Help with witness statement

El_Tortuga

Hi Everyone,

I had my day in court last week on Thursday against Gladstone. They’re trying to get nearly £900 out of me for unpaid parking charges. I didn’t receive any witness statement from them and didn’t prepare one myself. They have given me 14 days to write one which I’m in the process of doing right now.

Going over the newbies page and looking at what I should detail and bring can anyone else advise anything else I should take to the hearing?

I have detailed my initial defence below.

In the County Court Business Centre
Claim Number:

Between:


Parking Control Management (Claimant)

v!

(Defendant)



DEFENCE


Preliminary


1) The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.


1.1. The Claimant has stated that a ‘parking charge’ was incurred.


1.2. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.


1.3. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.


2) The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to fully engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background

3) It is admitted that at all material times the Defendant was the registered keeper of the vehicle which is the subject of these proceedings. He was also driving the vehicle at the time but denies any contravention or agreement on the parking charges.!

4) It is admitted that on the material dates, the Defendant's vehicle was parked at the location stated. This followed verbal consent from a member of staff at Shell Garage Holloway that “they would be authorised to park their car there” while the defendant carried out his.....

5) This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

6)It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.

7)It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.!


7.1. It is not admitted that the Claimant has contractual or other lawful authority to make contracts, specifically by offering parking to non-permit holders at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.!


Failure to set out clear parking terms

8) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.


9) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.!


9.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;!


9.1.2. The signage did not comply with the requirements of the Code of Practice of the International Parking Community's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and


9.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3


9.2 In this case neither the Claimant, nor their principal, the landowner, is offering anything to motorists who do not have a permit. The Defendant avers that the sign - in fact, not seen by the driver due to outside line of sight placement and lack of signage on the entrance - creates a prohibition against parking without a permit. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Driver.


9.3. Even if the Court finds that a non-permit holder should have seen a sign and was a trespasser, this is a matter of tort whereby (as confirmed in the Beavis case and also by the 2012 Guidance Notes relating to Section 56/Schedule 4 of the POFA) only the landowner themselves would be potentially able to pursue damages. In Beavis, this was because Parking Eye were not in possession and thus unable to pursue damages, one of the same difficulties this Claimant faces, yet they lack the 'legitimate interest/commercial justification’ reasoning that disengaged the penalty rule for Parking Eye given the unusual and case-specific facts in the Beavis case.


10) This operation at this location is predatory, with minimal/misplaced signage designed not to be seen from inside a vehicle once parked, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.


11) The concept of the fairness of a contract must be considered in every case (Consumer Rights Act 2015). and was considered by District Judge Iyer in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017. The Judge held that 'the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice' which the parking operator had not; the same difficulty this Claimant faces.

13. The Claimant, or their legal representatives, has added an additional sum of £60 to each of the original £100 parking charges, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.!

14. It is denied that the Claimant has any entitlement to the sums sought. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably ..... the Defendant avers that this inflation of the considered amount is a gross abuse of process.

15. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.!

16. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have been afforded the opportunity to consider it.

I believe that the facts stated in this Defence are true.!



………………………………………………………. (Defendant)!

……………………… (Date)

El_Tortuga

I will be relying on the basis of my argument that I had been given permission to park at the garage by the manager of the time. He’s since not working there any more so there’s no possibility of me getting a witnesss statement from them. I have a witness statement and reference from the charity that I was working from at the time confirming that I was working there. I have also printed off the following ;

d) a copy of Schedule 4 of the POFA - there is a link to it in post #1 above. The Judge will NOT have this to hand & is unlikely to be familiar with it. This is only applicable if you are defending as keeper.
(e) a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability' if defending as keeper.

KeithP

El Tortuga, why have you abandoned your existing thread and started a new one?

Why didn't you bother to follow the process described to you in the NEWBIES thread?

Your were directed towards the NEWBIES thread in your earlier thread.

El_Tortuga

I’ve had my iCloud account deleted I’m and subsequently unable to log into any website using that email address. To make matters worse I’m unable to log into my Gov website also as that was set up using the old email.. So with my previous ticket had to go back to my old address, wait for the county judgment and just pay it.

This case is from last year. The judge and Gladstone’s now have my correct address.

I’m aware it’s annoying when people start a new thread I just don’t have a choice, sorry.

Coupon-mad

I had my day in court last week on Thursday against Gladstone. They’re trying to get nearly £900 out of me for unpaid parking charges. I didn’t receive any witness statement from them and didn’t prepare one myself. They have given me 14 days to write one which I’m in the process of doing right now.

If you'd prepared one, and file & served it you might have won then, as only your side would have been supported by a WS and evidence. You missed a trick, you don't just turn up to court relying on a defence.

Anyway your defence looks decent, so show us your WS draft, and among your evidence you will need this transcript:

Pace Recovery v Lengyel, case C7GF6E3R

as mentioned in your defence.

Your WS will just have to talk about the permission you had to park, and you can say that you are prepared to swear on oath if the court wishes, to aver that you had permission to park there due to your work.

In your evidence show proof of the work and dates, if you can.

KeithP

El_Tortuga wrote: »

I’m aware it’s annoying when people start a new thread I just don’t have a choice, sorry.

Of course you have that choice.

You started this thread.
You could've just as easily posted a reply on your existing thread.

Le_Kirk

Here is your existing thread. https://forums.moneysavingexpert.com/discussion/5978026/bw-legal-northampton-business-centre

El_Tortuga

Apologies, shall I delete that one?

Le_Kirk

Send a PM to a board guide, Crabman, Savvy or Soolin and ask them to merge the threads.

El_Tortuga

This is what I have so far ....I’m sure none of it may be relevant in my case?


Witness statement

>.................Claimant)

-and-

************ (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, ****************** of **************, *********, ***********, **** *** am the defendant in this case.

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

2. 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 as already filed.

3. I assert that I am the registered keeper of the vehicle in question in this case. I was the driver on the occasions mentioned when I parked in the Garage forecourt. As I was friendly with the manager at the time of parking, I would go in there and purchase coffee and snacks as I was doing a 4 hour voluntary shift at the charity sane, across the road. It’s on these occasion that I was given permission to park there by the staff of the garage.

5. The claimant states that the defendants vehicle was captured by the claimants ANPR system having parked in the car park for longer than the maximum stay period permitted.

6. The Claimant appears to be attempting to change their particulars of claim without filing the appropriate form nor paying the Court the necessary fee for this; so I object to this Witness Statement. For the first time they now state the breach is ‘having parked for longer than permitted’

7. This Claimant should never have issued to a registered keeper, a document described as a ‘liability notice’ (LN) because they were not availing themselves of any right to ‘keeper liability’. This right is offered under statute to parking operators and landholders, ONLY if they comply with Schedule 4 of the POFA 2012, which Excel admit they do not. Under the applicable BPA Code of Practice at the time, a LN was a document only for cases where an operator could hold a keeper liable under the POFA. This LN was contrary to DVLA rules which prohibit misleading keepers as to whether they are the liable party. Excel knows this.

8 . I contend that they stopped using LNs in late 2014 and/or that any issued are ultra vires.

9. In fact I take issue with their claim that they sent LNs in 2015 or 2016. The Claimant moved to the IPC Trade Body on 1.1.2015 and had stopped issuing ‘LNs’ by then, since they chose to continue NOT to issue ‘POFA’ PCNs and were aware this risked a DVLA ban for misleading keepers re liability for non-POFA PCNs. Now, this Claimant seeks to bring me to Court as if I am liable for non-POFA PCNs!

10. The claimant submits that the images of the car park and signs in exhibit AD3, specifically specifically detail the terms and conditions of parking and the consequences of failing to comply with said terms and conditions. The claimant claims the map and photographs are a true representation of the signs.

11. This is denied, not least because the map is undated and the signs in 2014 would have been completely different from those in 2015, due to the fact this Claimant moved to the IPC Trade Body on 1.1.15. The new signs from that date would have involved a completely different basis for the ‘parking charge’ since Excel started to follow the ‘IPC line’, that charges were not for breach of contract but were now a ‘fee’ for parking otherwise than in accordance with some terms on an IPC sign. It was not just a matter of covering the ‘BPA’ icon with an IPC sticker. Signs were physically changed in January 2015 at all Excel car park sites. The Claimant has omitted to mention this crucial difference to the Court.

12. I did not respond to the brightly-coloured alarmist Notices sent to me by Excel because I believed they were spam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway

13. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit IL1, an extract from the POPLA Annual Report 2015.

14. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

15. It is submitted that the main reason that the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on each occasion). In the absence of such notices, there is no cause of action. It is noted that, at #43, the Claimant admits they ‘never acquired any right’ to hold me liable and indeed scrutiny of Schedule 4, Exhibit IL2 proves the Notices were not worded accordingly.

16: The claimant states that they “served the defendant with the relevant notices; however the defendant failed to provide a response. Therefore the claimant has had no alternative but to issue proceedings against the defendant.

17. Issuing Notices in accordance with paragraph 8 of Schedule 4 is in fact impossible, since paragraph 8 merely deals with NTKs which follow a PCN placed upon a car windscreen. Paragraph 8 does not deal with those notices issued by ANPR, as the Claimant described. Neither did this Claimant comply with paragraph 9 (at all), nor the requirement for ‘adequate notice’ of the charge.

18. It is in the public domain that when the POFA 2012 Bill was being heard in the House of Commons, Lynne Featherstone MP was vocal in rejecting calls to amend Schedule 4 (section 56 of the Bill) after considering lobbying by the BPA trying to impose a statutory obligation. Parliament refused.

19. The claimant states that the statement in their particualrs of claim which refers to “a parking charge notice” was a genuine administrative error, but they do not address any of the other inadequacies in their POC that were brought to their, and the courts, attention in my initial defence.

20. I found it odd when I received and acknowledged the court papers that this Claimant could bring a claim against me without actually referring to anything specific - just a range of dates - it did not even say how many PCNs they were talking about. Nor did it inform me that the period spanned a time when they changed from the BPA to IPC, changed the signs, changed their Code of Practice, nor did this Claimant furnish me with any evidence nor even a description of the alleged contravention(s).

21. I was never shown the alleged signage contract photos (not even the original ‘PCNs’ showed the purported signs. As registered keeper, I never saw the ‘contract’ they are trying to hold me liable for, until this WS where they have sent some photos, not defining which were BPA - 2014 version - and which were 2015 IPC signs, and an aerial map which is no proof of the signs on those days.

22. The Claimant is again trying to change their Particulars of Claim without payment of the appropriate court fee or filing the required form. I object to these attempts to change woeful particulars which expose the robo-claim nature of their copy & paste claims. Gladstone’s issues tens of thousands of claims per month.

23. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim

24. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.

25. I did not even know the dates they were referring to or how many incidents until I got the court bundle. I wonder how I am supposed to know what I am defending.

26. I hope that I am not going to be ambushed on the day (or late) with reams of lists where any omission could just as well be evidence of their own repeated (well known) machine failure to record a VRN, as was recorded in two Excel cases recently, Excel v Ms C (Stockport) C8DP36F0 and Excel Parking v Mrs S. C8DP11F9 09/09/2016, Oldham Court - Exhibit IL3 is the transcript for the latter case. This transcript is provided despite me having no idea whether the Claimant plans to amend their particulars to adduce that there was a failure by the driver(s) to input a VRN. I am having to cover all possible scenarios known in Excel claims, due to the lack of information and evidence.

27. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

I believe the facts stated in this Defence Statement are true and will swear an to such.


……………………………………………………………………�
�…. (add name and sign)
………………………

Coupon-mad

at the charity sane,

Capital letters for SANE.

Most of that is irrelevant to your case. That WS is LITTERED with mentions of Excel, so much so that I thought your defence was against Excel Parking.

It's not though...

You need to re-write some facts about what PCM did, if this is PCM. For example they normally issue predatory PCNs in minutes, with no grace period allowed, and yet your WS has not mentioned this, or the IPC CoP on grace periods.

#5 and #6 are repetition, so remove one. And are you sure they are trying to change their story/claim, surely the PCN was always for 'staying longer than permitted?

#7 - #9 are pointless as you have admitted to being the driver.

Same for #12 - #18 - all pointless if you are admitting to being the driver, as you have.

#27 is irrelevant.