Claim form-county court business centre

Coupon-mad

Read this:

http://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/witness-statements

and try this, numbering every paragraph, once the alterations are completed:

WITNESS STATEMENT

I am xxxxxxx xxxxxxxx, the tenant at the above address, namely xx xxxxxx xxxxx, xxxxxxxxx [STRIKE]and[/STRIKE] I was present at the material time.

The facts in this Witness Statement come from my personal knowledge and I provide it in support of the defence from xxxxxxxx xxxxxxxx against claim number Dxxxxxx

I [STRIKE]have[/STRIKE] signed {Appendix 1} a Starter tenancy agreement dated 2nd July 2010 permitting parking for myself and visitors. (Pg.15). Additionally, on 4th December 2013 I signed {Appendix 2} an 'Agreed Variation of Terms and Conditions'.

These T&Cs do not say that previous parking arrangements have been in any way restricted or superseded, so as a resident I can assert that they have not. This Claimant is put to strict proof to the contrary.

xxx Housing has not sent any other correspondence regarding the introduction of a parking company, therefore my understanding is that parking for myself and visitors is permitted as per my tenancy agreement and 2013 T&Cs which pre-date the introduction of xxx parking.

As a third party, xxx parking cannot alter the terms of my tenancy agreement, and they are not a party to that agreement. Only xxx Housing can do this and they have not demonstrated that this process has been carried out, therefore there is no relevant obligation or contract that could vary my tenancy agreement.

The parking company's signs [STRIKE]was engaged on site,[/STRIKE] appeared without consultation with residents, on or around 20th October 2014. [STRIKE], 14 days after their circular (Appendix 3) was issued. xxx Parking failed to provide a 28 day notice period.[/STRIKE] I did not receive any notice at all, and it was my honest belief that these unremarkable signs must relate to trespassers, because I had not signed anything, nor (to my knowledge) had any residents been issued with any permits. There was no 'parking scheme' that I was aware of; I had neither accepted nor had imposed upon me any new terms which could restrict parking and suddenly begin to charge me, or my visitors.

On xx December 2016 my aunt (Defendant-xxx) was dropping me and my children home; I needed assistance and asked my aunt to help me unload and the children to alight into the lift and up to my flat. This took no longer than 10 minutes and when she got back to her car she had a ticket from xxx parking.

I [STRIKE]told[/STRIKE] assured her that my tenancy agreement permits parking, therefore drop off is not a problem. [STRIKE]and[/STRIKE] I had called the parking company back in 2014 and they did not listen to the fact that my tenancy agreement permitted parking. I had heard from other residents that the parking company [STRIKE]are there to manage unauthorised parking and[/STRIKE] were already out of control, ticketing everyone, even taxis, but this unfair ticket was my only first-hand experience of their predatory business model.

When challenged about parking being permitted in my tenancy agreement xxx Housing did not give an adequate answer, they say they have ‘changed the wording’ in the 2013 T&Cs but I have never agreed to, been offered nor signed any Notice of Variation.

[STRIKE]and tell me that I have to deal with the parking company who manage the site. I did called the parking company back in 2014 when they put up signs and they did not listen to the fact that my tenancy agreement permitted parking. [/STRIKE]

xxx Housing has neglected to abide by the ‘Altering the Agreement’ steps written in the 2013 T&Cs (page 5) in permitting a third party ‘xxxx Parking’ to contact its tenants, trying to change the terms already set out. I consider this to be a case of derogation from grant. [STRIKE]There has been no Notice of Variation.[/STRIKE] Housing tenants should not have to accept a watered down version of the law, we should be treated the same as other rent paying tenants. xxx Housing need to be aware of this when introducing changes that [STRIKE]have a huge effect on[/STRIKE] restrict and interfere with tenants ‘right to quiet enjoyment’ (page 6 of 2013 T&Cs).

[STRIKE]xxx Housing permit their contractors to park their vans in the parking area, these do not get tickets therefore why should authorised resident and their visitors. I believe parking enforcement has been introduced to earn revenue for both XXX and XXX parking[/STRIKE].

Under FOI, I requested all information sent to me since 2010 regarding my tenancy agreement, particularly relating to parking at xxx. [STRIKE]I was told that I had to pay for a Data Protection request which could take up to 40 days.[/STRIKE] The only document on my file, as confirmed by Optivo Data Protection and Governance Officer (xxxx) was:
> Tenancy Agreement signed 2010. The 2013 T&Cs were not on file, these were given to me November 2017 after many emails requesting a copy. I requested a copy to check that they matched the copy I had already [STRIKE]had[/STRIKE] signed. [STRIKE]up to[/STRIKE].

The following [STRIKE]x2[/STRIKE] two documents were requested from xxx parking by xxx and received on 1st August 2017:

> Car Park plan dated 2013 {Appendix 4} – This document was not received in 2013 and I do not know how it was communicated to tenants, or if it even existed from any date prior to when it was suddenly produced when I asked. The information is unclear, it relates to a grace period that no longer exists. xxx parking were not even under contract at this time, therefore had no right in instructing tenants where they should and should not park.

>{Appendix 3} xxx parking circular dated 6th xxx regarding parking restrictions. This Circular appears to be a newsletter, which is not addressed to me and I had never seen it before.

[STRIKE]Appendix 3 xxx[/STRIKE] This Circular does not correspond with the signage on site. The Circular reads ‘you may be subject to receiving a parking charge notice’ (no sum was quantified) and refers to parking on the access areas and emergency service areas only. [STRIKE]Signage reads ‘by entering or remaining on this land you agree to abide by all terms and conditions. Breach of any term or condition will result in the driver being liable for a parking charge of £100’.[/STRIKE] There is no mention of a £100 charge in the Circular, so it cannot be held to be capable of creating a contract to pay any sum, even if it had been received before the alleged 'parking event' (in fact dropping off/assisted alighting of children to adjacent premises).

I have been emailing xxx (specifically xx) since August 2017 regarding any other information, whether on file or not relating to my tenancy agreement and parking but they have not provided any further documentation to demonstrate the fact that my tenancy agreement was varied {copies of my emails - Appendix 5}.

A copy of the contract held between xxx Housing and xx parking has been requested as I believe there was no such contract in existence at the material time, with a chain of authority flowing from the actual landowner, allowing any parking firm [STRIKE]I suspect that the parking company are not permitted[/STRIKE] to seek payment through the court in their own name. At best - given the fact that unexpected signs went up in 2014 - I believe that xxx Parking had a bare licence as a contractor of the previous agency, merely to act on their behalf under an agency agreement with no standing to sue residents/their authorised visitors.

Specifically, even if there was a contract that does allow xxxx Parking to sue in their own name, I believe that this can only have related to 'parking on the access areas and emergency service areas', as stated in the Circular.
This event was not in those areas and nor was the car parked/left for more than the few minutes needed for the purposes of assisted alighting, and unloading to the flat.

xxx Housing are refusing to send a copy, and Optiva Housing Association were not even in existence at the time of the parking event: http://www.viridianhousing.org.uk/ {see printed copy at Appendix 6}

[STRIKE]I also requested details of the tender process in procuring the services of xx parking and the housing responded that as they are not charged they do not have to go through a tender process. Optivo housing has a duty to their tenants to ensure that suppliers of services perform their duties correctly. If they looked into this company they would see that they belong to the IPC who are far from competent. Most reputable parking companies belong to the BPA.[/STRIKE]

I believe that the facts stated in this witness statement are true.


signed


date

MrsG2711

I can not thank you enough for your input.


With everything covered in the tenants witness statement, should I keep mine brief?


This has really taken its toll on me and consumed many hours of my time as you know.


Should I be lucky and win, how much can I reasonably ask for?

Coupon-mad

Yours should not be too long or too brief, but needs to tell the story and must append all your evidence - lease, photos, cases like Jopson, and Pace v Noor, etc.

Show us first and we'll help with that too.

Asking for costs goes into your (separate document) costs schedule; there are examples in the NEWBIES thread.

MrsG2711

This is a copy of the circular sent to residents. The signage onsite reads No Parking. Notice at the end it is written "our aim is to ensure a safer parking facility for all residents!

Coupon-mad

As long as you were not parked in that access/emergency area, that's VERY good evidence!

MrsG2711

Draft Witness Statement (Defendant) for review


I am xxxxx (Defendant) of xxxxxxxxxxxx
Claimant - xxxxx)


The following particulars of claim are denied:
Breaching the terms of parking on the land at xxxxxxxxxxxx

1. In my original defence I requested that I be able to add to /amend as in the tenant was waiting on information from xxx Housing and was requested to go through Data Protection which would have delayed my defence statement.

2. This information and witness statement is based on the tenants 2010 Tenancy Agreement and 2013 varied Terms and Conditions permitting parking for both herself and visitors provided by xx Housing formerly xxx. It has taken x5 months and many emails in collating this brief set of documents. xxx Housing has been obstructive in the tenants request for information. It is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, I respectfully ask that it not be included as the tenant requested a full disclosure of documents relating to her tenancy and parking and I as defendant should have had the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

3. On the 07 December 2016 I entered xxx parking area in order to set down xxx(tenant) her children and goods. I was asked to assist her up to her flat which took no longer than 5 minutes.


4. I refute that I entered into a contract with xxx parking on the following counts:

4.1. I entered under the terms of the tenants agreement dated xx xxx 2010 permitting parking for herself and visitors.

4.2. 2013 varied Terms and Conditions (AST) do not prohibit parking, they refer to a parking scheme that may or may not be in use.

4.3. 2013 varied Terms and Conditions (AST) do not mention engaging the services of a parking management company that will charge a specific amount to enter the parking area, therefore this term cannot be unilaterally introduced later.

4.4 The tenant cannot agree to a contract without prior knowledge. xx Housing formerly xxx did not write to the tenant regarding the introduction of xxx parking.

4.5 The tenant and I are of the opinion that the signage is put up to deter unauthorised parking from non-residents.

4.6 I was not parked in the access area or emergency area as detailed in Appendix XX, XXX circular dated xx xxx 2014.

5. xxx Housing has failed to take notice of Primacy of Contract in the case of the Tenancy Agreement held by Miss xxx, which offers parking for the tenant and visitors. The idea behind primacy of contract is that a contract cannot be unilaterally altered by one party without the permission of the other.

6. xxx Housing has neglected to abide by the ‘Altering of your Agreement’ steps written in the 2013 Terms and Conditions (page x) in allowing a third party ‘xxx Parking’ to contact their tenants, changing the terms that they already enjoy.
7. Both xx Parking and xxx Housing have neglected to provide proof of chain of authority.

8. Signage on site is not fit for purpose and does and does not comply with the IPC Code of Practice (Part E Signage, page 22) which reads:
Entrance Signs should:
a) Make it clear that the motorist is entering onto private land
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
c) Identify yourself (where you are a limited company. This should be by reference to your full company name, your company number and the jurisdiction within which your company is registered). –

9. Appendix xx - Photo of Entrance Sign which reads ‘No Parking’.
This sign fails to comply with points a-c above. It also fails to display the correct housing name.

10. Repeater signs within the parking area are often damaged and the sign on the ground in Appendix xx has been like this for over 3 weeks. The parking area is quite large and there are just x2 poorly lit signs.

11. Appendix xx Photo taken 27 October 2016.Even though this photo has been taken at night, circled you can see that the sign is damaged and illegible. The sign was like this when I entered the car park on 07 xxx 2016 and was not replaced until xx xxx 2017 when xx Housing took over from xxx.

12. A third party has no right to alter the tenants tenancy agreement (as was proved in the following County Court cases)
12.1Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant’s right to temporarily stop near the building entrance for loading/unloading.
12.2 Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 Croydon
Mr N had parked without displaying a permit. Pace Recovery and Storage (trading as ACE Security) issued him a parking charge, and when Mr N declined to pay it, took him to court.

In the hearing, Mr N produced his tenancy agreement, which showed he had the unrestricted right to park.

District Judge Coonan dismissed the claim and refused leave to appeal.

I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.
In Pace v Mr N [2016] C7GF51J1, Pace came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge rules that this clause required a month’s notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.
It is not sufficient for the operator to simply point to a clause which allows the lease to be varied. They must prove that the lease was so varied, and furthermore varied by the lessor. The operator isn’t a party to the lease and cannot vary it.

It would be very unusual for the contract with a resident to be formed by the signage on site. The signage is there only to form a contract with non-residents.
Copies of these cases can be found at Appendix xx

13. The Claimant’s solicitors are known to be a serial issuer of generic claims (robo-claims) similar to this one with no due diligence, no scrutiny of details. I, the defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC). They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn was owned and run by the same two Directors who also run Gladstones Solicitors, John Davies and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct. As a partner firm, the IPC website offers a discount on legal advice supplied through Gladsotones Solicitors.


14. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. 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 right to bring action regarding this claim.

15. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable. As such, I am keeping a 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).

16. Parking (Code of Practice) - Such is the reputation of private parking companies practices, a second bill is to be read in Parliament in February 2018. ‘To make provision for and in connection with a code of practice containing guidance about the operation and management of private parking facilities’.



Schedule of costs
Research and preparation of defence as litigant in person @£xx per hour 12 hours. Total £xx (this is my hourly work rate, pay slip available if requested)

Printing of 3 copies of witness statement and skeleton argument and postage
Estimate £25 (receipts available)

One half day off work to attend hearing on xx January 2018 @£xx per hour X4 hours - £xx

Train fare - £ xx

Total costs claimed £xxxxx

Signed (xxx-Defendant):
Date:

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Coupon-mad

was requested to go through Data Protection

should be:

was requested to apply through FOI

This should be a separate numbered paragraph, not buried where it is:

3. It is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier. I respectfully ask that [STRIKE]it not be included, as[/STRIKE] any new evidence suddenly adduced by the Claimant at this late stage be disregarded by the Court, because the tenant repeatedly requested a full disclosure of documents relating to her tenancy and parking many months ago. [STRIKE]and[/STRIKE] I as defendant should have had the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

And I would completely remove this because you are a non-resident, and it walks into a counter-argument the Claimant could use against you, i.e. how could they know you were 'authorised'? So I would remove it:

4.5 The tenant and I are of the opinion that the signage is put up to deter unauthorised parking from non-residents.

I would remove #13 and #16 as well. Not relevant in a WS.

Your WS needs to refer to your numbered evidence, like the other WS did, even though some of your evidence will be the same, like the lease and the Circular. and some photos.

and this needs mention that the current HA didn't exist at the time:

7. Both xx Parking and xxx Housing have neglected to provide proof of chain of authority, and in any case, Optiva Housing Association were not even in existence at the time of the parking event: http://www.viridianhousing.org.uk/ {see printed copy at Appendix 6}

MrsG2711

Thank you, I shall incorporate these edits.


In an email from the current housing, I was told: The contract we hold with xxx parking was in the name of xxx (former HA). Since we merged with xxx on xx xxx 2017, the contract is now with xxx (current name). They obviously think that chain of authority was moved from the old HA to the present! Is this a correct assumption?


Para 13 was inserted as I may be asked why I did not go through the IAS in order to get the claim cancelled. We both know this would not have been cancelled by the ocurt may say that I was negligent in not getting in contact

Coupon-mad

In an email from the current housing, I was told: The contract we hold with xxx parking was in the name of xxx (former HA). Since we merged with xxx on xx xxx 2017, the contract is now with xxx (current name). They obviously think that chain of authority was moved from the old HA to the present! Is this a correct assumption?

I'd say it's open to challenge and can't be assumed to be the case.

Re para 13, it's out of date because Hurley & Davies played a bit of switcheroo:

http://parking-prankster.blogspot.co.uk/2017/06/all-change-at-gladstones-and-ipc.html

So, I wouldn't have it in your WS like that. You could say:

I chose not to undergo the purported 'Independent Appeals Service' (IAS) because it is nothing of the sort. It is known to have shared Directors with the IPC Trade Body for the parking industry, and Gladstones Solicitors who obviously have a vested interest in bringing claims against hapless consumer victims who inevitably lose at IAS. An IPC firm even accidentally leaked an email last year, where they laughed about consumers 'futilely going through the motions' of IAS, which is considered to be no more than a kangaroo court.

[Deleted User]

In an email from the current housing, I was told: The contract we hold with xxx parking was in the name of xxx (former HA). Since we merged with xxx on xx xxx 2017, the contract is now with xxx (current name). They obviously think that chain of authority was moved from the old HA to the present! Is this a correct assumption?

”I'd say it's open to challenge and can't be assumed to be the case.

Probably shouldn't assume anything. But here, I suspect it may well be correct, simply because all the other legal structures couldn't function without a proper transfer.

By the looks of it, the original housing association has never ceased to exist. It is a mutual which has merged. It has never been wound up.
https://mutuals.fsa.gov.uk/SocietyDetails.aspx?Number=12752&Suffix=R

There is likely to be a single deed passing control of all the housing stock, assets and liabilities as a going concern to the newly named entity without the need to specifically identify or itemise all of those.