Excel Parking 15 Points

In The County Court at Portsmouth

Claim No: K8QZ5Y5K

Between

Excel Parking Services Limited

(Claimant)

V

[DEFENDANT'S NAME]

(Defendant)

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Witness Statement

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I, Jake Burgess, of 7 Europa View, Shef eld Business Park, Shef eld. S9 1XH, will say as follows:

Introduction

1. I am employed by Excel Parking Services Limited as an Associate Legal Executive and have been employed since September 2015. The facts and matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my own knowledge, they are true to the best of my information and belief. I make this witness statement in readiness for the hearing scheduled tor 28h May 2024 in support of the Claimant's claim against the Defendant. Within this statement I make reference to various documents. These are now produced to me in a paginated bundle marked JB1-2. The evidence tendered in the exhibits is taken from the Claimants Company records.

Background

3. The Claimant is engaged in providing and managing private parking facilities on behalf of Clients throughout Great Britain. At all material times, the Claimant has been an Accredited Member of Approved Trade Associations certified by the Driver and Vehicle Licensing Agency (DVLA).

4. A vehicle bearing the registration number of KY59 UCB was identified in breach of the advertised Terms and Conditions ("Contract") known as Dukes Walk Shopping Centre Car Park on the 29th April 2023. Whilst the vehicle was identified on private land the Defendant was confirmed as the Driver of the vehicle.

The Contract

5. At the time the Charge was issued; my Company was prominently displaying signs on the Land stipulating the terms of parking. A copy of the content of the signs is exhibited to this Statement at "JB1". The signs formed the basis of the contract with the driver of the Vehicle ("the Contract"). The following was a term of the Contract: - Pay & Display 2 Hours Maximum Stay No Return Within 1 Hour.

6. Upon the vehicle entering the Land, the driver accepted the Contract and agreed to be bound by those terms advertised. The Contract provides that a charge is payable by the driver if it is breached; with payment falling due within 28 days. The Contract (i.e. the signs) was prominently displayed on the Land and in this regard a site plan showing the positioning is exhibited to this Statement at "JB1".

7. Amongst other things the above signs specifically detail the Terms and Conditions of parking and the consequences of failure to comply with these Terms and Conditions. In particular the signs specifically state that a charge is levied for breaching the Terms and Conditions.

8. This is a contractual clause which specifies the amount owed. There is sufficient and adequate signage for the Terms and Conditions to have been brought to the attention of any motorist wishing to use the car park.

Breach of Contract

9. The Defendant became liable for the parking charge as the vehicle to which they are responsible for was found in breach of the Contract. The evidence adduced to this statement identifies that the vehicle was parked without displaying a valid ticket/ permit. The documents adduced at "JB2" are evidence of the vehicle in breach.

10. In light of the breach of the Contract, the Claimant is entitled to levy a charge against the Defendant and therefore the Defendant is liable to the Claimant. 

The Defendants' Defence

11. The Defendant makes reference to the Claimant failing to send him an invoice.

12. Claimant argues that the fee is not an invoice but rather a charge for breaching the terms and conditions of a contract, which does not necessitate the sending of 'invoices.'

13. The Defendant was issued a Parking Charge Notice outlining their liability, along with various other correspondences, before a Letter Before Action (LBA) was issued. Despite this, the Defendant has not yet made payment, entitling the Claimant to initiate legal proceedings. The outstanding charge remains unsettled.

Conclusion

14. Accordingly the Claimant is entitled to a Judgment. It is a matter of agreement that the instance of parking in contravention of the Terms and Conditions of the signs. Liability is agreed to be the sum contained in accordance with the amount stated on the signs.

15. I may not be able to attend the forthcoming hearing. Should this be the case, I will instruct an advocate to attend on my behalf and ask that the Court accepts this as my written notice pursuant to CPR 27.9 (1). Should I be unable to attend, I request the honourable Court decide the Claim in my absence, taking into account this Statement and any other evidence I may file. This paragraph demonstrates my compliance with paragraphs (a) and (b) of CPR 27.9 (1).

STATEMENT OF TRUTH

I believe the facts stated in this Defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a Statement of Truth without an honest belief in its truth. 

Date: 22nd April 2024

Signed:

Jake Burgess A.CILEX

Associate Legal Executive

For and on behalf of Excel ParkingServices Limited

In The County Court at Portsmouth

Claim No: K8QZ5Y5K

Between

Excel Parking Services Limited

(Claimant)

V

[DEFENDANT'S NAME]

(Defendant)

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Witness Statement of [DEFENDANT'S NAME]

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L [DEFENDANT'S NAME], of [DEFENDANT'S ADDRESS], will say as follows:

Introduction

1. I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief. I make this statement in response to the filing of a Witness Statement of Jake Burgess (the 'Alleged Witness') on behalf of the Claimant dated: 22/04/2024. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where they are not within my own knowledge, they are true to the best of my information and belief. I make this witness statement in readiness for the hearing scheduled tor 28h May 2024 in Defence of the Claimant's claim against me. Within this statement I make reference to various documents. These are attached at the end of this Witness Statement marked EXHBIIT"JH1". 

The Defendant avers that the evidence tendered  by the Claimant in the exhibits taken from the Claimants Company records amounts to hearsay. 

It is disputed that the Alleged Witness bases any of his statement on actual fact witnessed and the Defendant avers that his entire statement is based on hearsay evidence from the computer system of the Claimant. The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:

https://www.theguardian.com/uk-news/2021/apr/23/court-clears-39-post-office-staff-convicted-due-to-corrupt-data

It is my understanding that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act. The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.

Background

3. It is not disputed that the Claimant is engaged in providing and managing private parking facilities on behalf of Clients throughout Great Britain. It is not disputed that at all material times, the Claimant has been an Accredited Member of Approved Trade Associations certified by the Driver and Vehicle Licensing Agency (DVLA). While the Claimant's claim to manage private parking facilities and hold accreditation from Approved Trade Associations certified by the DVLA, this does not inherently prove the existence or terms of any contract with myself. Their statement lacks specificity regarding the alleged breach, failing to establish any contractual obligations or breaches thereof. I request the court dismiss the claim due to its lack of clarity and failure to provide evidence of a valid contract. 

4. It is disputed that vehicle bearing the registration number of KY59 UCB was identified in breach of the advertised Terms and Conditions (the "Alleged Contract") known as Dukes Walk Shopping Centre Car Park on the 29th April 2023. It is disputed that the vehicle was identified on private land. It is not disputed that the Defendant was confirmed as the Driver of the vehicle.

While it is acknowledged that a vehicle with registration number KY59 UCB was present at Dukes Walk Shopping Centre Car Park on 29th April 2023, this alone does not prove a contractual breach by the Defendant. For a contract to be valid under English law, there must be an offer, acceptance, consideration, and intention to create legal relations, none of which have been adequately demonstrated. There is no evidence the Defendant agreed to the Terms and Conditions, as mere presence and vehicle registration do not constitute acceptance. The Claimant has not provided clear evidence that the Defendant was the driver at the time. Furthermore, signage must be clearly visible and legible to effectively communicate terms, which has not been substantiated. The casual act of parking does not indicate acceptance of terms without clear, informed consent. The Claimant has also failed to demonstrate mutual consideration and compliance with statutory regulations, specifically the Protection of Freedoms Act 2012. Therefore, the elements necessary to establish a binding contract between the Defendant and the private parking company are absent, and the Defendant cannot be held liable for a breach of contract. 

The Contract

5. It is disputed that at the time the Charge was issued the Claimant's Company was prominently displaying signs on the Land stipulating the terms of parking.  

The Claimant asserts that signs were prominently displayed on the land stipulating the terms of parking and that these signs formed the basis of a contract with the driver of the vehicle. However, for a contract to be formed, it must be demonstrated that the terms were clearly communicated and that the Defendant accepted these terms. The mere presence of signs does not prove that the Defendant saw, read, and agreed to the terms. The Claimant must provide evidence that the signage was sufficiently visible, legible, and positioned in such a manner that it could reasonably be expected to be seen and understood by the Defendant upon entering the car park. Without such evidence, it cannot be assumed that the Defendant entered into a contract by parking the vehicle. Additionally, the terms of the contract, including "Pay & Display 2 Hours Maximum Stay No Return Within 1 Hour," must be shown to have been accepted by the Defendant, which has not been established. Therefore, the Claimant has not substantiated the formation of a binding contract with the Defendant based on the displayed signs.

6. The Claimant's assertion that the driver accepted the contract and agreed to be bound by the advertised terms upon entering the land is unsubstantiated. For a contract to be valid, it must be proven that the terms were clearly communicated and knowingly accepted by the driver. The presence of signs does not automatically equate to acceptance. The Claimant must provide concrete evidence that the signs were sufficiently visible, legible, and prominently displayed in locations where the driver would have reasonably seen and understood them. The site plan showing the positioning of the signs, exhibited at "JB1," does not demonstrate that the Defendant saw and accepted the terms. Without clear proof that the Defendant was aware of and agreed to the terms upon entering the land, it cannot be presumed that a binding contract was formed. Consequently, the Claimant has not established that the Defendant is liable for the charge based on an alleged breach of these terms.

7.  While the Claimant asserts that the signs detail the Terms and Conditions of parking and the consequences of failure to comply, including the levying of a charge for breaches, this alone does not establish a binding contract. For the Terms and Conditions to be enforceable, it must be proven that the Defendant was made aware of these terms and that they were prominently displayed, visible, and legible at the time the vehicle was parked. The Claimant has not provided sufficient evidence to demonstrate that the Defendant saw and understood the signs, and thereby accepted the Terms and Conditions. Simply stating that the signs exist and contain specific details is not enough; it must be shown that the Defendant was reasonably informed of and consented to these terms. Without clear evidence of the Defendant's acceptance of the terms, it cannot be presumed that a contractual agreement was formed, and thus the Defendant cannot be held liable for any alleged breach.

8. The Claimant asserts that there was sufficient and adequate signage to bring the Terms and Conditions, including the specified amount owed for breaches, to the attention of any motorist using the car park. However, the existence of signage alone does not confirm that the Defendant was aware of and accepted these terms. For a contractual clause specifying the amount owed to be enforceable, it must be proven that the signage was clearly visible, legible, and placed in such a way that the Defendant would have reasonably seen and understood it upon entering the car park. The Claimant has not provided evidence demonstrating that the Defendant was sufficiently informed of these Terms and Conditions. Without clear and convincing proof that the Defendant saw and agreed to the terms, it cannot be assumed that a valid contract was formed, making the Defendant liable for the specified amount.

Alleged Breach of Contract

9.  The Claimant's assertion that the Defendant became liable for the parking charge because the vehicle was found in breach of the contract is not substantiated by clear evidence of a valid contract being formed. While it is not denied that the Defendant was driving, liability for a parking charge requires that the Defendant was both aware of and agreed to the Terms and Conditions upon which the charge is based. The Claimant must provide unequivocal proof that the Defendant was adequately informed of these Terms and Conditions through visible and legible signage, and that the Defendant accepted these terms by parking the vehicle. The documents at "JB2" purportedly showing the vehicle without a valid ticket or permit do not demonstrate that the Defendant was aware of or agreed to the terms. Without definitive evidence of the Defendant's acceptance of the Terms and Conditions, the Claimant cannot reasonably hold the Defendant liable for the alleged breach.

10. The Claimant's assertion that they are entitled to levy a charge against the Defendant due to a breach of contract is unfounded without clear evidence that a valid contract was formed. While it is not disputed that the Defendant was driving the vehicle, the Claimant has not sufficiently demonstrated that the Defendant was made aware of and accepted the Terms and Conditions upon which the charge is based. For a contract to be enforceable, it must be shown that the terms were clearly communicated through visible and legible signage and that the Defendant agreed to these terms by parking the vehicle. Without definitive proof of the Defendant's acceptance of the Terms and Conditions, the Claimant cannot reasonably claim that a contract was breached, and therefore, cannot hold the Defendant liable for the charge.

The Defendants' Defence

11. The Defendant's reference to the Claimant failing to send an invoice highlights a significant procedural issue. According to the Protection of Freedoms Act 2012, for a parking charge to be enforceable, the Claimant must follow strict guidelines regarding the issuance of Parking Charge Notices (PCNs) and subsequent invoices. If the Claimant failed to send a formal invoice detailing the charge, this undermines the procedural validity of their claim. Proper notice and invoicing are essential to ensure that the Defendant is fully informed of the alleged breach and the associated charges, providing them with an opportunity to respond or contest the claim. Without evidence that an invoice was sent in accordance with legal requirements, the Claimant cannot reasonably hold the Defendant liable for the parking charge.

12. While the Claimant argues that the fee is not an invoice but rather a charge for breaching the terms and conditions of a contract, it is important to note that regardless of terminology, procedural fairness must be upheld. The absence of a formal invoice does not absolve the Claimant from following the legal requirements outlined in the Protection of Freedoms Act 2012. This legislation mandates specific procedures for issuing Parking Charge Notices (PCNs) and notifying alleged offenders of the charges against them. Failure to adhere to these procedures can undermine the validity of the Claimant's claim. Whether termed an invoice or a charge, the Defendant still has the right to receive clear and formal notification of the alleged breach and the associated charges. Without proper documentation, such as an invoice or equivalent, the Defendant's ability to understand and respond to the claim is compromised, raising questions about procedural fairness and the enforceability of the charge. Therefore, the absence of an invoice cannot be dismissed, as it reflects a failure to adhere to legal requirements and compromises the Claimant's position in this matter.

13. The Claimant states that the Defendant was issued a Parking Charge Notice (PCN) outlining their liability, along with other correspondences, prior to a Letter Before Action (LBA) being issued. Despite these communications, the Defendant has not made payment, and the outstanding charge remains unsettled, justifying the initiation of legal proceedings by the Claimant. However, it is imperative to emphasize that the mere issuance of notices and correspondence does not automatically validate the Claimant's claim. The Defendant's failure to make payment does not necessarily affirm the validity of the charge, especially if there are substantive disputes regarding the formation of a contractual agreement or procedural irregularities in the issuance of notices. Additionally, the Defendant's non-payment does not preclude them from contesting the charge or seeking clarification on the matter. The initiation of legal proceedings should not be seen as an assertion of the validity of the charge but rather as a step in the dispute resolution process. Therefore, the Claimant's entitlement to initiate legal proceedings should be contingent upon the fulfilment of legal requirements and the resolution of any outstanding disputes or uncertainties regarding the validity of the charge and the procedural fairness of the process.

Conclusion

14. The assertion that the Claimant is automatically entitled to a judgment is premature and unsubstantiated. Agreement regarding the instance of parking in contravention of the Terms and Conditions must be based on clear evidence of the Defendant's awareness and acceptance of these terms. However, the Claimant has not adequately demonstrated that the Defendant knowingly agreed to the Terms and Conditions as stated on the signs. Mere presence in the car park does not equate to acceptance of the terms, especially if there are concerns regarding the visibility, legibility, and adequacy of the signage. Additionally, liability for the specified sum stated on the signs cannot be assumed without proper evidence of a valid contractual agreement. The Defendant retains the right to contest the charge and seek clarification on the matter, particularly if there are discrepancies or uncertainties regarding the validity of the charge and the fairness of the process. Therefore, the Claimant's entitlement to a judgment should be contingent upon the fulfilment of legal requirements and the resolution of any outstanding disputes or uncertainties.

15.  While the Defendant asserts their intention to potentially be represented by an advocate and requests the Court to consider their statement and any additional evidence in their absence, it is important to note that compliance with CPR 27.9(1) is not solely demonstrated by such a statement. CPR 27.9(1) requires the party to inform the Court and all other parties of their inability to attend the hearing and the reason for it. Merely expressing the intention to potentially be absent and to be represented by an advocate does not fulfill the requirements of the rule. It is essential that the Defendant formally notifies the Court and all relevant parties of their inability to attend, providing a clear explanation for their absence. This ensures transparency and procedural fairness in the legal proceedings. Therefore, the Defendant's compliance with CPR 27.9(1) remains contingent upon the fulfilment of these requirements.

Procedural Improprieties and Non-Compliance with Legal Requirements

16. The Defendant asserts that the Claimant has committed multiple procedural improprieties and failed to comply with legal requirements. Specifically:

i. The Defendant has previously sent two Notices to the Claimant via Royal Mail Signed For delivery service, requiring a properly formatted invoice in accordance with the Bills of Exchange Act 1882. Copies of these Notices, along with proof of delivery, are attached hereto. It appears that the Claimant may have failed to disclose this to the Court when submitting their case, which constitutes a procedural impropriety.

ii. The Claimant has not complied with Regulation 13, paragraph 5 of the VAT Regulations 1995, which mandates the issuance of an invoice within 30 days of Notice. This failure may also be in contravention of the Unsolicited Goods and Services Act 1971, Chapter 30, Section 2, representing further procedural improprieties.

iii. Despite multiple demands for payment, the Claimant has consistently failed to address the matters raised by the Defendant or deliver a proper invoice. This ongoing demand for payment without providing a proper invoice is a punishable offence under the Bills of Exchange Act 1882 and potentially the Fraud Act 2006 and the Protection from Harassment Act 1997.

iv. None of the correspondence, payment demands, or Notices received from the Claimant have been signed in wet ink by the Claimant's representative, which the Defendant believes constitutes additional procedural improprieties.

The Defendant is deeply suspicious of the Claimant's reluctance to deliver an invoice, suspecting that the entire matter may be predicated on fraudulent activity. The Defendant believes that settling this matter without first receiving a proper invoice would place the Defendant in direct contravention of the Bills of Exchange Act 1882, the Fraud Act 2006, and various HM Revenue and Customs regulations concerning Value Added Tax. Consequently, the Defendant respectfully requests that the Court strike out the Claimant’s case on the grounds of these procedural improprieties and non-compliance with legal requirements. 

Signage and Gym Membership

17. I would like to bring to the Court's attention that all signage present at the site on the date of the alleged incident has since been removed and replaced. The claimant's images of the signage are undated, making it uncertain whether these signs were indeed present on the alleged date of the incident. Furthermore, the Defendant, holds a gym membership that includes free parking at the location in question see EXHIBIT “JH1” Page 16 (found at page 16 of this Witness Statement). Evidence of membership payment on the date in question is exhibited by the Defendant at: EXHIBIT “JH1” Page 5 (found at page 15 of this Witness Statement) which demonstrates that the Defendant was on site with the permission of the land owner/occupier.

Therefore, the Defendant disputes the validity of the parking charge based on the unclear signage situation and the inclusion of parking within the gym membership benefits. The Defendant draws the Courts attention to EXHBIT “JH1” Pages 1 to 4 (found at page 10-14 of this Witness Statement) which shows the Different signage to the signs exhibited by the Claimant which are in position at the site and have replaced the old inadequate signage in place at the time of the alleged contravention. The new signage clearly indicates 3 hours free parking. 

Request for Striking Out Claim and Awarding Costs

18. The Defendant respectfully requests the Court to strike out the Claimant's claim on the grounds of hearsay and to award costs against the Claimant. The Claimant's assertion regarding the breach of contract relies heavily on hearsay evidence, lacking direct and admissible proof of the alleged breach and the formation of a valid contract. The Claimant's reliance on hearsay undermines the integrity of the legal proceedings and contravenes the principles of procedural fairness. Additionally, the absence of substantive evidence directly linking the Defendant to the alleged breach raises doubts about the validity and credibility of the claim. Therefore, the Defendant urges the Court to strike out the Claimant's claim and to award costs against the Claimant, reflecting the unjustified burden imposed on the Defendant by the unsubstantiated allegations.

STATEMENT OF TRUTH

I believe the facts stated in this Defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a Statement of Truth without an honest belief in its truth. 

Date: 14th May  2024

Signed: [DEFENDANT'S SIGNATURE]

Printed: [DEFENDANT'S NAME]

Position: Defendant