Witness statement for set aside HELP PLEASE

Bear1234

Should I not mention that I failed to attend the first set aside hearing? Will the judge know about that? Should I remove everything about the debt collection letters entirely. Its difficult to flesh this out. If I get turned down is there any way I can make the debt collection agency only take a nominal sum per month from my disability benefits? Is there any order I should ask for about that? I was told on pepipoo that I need to send the notice of hearing application to the other side so I'm becoming confused (what's new)

Bear1234

If I have to send that is it to ukcpm or Gladstones? Also how much do I now owe you for your legal advice?

Coupon-mad

Should I not mention that I failed to attend the first set aside hearing? Will the judge know about that?

Maybe not (there are lots of Judges at larger courts) so why not just explain it, only if asked about it, and hand over your MIND advocate's letter explaining your mental health condition and the brain fog and panic that the condition causes, which is a protected condition under the Equality Act 2010 for which 'reasonable adjustments' must be made...and hopefully the court agrees.

It would be a harsh Judge who wouldn't and this is worth you trying. Carry on!

If I get turned down is there any way I can make the debt collection agency only take a nominal sum per month from my disability benefits?

Yes you must take evidence of your income and tell the Judge about your difficulty. No debt agency is involved though, this is the Claimant's case - CEL.

I was told on pepipoo that I need to send the notice of hearing application to the other side so I'm becoming confused (what's new)

I am not sure you do, as surely the hearing date was set by the court and they are meant to tell both you and CEL. Set aside hearings are very common, happen every day with parking firms around the country, and we never tell people to send a copy of the N244 to the PPC scumbag.

Also how much do I now owe you for your legal advice?

I don't give legal advice. I am not legally qualified, I am just an ordinary volunteer poster here with no legal qualifications. You owe me nothing at all. This forum is free.

Bear1234

Regardless of qualification, you seem very qualified to me. I cannot thank you enough. If I win, I will most certainly stick around to point people in my situation towards how I dealt with my case.

Coupon-mad

Good to hear that. Worrying about it won't help, so relax and let your mind rest!

nosferatu1001

C-M - It was SOuthpaw who pointed out the notice must be given, and gave the CPR reference. So this should certainly be done

Essentially if you DONT tell them you are applying for a set aside, they can object to it, setting aside the set aside...

OP - please send the forms off as directed by Southpaw, who IS legally qualified.

Bear1234

I have tried and tried to condense my defence, but it is still 6 pages long, not sure what to do as I've got to send this all off.

IN THE COUNTY COURT
CASE No. :XXXXX
Between
UK CAR PARK MANAGEMENT LTD
(Claimant)
-and-
XXXX
(Defendant)
________
DEFENCE
________
I XXXX, am the defendant throughout and deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

1. It is admitted that at the defendant was the keeper of the hire vehicle which is the subject of these proceedings at a date in 2017. It is not admitted that the I was driver, nor passenger, nor parked in this area on any date at all. Furthermore the defendant is a current Blue badge holder, and as such, if was going to park anywhere near this area, could have done so using this entitlement. In fact, could have parked in the adjacent street on double yellow lines quite legally. Therefore it is beyond the realms of reality that that the defendant would have risked such a penalty.`

2. The defendant has no liability, as 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.
2.1 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 the defendant on 21st Sepetember 2017 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 the defendant with copies of any of these documents.

1.2 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 the defendant 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).

2. No evidence that the defendant 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 defendant throughout, 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.
2.2 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) the defendant has personally not complied with terms in place on the land and show that the defendant is personally liable for their parking charge. They cannot.
For this reason alone, the Court may reasonably determine that UKCPM has no valid claim against the defendant, and I believe that this alone is grounds to have to have the claim entirely struck out.

3. 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.
3.1 The defendant also disputes that the Claimant has incurred £50 solicitors costs to pursue an alleged £100 debt.
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.
3.2 The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service. Given a standard working week, the claimant’s solicitor can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant, generating over £1.5 million a year in profit.

Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, also the unexplained rise from £100 to £160 from the original PCN, this is essentially an attempt at more than double charging which is expressely disallowed.

3.3. The Defendant has the reasonable belief that the Claimant has not incurred such exorbitant costs to pursue an alleged £271.04 debt. Notwithstanding the Defendant's belief, the costs are in any case not recoverable. No indemnity costs or damages have been incurred, I dispute that any debt collection 'fees' have paid by this Claimant. It is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.
The Claimant cannot say if it is pursuing the Defendant as keeper or driver. If persuing the driver no evidence has been brought. The Claimant claims an unsubstantiated £271.04 for ''Parking Charges/Damages'' despite the fact parking charges cannot be claimed as damages except by a landowner as a remedy for trespass.

4. UKCPM are not the lawful occupier of the land. The defendant has 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 the defendant resonably believe this falls under. The defendant has 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.

5. The claimant failed to include 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 which says;
“If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”

6. The Claimant 'UK Car Park Management Limited' has failed to comply with the requirements of Civil Procedure Rule 16.4. Its sparse particulars, and their single-page Letter Before Claim was no more than an aggressive demand, designed to intimidate and mislead the defendant, rather than narrow the issues or provide any specific detail.

7. This Claimant has failed to set out the basis of the claim - trespass or contractual breach? It has not specified how the sum sought represents any fee, charge, costs or damages incurred - nor evidenced that any contract existed or was breached - hence the Defendant is having to attempt to cover all possibilities, with no fair opportunity to make an informed response.

8. Upon a telephone call to request for further details - The Claimant merely sent a photograph of the back of the vehicle, with no date or time stamp, a small, illegible sign in the background, and scant other details, no copies of letters, or evidence. In the email correspondence sent by the claimant to the defendant, the claimant also states the ‘Unauthorised Parking’ of the vehicle was at XXXX on XXXX The defendant was not the registered keeper of this vehicle on this date.

9. ParkingEye Ltd v Beavis is distinguished.
ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim, due to the completely different facts, including but not limited to:
The signage is not clear and legible, the veichle must be parked, and exited in order to read the alleged contract.
There are no signs warning morotists upon entry, and the car park is a dual wash facility offering all day car washing, therefore motorists are entering and parking sporadically around the site.
There was no parking licence or offer, no consideration flowed and there was no contract capable of being breached.
The Claimant has failed to prove standing or authority from the landowner.

9.1 It was confirmed by the Supreme Court that ParkingEye Ltd could only recover the £85 parking charge which more than covered all costs of the automated business model of a parking firm and was heavily weighted for profit. It was held that a parking firm not in possession could not recover any sum at all in damages, but the Supreme Court were willing to impose a penalty as allowable only in the unique context of that particular retail site of commercial value. In that case, the signs were 'unusually prominent' and clear - both upon entry to the site and throughout - with the parking charge in the largest lettering with a free parking licence being offered and accepted under contract, giving rise to a sum being payable by patrons who overstayed.

9.2. Conversely, in the present case there was no agreed contract. It is apparent to the Defendant that a driver would not have had any chance to read the very small terms on a sign inside this location without first entering and indeed parking. Especially one with dual and confusing usage as a car washing facility.
Much confusion by drivers must ensue surely. The Defendant avers that the business model utilised at this site is predatory, punitive, unauthorised by the landowner and operates contrary to the IPC Code of Practice.

9.3. It is the Defendant's belief that even if the CPM sign was considered readable from a car parking at the material time, the terms are prohibitive. The wording is at best - if readable and prominent - capable of forming a contract with permit-holders only, because all others are forbidden to park and threatened with an unrecoverable penalty. Unlike in the Beavis case where a free licence to park was offered, then breached, in this case no consideration, no contractual parking licence (nor any offer at all of anything of value to a driver) was extended to non-permit holders.


10. Wholly unreasonable and vexatious claim. It is submitted that the conduct of the Claimant in operating a predatory model with what appears to be deliberately scarce signage, then intimidating the Defendant with misleading threats- including that of 'Debt collectors' in the pre-action stage before pursuing this claim, is wholly unreasonable and vexatious.

11. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed:

Date:

Bear1234

Should I include paragraph 6 in my draft order? I don't want to prompt Gladstones to turn up, but I do want to make these valid points to the judge in case he doesn't read my currently rubbish defence...

IN THE COUNTY COURT OF XXXX
Claim number XXXX

BETWEEN:
UK CAR PARK MANAGEMENT
Claimant
-and-
XXXX
Defendant


DRAFT ORDER

Upon reading the Defendant's application dated XXXX

It is ordered that:

1. The default judgment dated XXXX be set aside.

2. All enforcement be put on hold pending the outcome of the application.

3. Consideration be given to strike out the claim entirely, if the court is minded to do so.

__________________________________________________ ___________________

Witness statement of XXXX for Judgement entered to be set aside.


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

Set aside the default judgment against me as :
1. 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.

2. I suffer from multiple mental health conditions. I am currently diagnosed with Borderline personality disorder, Depressive Disorder, Anxiety disorder, Conversion disorder, and have severe Dissociation/depersonalisation. (This is a mental process where a person disconnects from their thoughts, feelings, memories and sense of reality. This includes dissociative amnesia and dissociative fugue.) I am also waiting to be assessed for ASD, and have currently started a new medication used for treating Bi Polar.

3. I also suffer from congestive cardiac failure due to Post partum cardiomyopathy. This conditon makes me suffer with extreme exhaustion.

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 they were sent back to me stating that they were received outside the 14 day time permittance.

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 conditions I suffer with, plus 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 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.

3.The claimant instructed Gladstones Solicitors to claim in respect of an unpaid parking charge notice dated XXXX, they increased the amount due from £100 to £160 without any reasoning as to how the sum had increased so drastically. It was then increased to £271.04 following the Judgement. 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 siezing 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. 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 for it in any way.

5. As a Blue Badge holder I could have parked quite legally in the adjacent street if I had been the driver, or a passenger, thus it is nonsensical that I would have risked such a penalty.

6. Upon further research I am of the belief that UKCPM cannot under law hold me liable as driver as I was not, and was sick in bed at the time. The claimant may seek to rely on the case of Elliot v Loake, but this finding was based on the provision of forensic and other evidence, none of which can be presented here. Furthermore, PATAS and POPLA Lead Adjudicator and Barrister, Henry Greenslade clarified that with regards to keeper liability, "There is no reasonable presumption in law that the keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015) Nor can they indeed hold me liable as the hirer keeper, as UKCPM failed to issue the required enclosures under para 4- 13 & 14 of the POFA with the PCN. This voids all keeper liability. I am therefore not liable for this debt.

7. Considering the above I was unable to defend this claim at the time. I am now on a new medication which has made me more stable, and I feel that I can now mentally and adaquately cope with defending this case.

8 .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 think that's fine to leave in.

Remind me, did you not have to pay the £255 fee at all?

Bear1234

No, I'm on disability so don't have to pay x