Horizon Parking Roboclaim

This is simply a rehash of all the other Gladstone's Roboclaims where the particulars and the Witness Statements are a) far park and b) introduce points that were never in any defence to begin with. The sign of a template is one where they failed to spell out the case (the particulars) and then make no effort to address a defence.

 

ROBOCLAIM

IN THE [Insert Name] County Court And Family Court

Horizon Parking Limited
(Claimant)

-and-

[Insert Name]
(Defendant)

WITNESS STATEMENT OF [INSERT NAME]


I, [Insert Name], of , Waterhouse Business Centre, 2 Cromar Way, Chelmsford, Essex, CM1 2QE WILL SAY AS FOLLOWS:

1. I am the Director 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 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
iv) The Notices
v) Photographs of the incidents
vi) Letter Before Claim

3. The Defendant is liable for parking charges 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 charges;

PCN NUMBER DATE OF CHARGE LOCATION DESCRIPTION
[Details here]

The Defence

4. It is believed that parts of the Defendant's Defence are template Defences which are heavily circulated on the internet. [Editor Note: This is a laugh as this is a template Roboclaim. See the AS Parking one and compare]

The Claimant has failed to show that the conditions of recovering the charge under POFA have been met

5. The Defendant is being pursued as the driver and therefore POFA is irrelevant. POFA only applies where the Creditor has been unable to pursue the driver for recovery of the unpaid parking charge. 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. As such, it is presumed that the Defendant is the driver of the vehicle. [Editor Note: No it does not. The burden of proof is on the Claimant not the other way. However if you were not the driver, telling them early enough sets you up for getting costs.]

6. The photographs evidences that a Notice to Driver was affixed to the vehicle at the time the charge was issued. In any event, the contract was formed at the time of parking; whether there was a notice on the windscreen does not impact the Defendant's liability to pay the charge. [Editor Note: See Ghost Ticketing scam]

No authority to enforce charges

7. 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.

8. 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"

[Editor Note: A misquoting of the VCS case doesn't give them the right to issue tickets where there is no consideration or potential to complete a bargain. Like Elliott and Loake above, misdirection]

No clear signs did not meet BPA code of Practice or IPC

9. My Company rejects any argument that there are no clear signs or that the Defendant did not see the sign. It is evident from the site plan that there are sufficient signs. [Editor Note: They would say that wouldn't they. Check and verify this as we have seen lots of missing signs or a plan that bares no relation to this claim of "sufficient signs". Sufficient signs is not a matter of opinion but one of fact]

10. What is more, without concession, even in the unlikely event the Defendant didn'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 Forest 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."

11. 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. [Editor Note: Again another opinion. See Forbidding signs]

12. The signs on the Land are clear and unambiguous. By parking in the manner in which they did, the charges were properly incurred. [Editor Note: See #9 above]

13. The Defendant's opinion on the fairness of the parking charges 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.

14. 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

Charge is excessive/ no loss suffered

15. 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. [Editor Note: Another classic misquote. It is their client's legitimate interest they are protecting and their interest doesn't come into it. See para 198 in Beavis]

16. 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

17. 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 Notices number;
iv) The amount outstanding;
v) That is relates to parking charges; and
vi) That it is debt.

18. 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 is/are the subject of this claim. [Editor Note: Another misdirection as the particulars and this Witness Statement are miles apart. It's classic hijacking.]

Compliance with the Civil Procedure Rules

19. A Letter Before Claim was sent to the Defendant, which contained:-
i) The date of the charge;
ii) The Parking Charge Notices Number;
iii) The location of the charge;
iv) The amount outstanding;
v) The Claimant; and
vi) That the balance relates to unpaid parking charges.

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

20. 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 charges incurred.

21. The matter had to be passed to my Company's legal representatives, Gladstones Solicitors Ltd. The loss suffered has, as a result of this referral risen as my Company's staff have spent time and resources in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company's business. These 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 the right to pursue costs pursuant to the sign (i.e. the contract).

[Editor Note: The main challenge is to the £50 they have added on for "costs" already. Get them to prove that the £50 has been incurred and not just double charging for "legal" service i.e. sending out a template Roboclaim. See ParkingEye v Somerfield at para #419]

 

STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.

Signed:
Dated:

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