Court Claim - has the Defendant blundered?

glosandy

UPDATE:
Draft witness statement for critique please. Bear in mind the original defence was poor, so I need to steer this in a. certain way, to make sure I can get the winnable points across.

IN THE xxxxx COUNTY COURT

CLAIM No. xxxxxx


Between:

Parking Control Management (UK) Limited (Claimant)

- and -

Mr xxxxxx (Defendant)

____________________________________________________________________________________
WITNESS STATEMENT
____________________________________________________________________________________

1. Preliminary

1.1 I, xxxxx, of xxxxxxx am the Defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

1.2 Attached to this statement is a paginated bundle of documents marked MH1, MH2 etc., to which I will refer.

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

1.4 The claim refers to a parking incident involving vehicle xxxxxxxx on xxxxxx at the location of Whittle Square, Gloucester.

1.5 I am not liable to the Claimant for the sum claimed, or any amount at all, and this is my Witness Statement in support of my Defence already submitted.

2. Sequence of Events

2.1 On xxxxxxx I parked my vehicle xxxxxxx outside the David Lloyd Health Club in Whittle Square, Gloucester.

2.2 Shortly before parking, I was experiencing severe stomach cramps as a result of my Ulcerative Colitis condition that I have suffered from since the age of 13. See Exhibit MH1

2.3 I believed that I was about to experience a violent attack of diarrhoea, so made my way to the front of the David Lloyd Health Club and parked in an available parking bay, close to the entrance.

2.4 The vehicle was parked off the highway in an area commonly used for parking. The vehicle was in no way contravening any Highway Regulations, and was parked safely without obstructing or obscuring any vehicular traffic. As such, I believe that I parked my vehicle responsibly and legitimately within a designated parking bay.

2.5 Some weeks after this occurred, I started to receive correspondence from the Claimant and their Representatives demanding monies for the alleged parking infringement of “Parked Within a Restricted Area”, but I believe the facts and images prove that the area in question is not restricted at all.

2.6 The distinctly threatening and aggressive correspondence continued as the Claimant has pursued an entirely unreasonable and vexatious process designed to deny any reasonable opportunity for explanation or appeal process, which has led to the Court action now. I respectfully suggest that parking companies using the Small Claims track as a form of aggressive, automated monetary demand against motorists is not something the Court should be seen to support.

3 The Parking Bay

3.1 On entering Whittle Square, I looked for the first available parking space, as close to the entrance of the David Lloyd Health Club as I could. I identified the area in question as suitable for parking based on the points listed below.

3.2 The bay in question is clearly not part of the highway, and is distinguished by the use of distinct surface materials. See Exhibit MH2

3.3 There is no raised kerb to restrict access to this area from the highway. See Exhibit MH3

3.4 The bay in question appears to be clearly part of the existing “parking zone” at the front of the David Lloyd Health Club, by means of the use of identical surface materials. See Exhibit MH4

3.5 There are no road markings adjacent to this area to indicate this is not a parking bay. See Exhibit MH5

3.6 The area in question is in common usage as a parking bay. During my membership of the David Lloyd Health Club, I have always seen vehicles using this area as a legitimate parking bay. Over the past few weeks I have recorded numerous vehicles using this parking bay, to demonstrate it is in common use as a parking bay. See Exhibit MH6

3.7 On leaving my car, I made cursory check of the immediate surroundings and did not see any signage to indicate the area was not a parking bay. Upon returning to my car, I took time to locate the nearest signage which was some distance away, and based on the wording contained therein, I saw no issues in how I had parked. See Section 4

4. Inadequate Signage

4.1 On entering Whittle Square, I did not see any signage from my vehicle clearly indicating the parking restrictions. When I parked my car, I could not see any signs adjacent to this space, or in the vicinity that could possibly be read from my vehicle. I believe that in the case of “Vine vs London Borough of Waltham Forest” the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they have not seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no signage directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle when parking, as in the case here. See Exhibit MH7

4.2 The signage that I did later see was difficult to read. A key factor in the case of “ParkingEye vs Beavis” was that the relevant signs were “large, prominent and legible so that any reasonable user of the car park would be aware of their existence and nature” and that “the charge is prominently displayed in large letters and at frequent intervals within it”. That is not the case here. See Exhibit MH8

4.3 I did notice that the signage does state that “Vehicles must park fully within the confines of a marked bay”. My normal understanding of a “marked bay” would be the use of white painted lines to indicate the bay, as in the adjacent area. See Exhibit MH9

In this case, the “bays” appear to be defined using contrast paving, but the use of the same colour and style of paving for the whole of this area, as indicated in Exhibit MH4, did not in any way suggest to me that I had parked in anything other than a parking bay.

4.4 Upon later investigation, I believe the signage and operating practice of the Claimant in use at Whittle Square fails the Claimant’s own accredited parking operator scheme (The Independent Parking Committee (IPC)), on the basis that the signage on entering the site “should make it clear that the motorist is entering onto private land” and include a very large “P” to alert the motorist to the fact that the signage relates to parking restrictions. There is no “P”, however sized, on the signage in use. See Exhibit MH8

4.5 The IPC guidelines state that text on signage ‘should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read and impossible to read from a vehicle.

4.6 The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’. The fact that there is no signage around this area and that it is known that other motorists use this area as a legitimate parking bay (see Exhibit MH6), I would question that the Claimant is deliberately obscuring this fact to generate spurious Parking Charge Notices solely for financial gain.

5 Declaration

I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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


Signature

Date

Coupon-mad

(The Independent Parking Committee (IPC))

should be:

International Parking Community

Looks good to me, and you have evidence listed too.

glosandy

International Parking Community

I take it there's been a name change at some point then? I have signage showing both names...

And yes, the evidence pack is looking pretty good, thanks.

glosandy

So, looks like everything's ready to go in terms of the Witness Statement. Just a couple of questions, please:

When's best to send it in, and how?
27th is the date for sending the Evidence, 11th Oct for the Witness Statement. I'd prefer to send both in. together, but does that play into Gladstone's hands and invite the opportunity to counter the arguments in their WS?
I take it now the WS needs to be sent to Gladstones and the local Gloucester Court, not to Northampton any more? Email, post or both?

I'd like to get a skeleton ready, but when would this be sent in i.e. how close to the hearing date of 13th November? To the Court, GS or both?

Also, I'm starting to draft a Schedule of Costs (mind's as well be confident of winning!), again when to submit - before or at the hearing?

Many thanks.

KeithP

Are you not following the guidance offered in post #2 of the NEWBIES FAQ sticky thread?

Most, if not all, of your questions are answered there.

glosandy

Indeed I am Keith, but feeling a bit "punch drunk" when it comes to wading through the posts, sorry. Just don't want to mess anything up on the final straight...
I think I've found:

Skeleton submission - email both at least 24 hrs before hearing
Costs - email both at least 24 hrs before hearing
Copies of everything on the day.

I'd still like an opinion on when best to serve the WS, and the implications of that, if anyone has a spare moment?

Coupon-mad

I'd prefer to send both in. together, but does that play into Gladstone's hands and invite the opportunity to counter the arguments in their WS?

Yes it does, and they've started to regularly send supplementary or late additional WS, doing exactly as you described.

So in your case, thinking about it a bit more, I would NOT send them together, due to your specific court direction dates.

glosandy

OK, understand. I'll go for sending the docs by email 24 hours before the deadline.
I take it the first tranche of documents due on the 27th is going to give them a clue as to how we're approaching this anyway? Oh, well - bring it on!

KeithP

Careful.

There is a limit on the number of pages a court will print from email.
Sorry, I don't know off-hand what that limit is.
Maybe ring the court and ask them.

Coupon-mad

The court version should be taken in person in a folder/binder, clearly marked with the date of hearing, claim number and what the contents are and the Order they relate to.

No emailing to your local court.