Private Parking Witness Statement

CLAIM NO: [THE CLAIM NUMBER]

IN THE READING COUNTY COURT

Between:

PARKING CONTROL MANAGEMENT (UK) LIMITED

Claimant

-AND-

MS [DEFENDANT'S NAME]

Defendant

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WITNESS STATEMENT [WITNESS NAME]

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I, [WITNESS NAME], OF [WITNESS ADDRESS] 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 it's 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 the 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 ('the Alleged Contract');

⦁ iii) The Site Plan;

⦁ iv) Notices;

⦁ 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 Alleged Contract (i.e. the Sign).

Set out in the Schedule below are details of the parking charge;

PCN Number Date of Charge Location Description

PC15238685 04/07/2020 Kennet Island -Reading 15 - Parked without visitor permit

The Defence

4. The Defendant has been issued with the above charge owing to the fact his vehicle was on the 04/07/2020 recorded as being parked in a manner that did not adhere to the parking regulations at 'Kennet Island' in Reading. This was owing to the fact the vehicle was parked without the display of a valid visitor permit.

5. Attached to this statement at exhibit GSL2 is a copy of the signage from the land which sets out the terms of parking and states that:

• "Parking is permitted for vehicles fully displaying a valid resident permit within the windscreen and parked wholly within the confines of a marked bay appropriate for the permit on display; or

• Vehicles fully displaying a valid visitor permit within the windscreen and parked wholly within the confines of a parking bay marked 'V' or 'TV' "

Nature of the Offence:

6. My Company were instructed to operate a parking management and enforcement scheme at the above location. At all material times we acted with the authority of the Managing Agent of the Land pursuant to an agreement dated 14/04/2014, contained at exhibit GSL1. The same having chosen to restrict parking on the land that they manage and enforce parking on the land in question. A copy of this agreement is attached herewith.

7. The terms of parking as set out above make it explicitly clear what is permissible by way of parking. I refer to exhibit GSL5 which contain photographs taken of the defendant's vehicle 'MF58 VPA' which are duly date and time stamped. The same are evident that on the above date, the vehicle was parked within a bay clearly marked 'V'. However, no visitor permit was on display within the vehicle.

8. As such and owing to the above, the Defendant parked in a manner that did not adhere to the parking regulations. Parking was not valid and the charge was correctly issued to the Defendant's vehicle.

Breach of Contract:

9. The rules of interpretation require simply that the parties knew of their obligations to one-another. The Defendant was offered to use the Land and thereafter either follow the rules and park for free or in breach of the rules agree to pay £100. The rules here just so happen to be as set out above at paragraph 5.

10. In the case of Alder v Moore (1961) The court concluded that one should consider the obligations imposed by the agreement, not the terminology used i.e. the agreement's substance, not form.

11. The principles in this case are the same as in the Parking Eye case, save that in the Parking Eye case, as the particular parking rules were different, the rule breached was that motorists must leave the site within 2 hours, whereas here the rule was as set out above. 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.

12. The Court may conclude that the Land is managed as follows; the Claimant grants a contractual license to all; this license allows anyone permission to be on the Land. This is inferred by the nature of the land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all the motorists) was offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and incur a f100 charge. The acceptance was at the point the Defendant decided to park, having read the sign, and his consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. The Claimant's consideration is the provision of parking services.

13. I refer the Court to Judge Hegarty's comments in ParkingEye v Somerfield (2011) that "If this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty, even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park".

14. Alternatively; it could be concluded that, any person can use the Land provided they do not exceed the licensed activity as set out on the sign and in failing to comply with the license granted to them, they in turn agree to the Claimant's entirely distinct offer from that license which is 'to park otherwise than in accordance with the license for a charge of £100'.

15. The signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage location, size, content and font has been audited and approved by the International Parking Community ("the IPC"). The site plan attached to this statement at exhibit "GSL3" evidences that there are sufficient signs on the Relevant Land, these are marked by way of the 'x' as shown on the plan attached. The terms of parking were readily made available to all motorists using the land.

16. It is the driver's responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document. By parking in the manner in which the Defendant did, the charge was properly incurred.

Defendant's Defence:

17. The defendant has filed a defence within which she denied that the actions of the driver have caused any breach of contract. The defendant has failed to substantiate this any further however.

18. The above is not accepted by way of a defence. The terms of parking i.e. the signage, made it clear that all vehicles parked within a valid visitor bay were required to park with the display of a valid visitor permit. However the photographs make it clear that no visitor permit was on display. As such, it is denied that the defendant did not breach the terms of parking.

19. The onus is on the driver to ensure compliance with the terms and conditions for the use of the land; therefore, if one was unable to comply with these terms for whatever reason) and wished to avoid a charge, alternative parking should have been sought immediately.

Driver / Keeper:

20. The defendant has suggested that she is unsure as to the capacity in which she is pursued. The documentation exhibited to this Witness Statement evidences a parking charge notice (notice to driver) was affixed to the vehicle windscreen at the time it was issued. This means that upon the Defendant's immediate return to their vehicle, they would have been aware of the parking charge, as the same was affixed to the vehicle windscreen, This provided the Defendant with a period of 28 days to either pay the parking charge or appeal if the same was disputed.

21. As the charge remained unpaid and as the driver failed to appeal the parking charge notice within the prescribed time, my Company applied to the DVLA, electronically, for the Registered Keeper details and, in turn, were provided with the Defendant's name and address. The DVLA provided us with the relevant information that they had on record at the time the charge was issued. In response, the DVLA confirmed that the vehicle was registered to the defendant at [DEFENDANT'S ADDRESS].

22. A notice to keeper was issued to the defendant on the 05/08/2020. It was upon receipt of this that the defendant was at liberty to have transferred liability if she was not the driver. However, no driver nomination was received.

23. As the charge still remained unpaid, my Company instructed Gladstones Solicitors Ltd to seek recovery of the charge. The Defendant failed to nominate who was driving prior to these proceedings being issued (which is required under the paragraph 5(2) of the Act).

24. Notwithstanding the above, 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. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

25. The Protection of Freedoms Act 2012, Sched 4 (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.

26. 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 creditor has the right to recover any unpaid parking charges from the keeper of the vehicle."

Authority to enforce charges

27. It is maintained the details of the contract by which the Claimant company has been instructed to manage the Relevant Land are not relevant to the Defendant's breach of contract with the Claimant company, for the sake of completeness, a copy of the aforementioned contract is attached with this statement.

28. 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.

29. 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".

30. I trust the above clarifies to the Defendant the charge was issued to the Defendant with the correct and valid authority, any argument from the Defendant to suggest otherwise is simply rejected.

31. 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.

The Current Debt

32. My Company is an Accredited Operator of the International Parking Community (IPC) who prescribes a maximum charge of £100. The Code of Practice states: "Parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/ or other documentation. Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated."

33. In view of the Defendant not paying the charge within the initial 28 days allowed or the further 28 days allowed after the Notice to Keeper has been sent, the parking charge has become overdue and a reasonable sum of £60 has been added.

34. The Sign states the prescribed charge for failing to comply with the terms is £100, however it also specifies 'failure to pay the charge may result in the vehicle's keeper details being requested from the DVLA, alternatively they may be requested immediately so that a parking charge notice may be served through the post. Enforcement action may incur additional costs that will be added to the value of the parking charge and for which the driver will be responsible". Further the Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued. Due to the Defendant not paying the charge the matter was passed to my Company's legal representatives, Gladstones Solicitors Ltd, who were instructed to commence legal proceedings. The potential additional costs mentioned above are now sought.

35. 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).

STATEMENT OF TRUTH

I believe that the facts stated in this Witness Statement 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.

Signed: Print: Malisa-Kim Grant Dated: 09/08/2021

CLAIM NO: [THE CLAIM NUMBER]

IN THE READING COUNTY COURT

Between:

MS [DEFENDANT'S NAME]

Defendant

-AND-

PARKING CONTROL MANAGEMENT (UK) LIMITED

Claimant

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WITNESS STATEMENT OF [DEFENDANT'S NAME]

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I, [DEFENDANT'S NAME], OF [DEFENDANT'S ADDRESS] WILL SAY AS FOLLOWS:

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 readiness for the fixed hearing dated __/__/__ and in response to the filing of a Witness Statement of Malisa-Kim Grant (the 'Alleged Witness') on behalf of the Claimant dated: 09/08/2021.

It is disputed that the Alleged Witness bases any of her statement on actual fact witnessed and the Defendant avers that her 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.

2. It is disputed that the documents exhibited by the Claimant in their Witness Statement at 'GSL1' are any evidence whatsoever that the Defendant is liable for charges that the Claimant claims are due to their company for a Private Parking Notice (the 'PPN'). The documents that the Claimant seeks to rely on are:

⦁ i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as 'the Relevant Land');

It is disputed that any agreement between the land owner and the Claimant establishes any liability by the Defendant.

⦁ ii) The Sign ('the Alleged Contract');

It is disputed that a sign on it's own constitutes a contract as claimed by the Claimant.

A legally binding contract has five key elements: Offer and acceptance, consideration, Capacity, mutual consent, and legal object. It is disputed that a contract was entered into and the Claimant has any right to sue for 'breach of contract'

⦁ iii) The Site Plan;

It is disputed that the site plan details or establishes that a contract was entered into between the Claimant and the Defendant.

⦁ iv) Notices;

⦁ v) Photographs of the incident.

3. It is disputed that 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 Alleged Contract (i.e. the Sign). The Defendant avers that a sign cannot on it's own constitute a contract. At most the sign may form an offer of a Contract but not a contract as a whole.

In the cases of B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L it was demonstrated that forbidding signage at residential parking spaces did not create a contract.

It is denied that signage on and around the site was clearly displayed, at the time of the alleged breach of contract it did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was and is also a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay the PPN charge. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by a driver entering the car park. It is denied that a sign was the offer and the driver of the vehicle entering the carpark was acceptance of any terms and conditions.

Set out in the Schedule below are details of the parking charge;

PCN Number Date of Charge Location Description

PC15238685 04/07/2020 Kennet Island -Reading 15 - Parked without visitor permit

The Alleged Offence

4. It is disputed that the Defendant has been issued with the above charge owing to the fact his vehicle was on the 04/07/2020 recorded as being parked in a manner that did not adhere to the parking regulations at 'Kennet Island' in Reading. It is disputed that this was owing to the fact the vehicle was parked without the display of a valid visitor permit.

The Defendant avers that the Claimant has issued a PPN to the registered keeper of the vehicle in question without establishing if any contravention actually took place and without establishing if the Defendant was the Driver of the vehicle on the date in question.

5. It is disputed that the documents attached to the Claimant's Alleged Witness statement at exhibit GSL2 is an accurate copy of the signage from the land displayed on the date of the alleged contravention.

It is disputed that they were the terms of parking on the date in question and that the signs stated that:

• "Parking is permitted for vehicles fully displaying a valid resident permit within the windscreen and parked wholly within the confines of a marked bay appropriate for the permit on display; or

• Vehicles fully displaying a valid visitor permit within the windscreen and parked wholly within the confines of a parking bay marked 'V' or 'TV' "

The Defendant avers that any signage was not clear and visible on the date in question and the Claimant is put to strict proof to evidence that they were clear from obstruction and were clearly visible to the Driver of the vehicle in question when entering the area where the Claimant claims a permit was required under the terms and conditions of their Alleged Contract.

The Defendant avers that in the Claimant's own pictures, the markings are not clear and visible and are in such a state to make them unreadable and inadequate to form any kind of binding contract with the Driver of a vehicle.

Nature of the Offence:

6. It is disputed that the Claimant was instructed to operate a parking management and enforcement scheme at the above location (the 'Alleged Authorisation').

It is disputed that at all material times the Claimant acted with the authority of the Managing Agent of the Land pursuant to an agreement dated 14/04/2014, exhibit by the Claimant at GSL1. It is disputed that the same chose to restrict parking on the land that they manage and enforce parking on the land in question.

The Defendant avers that the Managing Agent of the Land does not have the authority to sign such an agreement on behalf of the land owner/occupier. The Defendant avers that the Alleged Authorisation is invalid and the Claimant is put to strict proof to show that the land owner or occupier has instructed the Claimant.

The Defendant avers that the signatory to the Alleged Authorisation has no authority to sign on behalf of the Limited Company as he is not a Director of the Limited Company in question:

https://find-and-update.company-information.service.gov.uk/company/05024543/officers

The Defendant further avers the Alleged Authority is invalid as it only has the alleged signature of one of the companies and the signature requirements are not compliant with Section 44 of the Companies Act 2006.

7. It is disputed that the terms of parking as set out, in the Claimant's Witness Statement at points 2-6, make it explicitly clear what is permissible by way of parking. The Defendant avers that, on the date in question, the Defendant was not privy to the Claimant's Witness Statement and any such terms relied on should be regarded as a 'Hidden Term' in contract law.

It is disputed that exhibit GSL5 contains photographs taken of the defendant's vehicle 'MF58 VPA' which are duly date and time stamped.

It is disputed that the same are evident that on the above date, the vehicle was parked within a bay clearly marked 'V'. However, no visitor permit was on display within the vehicle.

8. It is disputed that the Defendant parked in a manner that did not adhere to the parking regulations. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ('POFA'):

Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

⦁ (a) There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

⦁ (b) That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is denied that the Claimant has complied with the relevant statutory requirements and it is denied that the Defendant has ever been the registered keeper of the vehicle in question.

It is disputed that Parking was not valid and the charge was correctly issued to the Defendant's vehicle.

Breach of Contract:

9. It is disputed that the rules of interpretation require simply that the parties knew of their obligations to one-another. A contract, if it was found that one existed, must be interpreted as a whole and the intention of the parties is to be gathered from the entire instrument and not from particular words, phrases, or clauses. The Claimant has provided no written contract or established any contract existed between the Claimant and the Defendant.

It is disputed that the Defendant was offered to use the Land and thereafter either follow the rules and park for free or in breach of the rules agree to pay £100. The Defendant was neither offered or accepted the use of the land, nor did he agreed to pay £100 or indeed any sum to the Claimant

It is disputed that the rules here just so happen to be as set out above at paragraph 5.

10. It is disputed that the case of Alder v Moore (1961) is in anyway relevant to the Claimant's Claim. The court may have concluded, in that particular case, that one should consider the obligations imposed by the agreement, not the terminology used. The Defendant avers that no contract exists in this case.

The Defendant avers that the case of Alder v Moore (1961) is simply not relevant to the claim as it has little to do with Private Parking issues - Alder v Moore (1961) - the Defendant (Boby Moore) had to repay insurance monies received when it transpired that his injuries were not such that they prevented him playing football and where he agreed that as a term of receipt.

As such, the Defendant considers this case clearly irrelevant to this case, a claim reliant upon an implied contract, and does not accept it has any relevance to any issue in dispute.

11. It is disputed that the principles in this case are the same as in the Parking Eye case, save that in the Parking Eye case, as the particular parking rules were different, the rule breached was that motorists must leave the site within 2 hours, whereas here the rule was as set out above. It is disputed that 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.

Should the Claimant seek to rely on the case of ParkingEye v Beavis, The Defendant avers that there is a test of good faith. Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.” Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts.

12. The Court may conclude that the Land is managed as follows; the Claimant grants a contractual license to all; this license allows anyone permission to be on the Land. The Defendant invites the Court to conclude that it is not practical for a contractual licence to be issued to all people on the planet without their knowledge, a contract requires Offer/acceptance, consideration, Capacity, mutual consent, and legal object. Something of value MUST be exchanged.

The Defendant avers that the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.

It is disputed that the Defendant (as were all the motorists - on the planet) were offered to the opportunity to comply with the normal conditions (it is disputed they were clear on the sign), or park otherwise than in accordance with the normal conditions and incur a £100 charge.

It is disputed that the acceptance was at the point the Defendant decided to park, having read the sign, and his consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. It is disputed that the Claimant's consideration is the provision of parking services.

13. It is disputed that Judge Hegarty's comments in ParkingEye v Somerfield (2011) that "If this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty, even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park" are relevant to this claim.

The defendant relies upon the Oxford County Court decision in JOPSON v HOME GUARD SERVICES, Appeal case number B9GF0A9E on 29/9/2016 where Senior Circuit Judge Charles Harris QC found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council. The attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper(in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

14. It is disputed, that alternatively, it could be concluded that, any person can use the Land provided they do not exceed the licensed activity as set out on the sign and in failing to comply with the license granted to them, they in turn agree to the Claimant's entirely distinct offer from that license which is 'to park otherwise than in accordance with the license for a charge of £100'.

It is disputed that the signage was adequate in able to for a contract. The signage was inadequate to form a contract with the motorist because It is barely legible, making it difficult to read. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which the Claimant is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

15. It is disputed that the signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. It is disputed that signage is prominent throughout the parking area. It is disputed that signage location, size, content and font has been audited and approved by the International Parking Community ("the IPC"). It is disputed that the site plan exhibited by the Claimant at "GSL3" evidences that there are sufficient signs on the Relevant Land. It is disputed that the terms of parking were readily made available to all motorists using the land.

16. It is not disputed that it is the driver's responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. It is disputed that the Defendant was driving the vehicle at the time of the Alleged Contravention.

It is disputed that the signage on site is the contractual document. It is disputed that by parking in the manner in which the Driver of the vehicle is alleged to have parked, the charge was properly incurred. It is disputed that the Defendant is liable for the actions of the Driver of the vehicle.

Defendant's Defence:

17. It is not disputed that the defendant has filed a defence within which she denied that the actions of the driver have caused any breach of contract. It is disputed that the defendant has failed to substantiate this any further. The Defendant avers that it is for the Claimant to prove their case and establish the elements of a contract which the claim existed with the Driver of the vehicle and provide an explanation of why they are pursuing the Registered Keeper of the vehicle in question instead of the person they claimed entered into a contract with them.

18. It is disputed that the terms of parking i.e. the signage, made it clear that all vehicles parked within a valid visitor bay were required to park with the display of a valid visitor permit. It is disputed that the photographs make it clear that no visitor permit was on display. It is disputed that the Defendant breached the terms of parking that the Claimant claims that the Driver of the vehicle agreed to by.

19. It is disputed that the onus is on the driver to ensure compliance with the terms and conditions for the use of the land. The Defendant avers that it is the duty of the Land Owner/Occupier to secure their land if they do not want unauthorised vehicles entering or leaving the land or ensure that terms are agreed to if they are going to grant an implied right of access by leaving the property with open access to the public highway.

It is disputed that if one was unable to comply with these terms for whatever reason) and wished to avoid a charge, alternative parking should have been sought immediately. The Defendant avers that the Claimant is limited to pursuing the Driver of the vehicle for the Civil Tort of Trespass as they had not made it clear that any Implied Right of Access had been withdrawn.

Driver / Keeper:

20. It is disputed that the documentation exhibited to the Claimant's Witness Statement evidences a parking charge notice (notice to driver) was affixed to the vehicle windscreen at the time it was issued. The Defendant avers that no such notice was provided to her as registered keeper of the vehicle. The Claimant provides what is effectively hearsay evidence to suggest a notice was left for the attention of the Driver of the vehicle but has not evidence that this was received by the registered keeper or even the Driver.

It is disputed that upon the Defendant's immediate return to their vehicle, they would have been aware of the parking charge, as the same was affixed to the vehicle windscreen. As the Defendant was not the Driver on the date in question, any document affixed to the vehicle would not have been seen by the Defendant.

It is disputed that this provided the Defendant with a period of 28 days to either pay the parking charge or appeal if the same was disputed, as the Defendant was not the driver of the vehicle on the date of any Alleged Contravention.

21. It is disputed that the charge remained unpaid and as the driver failed to appeal the parking charge notice within the prescribed time. It is a point of record that the Claimant applied to the DVLA, electronically, for the Registered Keeper details and, in turn, were provided with the Defendant's name and address. It is not disputed that the DVLA provided the Claimant with the relevant information that they had on record at the time the charge was issued. It is not disputed that, in response, the DVLA confirmed that the vehicle was registered to the Defendant at [DEFENDANT'S ADDRESS].

22. It is disputed that a notice to keeper was issued to the defendant on the 05/08/2020. The Defendant received not such notice from the Claimant and it put to strict proof to provide proof of postage of this document. It is disputed that it was upon receipt of this that the defendant was at liberty to have transferred liability if she was not the driver.

The Defendant avers that the the misinterpretation of Section 4 of POFA was explained Lead Adjudicator and barrister Henry Michael Greenslade who confirmed in 2015:

"There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver...If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

23. It is not disputed that the Claimant instructed Gladstones Solicitors Ltd to seek recovery of the charge they claim was due from the Driver of the vehicle for breach of contract. It is disputed that the Defendant was given the opportunity and failed to nominate who was driving prior to these proceedings being issued. It is disputed that this is required under the paragraph 5(2) of the Act).

Section 5(s) of POFA states:

(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

The Defendant avers that Paragraph 5(2) of POFA gives no requirement for the Registered Keeper of a vehicle to name the driver. The Defendant avers that the Claimant has not complied with the Statutory requirements of Schedule 4 of POFA and the Registered Keeper is not liable for the actions of the Driver.

24. It is disputed that the Criminal Case of Elliott v Loake 1983 Crim LR 36 where it was held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption, is in any way relevant to this case which is in the Civil jurisdiction. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.

It is disputed that, to date, the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. It is disputed that the Court should be invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

25. It is not disputed that the Protection of Freedoms Act 2012, Sched 4 (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. It is disputed that the Claimant can rely on the Protection of Freedoms Act 2012 to transfer liability from the Driver to the Registered Keeper of the vehicle.

26. It is disputed that 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 creditor has the right to recover any unpaid parking charges from the keeper of the vehicle."

Schedule 4 (4)(2) of the Protection of Freedoms Act 2012 goes on to state:

(2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and

It is disputed that the conditions specified in paragraphs 5, 6, 11 and 12 are met.

Authority to enforce charges

27. It is disputed that the details of the contract by which the Claimant company has been instructed to manage the Relevant Land are not relevant to the Defendant's alleged breach of contract with the Claimant company. The Defendant avers that the Claimant's alleged contract with the Managing Agent is invalid and does not give the Claimant the right or Legal Standing to bring an action at law for 'breach of contract'.

28. It is disputed that any contract exists between the Claimant and the Defendant. It is disputed that the Claimant has the authority to enforce parking charges.

It is disputed that 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.

It is disputed that the Agreement exhibited to this by the Claimant in their witness Witness Statement in any way evidences the Claimant's authorisation to operate / manage the Relevant Land on behalf of the Landowner.

29. It is disputed that the comments of Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013) EWCA Civ 186 have any relevance in this case as it is the Defendant's position the no contract exists between the Defendant and the Claimant and the Claimant has failed to provide any evidence of a valid contract with the Land Owner to give them any legal standing to bring this claim.

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".

30. It is disputed that the charge was issued to the Defendant with the correct and valid authority. It is disputed that the Claimant has any authority or legal standing to reject the Defendant's argument.

31. It is disputed that In view of the Defendant not paying the charge within the 28 days allowed, under Claimant’s hidden and unfair terms, the Defendant is in breach of the contract. It is disputed that there has been any breach of contract and it is disputed that the Claimant is entitled to damages as of right in addition to the parking charge allegedly incurred. It is disputed that the Claimant is an innocent party. The Claimant is a parking company that seeks betterment from litigation. The Defendant avers that the Claimant suffers no loss due to the actions of the Defendant.

The Current Debt

32. It is not disputed that the Claimant is an Accredited Operator of the International Parking Community (IPC) who prescribes a maximum charge of £100 . The Defendant avers that the Claimant is attempting to charge the very maximum they are allowed to under their own industry rules in an attempt at betterment.

The Code of Practice states: "Parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/ or other documentation. Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated."

The Defendant avers that the Claimant is seeking betterment as they have provided no breakdown of any losses they claim to have suffered due to the actions of the Defendant.

33. It is disputed that in view of the Defendant not paying the charge within the initial 28 days allowed or the further 28 days allowed after the Notice to Keeper has been sent, the parking charge has become overdue and a reasonable sum of £60 has been added. The Defendant avers that there is nothing reasonable in the Claimant's attempt to charge more than any losses they have suffered. The Defendant avers that the Claimant is attempting to profit out of litigation.

34. It is disputed that the Sign states the prescribed charge for failing to comply with the terms is £100, however it also specifies 'failure to pay the charge may result in the vehicle's keeper details being requested from the DVLA, alternatively they may be requested immediately so that a parking charge notice may be served through the post. Enforcement action may incur additional costs that will be added to the value of the parking charge and for which the driver will be responsible".

It is disputed that a Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued. It is disputed that the Claimant has any legal right to claim potential additional costs.

The Defendant avers that these are 'hidden' and 'unfair' terms under UK contract law as these were not provided to the Claimant until receipt of the Claimant's Witness Statement.

35. It is disputed that the debt has, as a result of this referral risen as the Claimant's staff have spent time and material in facilitating the recovery of this alleged debt. It is disputed that this time could have been better spent on other elements of the Claimant's business. The Defendant avers that the Claimant is attempting to profit from litigation and this forms a major part of their business.

It is disputed that the costs associated with such time spent were incurred naturally as a direct result of the Defendant's alleged breach. It is disputed that the Claimant is entitled to ask that this element of the claim be awarded as a damage. It is disputed that the costs claimed are a pre-determined and nominal contribution to the actual losses. It is disputed that the Claimant has any right to costs pursuant to the sign, (i.e the Alleged Contract).

36. The Defendant respectfully requests that the court dismiss the claim and to allow such defendants costs as are permissible under civil procedure rule 27.14.

STATEMENT OF TRUTH

I believe that the facts stated in this Witness Statement 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.

Signed:

Print: [DEFENDANT'S NAME]

Dated: