Witness statement for set aside HELP PLEASE

Bear1234

Hello,
I know I have messed up very badly and it's now at this stage purely because I failed to deal with it properly, or at all in fact previously. I suffer with multiple health and mental health issues and it's hard enough for me to perform basic tasks, let alone deal with things like this, so I know you may not think I deserve any help because I left it get to this stage, but if there is anyone who wouldn't mind just looking at this quickly and letting me know what they think is really appreciate it. My exhibits aren't all listed yet, apologies.

Background - hire car, I wasn't driving, didn't know anything about it until I got the postal PCN, it was aimed at the driver which wasn't me so I ignored. Clearly I am in a 'do or die' stage and I'm desperately trying to fight this now. I only have a few days before I have to send this off.
Thank you in advance for any help you can offer at all.

IN THE XXX COUNTY COURT
CLAIM NO: XXXX

UK CAR PARK MANAGMENT
(CLAIMANT)
-AND-
XXXX
(DEFENDANT)
____________________________________

WITNESS STATEMENT OF XXXX
____________________________________

I, XXXX WILL SAY AS FOLLOWS:

“I, XXX of XXX am the defendant in this case.

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.

I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement.

I am an unrepresented consumer who has never attended the county court to defend myself as a lay person before.

I had no knowledge of the events, or signage terms on the date in question.

1. On the XXXX I received a PCN naming myself as the driver, which I state that I was not, asking for payment of £100 for 'Unauthorised parking' (Exhibit A)

2. It is admitted that I was the hirer keeper of the vehicle in question at the time of the alleged incident..However I am stating that I had no knowledge that the vehicle had been used on the day in question, I cannot be presumed to be the driver in the absence of any evidence.
The claimant has produced no evidence I was the driver. indeed, as a Blue badge holder, if I had been driving I could have parked quite legally in the adjacent street.
The claimant also failed to state in the parking charge notice that the creditor does not know both the name of he driver and a current address for service for the driver.
It just wrongly presumes, and names me as the driver.

3. On the date and time in question I was not well as I suffer from physical, and multiple mental health issues. I was confined to my bed suffering from an espisode of severe deep depression, and exhaustion from my physical condition. I rarely leave the house, if I do then I make use of my blue badge.

4. I have no liability, as I was the hirer Keeper of the vehicle, and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 Schedule 4.
The issued PCN does not notify in any way myself as the keeper that UKCPM have a right to recover costs from the keeper.
b) I submit that the claimant’s parking charge notice does not comply with PoFA S4, 9.2
(d), (e) and (f)
(e I enclose PoFA 2012 S4, (Exhibit as evidence to support these points.

5. In order to be able to rely upon POFA to claim unpaid parking charges from a vehicle’s hirer, a private parking company must deliver a Notice to Hirer that fully meets the strict requirements of Schedule 4 of POFA.
UKCPM'S Parking Charge Notice (“PCN”) issued to me on XXXX failed to comply with these strict requirements and UKCPM has therefore forfeited any right to hold me liable for this PCN in the capacity as the vehicle’s hirer.
The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA, with Paragraph 14 setting out the conditions that the Creditor must meet in order to be able to hold the hirer liable for an unpaid parking charge.
Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; b) a copy of the hire agreement; and c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as registered keeper)).

UK CAR PARK MANAGEMENT did not provide me with copies of any of these documents.

Furthermore, UKCPM has failed to comply with Paragraph 14 (5) of Schedule 4, specifically Paragraph 14 (5) (b) which requires that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that UKPCM did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, UKPCM failed to provide me with much of the information that was required to be included in the Notice to Keeper under Paragraph 9 (2).
No evidence that the appellant is the individual liable – No Driver Liability
The operator has not shown that the entity who it is pursuing is in fact the driver who may have been potentially liable for the charge.
In cases with a hirer appellant, yet no POFA 'hirer liability' to rely upon, the claimant must first consider whether they are confident that they know who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person as long as the driver is insured.
In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as they are entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a hirer without a valid NTK.
As the hirer of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the hirer and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.
The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.
For this reason alone, the Court may reasonably determine that UKCPM has no valid claim against me, and I believe that this alone is grounds to have to case entirely struck out.

6. In this case, the car park has a dual use as an all day car washing facility. Cars are entering, and parking sporadically around the site to wait for their car to be washed.

7. No contract is offered. The driver did not enter into any agreement . No consideration flowed between the two parties and no contract was established as after reviewing the signs, as far as I am aware the wording in this location forbids 'non permit' parking, therefore there is no offer to park, and therefore a contract cannot be entered into.

8. The signage also fails to warn motorists that they are entering private land and would be issused with a PCN, as after visiting to assess the signage, there are no signs on the entry point to the land whatsoever. (Exhibit C)
Regardless of the fact that no contract was offered, the signage inside was inadequate to form a contract with the motorist because the terms are barely legible, making it difficult to read without parking the vehicle and exiting in order to read. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which UKCPM is a member), clearly states that “Text 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.”
As can be seen from the attached photographic evidence (Exhibit D) this is not the case.

9. I recieved one photo of the rear of the car, it does not have a date and time stamp on it. There is no photographic evidence, as far as I am aware, of the front of the car, particularly the full view of the windscreen to show whether a permit is present or not.

10. The claimant failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1

11. On the XXXX and the XXXX I received a further demands from a debt recovery company on behalf of UKCPM, I have no evidence that the debt collection agency were paid any amount by UKPCM for collection. This caused me significant distress, and was detrimental to my mental health, as I was being harrassed for something I was not responsible for. I became scared and did not respond, as I did not want to implicate myself as being involved in any way.

12. On the XXXX I attemped to dispute the claim when it came to my attention that the claimant was initiating court proceedings, but due to not understanding how to proceed due to having never been in a situation like this, and my mental health causing me to break down rather than attempt to defend in an adaquate and timely manner, I was 10 days late submitting the court papers issued. Thus it was rejected and a defult judgment entered against me.


13. I deny that the driver would have agreed to pay the original demand of £100.

14. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the alleged contract which it is alleged was broken have not been provided.

15. The Claimant has at no time provided an explanation how the sum has been calculated, or how the amount has climbed from £100 to £160. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. No figure for additional charges was agreed nor could it have formed part of the ‘alleged’ contract because no such indemnity costs were quantified on the signs Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not.
I also dispute that the Claimant has incurred £50 solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable in the small claims court.
The claimant described the charge of £50 as ‘legal representative's costs’ not ‘contractual costs’ CPR.14 does not permit these to be recoverable in the Small Claims Court.

16. UKCPM are not the lawful occupier of the land. 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 rights to bring this case. 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. As a third party agent, the Claimant may not pursue any charge under the tort of Trespass, which I resonably believe this falls under. 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.
46. I would like to point out that as this car park does not offer a free parking period the ParkingEye v Beavis and Wardley case does not apply (ParkingEye v Cargius case)


Statement of Truth

Coupon-mad

The issued PCN does not notify in any way myself as the keeper that UKCPM have a right to recover costs from the keeper.

Are you SURE?

UKCPM NTKs normally do have, just under half way down the front page, a paragraph talking about the fact that, if within 28 days beginning with the day after the date served they do not know the name & address of the driver and the charge remains unpaid, they will have the right to recover from you (the keeper - or hirer if they are being clever) so much of the parking charge that remains unpaid.

I think you need to look at other set aside threads and see the 6 point draft order and Witness Statement people make, about why they didn't receive (or maybe in your case, due to illness, have an opportunity to handle) the Claim form in time.

Yours reads like a defence and is not what the Judge really wants to hear about in a set aside hearing. Primarily, the Judge will want to be satisfied about the things listed here:

https://forums.moneysavingexpert.com/discussion/comment/74864199#Comment_74864199

Have you checked online to see if you qualify for waived court fees on income grounds? Lots of people do, me included now as I work part time.

Bear1234

Thank you souch for your reply!
No, it definitely only mentions the driver.
"You are advised that if, after the period of 28 days beginning with the day after that on which this notice is given has not been paid in full, we have the right to recover from the driver so much of that parking charge amount that remains unpaid" Nothing about the keeper at all haha!
Fees have been waived, so that's OK.
I know it reads somewhat like a defence, but I am worried that the woefully inadequate N244 form I sent back is not going to cut it. I am only just now starting to understand how any of this works as I have started a new bi polar med, and am starting to function better.
I've read hours and hours of these threads and I'm struggling to find anything relevant to my specific failure haha, I cry. I really need the lack of documentation being served to me as the hirer to be seen by the judge because that in my opinion is a winner. Should I write a witness statement and separate defence? Do I need to send both of these to Gladstones? Does this all have to be sent 14 days before? I know I sound like a complete moron, but I honestly have looked and I have so many other things going on, as well as having a toddler at home full time that I've resorted to staying up all night trying to read up and write something that will get this gone. Court is on the 18th

Coupon-mad

No, it definitely only mentions the driver.
"You are advised that if, after the period of 28 days beginning with the day after that on which this notice is given has not been paid in full, we have the right to recover from the driver so much of that parking charge amount that remains unpaid" Nothing about the keeper at all haha!

And you are neither, as you were not driving and were just the hirer = not liable because they will have failed to issue the enclosures required under para 13 & 14 of the POFA.

Fees have been waived, so that's OK.

Good, a no brainer to do this set aside application, then!

Should I write a witness statement and separate defence?

Yes.

Did you only send back a basic N244 and no WS for now? Your WS should be in the first person and explain only, why the case should be set aside and why you satisfy the requirements for that to happen (explained in the linked thread I showed you where a poster spelt out what the Judge wanted to actually hear and see evidence about).

Separately write a defence draft, summarising for yourself in bullet points, what your actual defence is based on, because if the Judge is minded to set this CCJ aside, he/she will then want just a brief overview of your defence, just to know you have prospects of success.

Then (after the set aside, if agreed, and almost all are if you say the right things) a full hearing for the actual claim will be set. And then you get to defend the claim itself.

As you have a letter setting a date for the set aside, has the Judge asked for your WS in advance? If not, just take it with you along with proof that you had no opportunity to deal with the claim...

...how are you going to evidence that? If the claim arrived, how will you explain that?

Bear1234

Shall I post pictures of the PCN with certain info covered to see whether it fails pofa para 4?

Bear1234

I only sent a basic form back saying - I wasn't a driver no passenger. No contract. Absence of keeper liability.
Dual use facility. The sum claim is a penalty and an attempt at double recovery. The Claimant has not provided enough PoC. I am a blue badge holder and its nonsensical that I would park there. Am I !!!!!!ed?

I haven't been asked to send anything in advance but I thought it was standard proceedure to send all I am submitting to both the judge and Gladstones? If so would there be a time frame?

Should I ask my mind advocate if he would write a letter of evidence about my mental health or is the not answering going to flunk me out. I'm kicking myself now I see how easily I could have seen this off had I of known how to deal with it, and not been in a mess.

Coupon-mad

Bear1234 wrote: »

Shall I post pictures of the PCN with certain info covered to see whether it fails pofa para 4?

Yes if you like.

Host it in Dropbox as we can all access that, and change the URL to break it such as remove the http or put gaps in.

Don't reply saying you can't post links...see above...

I only sent a basic form back saying - I wasn't a driver no passenger. No contract. Absence of keeper liability.
Dual use facility. The sum claim is a penalty and an attempt at double recovery. The Claimant has not provided enough PoC. I am a blue badge holder and its nonsensical that I would park there. Am I !!!!!!ed?

No, and after all, this application has cost you nothing to get this to a hearing re the set aside.

Can your MIND advocate attend with you, or can they contact the court by phone on your behalf and ask if the court has volunteers who help people like yourself organise themselves, their paperwork and their thoughts on the day? Some courts do.

I haven't been asked to send anything in advance but I thought it was standard procedure to send all I am submitting to both the judge and Gladstones?

No, you are getting muddled up with the normal defence procedure when there has been no CCJ.

In your case you've told us this is a set aside hearing so you do not send a defence to court or to Gladstones (you send nothing to them prior to this hearing).

Should I ask my mind advocate if he would write a letter of evidence about my mental health

100% DEFINITELY, yes, if your reason to set aside the CCJ is because: ''whilst the claim form arrived, I could not have reasonably been expected to act more quickly, and need a reasonable adjustment of time to handle this due to my 'protected characteristics' under the Equality Act 2010 disability provisions.''

If you are to convince the Judge that you could not reasonably have been expected to have defended the claim, you WILL need a letter from your MIND advocate and he/she should reference the Equality Act and your 'protected characteristics' which are the reason why you were not quick to grasp this claim.

You also need your own WS that explains why you couldn't deal with the claim when it arrived. Do not start adding defence points into that simple WS. Do a separate defence.

I don't know if this will work for you but please try, and remember that the WS is not your defence, it is just about why the CCJ should be set aside as you had no fair opportunity (given your mental health condition) to act sooner.

Bear1234

Thank you so so much for your help! I will attempt to re-jig everything tonight and tomorrow night. Its a massive weight off my mind knowing that I don't have to have things done by Friday! Is it OK to post things for opinions again please? I will certainly post any positive outcomes in order to help people in my situation fights these gits! Should I add anything about ignoring the debt collectors? I clearly ignored them because they only deserve to be ignored, it's where I failed to file the court forms in time that I messed up I believe.

Bear1234

This is what I've put together now, any critique would be so gratefully appreciated.



WITNESS STATEMENT OF XXXX
FOR JUDGMENT ENTERED TO BE SET ASIDE
__________________________________________________ ___________________

WITNESS STATEMENT

1. I AM XXXX and I am the defendant in this matter. This is my supporting statement to my application dated XXXX requesting to:

a. Set aside the default judgment against me as :
Whilst the claim form arrived, I could not have reasonably been expected to act more quickly, and need a reasonable adjustment of time to handle this due to my 'protected characteristics' under the Equality Act 2010 disability provisions.

b. And consideration be given to order for the original claim to be dismissed.

DEFAULT JUDGMENT

1. I understand that the Claimant obtained a Default Judgement against me as the Defendant. I did return the court papers on the XXXX but it was sent back to me stating that it was received outside the time permitted.
I was unaware that Court hearing would happen without me being in attendance.
I was extremely distressed as I did not understand anything about this legal process. I spent countless hours trying to research into it, and compile an extensive defence. Due to the stress of the situation, my hyper focus on reasearching consuming my mind, and the medication I am prescribed causing me to have consistant brain fog and unintentional forgetfulness, I failed to note the extremely short time period I had to respond and as I had also sunk into a deep depressive state due to being utterly overwhelmed by the situation.

2. When I received the judgement I immeadiately called the CCBC who instructed me to file a N244 which I proceeded to do with haste. Unfortunately I missed the date for the hearing dated XXXX due to becoming overwhelmed and slipping into a deep depressive episode whilst trying to compile an even more extensive defence (not realising that this was not nessessary for a Set Aside hearing) I did not think I would get the chance to be granted a second hearing, and I am extraodinarily grateful to be given this chance to plead my case.

3.The claimant instructed Gladstones Solicitors to claim in respect of an unpaid parking charge notice dated XXXX, they increased the amount due from £160 to £271.04 without any reasoning as to how the sum had increased so drastically. They then passed it to direct collections bailiffs limited, who further increased the sum to £361.04
This caused me severe breakdowns in my mental health as I do not have the funds to pay such ever increasing sums. And I have been living in fear of Bailiffs coming to my home and ceasing my possessions. I have been completely unable to deal with the situation as my mental health conditions cause me to shut down. I rarely leave the house, and spend long periods bed bound and unable to cope with life in any way, let alone deal with a situation such as this alone. I attempted to seek help from CAB but they were unable to offer me any legal assisstance on how to proceed.

4. The parking charge notice that I received wrongly named me as the driver, with no mention of any keeper liability, thus I did not respond as was I not the driver, and to my mind I was not responsible in any way.
Upon further research I have found that UKCPM can under law neither hold me liable as driver nor indeed as keeper. I am therefore not liable for this debt.

5. Considering the above I was unable to defend this claim at the time. I am now on a new medication prescribed for Bi Polar which has made me more stable, and I feel that I can now mentally and adaquately cope with defending this case.
I strongly believe that with the evidence that I have now gathered and compiled that I have a seriously robust case in my defence against UKCPM. I ask that I am given the chance to defend myself correctly now I am in possession of all the facts, understand the legal process, and am more able to cope mentally. I believe that UKCPM have no case against me, and fully intend defend myself if this set aside is granted.
I thus believe that the Default Judgement against me should be set aside and I ask the Court to stay the Judgment to avoid it being recorded against me.



Statement of Truth

I, XXXX, the Defendant, believe the facts stated within this Witness Statement be true.

Signed:

Coupon-mad

I was unaware that Court hearing would happen without me being in attendance.

No hearing happened about the case itself. So remove that. The case was never heard, you lost by default by not defending in time - an automatic exercise that you are now trying to overturn, to be allowed a fair opportunity to defend it as intended.

OK, I see you are saying you missed a first set aside hearing but again, that didn't take place either, as no-one attended it, did they?

I did return the court papers on the XXXX but it was sent back to me stating that it was received outside the time permitted.

Take that proof with you - prove you DID try your best to defend this.

Upon further research I have found that UKCPM can under law neither hold me liable as driver nor indeed as keeper. I am therefore not liable for this debt.

You are neither, as you were not driving and were just the hirer = not liable because they will have failed to issue the enclosures required under para 13 & 14 of the POFA. So say that, in those words.

Say NOTHING about deliberately ignoring any letters, not even debt letters.

I am not sure if the Judge will be able to set it aside on this basis as normally it's for cases where no claim was served. But it's worth you attending, and trying this avenue.

Take a letter from your MIND advocate (and get them to ring the court tomorrow to ask if you can have a volunteer with you to help organise your papers and stay calm (some courts offer this sort of advocacy but don't wait till the day!).

Bear1234

Not feeling very hopeful about all this, and I've been trying and typing until my fingers are bleeding probably all for nothing. I've searched and searched for anyone who has been in this position and I've honestly found nothing. I surely cannot be the first.
I will take the returned court papers with me.
No, Gladstones did not attend the first one. I think my letter to the judge must have swayed them into allowing me a second chance, which I was surprised about.