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Was I in breach of the parking rules?
HenryHippo
post Fri, 17 Mar 2017 - 10:23
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Hi Everyone,

Dec 2016 the driver opted to park in the road outside a chargeable car park (no double yellows or anything).

There was a sign saying anyone who parks on the verge will be fined. There was plenty of space in the road, so the driver parked in the road.

Only for the owner to get a ticket through the post from District Enforcement (A PCN)

The owner ignored them for a while and now got the threatening "Notice of impending court action" by recorded delivery

Does the owner and driver have a leg to stand on if this goes to court? The driver maintains that they are parked in the road and not on the (grass) verge







EDIT: In January the owner sent them an email explaining that the driver was parked on the layby not the verge, with pictures supporting this. The owner got the below letter from them on 10th Feb



This post has been edited by HenryHippo: Fri, 17 Mar 2017 - 14:05
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post Fri, 17 Mar 2017 - 10:23
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nosferatu1001
post Sat, 5 Aug 2017 - 13:47
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Call the court. See if it's been allocated.
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HenryHippo
post Sun, 1 Oct 2017 - 19:20
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https://www.dropbox.com/s/hl85rfvn71g3423/t...G_0381.jpg?dl=0

https://www.dropbox.com/s/o873h69ad0g1pc0/t...G_0382.jpg?dl=0



I have had the above letter dated 20th Sep

If DE don't pay the court the trial fee or file a completed application by 20th Oct, then the claim is struck out and they are liable for my costs


Hearing is scheduled for 17th Nov

I need to deliver any documents I intend to use at the hearing within 14 days of the hearing


My documents will be: a photograph showing the car not on the verge, photographs of the signage and the local byelaws

Keen to get this all done by Mid October
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SchoolRunMum
post Sun, 1 Oct 2017 - 21:33
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What about the documents & case law to support your counter-claim?

If it's struck out you would still want your counter-claim heard, and may have to remind the court about it/pay £25 for a hearing if DE drop theirs.
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HenryHippo
post Mon, 2 Oct 2017 - 20:13
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QUOTE (SchoolRunMum @ Sun, 1 Oct 2017 - 22:33) *
What about the documents & case law to support your counter-claim?

If it's struck out you would still want your counter-claim heard, and may have to remind the court about it/pay £25 for a hearing if DE drop theirs.


My counterclaim (which you kindly assisted with) uses a number of references:

-1998 Data Protection Act

-KADOE Contract

-Information Commissioner report

-City of London Byelaws

-Traffic Management Act 2004

- A few more references to older cases inc Bevis in the Counter Claim section


I assume I need to file copies of all of the above and bring hard copies to court? Or are cases like Bevis sufficiently well known that I won't need to quote them?
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SchoolRunMum
post Mon, 2 Oct 2017 - 20:53
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You wouldn't need the TMA 2004, at all; it was just mentioned as an aside in the counter-claim.

Similarly you clearly can't/don't need to file the entire 1998 Data Protection Act or the entire KADOE Contract rules.


QUOTE
A few more references to older cases inc Bevis in the Counter Claim section


And it's Beavis (not Bevis) and you would only need any useful words from the Judgment, not the whole judgment. The 'older cases' are the vital ones for the counter claim, e.g. Vidal-Hall v Google, Inc. [2015] EWCA Civ 311. If you want the counter-claim taken seriously you do need to adduce the evidence and case law to support what was said in it.
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HenryHippo
post Mon, 2 Oct 2017 - 20:59
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QUOTE (SchoolRunMum @ Mon, 2 Oct 2017 - 21:53) *
You wouldn't need the TMA 2004, at all; it was just mentioned as an aside in the counter-claim.

Similarly you clearly can't/don't need to file the entire 1998 Data Protection Act or the entire KADOE Contract rules.


QUOTE
A few more references to older cases inc Bevis in the Counter Claim section


And it's Beavis (not Bevis) and you would only need any useful words from the Judgment, not the whole judgment. The 'older cases' are the vital ones for the counter claim, e.g. Vidal-Hall v Google, Inc. [2015] EWCA Civ 311. If you want the counter-claim taken seriously you do need to adduce the evidence and case law to support what was said in it.


Do you think that the simpler part will be defending the claim (as the photo shows no wheels on the verge) and that the hardest part will be getting a counterclaim payout?

(not saying the former will be easy, just easier than the latter)
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SchoolRunMum
post Mon, 2 Oct 2017 - 21:10
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In your case...no, I don't think the counter-claim is a step too far. I think it's a very decent punt for £25!

I rarely write counter claims but you have there a sign admitting in large-ish letters that the land is Council owned, yet the PPC is trying to operate the location as if it were private land, and the defence mentions evidence as to how that sort of set up cannot be allowed (the Government said so). The keeper can't be liable in this situation, there is no 'parking charge' that can be enforced on that land.

We have seen counter-claims win, and we've seen some not win (so what, really!). But those that have not won have sometimes only failed because the person went along unarmed, having spent more time on the defence and forgot they also have to evidence their claim.

Put the evidence and case law under the Judge's nose and you have a decent chance. Don't bother and you've wasted a good punt!
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HenryHippo
post Thu, 5 Oct 2017 - 11:01
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QUOTE (SchoolRunMum @ Mon, 2 Oct 2017 - 22:10) *
In your case...no, I don't think the counter-claim is a step too far. I think it's a very decent punt for £25!

I rarely write counter claims but you have there a sign admitting in large-ish letters that the land is Council owned, yet the PPC is trying to operate the location as if it were private land, and the defence mentions evidence as to how that sort of set up cannot be allowed (the Government said so). The keeper can't be liable in this situation, there is no 'parking charge' that can be enforced on that land.

We have seen counter-claims win, and we've seen some not win (so what, really!). But those that have not won have sometimes only failed because the person went along unarmed, having spent more time on the defence and forgot they also have to evidence their claim.

Put the evidence and case law under the Judge's nose and you have a decent chance. Don't bother and you've wasted a good punt!


Thanks good to hear. Can you please look at my Skeleton argument? (Aware that I need to add the counterclaim and evidence). I've kept it nearly identical to my defense from June

I HenryHippo of XXX am the Defendant in this matter and the registered keeper of the car XXX. I will make the following points to the Judge:
1) The contract on the signage was not breached
i) This claim is for a breach of contract. However, it is denied that any contract was breached
ii) The signage states “A charge of £70 will be payable by the driver of any vehicle parked either wholly or partially on the verge on either side of the road in this area”. However, the Vehicle was parked with all four wheels on either the tarmacked road or the asphalt layby. No part of the Vehicle was on the verge, which is delineated by the wooden posts, which are aligned to follow the verge.
2) The Burnham Beeches Byelaws were not breached
i) The Burnham Beeches Byelaws state “The doing or attempting to do any of the following acts in Burnham Beeches is prohibited and shall be deemed to be an offence against the Corporation of London (Open Spaces) Act, 1878.
Drawing or driving or allowing to be drawn or driven any vehicle on, through or across
the turf, woods, copses, underwood or footpaths of Burnham Beeches or allowing any
vehicle to remain on such turf, woods, copses, underwood or footpaths, or on any road
other than a highway, in Burnham Beeches.”
ii) The Vehicle was not on turf, woods, copses, underwood or a footbath and therefore this Byelaw has not been breached.
3) The Claimant’s claim is not valid
i) This claim relates to a breach of byelaws
ii) Any claim for a breach of byelaws should be referred to a Magistrates Court
iii) If the Claimant is suggesting that they can run contract law alongside byelaws on 'non-relevant land' (as defined in The Protection of Freedoms Act 2012 (Schedule 4)) then it is a fact that a registered keeper (where the driver has not been evidenced) cannot be held liable in law, in any case.
iv) Therefore, this claim has no prospect of success in the small claims track
The defendant asks that the matter is referred to a Judge at the County Court Business Centre in order to save the court’s time, by order a strike out of the claim due to CPR Part3.4:
i) That the statement of case disclosed no reasonable grounds for bringing the claim;
ii) That the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and
iii) That there has been a failure to comply with a rule, practice direction or court order.
4) In the alternative, should this matter be allocated to the small claims track, I put this claimant to strict proof of their claim including:
i) that their Notice to Keeper letter complies with the requirements of the POFA and/or
ii) that this part of the location in question is not already covered by Byelaws relating to vehicular use and/or
iii) that this location is 'relevant land'
otherwise, it is a fact that as registered keeper I cannot be held liable, and nor can any lawful presumption be made regarding the identity of a driver on private land. I will rely on the opinion stated by barrister and parking law expert, PATAS and POPLA Lead Adjudicator Henry Greenslade, as set out in an article written for the purpose of informing parking operators and motorists, about 'Understanding Keeper Liability' after the enactment of the POFA 2012. This appeared in the POPLA Annual Report 2015 which this claimant will be familiar with, since they were previously in the BPA which uses POPLA as its ADR.
5) It is contended that the signage at this location is not capable of forming a contract since it makes no clear offer and is likely to be prohibitive, such that no consideration flows from the terms as drafted. Even if this is not held to be the case, a contract to park cannot be offered by a non-landowning third party where terms and penalties already exist under set Byelaws.

6) It is contended that this Claimant is not the landowner and has no standing to offer parking contracts at this location nor to sue in the small claims court. If the car driver was deemed to be trespassing then, as was confirmed by Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67, a parking operator would not be able to recover damages under such a tort, this being a matter for the landowner only, to recover any nominal loss if one arose.

7) This case can be fully distinguished from Beavis, which turned on prominent signs making a clear offer, and an agreed contract with an identified driver in a retail park (not on Byelaws 'non-relevant' land), and a complex legitimate interest and commercial justification which - very unusually - saved that particular parking charge from falling foul of the penalty rule, which it was held would otherwise apply in less complex cases and render such charges as unrecoverable.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all. I believe that the facts stated in this defense are true.
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HenryHippo
post Sun, 8 Oct 2017 - 17:14
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Done some more work on the defending my claim. Haven't started counterlclaim yet as I want to get the defense part sorted first.

Structure is bold for the evidence, regular text to discuss the evidence and then italics for the specific part of the evidence.

Few questions though

1) Do I need to bother with a picture of the car? Surely the impetus is on them to prove it was on the verge, not on me to prove it wasn't

2) For Beavis which part of the document should I used. The PDF I found was over 200 pages

Thanks


I HenryHippo of XXX am the Defendant in this matter and the registered keeper of the car XXX. I will make the following points to the Judge:
1) The contract on the signage was not breached
i) This claim is for a breach of contract. However, it is denied that any contract was breached
ii) The signage states “A charge of £70 will be payable by the driver of any vehicle parked either wholly or partially on the verge on either side of the road in this area”. However, the Vehicle was parked with all four wheels on either the tarmacked road or the asphalt layby. No part of the Vehicle was on the verge, which is delineated by the wooden posts, which are aligned to follow the verge.
2) The Burnham Beeches Byelaws were not breached
i) The Burnham Beeches Byelaws state “The doing or attempting to do any of the following acts in Burnham Beeches is prohibited and shall be deemed to be an offence against the Corporation of London (Open Spaces) Act, 1878.
Drawing or driving or allowing to be drawn or driven any vehicle on, through or across
the turf, woods, copses, underwood or footpaths of Burnham Beeches or allowing any
vehicle to remain on such turf, woods, copses, underwood or footpaths, or on any road
other than a highway, in Burnham Beeches.”
ii) The Vehicle was not on turf, woods, copses, underwood or a footbath and therefore this Byelaw has not been breached.
3) The Claimant’s claim is not valid
i) This claim relates to a breach of byelaws
ii) Any claim for a breach of byelaws should be referred to a Magistrates Court
iii) If the Claimant is suggesting that they can run contract law alongside byelaws on 'non-relevant land' (as defined in The Protection of Freedoms Act 2012 (Schedule 4)) then it is a fact that a registered keeper (where the driver has not been evidenced) cannot be held liable in law, in any case.
iv) Therefore, this claim has no prospect of success in the small claims track
The defendant asks that the matter is referred to a Judge at the County Court Business Centre in order to save the court’s time, by order a strike out of the claim due to CPR Part3.4:
i) That the statement of case disclosed no reasonable grounds for bringing the claim;
ii) That the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and
iii) That there has been a failure to comply with a rule, practice direction or court order.
4) In the alternative, should this matter be allocated to the small claims track, I put this claimant to strict proof of their claim including:
i) that their Notice to Keeper letter complies with the requirements of the POFA and/or
ii) that this part of the location in question is not already covered by Byelaws relating to vehicular use and/or
iii) that this location is 'relevant land'
otherwise, it is a fact that as registered keeper I cannot be held liable, and nor can any lawful presumption be made regarding the identity of a driver on private land. I will rely on the opinion stated by barrister and parking law expert, PATAS and POPLA Lead Adjudicator Henry Greenslade, as set out in an article written for the purpose of informing parking operators and motorists, about 'Understanding Keeper Liability' after the enactment of the POFA 2012. This appeared in the POPLA Annual Report 2015 which this claimant will be familiar with, since they were previously in the BPA which uses POPLA as its ADR.
5) It is contended that the signage at this location is not capable of forming a contract since it makes no clear offer and is likely to be prohibitive, such that no consideration flows from the terms as drafted. Even if this is not held to be the case, a contract to park cannot be offered by a non-landowning third party where terms and penalties already exist under set Byelaws.

6) It is contended that this Claimant is not the landowner and has no standing to offer parking contracts at this location nor to sue in the small claims court. If the car driver was deemed to be trespassing then, as was confirmed by Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67, a parking operator would not be able to recover damages under such a tort, this being a matter for the landowner only, to recover any nominal loss if one arose.

7) This case can be fully distinguished from Beavis, which turned on prominent signs making a clear offer, and an agreed contract with an identified driver in a retail park (not on Byelaws 'non-relevant' land), and a complex legitimate interest and commercial justification which - very unusually - saved that particular parking charge from falling foul of the penalty rule, which it was held would otherwise apply in less complex cases and render such charges as unrecoverable.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all. I believe that the facts stated in this defense are true.

Evidence:

Picture of Signage

“This Land Is Privately Owned by The City Of London Corporation”. The City of London Corporation are the Council and therefore this land is not privately owned, therefore District Enforcement cannot award a PCN on this land.

Protection of Freedoms 2012: Schedule 4

The land was a highway maintainable at the public expenses, therefore DE cannot enforce a PCN here.

In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic authority;
© any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.


Picture of the car

As shown in the picture, all 4 wheels were either on the tarmacked road or the asphalt layby and not on the grass verge as delineated by the posts. I challenge the Claimant to produce a photo showing the wheels on the verge

Burnham Beeches Byelaws

Burnham Beeches has Byelaws that forbid driving any vehicle on turf, woods, copses, underwood or footpaths. The vehicle did not breach this law.

3. The doing or attempting to do any of the following acts in Burnham Beeches is prohibited, and shall be deemed to be an offence against the Corporation of London (Open Spaces) Act, 1878.
(a) Taking, digging, cutting, damaging, or removing gravel, sand, clay, loam, turf, grass, or other substances, is or from Burnham Beeches, except so far as the digging of gravel may be done with the consent and subject to the Regulations of the Corporation contained in the First Schedule hereto
(b) Drawing or driving or allowing to be drawn or driven any vehicle on, through or across the turf, woods, copses, underwood, or footpaths of Burnham Beeches or allowing any vehicle to remain on such turf, woods, copses, underwood or footpaths. Provided always that this Bye-law shall not apply to a person drawing or driving or allowing to be drawn or driven any vehicle on to Burnham Beeches, within 15 yards of a road on which a vehicle may lawfully be driven, for picnic or other pleasure purposes so that no injury is done to Burnham Beeches or any part thereof and provided that directions of the Superintendent, the Keepers or Assistant Keepers are obeyed.


Popla 2015 Annual Report

The driver of the vehicle has neither been named or proven. The Claimant cannot assume that I was the driver on the basis that I am the keeper.

However keeper information is obtained, 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. Any evidence in this regard may therefore be highly relevant

ParkingEye Ltd v Beavis [2015] UKSC 67

This case differs to Beavis as this case is on non-relevant land, that the Claimant does not own the land. The Claimant therefore has no authority to offer contracts or enforce charges on this land.
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cabbyman
post Sun, 8 Oct 2017 - 18:17
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1) You are correct; it is up to them to prove the 'offence.'

2) Have a read of Beavis and find the relevant parts. It will help you to understand the overall significance of the case.


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Cabbyman 11 PPCs 0
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HenryHippo
post Sun, 8 Oct 2017 - 19:34
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QUOTE (cabbyman @ Sun, 8 Oct 2017 - 19:17) *
1) You are correct; it is up to them to prove the 'offence.'

2) Have a read of Beavis and find the relevant parts. It will help you to understand the overall significance of the case.


So no need for me to post my own photos?

Best place to read is this 124 page judgement yes? https://goughsq.co.uk/wp-content/uploads/20...ye-judgment.pdf
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nosferatu1001
post Sun, 8 Oct 2017 - 19:55
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If this is a defence, then no evidence at all is submitted. You are writing legal arguments here. Nothing else.
At the WS stage you will adduce evidence and of course you will use your own photos. Thy absolutely show no part of the vehicle was on the verge.
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HenryHippo
post Sun, 8 Oct 2017 - 21:48
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QUOTE (nosferatu1001 @ Sun, 8 Oct 2017 - 20:55) *
If this is a defence, then no evidence at all is submitted. You are writing legal arguments here. Nothing else.
At the WS stage you will adduce evidence and of course you will use your own photos. Thy absolutely show no part of the vehicle was on the verge.


What do you mean by WS?

"Each party shall deliver to every other party and to the court offices copies of all the documents (including any experts report) on which he intends to rely at the hearing no later than 14 days before the hearing"

If I don't share my photos by this deadline I can't use them in court.
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The Rookie
post Mon, 9 Oct 2017 - 05:09
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Witness Statement, the one you need to share (serve) 14 days before the hearing.

Your post #88 is a defence not a WS. the WS should be 'I did this, I saw that, I read this' etc


--------------------
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HenryHippo
post Mon, 9 Oct 2017 - 11:25
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QUOTE (The Rookie @ Mon, 9 Oct 2017 - 06:09) *
Witness Statement, the one you need to share (serve) 14 days before the hearing.

Your post #88 is a defence not a WS. the WS should be 'I did this, I saw that, I read this' etc


So to clarify:

I need to serve a Witness Statment 14 days prior. "I did this, I did that etc"

So when do I need to submit photographs?

When do I need to submit legal arguments, and references?
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HenryHippo
post Mon, 9 Oct 2017 - 16:12
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I have referenced Beavis, focusing on the fact his case was on private land and mine is on council land. What do you think

ParkingEye Ltd v Beavis [2015] UKSC 67

This case differs to Beavis as this case is on non-relevant land, that the Claimant does not own the land. The Claimant therefore has no authority to offer contracts or enforce charges on this land.
The Riverside Retail Park was owned by British Airways Pension Fund, and was therefore private land. The land in contention with District Enforcement is owned by the council, therefore incomparable with Beavis.

89. British Airways Pension Fund (“the Fund”) owns the Riverside Retail Park in Chelmsford. The Fund leases sites on the Retail Park to various multiple retailers, but retains overall control of the site. There is a car park located at the Retail Park, and, on 25 August 2011, the Fund entered into a contract with ParkingEye Ltd in respect of management services at that car park.
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HenryHippo
post Mon, 9 Oct 2017 - 20:38
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OK people, I am very confused on what I need to submit to the court and when.

My last letter said "Each party shall deliver to every other party and to the court office copies of all documents (including any experts' report) on which he intends to rely at the hearing no later than 14 days before the hearing"

I am working on the following:

1) Witness Statement
2) Legal Argument
3) Evidence (photography in this case)
4) Legal references (i.e. the Beavis case)


So which of the above do I need to submit to the court no later than 14 days before the hearing?

And which of the above can I just turn up to court without posting it before hand?

EDIT: From reading the MSE link http://forums.moneysavingexpert.com/showthread.php?t=5546325 I think the answer to my first question is 1) and 3) but I want to confirm

This post has been edited by HenryHippo: Mon, 9 Oct 2017 - 20:40
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nosferatu1001
post Tue, 10 Oct 2017 - 01:16
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Ok you git us confused because you’re using the wrong terms

Your ONE AND ONLY defence, a doc of purely legal arguments, was what you submitted ages back

Now you work on your witness statement and other evidence. This includes photos, ref to other cases etc.
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HenryHippo
post Tue, 10 Oct 2017 - 08:32
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QUOTE (nosferatu1001 @ Tue, 10 Oct 2017 - 02:16) *
Ok you git us confused because you’re using the wrong terms

Your ONE AND ONLY defence, a doc of purely legal arguments, was what you submitted ages back

Now you work on your witness statement and other evidence. This includes photos, ref to other cases etc.


Thanks
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HenryHippo
post Tue, 10 Oct 2017 - 09:34
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Witness Statement

I HenryHippo of XXXXX am the Defendant in this case and will say as follows

1. I am the registered keeper of the vehicle registration plate XXXXXX
2. On the day in question in December 2016 the above car was parked on Hawthorne Lane in Burnham Beeches
3. The offside wheels were on the tarmacked road and the nearside wheels were on the asphalt layby
4. District Enforcement have assigned a “Parking Charge Notice” for Reason Obstructive Parking/ Other (Parked on the verge)
5. No part of the car was on the verge which is delineated by the wooden posts
6. The sign as the site states “A charge of £70 will be payable by the driver of any vehicle parked either wholly or partially on the verge on either side of the road in this area”
7. The car was neither wholly or partially on the verge

STATEMENT of TRUTH

I believe that the facts stated in this Witness Statement are true

Dated the 10th October 2017

Signed…… (Claimant)

Of XXXXXXXX

Evidence and references to come later
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