Witness statement help please - Court date set! Gladstones / UKCPM

I have updated my witness statement as follows. Any feedback would be greatly appreciated!

Defence Statement

As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

1. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action.

2. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement. The Claimant is not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.

3. It is denied that there was a contract made between the Claimant and the driver through signage or that there was any agreement between the Defendant or driver of the vehicle and the Claimant. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the tenancy agreement. The signs fail for the following reasons:
3.1 The area was badly lit and sparsely signed.
3.2. The Claimant’s signs are in small print, the terms are illegible and a driver could not reasonably be expected to read and understand the terms of parking on entering the car park.
3.3. The Claimant’s signs are positioned adjacent to signs from a separate company claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land. It is impossible for the defendant to have agreed conflicting terms with two wholly separate companies on the same land, or indeed to determine which company (if any) has the right to demand compliance with said terms.
3.4 It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs are forbidding and do not offer a contract to park. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.
3.5 The signs did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme to which the claimant was a signatory at the relevant time.
3.6. The vehicle was given objective authorisation to park on the land by a resident who was an occupant of the vehicle at the time. It is the defendant’s belief that the resident has the right to authorise a vehicle to park in the car park. There are no limits to the number or allocation of parking spaces available to residents and the spaces are not numbered.
3.7. No physical permit was ever issued to the resident and there was no obligation to display a permit expressed within the tenancy agreement. It was impossible for a ‘valid permit’ to have been displayed in the windscreen of the vehicle.

4. The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. It is denied that at a residential site with residents parking with full authorisation at their own home, the claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

5. The Claimant has added unrecoverable sums to the original parking charge.
5.1 The Defendant also disputes that the Claimant has incurred £50 legal representative’s costs to pursue an alleged £160 debt.
5.2 The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

6.1 The Claimant claimed to have sent a Parking Charge Notice to the Defendant’s former address which was not received by the Defendant. No replacement PCN was sent to the Defendant’s current address. The first correspondence seen by the Defendant was a ‘Demand for payment’ from ‘Debt Recovery Plus Ltd’ dated 28th December 2016.
6.2 The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed, adding further unexplained charges of varying amounts (£49, £26.65, £60) with no evidence of how this extra charge has been calculated. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
6.2.1 No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
6.3 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, which has never been seen by the Defendant.
6.4 The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

7. The Defendant asks that the court gives consideration to exercise its discretion to strike out or dismiss the case under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8) and/or for the claim having no realistic prospects of success.

8. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

9. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

10. The Claimant has not complied with the relevant pre-action protocol.

I believe the facts stated in this Defence Statement are true.

bargepole wrote: »

Here you go, rewritten properly and with all the irrelevant waffle chucked out.

You should reformat this in Times Roman 12 point, with 1.5 line spacing.

IN THE COUNTY COURT BUSINESSS CENTRE

CLAIM No. DXXXXXXX

Between:

UK Car Park Management Ltd (Claimant)
-and-
Mrs XXXXXXXXX XXXXXXXXX (Defendant)

___________
DEFENCE
__________

1. The Defendant denies that the Claimant is entitled to relief claimed in the sum of £XXX, or at all, for the reasons stated in the following paragraphs.

2. It is admitted that the Defendant is/was the Registered Keeper of the vehicle in question on the material date. The Defendant was also the tenant of a property at the location at that time, and was issued with a permit for use within the car parking area.

3. On the material date, the Defendant and another party stopped the vehicle at a convenient point close to the entrance of the building, for the purposes of loading and unloading.

4. On any reasonable construction, this action did not constitute 'parking'. In any event, it would be an implied term of the tenancy agreement that tenants should be able to park near the entrance temporarily, in order to transfer heavy or bulky items from the vehicle to the property, or vice versa.

5. The Assured Shorthold Tenancy Agreement is the legal basis upon which the Defendant occupied the property. On the subject of parking, it states "...if keeping a car at the Property, not park so as to cause a nuisance or obstruction, or sound the car’s horn without due course, or rev the engine or slam the doors late at night...". The agreement does not specify any other conditions of parking, and the Defendant relies upon this contract as having primacy of contract over any purported contractual terms asserted by the Claimant's signage.

5. It is, therefore, denied that the Defendant was under any obligation to display a permit at any time, or to pay penalties to a third party (the Claimant) for non-display of same. There are a number of authorities which support this position.

6. the Claimant is put to strict proof that they have standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant, who is not a party to the Tenancy Agreement, and has no proprietary interest in the land, has provided no proof of any such entitlement.

7. The Claimant’s signs are in small print, the terms are illegible and a driver would could not reasonably be expected to read and understand the terms of parking on entering the car park. The Defendant has photographic evidence, and a video of a vehicle entering the car park, which prove this point.

8.. The Claimant’s signs are positioned adjacent to signs from a separate company (‘W.Y.C.S Parking Services’) claiming management of the car park. A driver could not reasonably be expected to comply with different terms of parking claimed by two separate companies on the same land, and the principle of contra proferentem would mean that such ambiguity should be resolved in the Defendant's favour.

9. The Claimant has previously sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges of varying amounts (£49, £26.65, £60). The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has changed from £149 to £126.65 to £149 to £160 to £172.32. This appears to be an attempt at adding costs with no legal basis, and an attempt at double recovery, in order to circumvent the Civil Procedure Rules.

10. The Claimant did not serve a compliant ‘Letter Before County Claim’, on the Defendant, as mandated by the Practice Direction on Pre-Action Conduct. Further to this, the Particulars of Claim as pleaded in the N1 Claim Form are extremely sparse, and do not disclose a proper Cause of Action, but instead offer a menu of choices. As such, the Particulars do not comply with CPR 16.4, and the Court is invited to strike out the claim of its own initiative, using its case management powers.

17. If the Court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this Defence.

I believe that the facts stated in this Defence are true.


....................................... ......................
(Defendant) (Date)

Hi Bargepole. thank you so much for this!

I must emphasise that the registered keeper of the vehicle was not the tenant - the tenant was another occupant in the vehicle, but not the keeper of the vehicle itself.

The tenant was also not issued with a permit - they text their reg plate to someone claiming responsibility for parking at the property. She was never issued a physical permit - despite the signs claiming one must be displayed.

Should i reword paragraph 2 accordingly?

Thanks again!!