Was I in breach of the parking rules? Options

[HenryHippo]

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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[nosferatu1001]

You adduce evidence by referencing it from your witness statement.

Do a full timeline from pcn onwards.

[HenryHippo]

You adduce evidence by referencing it from your witness statement.

Do a full timeline from pcn onwards.

OK. I only have 2 pieces of evidence, the photo of the car and the photo of the sign so that will be brief

And I will state factually the letters I received in the post

[nosferatu1001]

The letters are also your evidence. They back up that you communicated and were reasonable

So anytime you mention on x date I received a letter you ref that letter , any letter you sent you ref that letter.

[HenryHippo]

The letters are also your evidence. They back up that you communicated and were reasonable

So anytime you mention on x date I received a letter you ref that letter , any letter you sent you ref that letter.

I didn't reply to DE's letters though

The only letters I replied to were from the County Court

[nosferatu1001]

The letters are also your evidence. They back up that you communicated and were reasonable

So anytime you mention on x date I received a letter you ref that letter , any letter you sent you ref that letter.

I didn't reply to DE's letters though

The only letters I replied to were from the County Court

T: 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


From your first post.

[HenryHippo]

The letters are also your evidence. They back up that you communicated and were reasonable

So anytime you mention on x date I received a letter you ref that letter , any letter you sent you ref that letter.

I didn't reply to DE's letters though

The only letters I replied to were from the County Court

T: 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


From your first post.

Thanks good point. No correspondence since then though

[nosferatu1001]

Ok, but you get the point I made. That you DID inform them they were mistaken. As such you must include it.

[HenryHippo]

Ok, but you get the point I made. That you DID inform them they were mistaken. As such you must include it.

Witness Statement

I HenryHippo of XXXXX am the defendant and a litigant in person in this case and will say as follows

1. I am the registered keeper of the vehicle registration plate XXXXXX
2. On the afternoon of 11th of 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 (evidence attached)
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” (evidence attached)
7. The car was neither wholly or partially on the verge
8. The driver of the car at the time has not been named
9. On the evening of 11th of December 2016 I sent an email to District Enforcement (evidence attached), explaining that “The alleged contravention did not occur” and that there was “insufficient signage” to justify the issuing of a Parking Charge Notice for obstruction.
10. On the 10th of February 2017 I had a letter from District Enforcement (evidence attached)

STATEMENT of TRUTH

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

Dated the 10th October 2017

Signed…… (Claimant)

Of XXXXXXXX

The evidence attached will be separate documents labelled Exhibit HH-01, Exhibit HH-02 etc.

This post has been edited by HenryHippo: Fri, 13 Oct 2017 - 09:50

[ostell]

Add: am the defendant and a litigant in person...

The evidence attached will be separate documents labelled Exhibit HH-01, Exhibit HH-02 etc.

This post has been edited by ostell: Fri, 13 Oct 2017 - 09:04

[HenryHippo]

Add: am the defendant and a litigant in person...

The evidence attached will be separate documents labelled Exhibit HH-01, Exhibit HH-02 etc.

Done, is that suitable?

RE The Evidence: I need to label each of my photos / letters as "Exhibit HH-O1" etc

Where HH are my initials ? And this is just for my evidence, I don't need to do this for the references that I am working on?

[hexaflexagon]

I'd just change 9 slightly since a car can't be accused.
Say something like

9. On the evening of 11th of December 2016 I sent an email to District Enforcement (evidence attached), explaining that “The alleged contravention did not occur” and that there was “insufficient signage” to justify the issuing of a Parking Charge Notice for obstruction.

[HenryHippo]

done^

References here

Burnham Beeches Byelaws:
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.

Protection of Freedoms 2012: Schedule 4

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.

Popla 2015 Annual Report

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

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.

International Parking Community's Code of Practice

5. Data Processing 5.1 You are required to be registered with the Information Commissioner as a data controller

KADOE Contract

D1.4.
Section 4(4) of the DPA states that it is the duty of the Data Controller to comply with the data protection principles (as listed in Schedule 1 of the DPA). The Customer, separately from the DVLA, shall be the Data Controller of each item of Data received from the DVLA from the point of receipt of that Data by the Customer or its Link Provider and shall be responsible for complying with the principles of the DPA in relation to its further Processing of that Data.
The Information Commissioner’s response to the Department for Communities and Local Government consultation
“Parking reform: tackling unfair practices”6. Any data from which an individual can be identified is personal data for the purposes of the DPA. This includes images of an individual from which they are recognisable and vehicle registration numbers collected for the purpose of identifying vehicle keepers who contravene parking restrictions. These are personal data at the point they are collected, regardless of whether the organisation actually goes on to identify the owner of vehicle or not.

Schedule 2 of the Data Protection Act 1998

(1) The individual whom the personal data is about has consented to the processing. and (5) The processing is necessary:
(a) in relation to a contract which the individual has entered into; or because the individual has asked for something to be done so they can enter into a contract, or
(b) The processing is necessary because of a legal obligation that applies to you (except an obligation imposed by a contract)
c) The processing is necessary to protect the individual’s “vital interests”. This condition only applies in cases of life or death, such as where an individual’s medical history is disclosed to a hospital’s A&E department treating them after a serious road accident.
(d) The processing is necessary for administering justice, or for exercising statutory, governmental, or other public functions
(e) The processing is in accordance with the “legitimate interests” condition.

Section 4 of the Data Protection Act 1998

4.—(1) References in this Act to the data protection principles are to The data
the principles set out in Part I of Schedule 1.
(2) Those principles are to be interpreted in accordance with Part II of
Schedule 1.
(3) Schedule 2 (which applies to all personal data) and Schedule 3
(which applies only to sensitive personal data) set out conditions applying
for the purposes of the first principle; and Schedule 4 sets out cases in
which the eighth principle does not apply.
(4) Subject to section 27(1), it shall be the duty of a data controller to
comply with the data protection principles in relation

Schedule 1, Part 1 of the Data Protection Act 1998

2. Personal data shall be obtained only for one or more specified and lawful
purposes, and shall not be further processed in any manner incompatible with
that purpose or those purposes.

Section 13 of the Data Protection Act 1998

13.

(1) An individual who suffers damage by reason of any Compensation for
contravention by a data controller of any of the requirements of this Act
is entitled to compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention
by a data controller of any of the requirements of this Act is entitled to
compensation from the data controller for that distress if—
(a) the individual also suffers damage by reason of the
contravention, or
(b) the contravention relates to the processing of personal data for
the special purposes.

(3) In proceedings brought against a person by virtue of this section it
is a defence to prove that he had taken such care as in all the circumstances
was reasonably required to comply with the requirement concerned.

Vidal-Hall v Google Inc [2015] EWCA 311

SCREENSHOT USED HERE AS PDF WONT LET ME COPY PASTE

Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333

36) However, having borne all those points in mind, in my judgment the sum to be awarded should be of a relatively modest nature since it is not the intention of the legislation to produce some kind of substantial award. It is intended to be compensation, and thus I would consider it sufficient to render an award in the sum of £750. It seems to me that that sum is appropriate and sufficient.
case no. C9DP2D6C, VCS v Mr. M
The claim is pleaded for £250. There is a reply to the counterclaim. There is no representation on that basis. I accept the defendant has proved the counterclaim. The claim of £250 is a sum that I do not interfere with. There have been representations with regards to the reasonableness or otherwise of the claimant’s action and I have been invited to consider rule 16.4 with regard to punitive damages. I have to say I am not convinced by that, as of today, with the evidence before me. On that basis therefore the claim having been discontinued, there will be judgment on the counterclaim for £250.

IPC Code of Practice Part A) 9)

It is your responsibility to establish whether any land upon which you operate is subject to any Byelaws. Where land is subject to Byelaws you must ensure that your practices are in accordance with them or, alternatively, that you operate a scheme that is not prohibited by them.

[HenryHippo]

Any feedback?

[SchoolRunMum]

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

Sorry that I am not available to post on forums right now for personal reasons. But I will say this:

You definitely need to include a counter claim section in your WS, laying it on with a truthful trowel, the distress caused to you and your family. Remember you need to show distress to support this sort of counter claim - how has this affected you and your family - e.g. it's been horrendous, upsetting, frightening to be taken to court, mentally exhausting, etc.

[HenryHippo]

[/quote]


Sorry that I am not available to post on forums right now for personal reasons. But I will say this:

You definitely need to include a counter claim section in your WS, laying it on with a truthful trowel, the distress caused to you and your family. Remember you need to show distress to support this sort of counter claim - how has this affected you and your family - e.g. it's been horrendous, upsetting, frightening to be taken to court, mentally exhausting, etc.
[/quote]

Thanks. Have added to this. Planning to submit early this week, so any last minute feedback is welcome from anyone

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 afternoon of 11th of 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 (evidence attached)
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” (evidence attached)
7. The car was neither wholly or partially on the verge
8. The driver of the car at the time has not been named
9. On the evening of 11th of December 2016 I was worried by the unfair PCN and sent an email to District Enforcement (evidence attached), explaining that “The alleged contravention did not occur” and that there was “insufficient signage” to justify the issuing of a Parking Charge Notice for obstruction.
10. On the 10th of February 2017 I had a letter from District Enforcement (evidence attached) that refused to acknowledge my points and argued a case that was not enforced on the signage
11. In this letter and subsequent letters they threatened legal action which was very worrying for me, as a legal abiding citizen.
12. District Enforcement eventually escalated this to Court through Gladstones. Upon the arrival of letters marked “County Court”, my parents who live at the same address were very distressed and I had to reassure them that I had done nothing wrong. Indeed since this episode I had to have the post readdressed to a separate address to spare them the angst on my behalf.
13. Each stage in the legal process has been new to me, and whilst it would have been easier for me to pay the unfair charge in the first place, I refuse to do this on principle. I have spent twenty (20) hours researching and working on my case, and this has affected how much time I have been able to spend with family and friends, as well as a loss of sleep. I find myself mentally exhausted upon preparing the appropriate documentation.
14. After being given a Court date in November, I am nervous and frightened as I have never been in court before, let alone represented myself in a legal capacity. I am upset that the case has got this far and that the Claimant is pursuing this to Court.
STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 10th October 2017
Signed…… (Claimant)
Of XXXXXXXX

[nosferatu1001]

SRM meant an actual section
you need a ws about the facts of the claim
Then a section about the facts of the counterclaim. Lay it on truthfully thick - not just a line or two.

[SchoolRunMum]

Yes, you need a section in itself for the counter-claim, describing the threatening letters, blow by blow, and how this affected your peace of mind, caused distress to you and your family. LOTS of detail.

It was describing the distress in court that saved one counter-claim I know of, which was in danger of being dismissed. The Judge listened to the description of distress and the person got their claim (most seem to fail at this hurdle). So set it out and go for it at the hearing.

You need compelling argument about distress in a clear section in support of your counter-claim and why this notorious aggressive claimant company should never have pursued you, had no business to get your data, and should pay for your distress (fully described for the Judge).

Remember the Judge works at a court every day, and Dyl Kurpil of District Enforcement is an ex-Policeman who will also be comfortable in that environment. You however, found this mentally exhausting, an attack on you, unwarranted demands for money with a pseudo-legal veneer. Describe the hours you have put aside for this, the sleepless nights, the research to find out that DE can't even hold keepers liable on non-relevant land, and you discovered that the Government made it clear that parking Local Authority land CANNOT be enforced like this.

And DE know that. Of course they do.

Paint a compelling picture of unreasonable conduct and use of your data outside the DPA Principles.

This post has been edited by SchoolRunMum: Mon, 16 Oct 2017 - 20:24

[HenryHippo]

Thanks guys. Added a lot of verbiage

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 afternoon of 11th of 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 (evidence attached)
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” (evidence attached)
7. The car was neither wholly or partially on the verge
8. The driver of the car at the time has not been named

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 10th October 2017
Signed…… (Claimant)

Counter Claim Witness Statement
I HenryHippo of XXXXX am Counter Claiming in this case and will say as follows
1. On the evening of 11th December 2016 I was worried by the unfair PCN and sent an email to District Enforcement (evidence attached), explaining that “The alleged contravention did not occur” and that there was “insufficient signage” to justify the issuing of a Parking Charge Notice for obstruction.

2. On the 10th February 2017 I had a letter from District Enforcement (evidence attached) that refused to acknowledge my points and argued a case that was not enforced on the signage. At this point I was worried that I was not being dealt with fairly and on individual merit. It seemed to me that they just saw me as an easy target to take money from and that they were going to bully me into making a payment. This letter was sent to the address where the car was registered which was therefore a misuse of my personal data as no offense was commited.

3. On the 7th March 2017 I had a letter from District Enforcement (evidence attached) that was headed “Notice of Impending Court Action” and threatened court action if I did not pay by 21st March 2017. This was very distressing for me as I am a law-abiding citizen who has never been threatened like this before. Having had no previous legal experience I had no idea of the proper channels or manner in which to defend legal action and I was afraid that with the superior experience of DE that they would somehow be able to win in court and I would stand to lose out financially and have a blighted record. I spent several hours researching local bye laws and non-relevant land to reassure myself that I was in a legally defensible position if and when it did escalate to court. Despite my research I was still worried that I would fall foul of a legal loophole and be liable for the parking charge and an excessive costs charge from DE. At the time I was unemployed and could not afford to take a financial loss as I was struggling to pay my mortgage as it stood. If I lost the Court Case and did not find a new job then my home would be at risk of repossession and I would be homeless. This added greatly to the stress of the whole situation, meaning that I had difficulty sleeping and found it difficult to socalise with friends or enjoy time with family as I always had the Court Case at the back of my mind. Additionally, the hours spent researching the event meant that I was unable to attend a number of interviews and unable to perform effectively in those job interviews that I did attend.

4. On 15th April 2017 I received a letter from Gladstone’s on DE’s behalf. This alarmed me further as my research revealed that Gladstone’s were solicitors and therefore DE were escalating proceedings. Whilst I liked to think that I was in the right and therefore nobody could prove otherwise, I was not confident with going up against qualified and experienced legal professionals in court. The escalation to Gladstone’s felt like further bullying at this point and I wondered how many people would have caved in at this point. This letter was demanding £130 or a full account of the circumstances explaining why I was not going to pay. The letter also demanded that I named the driver, which my own research told me that I did not need to do. This reinforced my belief that this wasn’t a genuine chance of appeal but another bullying move to try and get information to use against me in Court.

5. At this point I had been successful in securing a new job, but having the case looming over me affected how well I was able to start the new role. I had and continue to have difficulty concentrating at work as I worry about the case and the next milestone that I must complete lest I lose the case by default. I am constantly worried that the effect on my performance at work will be noticed by management and I could be in danger of dismissal as I am still in my probationary period.

6. I contacted Gladstone’s by email (evidence attached) but had no reply which worried me as they weren’t taking my case seriously and I was being dealt with unfairly. Again, this compounded my belief that this wasn’t a chance for a fair and genuine appeal but a dig for information to use against me. More sleepless nights ensued as I realized that I was alone and up against an ever-growing number of experienced professionals.

7. Gladstone’s escalated this to County Court, sending me a letter on 1st May 2017. Upon the arrival of letters marked “County Court”, my parents who live at the same address as where the car was registered were very distressed and I had to reassure them that I had done nothing wrong. They told me their disappointment that their son who was brought up in a good family was now a defendant in a court case. Despite multiple efforts to show them the details of the case, they remain convinced that there is “no smoke without fire” and that “legal professionals don’t go after people for no reason” and that I am in the wrong. I still suffer this slight on my reputation in the family today. My parents are constantly asking me for updates on the case and they can tell that I am worried. My mother who suffers from regular migraines is now getting them more frequently as she is concerned that I will lose the case and have my home repossessed if I can’t pay the penalty. I feel that even if I lose the case, I will be forced to lie to my parents rather than panic them with this news. Since this episode I had to have the post readdressed to a separate address to spare them the angst on my behalf.

8. Each stage in the legal process has been new, daunting and intimidating to me, and whilst it would have been easier for me to pay the unfair charge in the first place, I refuse to do this on principle and to let the bullies win. I have spent forty (40) hours researching and working on my case, and this has affected how much time I have been able to spend with family and friends, as well as a loss of sleep. Compiling the attached evidence was stressful in itself as I try to sift through nearly a years’ worth of records and correspondence with multiple parties. I continuously worry that I will lose the case due to a loophole like missing evidence on my part and I am determined to leave no stone unturned and to check every aspect of my defense. I find myself mentally exhausted upon preparing the appropriate documentation and submitting it in a timely manner to the Court.

9. After being given a Court date in November, I am nervous and frightened as I have never been in court before, let alone represented myself in a legal capacity. I will undoubtedly face many sleepless nights between now and the court date. I anticipated that on the day of Court I will be the most afraid I have been in my life. By contrast the Judge will be in Court every day and Dyl Kurpil (an ex-policeman) will be very familiar in this environment. I will be the odd one out, not comfortable in this environment and therefore vulnerable in this attack on myself and the unwarranted demands for money.

10. In conclusion, this notoriously aggressive claimant company should have never pursued me for an offense that wasn’t committed, on non-relevant land, had absolutely no business to obtain my personal data, causing myself undue stress and loss of peace of mind and should be made liable to pay for my distress.

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 10th October 2017
Signed…… (Claimant)
Of XXXXXXXX

[nosferatu1001]

Every time you have evidence attached I hope you have a unique reference yes? Initials/001 - a photo showing... etc.

[SchoolRunMum]

8. The driver of the car at the time has not been named

Maybe change to this below, using the POPLA Annual Report 2015 'Understanding Keeper Liability', unless you are separately stating this in a skeleton argument:

8. The driver of the car at the time has not been identified by the claimant and as the registered keeper I have no obligation to name the driver. There is no lawful presumption that a registered keeper was the driver, in relation to private parking charges (evidenced by barrister Henry Greenslade in the POPLA Annual Report 2015, where he also confirmed that a keeper cannot be held liable outwith the scope of the POFA, schedule 4).