Witness Statement. Do I contact parking company?

4_justice

Hello

I have read some very good advice by the members on here and am hoping some kind people are willing to answer a few questions I have concerning my Witness Statement for my forthcoming PCN court case. I only wish I had come across this site early and I don’t think I be at this stage.

1) Do I write to the PCN and ask for a copy of the contract they hold with the landowners? Do I ask them for a drawing of the signage they have for the site?

2) Do I ask them for all the information they hold about me on their computer systems? I’m thinking data protection act.

3) The Defence Statement I sent a couple of months ago to the county court is stated below. Have I messed up when doing my defence statement? I understand the parking company have 14 days after parking event to raise a PCN. Can I use keeper liability not passed in accordance with POPFA Schedule 4 on my Witness Statement as I think the DS may have inadvertently named the driver as me? When I showed my defence to someone from Facebook they said I can’t use the POPA argument as the judge can infer I was there from the defence statement. Is this correct?

4) During mediation, the driver’s name may have accidently been revealed. I believe the mediation discussions cannot be used in the court, does anyone know if this is correct?


Any advice you could offer would be greatly appreciated.

Thanks again



Defence Statement sent last month


“A claim has been made by the Claimant that the Defendant breached
the terms and conditions (T+Cs) of a private car park managed by
the Claimant. The Defendant denies the allegation of a breach of
the parking terms and conditions for the reasons stated below:

The car park is provided by the landowner for the use of the
business that the Defendant had reason to visit. The Defendant
had reason to visit a business associated with the car park. As a
retail business car park it is reasonable for the Defendant to
assume the business is open at 19:51

The Defendant would like to highlight that the signage stating the
terms and conditions for parking within the car park are located
within the car park boundary, approximately 25metres from the
entrance gate. Thus, it is not possible for car park users to be
aware of the parking terms and conditions unless they enter the
land. Photographic evidence can be provided to the court.

At the time of the allegation the car park had approximately 95%
unoccupied spaces on both arrival and departure by the Defendant.
A claim of £326.10 made by the Claimant for the one car parking
space for this short period of time is unfounded.

It is disappointing the Claimant’s solicitors QDR would not
address the Defendants response (recorded delivery Post Office ref
no xxxxx). QDR solicitors advised the Defendant they are
instructed not to forward Defendants communication.

From the points raised, the Defendant looks to the court for
resolution to this matter and find in favour of the defendant.”

bargepole

4_justice wrote: »

1) Do I write to the PCN and ask for a copy of the contract they hold with the landowners? Do I ask them for a drawing of the signage they have for the site?

2) Do I ask them for all the information they hold about me on their computer systems? I’m thinking data protection act.

3) The Defence Statement I sent a couple of months ago to the county court is stated below. Have I messed up when doing my defence statement? I understand the parking company have 14 days after parking event to raise a PCN. Can I use keeper liability not passed in accordance with POPFA Schedule 4 on my Witness Statement as I think the DS may have inadvertently named the driver as me? When I showed my defence to someone from Facebook they said I can’t use the POPA argument as the judge can infer I was there from the defence statement. Is this correct?

4) During mediation, the driver’s name may have accidently been revealed. I believe the mediation discussions cannot be used in the court, does anyone know if this is correct?

1) Waste of time writing to them. They won't do anything to help you.

2) You can make a SAR, but that won't help your case.

3) POFA is irrelevant here. It's obvious from the Defence that the Defendant was the driver. And it wasn't mentioned in the Defence, so can't now be raised in the WS.

4) Mediation discussions are not admissible at the hearing, but again that's irrelevant, because the Defence makes it crystal clear that you were the driver.

So the only point left to defend on, is the poor signage, for which you will need to provide photos with your WS, to prove to the Judge that the average motorist driving into that car park could not reasonably be expected to see the signs, and could not therefore be bound by the contractual terms.

This line of argument may be thinner than the low-fat spread on an anorexic supermodel's crispbread, but it's all you have to go with, and you might get lucky.

System

Is this Civil Enforcement. If so read all the other threads on their court approach.

Coupon-mad

The stupid sum of money claimed looks like CEL.

Look at other CEL witness statements but remove the POFA bits. Show us what you come up with.

I hope you have the same outcome you would have got if you'd sent a forum defence (i.e. CEL always discontinue) but I do wonder, as you also wasted time on mediation and the defence is lacking the usual stuff that makes CEL fold.

4_justice

Thanks very much to all of you. Yes it is CEL, I've read up on the related cases on here regarding CEL. I've learnt so much. I know I would of stood a better chance doing my DS if I had known all this info. I look at doing the WS as my last chance now.

I've discovered CEL have failed to put a claimant name as entity on the County Claim so I will be using this on my WS. I will post my WS once done, hopefully someone will advise if its any good.

One last thing, its not worth asking CEL for the contract they hold with the landowner? If they ignore the request I was thinking I could use this in my WS or bring it up in court...

Thanks

Coupon-mad

They are not obliged to divulge the contract with the landowner.

But you could send CEL a SAR to get all data/photos held about you/the vehicle.

4_justice

Hello. Would anyone be willing to read and offer any advice to my Witness Statement below. Any advice is greatly appreciated. Thanks

In the XX County Court
Claim Number
Claimant
Defendant
Reference


1) I XXX of XX am the Defendant in this claim. The facts in this statement come from my personal knowledge.
2) The Claim Form is unsigned. The Claim Form issued on the XX was not correctly filed under The Practice Direction as it was not signed by a living entity but signed by “Civil Enforcement Limited (Claimant’s Legal Representative)”. This is contrary to part 22 of the Practice Directions paragraph 3.1 to paragraph 3.11 which set out who can sign a Statement of Truth. As the Claim Form is not signed by a living entity I would ask the court to consider a strike out of this claim or ask the “Claimant’s Legal Representative” to confirm their position and authority to sign a Statement of Truth.
3) The Claimant’s Particular of Claim are vague, provide no explanation as to what the alleged breach of terms and conditions are. They have simply provided a date, time and location with no indication as to whether this is a case of overstaying, lack of a paid and display ticket or any other reason which may breach the terms and conditions which were in place during the date of the incident- a copy of which has never been supplied to me.
4) The Claimant has failed to comply with Civil Procedure Rules Practice Direction 16.7.1 (1), which state that a copy of the contract or documents constituting the agreement should be attached to or served with the Particulars of Claim. It was not.
5) Free parking is provided for XX shop customers, as stated by a large sign on the wall of XXX shop car park. The sign states “Free customer parking, input vehicle registration in store” [Photo exhibit 1 & Photo 2].
6) Driver parked in one of the spaces of the car park provided for XX shop customers
7) Driver walked to the shop’s front entrance and found the shop closed forty five minutes earlier. Unable to enter the shop, the driver is unable to enter vehicle registration in to the in-store computer.[Photo exhibit 3]
8) The driver spends time looking at the window display and reads the car parking terms and conditions sign. The driver then left the car park.
9) The terms and conditions for parking in the car park is situated inside the carpark boundary, 25metres from entrance gate. It is not possible to read parking terms and conditions unless the driver enters the car park.
10) The Claimant claims for monies relating to a parking charge for parking in breach of terms and conditions. The carpet shop signage offering free parking outside their shop does not state that there are terms and conditions associated with the offer of free parking.
11) A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission because the signage is contradictory. Even if a contract has been formed it would be void, or in alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer for the reasons of Section 71 of the Consumers Right Act 2015 provides that the Court has duty to consider the fairness of the terms.
12) The terms and conditions signage provides for a parking charge of £100 if terms and conditions are breached. A valid permit could not be obtained as the carpet shop offering free parking was closed. The Claimant seeks £325 which is an extravagant and unconscionable penalty, and therefore unenforceable. Neither the signage, nor Notice to Keeper, mentioned a possible £325 (including court fees) for outstanding debt and damages which the Claimant is now demanding.
13) Part 27 of The Small Claims Track Rule 27.14 (2) (a) states that the court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses including those relating to an appeal, except the fixed cost attributable to issuing the claim.
14) In Parking Eye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidate damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [211]). The full test was expounded by Lord Hodge (at [255]).
15) The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and this worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (Parking Eye v Somerfield). The charge to the Defendant of £325 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract.
16) I therefore dispute the amount claimed, as it comprises excessive and non-contractual elements, and additional costs must be proved.
17) The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that The Small Claims Track Rule 27.14 does not permit such charges to be recovered in the Small Claims Court. I have the reasonable belief that due to the sparse particulars of the £50 claimed for filing the claim, the cost has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. The Claimant is put to strict proof to show how this cost has been incurred
18) As this Claimant does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this Claimant is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
19) Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
20) Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the British Parking Association Code of Practice (BPA CoP)) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
21) BPA CoP defines the mandatory requirements and I put the Claimant to strict proof of full compliance of Paragraph 7 of BPA. Paragraph 7.2 states “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken”. Paragraph 7.3 states “The written authorisation must also set out: (a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined, (b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation, (c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement, (d) who has the responsibility for putting up and maintaining signs, (e) the definition of the services provided by each party to the agreement”.
22) The court is invited to dismiss the Claim. I believe the unsigned Claim Form is lacking in detail and the claim is unfair given that the driver had reason to utilise the shop’s free car park as indicated on the shops sign.



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

Signed

Date

nosferatu1001

Do you understnad what a Witness Statement is?
It is a statement of FACTS known to you.
It is not a place for arguments

2 is an argument. So is 3. 4 isnt bad, but you list the fact first -that there was no... and this is contrary to...

THE driver. Not "Driver". You have not confirmed your relationship to the car. The driver WAS unable - tenses are important! You make this mistake a lot - is / are, is / was etc.

11 is an argument
12 is a mix of two thihngs, and is mostly an argument.

13) What purpose does you quoting the CPRs at the court serve? You could state that the claimant is claiming for X costs described as "legal costs" contrary to the CPRs which do not allow for this in small claims .

16) Youre still arguing up to this point, and this line really cannot stay. You already disputed the entire charge in your defence.
17) exclude this entirely.
18) You did this in your defence already, surely? AGAIN THIS IS AN ARGUMENT. ditto 19, 20, 21 etc

Stick to FACTS. That is wha tyou are told to do in post 2.

Coupon-mad

I agree, that is not a WS.

Why not look at the example I linked in the NEWBIES thread this week, to the WS based on a suggestion by LoadsofChildren123?

4_justice

ok thanks for reviewing. the problem is my defence statement was weak (i didnt know about all the info available online) so im trying to add in as much i can as this is my last chance. i will take on board
your advise and repost.

thanks

nosferatu1001

Your defence was weak. Not statement
Witness statement
Defence