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

FlyingHorse

Hi all, sorry for the delay posting this. I have been very busy with the new baby and my PhD so finding time to get this researched and written is difficult!

Anyway, here is the first draft of my witness statement. Any comments and suggestions greatly appreciated!

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WITNESS STATEMENT

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I, xxxx, of xxxx, am the Defendant in this matter, and will say as follows.

1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

2. I was the Registered Keeper of the vehicle in question on the X October 2016 (the material date).

3. I was, at the material time, accompanied by a tenant of the property at the location at that time.

4. The claim relates to a parking charge notice (PCN) that was allegedly posted to the former address of the Defendant from which the Defendant moved in August 2016.

5. The first correspondence from the Claimant received by the Defendant was a letter from Debt Recovery Plus (DRP) dated X December 2016 (document number 1 in the attached bundle, pages X- X) claiming that a PCN had been sent to the Defendant's former address and demanding a £149.00 payment. Unaware of any PCN, this letter was assumed to be a scam and ignored. The only indicator of what the letter referred to was an address for where the alleged incident took place, xxxx. No evidence of any such incident or any further details were provided.

6. I visited my previous address to collect post that had not been redirected. The new tenants of this property had collected and kept several letters that had been delivered to that address under my name. The alleged PCN from the Claimant was not among these letters and I was assured by the new tenants that these were the only letters that had been delivered to that address under my name.

7. The second correspondence from the Claimant was a further threatening letter dated X January 2017 from DRP demanding a "reduced payment offer" of £126.55 to "avoid court action" (document number 2 in the attached bundle, pages X- X). The letter stated, "We refer to our letter dated X/01/2017". This date was identical to the date of the letter itself. My research into this matter indicated that this error was a sign that this was a 'robo claim'. There was no reference as to how the alleged debt had arisen or how the charge had been calculated. With no evidence or further detail offered, this letter was also assumed to be a scam and ignored.

8. A third letter was received three days after the second letter, dated X January 2017. Other than the date, the letter was identical to the letter received three days earlier, a further indication that this was a 'robo claim'. (document number 3 in the attached bundle, pages X- X)

9. On X March 2017, a letter was received from Glastones Solicitors with further threats of court action. (document number 4 in the attached bundle, pages X- X)

10. In the week beginning X October 2017 a "Letter Before Claim" was received dated X October 2017 stating 30 days to reply. This letter appears to have been backdated and confusion on the time remaining to respond meant that the deadline was missed. The costs claimed on this letter had inexplicably increased to £160. There was no reference as to how the alleged debt had arisen or how the charge had been calculated (document number 5 in the attached bundle, pages X- X).

11. The Claimant did not serve a compliant Letter Before County Claim on the Defendant, as mandated by the Practice Direction on Pre-Action Conduct (document number 5 in the attached bundle, pages X- X). Further to this, the Particulars of Claim (PoC) 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 (document number 5 in the attached bundle, pages X- X). As such, the Particulars do not comply with CPR 16.4.

12. The Claimant failed to send a completed Directions Questionnaire (N180), instead sending a blank form. The particulars of the claim were also a vague template appearing to be incapable of giving rise to any contractual claim in law. These issues were notified to the court in a letter on X December 2017 (document number 6 in the attached bundle, pages X- X)

13. On the material date accompanied by a tenant of the property (Witness 1) of xxxx (the material address) as I was aiding the tenant with moving and unloading items to the tenant's flat. We stopped the vehicle at point close to the building for the purposes of unloading. On any reasonable construction, this action did not constitute 'parking'.

14. In any case, Section 4.6.q of the Tenant's Assured Shorthold Tenancy (AST) agreement (document number 7 in the attached bundle, pages X- X) makes one reference to parking at the address that states that "The Tenant will: q. show proper consideration for others in the neighbourhood and, 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". If there is any confusion as to how this clause should be interpreted the contra prefentum rule states that the interpretation most favourable to the consumer should be used.

15. The AST 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. This was shown in the ruling of Jopson v Homeguard (B9GF0A9E 2016) (Exhibit X) which showed that a third party parking company cannot override the tenant's right to temporarily stop near the building entrance for the purposes of loading and/or unloading. It was also shown in PACE vs Mr N (C6GF14F0 2016) (Exhibit X) that a third party cannot unilaterally alter the terms of a tenancy agreement.

16. On the material date, there were plenty of unused parking spaces in the car park, it cannot therefore be argued that the car was causing a "nuisance or obstruction" and in any case, this would be a matter for the tenant and landlord, not a third party.

17. On the entrance to the carpark there is no signage related to parking. The first sign seen was a small sign on the building itself (Exhibit X). The font size of this sign makes it impossible to be read upon entering the carpark.

18. Other signs are positioned in locations which make them equally difficult to read and / or notice when in the carpark. One sign is positioned behind a bin store (Exhibit X), one is covered by foliage and therefore cannot be read (Exhibit X), and another is positioned adjacent to signs from a separate company ('W.Y.C.S Parking Services' claiming management of the car park (Exhibit X). A person 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.

19. The small print of the signs is small and illegible (Exhibit X).

20. In any case, the Claimants notices attempt to make a forbidding offer and therefore no contract can be established. It is therefore denied that a contact was formed between the Defendant and Claimant because no offer was communicated by the Claimant, effectively or at all, that was capable of acceptance by the Defendant, expressly, by conduct, or at all. Therefore, any charges for breach of contract are not valid. This was shown in Parking Control Management (UK) v Bull (B4GF26K6 2016) (Exhibit X).

21. The Defendant is at a serious disadvantage in this case as an inexperienced litigant in person whereas the Claimant is a well-funded, serial litigant.

22. The Claimant has issued vague and incoherent PoC such as the Defendant does not have enough information to efficiently defend this claim (Exhibit X), I therefore reserve my position to add further points to my defence once I have seen the Claimant's court bundle containing their evidence and witness statement.

FlyingHorse

Any comments on the above?

FlyingHorse

Hi all, new draft of my WS below. I would be very grateful for any comments / feedback / advice etc.

Thanks!

---- WITNESS STATEMENT ----

I, xxxx, of xxxx, am the Defendant in this matter, and will say as follows.

1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

2. I was the Registered Keeper of the vehicle in question on the X October 2016 (the material date).

3. The claim relates to a parking charge notice (PCN) that was allegedly posted to the former address of the Defendant from which the Defendant moved in August 2016.

4. The first correspondence from the Claimant received by the Defendant was a letter from Debt Recovery Plus (DRP) dated X December 2016 (document number 1 in the attached bundle, pages X- X) claiming that a PCN had been sent to the Defendant's former address and demanding a £149.00 payment. Unaware of any PCN, this letter was assumed to be a scam and ignored. The only indicator of what the letter referred to was an address for where the alleged incident took place, xxxx (the material address) and a "Parking charge date", assumed to be the date that the PCN was allegedly issued (the Material date). No date for when the alleged incident took place was provided.

5. This material address is the former address of a friend of the Defendant (Witness 1).

6. After receiving this letter, I visited my previous address to collect post that had not been redirected. The new tenants of this property had collected and kept several letters that had been delivered to that address under my name. The alleged PCN from the Claimant was not among these letters and I was assured by the new tenants that these were the only letters that had been delivered to that address under my name.

7. The second correspondence from the Claimant was a further threatening letter dated X January 2017 from DRP demanding a "reduced payment offer"; of £126.55 to "avoid court action" (document number 2 in the attached bundle, pages X- X). The letter stated, "We refer to our letter dated X/01/2017". This date was identical to the date of the letter itself. My research into this matter indicated that this error was a sign that this was a 'robo claim'. There was no reference as to how the alleged debt had arisen or how the charge had been calculated. With no evidence or further detail offered, this letter was also assumed to be a scam and ignored.

8. A third letter was received three days after the second letter, dated X January 2017. Other than the "Date of this notice", the letter was identical to the letter received three days earlier, a further indication that this was a 'robo claim'. (document number 3 in the attached bundle, pages X- X)

9. On X March 2017, a letter was received from 'Gladstones Solicitors' with further threats of court action. The charge claimed in this letter was £149.00 with no reference as to how the alleged debt had arisen or how the charge had been calculated. (document number 4 in the attached bundle, pages X- X).

10. In the week beginning X October 2017 a 'Letter Before Claim' was received dated X October 2017 stating 30 days to reply. This letter appears to have been backdated and confusion on the time remaining to respond meant that the deadline was missed. The costs claimed on this letter had inexplicably increased to £160. There was no reference as to how the alleged debt had arisen or how the charge had been calculated (document number 5 in the attached bundle, pages X- X).

11. As the alleged PCN has not been seen by the Defendant, it is impossible to know if the PCN complies with schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). POFA 2012 has in any case been provided in the evidence bundle and may be referred to once a copy of the alleged PCN has been received by the Defendant.

12. As no date of the alleged incident has been provided, the Defendant does not know the exact date that the alleged incident took place. There is only one time in October 2016 that the Defendant was at this address. At this time, the Defendant was accompanied by her friend, a tenant of the property at the location at that time, as the vehicle in question was being used by the tenant and the Defendant to move and unload some items to the tenant's flat.

13. We stopped the vehicle at a point close to the building for the purposes of unloading. The vehicle was stopped near the property for approximately 10 to 15 minutes whilst the Defendant and the tenant unloaded and unpacked said items.

14. In any case, Section 4.6.q of the Tenant!!!8217;s Assured Shorthold Tenancy (AST) agreement (document number 7 in the attached bundle, pages X- X) makes one reference to parking at the address that states that "The Tenant will: q. show proper consideration for others in the neighbourhood and, 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 AST does not specify any other conditions of parking.

15. On the material date, there were plenty of unused parking spaces in the car park, it cannot therefore be argued that the car was causing a "nuisance or obstruction" and in any case, this would be a matter for the tenant and landlord, not a third party.

16. On the entrance to the carpark there is no visible entrance signage related to parking as mandated by The Independent Parking Committee (IPC) 'Code of Practice' (Exhibit X) of which the Claimant is purportedly a member.

17. The first sign displayed is a small sign positioned high up on the building itself with a bush approximately 2 metres in width in front of it making it impossible for a person to get physically close enough to read it. The font size of this sign makes it impossible to be read, even when standing as close as possible, and certainly not upon entering the carpark (Exhibit X), especially as the vehicle must be manoeuvred by 90 degrees twice in quick succession when entering the car park meaning the vehicle is facing this sign for a few seconds at most. The video provided in the evidence bundle (Exhibit X) as well as photographs taken from the vehicle (Exhibit X) show this.

18. Other signs are positioned in locations which make them equally difficult to read and / or notice when in the carpark.

19. One sign is positioned near to the northwest side of the entrance to the carpark, but is facing into the carpark and is below eye level, so cannot be seen when entering the car park, especially if entering from the northwest, as would have been the case at this time. This is shown in the video provided (Exhibit X). In any case this sign is not of the form or function of the example car park entrance sign in the IPC 'Code of Practice'.

20. One sign is positioned behind a bin store (Exhibit X).

21. One sign is covered by foliage and therefore cannot be seen or read (Exhibit X and Exhibit Y (video)).

22. One sign is positioned adjacent to signs from a separate company ('W.Y.C.S Parking Services') claiming management of the car park (Exhibit X) and is also positioned below eye level.

23. The small print of the signs is small and illegible (Exhibit X).

24. The Claimants notices are forbidding with no offer of a contract. (Exhibit X)

25. The Claimants signs do not adhere to the IPC 'code of practice' (Exhibit X)

Coupon-mad

2. I was the Registered Keeper of the vehicle in question on the X October 2016 (the material date).

conflicts with:

12. As no date of the alleged incident has been provided, the Defendant does not know the exact date that the alleged incident took place.

FlyingHorse

HI Coupon Mad,

I'm not sure they necessarily conflict, I guess it depends on what the 'material ddate' actually is, but I take your point.

She has been the registered keeper of the vehicle since 2007 and still is, so she would have been the registered keeper at that time regardless.

I have now removed point 2 and added a point after point 12 (now point 11) so that 11 and 12 now read:

11. As no date of the alleged incident has been provided, the Defendant does not know the exact date that the alleged incident took place. There is only one time in October 2016 that the Defendant was at this address. At this time, the Defendant was accompanied by her friend, a tenant of the property at the location at that time, as the vehicle in question was being used by the tenant and the Defendant to move and unload some items to the tenant's flat.

12. I was the Registered Keeper of the vehicle in question in October 2016.

Coupon-mad

Independent Parking Committee

should be

International Parking Community

...and you appear to have lost the Jopson appeal case (exactly like this one, about a short time unloading stuff to a flat) and the PACE v Noor case?

Is that because pepipoo has told you to separate the case law into a skeleton argument instead? Each to their own but we get by fine on here by having everything and the transcripts being filed alongside the witness statement.

Anything goes in small claims and IMHO it's better to file all your evidence now. Those transcripts are very important for the Judge to read.

nosferatu1001

To be fair, Southpaw IS a mag....

Coupon-mad

I know and he is right with what he says...but, being pragmatic.

People on forums are inexperienced and it's easier (and stops them forgetting to file certain evidence) if they do just one document at this final stage (apart from a costs schedule to follow shortly) with all the evidence with it.

I don't recall any posters here being criticised for it, ever, and expecting everyone to do a WS and a SA is a big ask.

Just adapting advice to suit the audience - even the most astute poster here may as well just file a WS and all evidence in one go, because it works.

FlyingHorse

Thanks for picking up on that mistake Coupon Mad.

Yes I was told on PePiPoo to separate the WS and SA. I think the argument that this makes things more clear and succinct, as well as being best practice, is a strong one. I think having a SA once I've seen the WS and evidence from the Claimant will be useful anyway.

I will attach and submit all case transcripts as evidence and will then refer to them in my SA. I agree that it's pretty vital to have these included for the judge to see.

I think at this late stage I will stick to this WS / SA format as the WS needs to be submitted by Friday (I will be submitting tomorrow via email). Then I will have a couple of weeks to nail down a SA (I have more time to focus on this next week).

FlyingHorse

Hi all,

I submitted my witness statement and evidence at the end of last week. The final (redacted) witness statement can be seen here:

https://www.dropbox.com/s/sle1diipppf4mo1/W...ted%5D.pdf?dl=0

I have also received the WS and evidence bundle from Gladstones which I now need to pick apart so any help here, as always, greatly appreciated! Here is the link to a redacted version. Have at it!

https://www.dropbox.com/s/dcjvkgevuwrumfg/G...ce%203.pdf?dl=0

Some initial points:

The map of the car park is wrong as there are additional signs in the car park not displayed on the map.

The "self ticketing agreement" is signed by another leaseholder of a flat (or perhaps more than one flat) in an adjacent property that uses the same carpark (NOT the freeholder). According to the tenant's landlord, who is the leaseholder of the tenants flat, this person "facilitated a forum of flat owners and became the link person in a self-management group which liaised with the agent". The landlord never kept up with developments in this forum due to ill health and it appears this agreement with UKCPM was signed unilaterally, without the informed consent of the tenants landlord.

We obtained the lease agreement from the landlord which gives the “Tenant the Tenant’s family employees licensees and visitors” … “4. The right to use (subject to availability) the visitor parking spaces (if any) forming part of the Common Parts” and “10. The right to park any vehicle on one of the Parking Spaces (if available) and the right for the Tenant and the tenant or occupiers of the Premises and its or their visitors (in common with all persons having a like right) to go pass and repass at all times and for all purposes of access to and egress from the Parking Spaces only with or without vehicles over and along any roadways or forecourts forming part of the Common Parts.”

The terms of the agreement with UKCPM also seem pretty dodgy, but i'll let you give me your opinions about that!

Thanks!