Please help confirming my witness statement is sufficient

zap99

Hi there,

I've been ferociously reading all the documents in the newbie section, and have compiled this witness statement. Please can you confirm that this is sufficient to submit?

---

To Whom it may concern


I am XXXXXX and I am the Defendant in this matter.
This my supporting Statement in support of my application dated XXX to:
· Set aside the Default Judgement dated XXX as it was not properly served at my current address;
· Order for the original claim to be dismissed.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXXX. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until XXXX when I was attempting to apply for a mortgage. I understand that this Claim was served at XXXX. However, I moved to a new address in XXX.

1.2. On XXX I received a 'Notice of Violation Transfer' from XXX (rental company), informing me of a PCN lodged against one of their hired cars that I was using at the time. This email explicitly informed me not to pay the PCN until I was contacted by the Council. (Article A)

1.3 The PCN sent by XXX (rental company) was addressed to XXX, and not to my name (Article .

1.4. At no time have I received a PCN addressed to me, or any correspondence from XXX

1.5. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to challenge the Claimant’s claim.

1.6. On the XXX (today) I contacted Northampton County Court to find out details of the Default Judgement. The court papers contain limited details of the alleged incident and I was able to find out details of a parking ticket through the online service for XXXXX.

1.7. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.8. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.9. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

2. Order dismissing the Claim

2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.2. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

2.3. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant must comply with Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.4. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

2.5. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.5.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.
2.5.2. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.
2.5.3. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
2.5.4. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to XXX.
2.6. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.
2.7. In order to make informed decisions and statements in my defence as keeper of the vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

Signed

XXXX

Coupon-mad

This is the wrong heading:

To Whom it may concern

You head it up with the court claim number and the parties' names, like you see on any example WS (or defence).

I would not mention this, as it looks like you ignored a PCN, better not to say this at all and just stick with the fact that the parking firm never wrote to you to give you a chance to appeal any PCN:

1.2. On XXX I received a 'Notice of Violation Transfer' from XXX (rental company), informing me of a PCN lodged against one of their hired cars that I was using at the time. This email explicitly informed me not to pay the PCN until I was contacted by the Council. (Article A)

1.3 The PCN sent by XXX (rental company) was addressed to XXX, and not to my name (Article .

Start with:

1. At no time have I received a PCN addressed to me, or any correspondence from XXX about this leased vehicle, and have not had the opportunity to review the facts or appeal any charge.

Then my comments are the same as here:

https://forums.moneysavingexpert.com/discussion/comment/75630865#Comment_75630865

and like in that thread, you need a 6 point draft Order like you see in other set aside threads.

Do you qualify for help with court fees to avoid paying £255? Check online!

zap99

Thank you for the advice - it is much appreciated. This has been a stressful time, and there really is so much information to take in. I will remove the paragraphs mentioned.

Is there a need to separate out the 'witness statement' part (1) from part (2) Order dismissing the claim? Do I need the '6 point draft order' in addition to part (2), or does it replace it?

I understand that this must be incredibly frustrating for you to have to answer the same question over and over, but even having to search the forums is not a simple task. There is so much information to trawl through, and even something like searching 'six point order' requires one to go so several threads to find what you consider to be obvious. I've never felt so stupid in my life!

I've searched and this is an example of a 6 point order that I can find - will this suffice?

DRAFT ORDER

IN THE COUNTY COURT AT: xxxxxx

CIVIL ENFORCEMENT LIMITED (Claimant)

And

MR ********************* (Defendant)


CLAIM No:**********


IT IS ORDERED that:

1. The default judgment dated XX/XX/2015 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on 18/05/18 paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on 25/05/2018.

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

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

zap99

Also, in response to your question about where we're getting this outdated statement:

2.5.2. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

...it's from the first example thread in the CCJ section of the "Newbies" post.

zap99

Lastly, once I've got the N244 form filled in, part 1 - witness statement done, part 2 - draft order done, all multiple copies printed out, do I send all of that with the N244 form?

For box 10 (if necessary, please continue on a separate sheet), can I just leave this blank and send the necessary docs with it?

I'm still a bit perplexed that a service doesn't exist where someone can quickly help fill in these details. It seems like you guys are super knowledgeable here, and at least half the posts are referring to other threads, which contain a large amount of superfluous information, so we end up asking "am I looking at the right thing?"

Anyway, this forum has still been a lifesaver, and I will be submitting this N244 form ASAP.

Coupon-mad

.it's from the first example thread in the CCJ section of the "Newbies" post.

Ooops, someone else just mentioned that too, so I will remove that link asap.

Is there a need to separate out the 'witness statement' part (1) from part (2) Order dismissing the claim? Do I need the '6 point draft order' in addition to part (2), or does it replace it?

You need the 6 point draft order in addition to part 1 and 2, as the former is what it sounds like, a draft of the Order that you are prompting your local Judge to make!

You obviously need to change the two 2018 dates in that Draft Order, they should actually be left partially blank (xx/xx/19) because you want the JUDGE to decide those dates.

Do you qualify for help with fees, on income grounds? Do check, you'd be surprised.

If not, take your N244 etc. to your local County Court and pay by card in person and hand it all over.

I'm still a bit perplexed that a service doesn't exist where someone can quickly help fill in these details.

That would be a solicitor, at a cost...no need, you have us!

zap99

Thank you very much for all your assistance! I filed the N244 and supporting documents and paid the funds today (via email, which was rather convenient). I now just have to wait for my court date and go get this rubbish sorted out.

D_P_Dance

Complain to your MP. On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

zap99

I've received notification that the case is being transferred to my local court, so now it's time to get my defence in order. I've already taken the example ones provided by Bargepole et al, but I'd please like some input in terms of the best angle to adapt.

I visited the site in question today, and the claimant is no longer the operator of the car park. The signs were of similar nature to what they used to be (small, very detailed, ineligible), but in terms of evidence that's going to be tricky.

Additionally, this car park was a case of 'report to reception within X minutes' rather than pay and display etc. There was no clear signage as to where the reception was.

Is this largely irrelevant? Am I best just concentrating on the legibility of the signage and the apparent lack of instruction as to what the driver is supposed to do?

Thanks!

Coupon-mad

It's not time for defence.

You don't submit that until the set aside is agreed at the first hearing.

However it is good to research and draft one, and work out what evidence you will want to put forward, as the Judge will want to be satisfied that you have reasonable prospects of defending the claim.

zap99

Sorry, I just meant it's time to get my defence in order. I don't want to rush it with a day or two to go, and that's why I'm getting it sorted out now.

If I'm correct, I need to take my defence along with me to the set-aside hearing, correct? And the judge considers the witness statement as well as the potential defence and then decides whether or not to set aside judgment?