3 private parking tickets being pursued for all 3 and had a ccj claim made

[b789]

In light of the claimants WS, I have drafted a revised WS for you to consider:

1. I am the Defendant in this matter. The facts and matters set out in this witness statement are within my own knowledge except where stated otherwise. Where facts are not within my direct knowledge they are true to the best of my information and belief.

PRELIMINARY MATTER: DEFECTIVE PARTICULARS OF CLAIM

2. Before addressing the factual allegations made against me, I raise a preliminary issue concerning the adequacy of the Particulars of Claim.

3. The Claimant asserts a cause of action in contract. However, the Particulars of Claim do not state whether the alleged contract is written, oral, or formed by conduct. The Particulars of Claim do not identify the contractual terms relied upon, do not identify the clause said to have been breached, and do not explain how the sum claimed is calculated by reference to any contractual provision.

4. CPR 16.4(1)(a) requires a claimant to include a concise statement of the facts on which the claimant relies. Practice Direction 16, paragraph 7.3, further provides that where a claim is based upon a contract the claimant must specify the contractual terms relied upon and identify how those terms were allegedly breached.

5. The Particulars of Claim fail to comply with those requirements. They provide only a generic assertion that a parking charge became payable but do not identify the alleged contract, the wording of any term relied upon, or the conduct said to constitute acceptance of any such term.

6. Instead, the Claimant attempts to introduce the alleged contractual terms for the first time through the witness statement of its legal representative.

7. In Liberty Homes (Kent) Limited v Rajakanthan & Others [2022] EWHC 2201 (TCC), a transcript of which is exhibited at XX-01, Mrs Justice Jefford DBE described pleadings that failed to properly identify the agreement relied upon as “deeply unsatisfactory”, noting that the claimant in that case had failed even to identify whether the agreement relied upon was oral or written (paragraph 35).

8. The same defect arises in this case. The Particulars of Claim do not identify the alleged contractual terms relied upon, nor the conduct said to constitute acceptance of those terms. Instead, the Claimant attempts to introduce those matters only at the witness statement stage.

9. I therefore submit that the Claimant’s witness evidence attempts to supply material facts which were never pleaded, contrary to the requirement that pleadings define the case the Defendant must meet.

10. For that reason, the Claimant’s case as now advanced in the witness statement goes materially beyond the pleaded case contained in the Particulars of Claim.

THE CLAIMANT’S WITNESS EVIDENCE

11. The Claimant’s witness statement has been produced by Ms Nabeela Ahmed, who describes herself as a paralegal employed by BW Legal Services Limited.

12. Ms Ahmed states that the matters referred to in her statement are either within her own knowledge or based upon information provided to her by the Claimant.

13. Ms Ahmed is not an employee of the Claimant and has no direct involvement in the management of the site, the erection or maintenance of signage, the alleged parking event, or the issuing of the parking charge.

14. Ms Ahmed does not claim to have attended the site, to have witnessed the alleged event, or to possess any first-hand knowledge of the matters asserted in the statement.

15. Instead, the statement relies largely upon information provided to BW Legal by the Claimant.

16. The statement therefore consists primarily of hearsay evidence from a legal representative who has no direct involvement in the matters alleged.

17. The Claimant’s evidence bundle includes photographs which appear to have been taken by a parking attendant at the site.

18. The individual who took those photographs would be the only person capable of providing first-hand evidence of the circumstances in which they were taken and the conditions present at the time.

19. Despite this, no witness statement has been provided from that individual.

20. Instead, the Claimant relies upon the statement of Ms Nabeela Ahmed, a paralegal employed by BW Legal Services Limited, who confirms that much of her evidence is based upon information supplied by the Claimant.

21. Ms Ahmed does not claim to have attended the site, to have witnessed the alleged event, or to have any personal knowledge of the matters asserted in her statement.

22. I therefore understand that the Claimant has chosen not to provide evidence from the only person with direct knowledge of the alleged event and instead relies upon second-hand information relayed through its legal representative.

SIGNAGE AND THE ABSENCE OF ANY CONTRACTUAL OFFER

23. I have reviewed the wording of the signage relied upon by the Claimant. A close-up photograph of the terms sign is exhibited at XX-02.

24. The sign contains the following prominent instructions:

• “A VALID UK CPM PERMIT MUST BE CLEARLY DISPLAYED IN THE FRONT WINDSCREEN AT ALL TIMES.”
  
• “Vehicles displaying bay or area allocated permits must park in the corresponding bay or area.”
  
• “NO PARKING ON ACCESS ROADS / ROADWAYS.”
  
• “If unsure please seek further advice from CPM or refrain from parking.”
  

25. In my understanding, when these terms are read together the sign does not communicate any contractual offer to park to members of the public generally. Instead, it communicates a restricted licence permitting parking only for vehicles displaying a valid permit and only within the appropriate designated bay or area.

26. The sign expressly states that parking on access roads or roadways is not permitted. That wording is plainly prohibitive. It does not offer parking in those areas on any contractual basis.

27. In my understanding, a prohibition is not capable of forming a contractual offer. A driver cannot accept an offer that does not exist. The dominant message of the sign is therefore that parking is not allowed in those locations rather than that parking is permitted in exchange for a payment.

28. The additional instruction “If unsure please seek further advice from CPM or refrain from parking” reinforces that interpretation. In my understanding this wording instructs motorists who are not certain that they are authorised to park to refrain from parking altogether, rather than suggesting that they may park and incur a contractual charge.

29. The signage therefore reads as a conditional licence granted only to authorised permit holders parking within designated bays or areas. It does not communicate any contractual offer to park on access roads or roadways.

30. The Claimant relies on a small-print clause stating that a driver may become liable for £100 for breach of the terms. However, I understand that such wording is framed as a consequence of breach rather than as the price of parking. The £100 charge is not presented as a core term permitting parking but as a sanction for conduct the sign itself prohibits.

31. In those circumstances, I understand that the signage communicates prohibition and exclusion rather than a contractual bargain. If parking on the roadway is not permitted at all, then no contractual licence to park there can arise.

32. I therefore do not understand how any contract capable of acceptance by a driver could arise in the circumstances alleged by the Claimant.

SIGNAGE – VISIBILITY AND INCORPORATION OF TERMS

33. I have also considered the physical characteristics of the signage relied upon by the Claimant.

34. The terms signs are mounted at a considerable height, approximately 10 feet above ground level, on poles and walls around the site. From ground level the text appears extremely small and dense.

35. In my understanding, a driver would be required to leave their vehicle and stand directly beneath the sign in order to attempt to read the detailed wording.

36. The majority of the wording on the sign, including the clause stating that a driver may become liable for a charge of £100, appears in very small font within a large block of text.

37. From a normal standing position on the ground the detailed wording of the sign is extremely difficult to read. In my understanding it would not be possible for a driver to read and understand the detailed contractual wording from a vehicle before deciding whether to remain on the land.

38. In particular, the £100 charge relied upon by the Claimant is not prominently displayed but appears within the small print of the sign.

39. In my understanding, if a contractual charge is to be relied upon, the term imposing that charge must be clearly and prominently brought to the attention of the driver before any alleged contract is formed.

40. The Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 placed particular emphasis on the prominence and clarity of the parking charge displayed on the signage in that case. A comparison between the signage considered by the Supreme Court in Beavis and the signage relied upon by the Claimant in this case is exhibited at XX-03. That comparison demonstrates that in Beavis the parking charge was displayed in large and prominent lettering forming a central and conspicuous feature of the sign, whereas on the Claimant’s signage the alleged £100 charge appears only within dense small print.

41. The comparison also illustrates the principle described by Lord Denning MR in J Spurling Ltd v Bradshaw [1956] 1 WLR 461, commonly referred to as the “Red Hand Rule”, that the more onerous a contractual term is, the greater the degree of prominence required to bring it fairly to a party’s attention. In this case the physical positioning of the signs and the minuscule font size of the detailed wording mean that the alleged £100 term could not reasonably be read or understood by a driver at the material time, and I therefore do not understand how the Claimant can establish that the alleged contractual charge was properly communicated or incorporated into any contract with a driver.

SIGNAGE – CLAIMANT’S RELIANCE ON PARKINGEYE LTD v BEAVIS

42. In paragraph 8 of the Claimant’s witness statement, Ms Ahmed relies upon the authority of ParkingEye Ltd v Beavis [2015] UKSC 67 in support of the enforceability of the parking charge.

43. Ms Ahmed states that the Supreme Court accepted that a parking charge of £85 was reasonable and that such charges serve a legitimate interest in deterring motorists from breaching the terms and conditions.

44. However, in my understanding the Supreme Court’s reasoning in Beavis was based upon a number of specific factual features present in that case, including the clear and prominent display of the parking charge on the signage and the commercial context of a free customer car park at a retail site where a two-hour parking limit was imposed in order to ensure turnover of spaces for the benefit of retail customers.

45. I have reviewed the signage considered by the Supreme Court in Beavis and have exhibited at XX-04 a comparison between that signage and the signage relied upon by the Claimant in this case.

46. The comparison demonstrates that the charge in Beavis was displayed prominently in large and conspicuous lettering forming a central feature of the sign, whereas the charge relied upon by the Claimant appears only in small print within a dense block of text.

47. In my understanding the circumstances in the present case are materially different from those considered by the Supreme Court in Beavis. This case concerns a residential car park subject to a permit scheme rather than a free retail car park intended to encourage turnover of spaces for customers.

48. For those reasons, I do not understand how the Claimant can rely upon the authority of Beavis when both the signage and the underlying factual context differ materially from the circumstances considered by the Supreme Court in that case.

EVIDENCE OF THE ALLEGED CONTRAVENTION

51. The Claimant relies upon a series of photographs which are said to have been taken by a parking attendant at the location.

52. Those photographs appear to form the entirety of the Claimant’s evidence of the alleged contravention.

53. However, the Claimant has not provided any witness statement from the individual who actually attended the site and took those photographs.

54. Instead, the Claimant relies upon a witness statement from a paralegal employed by its legal representatives, BW Legal Services Limited.

55. That individual was not present at the location and has no first-hand knowledge of the events alleged.

56. In my understanding, the only person capable of giving direct evidence of the circumstances in which the photographs were taken would be the parking attendant who attended the site.

57. No such evidence has been produced.

58. As a result, the Claimant’s evidence as to the alleged contravention consists solely of photographs exhibited through the statement of a legal representative who was not present at the site and who confirms that much of her evidence is based upon information supplied by the Claimant.

59. In my understanding, the Claimant has therefore produced no direct witness evidence from the individual who observed the alleged events and relies only upon photographs presented without any first-hand testimony explaining the circumstances in which they were taken.

NO KEEPER LIABILITY – ABSENCE OF A “PERIOD OF PARKING”

60. The Claimant seeks to hold the registered keeper liable for the parking charge. In order to do so the Claimant must comply strictly with the requirements of Schedule 4 of the Protection of Freedoms Act 2012.

61. Paragraph 9(2)(a) of Schedule 4 requires a Notice to Keeper to “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

62. I have reviewed the Notice to Keeper relied upon by the Claimant. The notice records only a single observation time rather than identifying any defined period of parking and no start time and end time are provided.

63. In my understanding, a single timestamp cannot constitute a “period of parking” because it does not describe any period at all.

64. This issue was considered in the County Court appeal decision in Brennan v Premier Parking Solutions (2023) [H6DP632H].

65. I exhibit a copy of that judgment at XX-05. In Brennan the appellate judge confirmed that the statutory wording requires the notice to identify a period of parking and that the statutory conditions must be complied with if a parking operator wishes to rely on keeper liability.

66. The judge explained that the period of parking does not need to represent the entire duration that a vehicle was present, but it must nevertheless identify some defined period of time to which the notice relates.

67. In my understanding, the period identified must at least represent a duration sufficient for a driver to read the terms and decide whether to accept them, because a contract cannot be formed instantaneously. The Private Parking Single Code of Practice, which the Claimant is obliged to follow, requires operators to allow a minimum consideration period of at least five minutes before a parking charge may be issued.

68. However, the Notice to Keeper relied upon by the Claimant identifies no period at all and records only a single observation time, meaning the statutory requirement to specify a period of parking has not been satisfied.

69. In those circumstances the Claimant cannot rely on the provisions of Schedule 4 of the Protection of Freedoms Act 2012 to pursue the registered keeper for the parking charge.

70. The driver has not been identified and no evidence has been produced identifying the driver. The Claimant is therefore unable to rely on keeper liability and has no basis upon which to pursue the registered keeper in this claim.

DRIVER IDENTITY – VCS v EDWARD

75. I understand that where a claimant cannot rely upon the statutory keeper liability provisions of Schedule 4 of the Protection of Freedoms Act 2012, the claimant must prove the identity of the driver if it seeks to pursue driver liability. The inability to rely on Schedule 4 does not permit a claimant to assume that the registered keeper was the driver, and the burden of proving the identity of the driver rests with the claimant.

76. This issue was considered in Vehicle Control Services Ltd v Ian Mark Edward (2023)[HOKF6C9C]. I exhibit a copy of the approved transcript of that appeal judgment at Exhibit XX-06.

77. In that judgment the appellate court confirmed that the fact that a person is the registered keeper does not produce any inference that they were driving the vehicle on the material occasion (paragraph 34).

78. In the present case the Claimant has produced no evidence identifying the driver of the vehicle and relies only upon photographs of the vehicle and a witness statement from a BW Legal paralegal who was not present at the site.

79. In those circumstances, and in the absence of compliance with Schedule 4 of the Protection of Freedoms Act 2012, I understand that the Claimant cannot establish liability against me as the registered keeper.

RESIDENTIAL TENANCY AND ABSENCE OF ANY CONTRACT WITH THE CLAIMANT

80. At the material time I was a residential tenant of the property under a written tenancy agreement granted by London and Quadrant Housing Trust (“L&Q”), which is the landholder referred to in the Claimant’s evidence.

81. The Claimant states in its witness statement that it did not have sight of the tenancy agreement when preparing its evidence and proceeds to make assumptions about its contents. In particular, the Claimant speculates that the Defendant has not shown any right to park and suggests that any lease would normally contain rights and restrictions permitting the landlord to introduce a parking scheme. Those assertions are made despite the Claimant expressly acknowledging that it had not seen the tenancy agreement.

82. I have now reviewed the tenancy agreement governing the occupation of the property and exhibit a copy at Exhibit XX-07.

83. The tenancy agreement defines the demised premises as the residential flat only. It does not grant any demised parking space and does not create any contractual relationship between the tenant and any third-party parking enforcement company.

84. The only contractual relationship created by the tenancy agreement is between the tenant and the landlord, L&Q. The tenancy agreement contains provisions relating to vehicles and parking which regulate the conduct of tenants as part of the landlord’s management of the estate. In my understanding those provisions operate as tenancy covenants owed to the landlord.

85. The tenancy agreement does not state that tenants agree to enter into contracts with any parking enforcement company, nor does it state that tenants agree to pay parking charges to any third-party operator.

86. The Claimant is not a party to the tenancy agreement and has no contractual relationship with me arising from that agreement.

87. In my understanding, if a tenant were to breach any tenancy condition relating to vehicles or parking, that would be a matter between the tenant and the landlord under the tenancy agreement.

88. In those circumstances, and in the absence of any contractual agreement between myself and the Claimant, I understand that the Claimant cannot rely upon the tenancy agreement to establish any liability on my part to pay a parking charge to the Claimant.

CONCLUSION

89. For the reasons set out in this witness statement, it is my understanding that the Claimant has failed to establish any lawful basis upon which I may be held liable for the parking charge.

90. The Claimant has not produced any direct evidence from the individual who allegedly observed the vehicle and relies solely upon photographs presented without any supporting first-hand testimony. In addition, the Claimant cannot rely upon the keeper liability provisions of Schedule 4 of the Protection of Freedoms Act 2012 because the Notice to Keeper does not specify any “period of parking” as required by paragraph 9(2)(a). The driver has not been identified and the Claimant has produced no evidence establishing driver identity.

91. The Claimant’s assumptions regarding the Defendant’s tenancy are misplaced. The tenancy agreement establishes a contractual relationship only between the tenant and the landlord and creates no contractual relationship between the Defendant and the Claimant. The Claimant is not a party to that agreement.

92. In addition, the document relied upon by the Claimant to demonstrate its authority to operate at the site does not establish that the Claimant was granted authority by the landholder to issue parking charges or pursue legal proceedings in its own name.

93. In light of the matters set out above, I respectfully submit that the Claimant has failed to establish any contractual liability on my part and that the claim should therefore be dismissed.

You will need to replace the XX in the exhibit references with your initials. You will need to add the court header and the Statement of Truth. Just look at the claimants bundle and see how they have put theirs together. Just follow the same format.

I will also give you a skeleton that you can include later today (I am currently 6 hours west of you). You do not have to submit this until 4pm tomorrow. When you do, you will email a copy to the court and in the same email CC BW Legal.

I have also attached the comparison of their sign with the Beavis sign as referenced. If you want to include some of your own images that you had in your original WS, the by all means do so, especially the ones that show how rubbish their signs are. Just make sure you reference them as exhibits in the WS at the correct place.