New Generation Parking Management Ltd v RandG

[b789]

Having reviewed the claimants WS, I advise you to submit a Supplementary Witness Statement (SWS) and Skeleton. Any reference to existing exhibits only need to reference them as in your original WS. Anything new introduced, such as evidence of the claimants response to your Data Rectification Notice where they admitted they used the old address on the original NtK and not the new one as shown their evidence, should be referenced separately and included.

IN THE COUNTY COURT AT NEWPORT

Claim No: [Claim Number]

BETWEEN:

New Parking Generation Management Ltd

Claimant

- and -

[Defendant's Full Name]

Defendant

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SUPPLEMENTARY WITNESS STATEMENT

1. I am the Defendant in this matter and the registered keeper of the vehicle. I make this supplementary witness statement in response to matters arising from the Claimant’s witness statement and exhibits.

2. The defence previously filed addressed the claim as pleaded and the limited material then available. The Particulars of Claim did not properly identify the factual basis of the alleged contravention, the documents relied upon, or the basis on which the Claimant contended that I was liable as keeper or driver. The Claimant has now, for the first time, served witness evidence and exhibits purporting to prove those matters. This supplementary statement is confined to the issues arising from that evidence.

3. The Claimant’s witness is Antony Roberts, who states that he is authorised to make this statement on behalf of the Claimant and has signed it under a Statement of Truth. Nothing in his statement suggests that he had any personal involvement in the events alleged, was present at the site on the material date, issued the parking charge, or witnessed the matters now asserted. His evidence therefore appears to derive entirely from company records rather than personal knowledge. In those circumstances, the Claimant’s case stands or falls on the accuracy, authenticity and consistency of the records exhibited, and any assertion not properly borne out by those records should be given limited weight.

4. The Claimant relies upon a document described as a Notice to Keeper dated 31 May 2024, which expressly states, “This notice is a copy.” However, that exhibited copy is addressed to my current address, even though my V5C was not updated to that address until 1 June 2024, and the Claimant has already admitted that when it obtained keeper data from the DVLA it was provided with my previous address. In those circumstances, the document now exhibited cannot be a true copy of the operative Notice to Keeper allegedly issued on 31 May 2024 on the basis of the DVLA data then available. It is therefore false as evidence of the Notice to Keeper allegedly issued within the statutory period, and the Claimant cannot rely upon it to establish keeper liability.

5. Further, the Claimant has produced no contemporaneous record showing that any compliant Notice to Keeper was actually posted and given within the statutory period. There is no certificate of posting, no dispatch record, no postal manifest, no system audit trail, and no copy of any notice sent to the previous address supplied by the DVLA.

6. Accordingly, the Claimant cannot prove that any compliant Notice to Keeper was properly addressed and given within the period required by Schedule 4 of the Protection of Freedoms Act 2012. In the absence of such proof, keeper liability does not arise.

7. Separately, the Notice to Keeper relied upon by the Claimant does not specify any period of parking. It states only that the alleged contravention occurred at 16:29. A single timestamp is not a period of parking, whereas Schedule 4 paragraph 9(2)(a) requires the notice to specify the period of parking to which the notice relates. I rely in this regard on Scott Brennan v Premier Parking Solutions (2023) [H6DP632H], in which the court confirmed that the statutory requirement is to specify a period of parking, not merely a single moment in time.

8. Accordingly, even if the Claimant could prove that a Notice to Keeper was given, which is denied, the notice still fails to comply with the mandatory requirement in Schedule 4 paragraph 9(2)(a) to specify the period of parking.

9. The Claimant’s own photographs show a male entering or exiting the vehicle, whereas I am female. Despite that, at paragraph 21 of the witness statement, the Claimant asserts that it “reasonably believes” that I was the driver because no driver was nominated. That is not evidence but an unsupported assumption, contradicted by the Claimant’s own photographic evidence. I rely in this regard on the persuasive appeal judgment in Vehicle Control Services Ltd v Edward (2023) [H0KF6C9C], which confirms that a parking operator cannot simply infer that the registered keeper was the driver without evidence.

10. In the absence of evidence that I was the driver, and in the absence of compliance with Schedule 4 of the Protection of Freedoms Act 2012, the Claimant has no basis to pursue me as keeper.

11. The Claimant’s own photographic evidence shows the vehicle present only between 16:28:47 and 16:32:26, a total of 3 minutes and 39 seconds. That is the only period evidenced by the Claimant. Such a brief presence is entirely consistent with a driver entering the site, locating a space, reading the signage, considering any terms, and leaving if those terms were not accepted.

12. Section 5.1 of the Private Parking Single Code of Practice requires a consideration period for that very purpose. Although the Code is not legislation, it is the Code of Practice with which the Claimant, as an ATA member, is required to comply. The Code recognises that acceptance may be inferred where a driver remains on site for more than five minutes or otherwise clearly accepts the terms. On the Claimant’s own evidence, the vehicle remained on site for less than five minutes, which falls within the consideration period and is insufficient to establish acceptance of any contract by conduct.

13. Accordingly, the Claimant’s own evidence does not establish any contractual liability on the part of the driver, and for the further reasons set out above, no liability can attach to me as keeper.

14. For all of the above reasons, the Claimant has failed to prove any basis on which I can be held liable, whether as driver or as keeper. The Claimant’s case on keeper liability depends upon a document which is false as evidence of the operative Notice to Keeper allegedly issued within the statutory period, and which cannot establish compliance with Schedule 4 of the Protection of Freedoms Act 2012. The Claimant has also failed to prove that I was the driver or that any contract was accepted by conduct. I respectfully invite the Court to dismiss the claim.

Statement of truth

I believe that the facts stated in this Supplementary 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:

Date:

IN THE COUNTY COURT AT NEWPORT

Claim No: [Claim Number]

BETWEEN:

New Parking Generation Management Ltd

Claimant

- and -

Defendant's Full Name]

Defendant

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DEFENDANTS SKELETON ARGUMENT

Introduction

1. This case turns on whether the Claimant has proved any lawful basis to recover from this Defendant, who is the registered keeper.

2. The Defendant submits that the claim fails for three reasons. First, the Claimant has not established keeper liability under Schedule 4 to the Protection of Freedoms Act 2012 (“PoFA”). Secondly, the Claimant has not proved that the Defendant was the driver. Thirdly, the Claimant’s own evidence does not establish acceptance of any contract by conduct.

Keeper liability under PoFA

3. The Claimant’s case on keeper liability is advanced at paragraphs 17 to 19 of Antony Roberts’ witness statement, where he exhibits copies of the Notice and Reminder Notice and asserts that, upon receipt of DVLA keeper details, notice is sent to the registered keeper by post.

4. The difficulty for the Claimant is that the Notice to Keeper relied upon expressly states that it is “a copy”, yet it bears the Defendant’s later address. The Defendant’s V5C was not updated to that address until 1 June 2024. The alleged Notice to Keeper is dated 31 May 2024. The Claimant has also admitted elsewhere that the DVLA had supplied the previous address. In those circumstances, the exhibited document cannot be a true copy of the operative Notice to Keeper allegedly issued on 31 May 2024 on the basis of the DVLA data then available.

5. It follows that the Claimant relies upon a document which is false as evidence of the operative Notice to Keeper allegedly issued within the statutory period. That point is particularly serious in circumstances where Mr Roberts signs his witness statement under a Statement of Truth, whilst having no apparent personal involvement in the events and purporting to rely on company records.

6. Further, even aside from that defect, the Claimant has produced no contemporaneous evidence proving that any compliant Notice to Keeper was actually posted and given within the relevant period. There is no certificate of posting, no dispatch record, no postal manifest, no audit trail, and no copy of any notice sent to the previous address.

7. Accordingly, the Claimant cannot establish keeper liability under PoFA.

8. In any event, the Notice to Keeper relied upon is independently non-compliant with PoFA because it does not specify any period of parking. It states only that the alleged contravention occurred at 16:29. A single timestamp is not a period of parking.

9. The Defendant relies on Scott Brennan v Premier Parking Solutions (2023) [H6DP632H], at paragraphs 27 to 29, as a persuasive appeal judgment on that point. The statutory requirement is to specify a period of parking, not merely a single moment in time.

Driver identity

10. The Claimant’s case on driver identity is advanced at paragraph 21 of Antony Roberts’ witness statement, where he says that the Claimant “reasonably believes” the Defendant was the driver because otherwise a driver would have been nominated.

11. That is not evidence. It is an assumption. It is also contradicted by the Claimant’s own photographic evidence, which shows a male entering or exiting the vehicle, whereas the Defendant is female.

12. The Defendant relies on Vehicle Control Services Ltd v Edward (2023) [H0KF6C9C], at paragraphs 31, 34 and 35.1 to 35.3, as a persuasive appeal judgment confirming that the mere fact of being the registered keeper does not give rise to any inference that the keeper was driving on the material occasion.

13. The Claimant has therefore failed to prove that the Defendant was the driver and cannot fall back on keeper liability because PoFA has not been satisfied.

No contract accepted by conduct

14. The Claimant’s case on contract formation is advanced at paragraphs 12 to 16 of Antony Roberts’ witness statement, where he asserts that signage formed the contract and that, by parking, the driver accepted the terms.

15. However, the Claimant’s own photographic evidence shows the vehicle present only between 16:28:47 and 16:32:26, a total of 3 minutes and 39 seconds. That is the only period evidenced by the Claimant.

16. Such a brief presence is entirely consistent with a driver entering the site, locating a space, reading the signage, considering any terms, and leaving if those terms were not accepted.

17. That is reinforced by paragraphs 6 and 7 of the Claimant’s own witness statement, where the Claimant emphasises its ATA membership and the importance of complying with the applicable Code.  Section 5.1 of the Private Parking Single Code of Practice requires a consideration period for that very purpose. On the Claimant’s own evidence, the vehicle remained on site for less than five minutes. That falls within the consideration period and is insufficient to establish acceptance of any contract by conduct.

Conclusion

18. For those reasons, the Claimant has failed to prove that the Defendant was the driver, failed to establish keeper liability under PoFA, and failed on its own evidence to establish acceptance of any contract by conduct. The claim should therefore be dismissed.

As previously, these are submitted as a PDF in a single email addressed to the court and CCd to DCB Legal and yourself.

Subject: Claim [claim number] – Defendant’s Supplementary Witness Statement and Skeleton Argument

Dear Sir or Madam,

Please find attached the Defendant’s Supplementary Witness Statement and Skeleton Argument for the hearing listed on [hearing date] in claim [claim number].

These documents are filed and served by email in accordance with the Court’s directions. A copy of this email and its attachments has been sent to the Claimant’s solicitor, DCB Legal Ltd.

Kindly place these documents on the Court file.

Yours faithfully,

[Your full name]
Defendant

There is still every chance they may discontinue, even at this stage. These firms often push claims to the brink and then pull out once it is clear the Defendant understands the issues and is ready to argue them properly. So do not assume the hearing will definitely go ahead, but prepare on the basis that it will.

If it does go ahead, raise the Langley point at the very start, before the merits. If the Claimant appears by a hired advocate only, ask who they are, who instructed them, whether they are employed by the solicitor on record or attending through an agency, and on what basis they say they have a right of audience. Keep it short. Put the point in play immediately and, if the judge is against you on it, move on.

If the hearing then proceeds, stick to the main points in the Skeleton and do not get dragged into side issues. The strongest point is the false NtK. Then the absence of proof that any compliant NtK was given, then the lack of any period of parking, then the fact that the Claimant’s own photographs show a male while the keeper is female, and finally the under-five-minute consideration point.

So, yes, they may still discontinue. But if they do not, the Langley point should be the first thing raised.