BW Legal - Claim Form from CCBC

WelshBoy77

Hello KeithP

An update …

• Pictures and videos of the car park have been taken, in the same conditions and time of day as the alleged breach of contract by the claimant,
• Received last week the court papers stating the date of the hearing in summertime,
• Received last week a letter from claimant offering a slightly reduced fee to settle the claim to avoid going to the small claims court,
  
  I have kept exact dates out of the above.
  
  I believe I need to …

• draft up my witness statement,
• not respond to claimant letter,
• book day off work to attend the small claims hearing,
  
  As always any guidance or opinion is welcome

Coupon-mad

Sounds like a good plan, good preparation!

WelshBoy77

An update. The claimant emailed the following in April …

“We enclose by way of service our client’s witness statement which will be relied upon at the forthcoming small claims hearing. Notice is hereby given pursuant to CPR 27.9 that our client will not be in attendance at the hearing, however, they will be represented by an advocate.

A copy of our client’s witness statement has been filed at court.”

The deadline for the claimant to pay the court fee has not yet passed.

How do I find out if they have paid the court fee?

How do I submit my witness statement? And what time scale?

As always appreciate any guidance you can provide ��

Umkomaas

How do I find out if they have paid the court fee?

How about phoning the CCBC?

As always appreciate any guidance you can provide

It's all available to you in the NEWBIES FAQ sticky, post #2, with significant elements of it having the expert input of regular contributor and legally qualified professional bargepole.

Almost any question you have about the court process you are going through is there to be read 24/7.

KeithP

WelshBoy77 wrote: »

How do I submit my witness statement? And what time scale?

Read again the letters you have received from your local court.

One of them will say something like:

Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ . . . ] [14 days before the hearing].

WelshBoy77

Thank you Keith P and Umkomaas. Looking back I did ask a daft question.

I have drafted my witness statement, I think it is too long so I would appreciate your opinion.

---

Witness Statement

---

1. I am {MY NAME}, {MY ADDRESS}. I will say as follows:

2. On 26th October 2016, I parked my vehicle registration no {AB 99 XYZ}

3. On XXth December 2018, I email the claimant a Subject Access Request (SAR), response was received in the post with envelope stamp dated ZZth January 2019. This reply was not made within one calendar month.

4. The SAR specifically raised Y points, not all of them received response. The points that did not receive a response are as follows:

• A close up of the signs on the day in question,
• Evidence that you have paid a debt collector, as you are claiming £60 has been incurred as per “Claim Form” dated Xth December 2018,
• Evidence that you have permission from the landowner to act on their behalf,
• State the grace period from the land owner,
• Confirm if the car park was Pay and Display, if the car park was Pay and Display, I insist that you please provide a PDT machine record from the day, of payments made,

5. Now referring to my draft defence sent on 8th January 2019 points a, b, c, d and e.
• Point a: Failure to respond to SAR means, the claimant has demonstrated unprofessional behaviour and denied myself the opportunity to fully defend the claim.
• Point b: Poorly lit signage (see picture)
• Point c: Car park machine was not working; the claimant has not proven it was working by not providing a PDT machine record (as asked for in SAR).
• Point d: claimant's signage insufficiently clear, in page XX of the claimant witness statement page XX shows a picture of the sign. It has been taken in daylight; it does not prove evidence the sign could have been read in the dark. Page XX of the claimant’s witness statement states the signage is illuminous and would be visible, so for the signage to be clearly readable a vehicle would have to facing the sign with the lights on at the time of the driver being at the ticket machine. Claimant’s PCN shows the vehicle was not facing the ticket machine.
• Point e: claimant’s signage too small font; The famous Beavis case judgement relies upon the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:
Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £XX for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £XX”.

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

I believe the above does not apply to the signage used by the claimant (refer to page 19 of their witness statement), the mention of the charge is hidden in the small print at the bottom of the sign. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read.

Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £70 in the SA1 Waterfront would be a penalty and therefore not enforceable.

Similarly, in the ParkingEye case it can be seen that the car park was a customer only car park from which you may initially conclude that if you park there, but are not a customer, then you need to pay the charge of £XX. However, look a little closer at the wording of the sign. A Judge in the Beavis judgment, at para 193, observed that - “The only comment that one might make, is that, although the signs made clear that it was a “Customer only car park”, the Parking Charge of £XX did not apply to this limitation”. So, even in the Beavis car park if they sue anyone for £XX for parking whilst not being a customer ParkingEye is on a loser. It appears that far from being a deterrent to commuters staying all day, what ParkingEye have created is a car park where they can only gouge genuine customers.
6. 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

I will also include the following evidence …
My email to them with SAR
Picture of envelop used in their reply to me (date stamp show they are over one month from replying),
Email from claimant stating they have replied to my SAR
Picture of poorly lit car park

KeithP

Para 5 should not be referring to a 'draft Defence'. It was only a draft while you were refining it on this forum. Leave out the word 'draft'.

You need to refer to your evidence in your Witness Statement.
For example, if you are using 'Picture of poorly lit car park', then somewhere in your WS you need to say something about the poor lighting with words like 'see exhibit WBnn' - where WB are your initials.

Similarly, where you have 'point e', it could perhaps say something like:

Point e: claimant’s signage too small font - see exhibit WBnn.

You points carry much more weight if you can evidence them - otherwise that sentence is just opinion.

All you paragraphs need numbers. Probably best to replace the bullet points with numbers.

Coupon-mad

It's not long enough.

Here you need to go on to explain where the car was parked, when signs were seen (if any) and what happened:

2. On 26th October 2016, I parked my vehicle registration no {AB 99 XYZ}

You need to tell the Judge what you told us:

In October 2016 the driver parked in a car park in the evening, the car parking machine was not working and the car park was poorly lit. As this happened over 2 years ago the driver barely remembers parking my car in the car park.
The driver received in the post in November 16 a car parking notice from Excel Parking Service Ltd (EPS) saying they owed them £70. The driver decided to ignore the notice.

You need to remove half the stuff you have said about the SAR as that is just an aside, just a line or two, not the focus of the WS. It should be the story of what happened and why you are not liable/why no contract was formed.

Which car park was this at?

Was the car only observed for a minute or two? IPC grace periods apply.

Remove this as it includes slang (e.g. ''on a loser'') and makes no sense to me, or for your case! Slagging off ParkingEye is not part of your WS about a completely different company:

Similarly, in the ParkingEye case it can be seen that the car park was a customer only car park from which you may initially conclude that if you park there, but are not a customer, then you need to pay the charge of £XX. However, look a little closer at the wording of the sign. A Judge in the Beavis judgment, at para 193, observed that - “The only comment that one might make, is that, although the signs made clear that it was a “Customer only car park”, the Parking Charge of £XX did not apply to this limitation”. So, even in the Beavis car park if they sue anyone for £XX for parking whilst not being a customer ParkingEye is on a loser. It appears that far from being a deterrent to commuters staying all day, what ParkingEye have created is a car park where they can only gouge genuine customers.

Did you get photos in the dark or a video that will really show the Judge how abysmally lit the place is/was so that no signs or machines were visible at all? If not, or if you only have one picture, can you get more evidence as the case will turn on this evidence, IMHO.

WelshBoy77

Keith P: thank you for your comments and I will use your suggestion for the evidence.

Coupon Mad

Thank you for your comments and opinion.

Below are the answers to questions you asked …
• Swansea SA1,
• The PCN states the car was parked between 8pm to 8.15pm, while the picture of the vehicle are date stamped 8:08pm to 8:17pm,
• I did not mean to slag off Parking Eye, I have removed the paragraph you highlighted,
• I have a video of the car park I will get my girlfriend to look at it. Is there any way on MSE website I could up load the video?

Everyone: I will post a revised witness statement today, incorporating the points you have raised.

Appreciate the support.

Coupon-mad

I did not mean to slag off Parking Eye

Oh I would, and do every day here! But just not in a WS about another scammer.

The PCN states the car was parked between 8pm to 8.15pm, while the picture of the vehicle are date stamped 8:08pm to 8:17pm,

So a main part of your WS will be denying that the car was parked for more than 10 minutes and pointing out the lack of evidence to the contrary. Their photos in fact show a private ticket issuing unlawfully within the IPC mandatory ten minute minimum grace period (evidence will include the IPC CoP section about the 10 mins).