a difference between not being able to see signs and signs not being able to be seen. Often the signs will be high up, hidden by trees, not in the positions they claim they were and in some cases not even there at all - despite this claim. So check all the pics they send.
No authority to enforce charges
16. 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 8L 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. -
17. Lord Justice Lewison commented in VCS v HM Revenue & Customs  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 1/ London and Quadrant Housing Trust  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”
There is a difference between a contract to supply at a later date [Buckingham Palace] and a contract where they can never supply consideration at all [nudum pactum]. Again another misleading statement
Charge is excessive/ no loss suffered
18. 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.
19. 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 they are entitled to be at a level that provides a deterrent effect.
Particulars of Claim
20.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.
21. 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 charge which is the subject of this claim.
Compliance with the Civil Procedure Rules
22. 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)
The Current Debt
23. 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.
24. 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).
You can either challenge this or use it as a basis for your own costs claim. If they say a few letters equals £60 in costs, then your reply and preparation work is of the same value based on the court's recognition of "equal footing" between the Claimant and the Defendant.
STATEMENT OF TRUTH
I believe that the facts stated in this witness statement are true.