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Witness Statement for PCN
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contactramemail
Posts: 13 Forumite
Hi All,
Need help with witness statement, any input is much appreciated.
Background: I had visited a friend and parked the car in visitor car park in March 2018. After 2 months I received Debt recovery notice on behalf of UKPCM, for which I replied and said it was illegal to server the notice since they don't have contract and sent the supporting letter from the tenant. Debt recovery company again responded re-inforcing the charge, they didn't provide any information. For which I wrote again asking to provide the clients address and asked them share the appeal to their client(UKPCM), also requested to provide personal information with respect to GDPR from them and thier client, but didn't receive any response. After couple of months recieved LBC from Gladstones, which I discarded. Towards end of Dec 2018 received Claim from Gladstone, with the help of a friend and this wonderful forum I had acknowledged, submitted defence and also submitted counter claim of 1500£. I had sent a formal SAR request to UKPCM which they have ignored (40days). Finally court has scheduled for hearing and asked for witness statement and documents by 1st May. WIth the help of the forum, I have drafted the witness statement, really appreciate review and feedback. Also do I need to provide counter claim evidence as part of the witness statement?
==Witness Statement ===
I am X, of XXX, and I am the Defendant in this matter, and will say as follows.
Attached to this statement is a paginated bundle of documents marked NR1 to which I will refer.
1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.
2. I confirm that I am the Registered Keeper of the vehicle in question on the March 2018 and thereafter date.
3. I confirm that my vehicle was parked in a bay belonging to XXX. The vehicle was parked there by invitation from the tenants residing at this address at the material time.
4. It is denied that the Defendant was the driver of the vehicle. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.
a. In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).
b. It is averred that the claimant has failed to do this on numerous points
c. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.
i. The claimant may seek to rely on the findings of Elliot V Loake (1982) in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.
5. It is denied that the windscreen notice was ever attached to notify me of this alleged contravention on that particular day or any further direct notice from the claimant. I was served debt recovery notice from “Debt Recovery Plus Ltd” dated 15th May 2018. (Exhibit A – Notice).
6. Despite being a genuine visitor to the building, with permission granted to use the relevant parking bay, a Debt Recovery Notice was issued to the keeper after 2 months. As a courtesy sent an appeal to “Debt Recovery Plus Ltd” to instruct their client to withdraw the charging notice and provided the letter of support from tenant (Exhibit B1 and B2 – Appeal against Notice). For my appeal “Debt Recovery Plus Ltd” replied dated without providing any information I requested. For which I again responded and requested to provide Claimants details, personal information they and the claimant hold, for which they never responded.
7. As the claimant has repeatedly failed to clarify the nature of the claim, the defendant has assumed that it relates to an alleged breach of contract.
8. Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (Exhibit C – Tenancy Agreements) that exists between the tenant and their landlord extends to the use of the specified parking space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage. The tenant’s contract makes no assertion that a permit must not be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so (Exhibit C - pages xyz). The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.
a. Regarding signage: the defendant argues that there was no signage visible to the drivers entering the parking space in situ at the time of the alleged parking contravention and woefully insufficient in conveying the terms of any alleged contract, particularly the most onerous, i.e., the £100 penalty.
b. Exhibit - D demonstrate that there are no signs of parking notice for the drivers while entering the parking by the driver.
c. On this matter, the defendant defers to the ruling of 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 alleged breach of parking terms were clear – both upon entry to the site and throughout.
i. The residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkyingEye distinguished.
9. I contend, therefore, that the tenant’s agreement provides an unfettered right to park in their assigned bay for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit D), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
10. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and tenants are unaware of any such vote having been passed by the residents, including myself which I was resident of the Flat1 for 5 years till Aug 2017.
11. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would notify tenants of the existence of any contract between the property management company and provide the parking permits to the tenants, here most of the tenants have never received any permits (Exhibit E – Witness Statements from Tenants).
12. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to residents and their legitimate visitor.
13. I did, at all material times, park in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.
14. My vehicle clearly was 'authorised' as per the lease and primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.
15. The claimant may argue that I parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit F), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.
16. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit D) as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.
17. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
18. This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.
19. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule (Exhibit F)
I believe that the facts stated in this witness statement are true.
Defendant
Signed
Counter Claim:
I also counter-claim the amount of £1500.00
The amount consists of
£100 for trespass at a level that the claimant has!already!determined to be reasonable
£100 for tortious interference with the quiet enjoyment of!my!friends property
£500 for tortious interference in our already difficult!personal!circumstances. No money can compensate the distress!caused by the claimants unlawful actions.
£500 as expenses towards my effort to prepare and respond to!notices sent by claimants respondents for last 8 months.
£300 in accordance with the Data Protection Act 1998 Section for!unlawfully obtaining and processing my personal details in a!manner likely to result in damage or distress
The claimant obtained my details from the DVLA database in breach!of its Keeper at Day of Event contract that it must have a reasonable cause.
Ignoring my request to claimants respondents in accordance with!GDPR2016/18 to give me the details about how they illegally!obtained my personal data, details of data storage location and!security of my personal data, and how my personal data was!processed.
Need help with witness statement, any input is much appreciated.
Background: I had visited a friend and parked the car in visitor car park in March 2018. After 2 months I received Debt recovery notice on behalf of UKPCM, for which I replied and said it was illegal to server the notice since they don't have contract and sent the supporting letter from the tenant. Debt recovery company again responded re-inforcing the charge, they didn't provide any information. For which I wrote again asking to provide the clients address and asked them share the appeal to their client(UKPCM), also requested to provide personal information with respect to GDPR from them and thier client, but didn't receive any response. After couple of months recieved LBC from Gladstones, which I discarded. Towards end of Dec 2018 received Claim from Gladstone, with the help of a friend and this wonderful forum I had acknowledged, submitted defence and also submitted counter claim of 1500£. I had sent a formal SAR request to UKPCM which they have ignored (40days). Finally court has scheduled for hearing and asked for witness statement and documents by 1st May. WIth the help of the forum, I have drafted the witness statement, really appreciate review and feedback. Also do I need to provide counter claim evidence as part of the witness statement?
==Witness Statement ===
I am X, of XXX, and I am the Defendant in this matter, and will say as follows.
Attached to this statement is a paginated bundle of documents marked NR1 to which I will refer.
1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.
2. I confirm that I am the Registered Keeper of the vehicle in question on the March 2018 and thereafter date.
3. I confirm that my vehicle was parked in a bay belonging to XXX. The vehicle was parked there by invitation from the tenants residing at this address at the material time.
4. It is denied that the Defendant was the driver of the vehicle. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.
a. In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).
b. It is averred that the claimant has failed to do this on numerous points
c. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.
i. The claimant may seek to rely on the findings of Elliot V Loake (1982) in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.
5. It is denied that the windscreen notice was ever attached to notify me of this alleged contravention on that particular day or any further direct notice from the claimant. I was served debt recovery notice from “Debt Recovery Plus Ltd” dated 15th May 2018. (Exhibit A – Notice).
6. Despite being a genuine visitor to the building, with permission granted to use the relevant parking bay, a Debt Recovery Notice was issued to the keeper after 2 months. As a courtesy sent an appeal to “Debt Recovery Plus Ltd” to instruct their client to withdraw the charging notice and provided the letter of support from tenant (Exhibit B1 and B2 – Appeal against Notice). For my appeal “Debt Recovery Plus Ltd” replied dated without providing any information I requested. For which I again responded and requested to provide Claimants details, personal information they and the claimant hold, for which they never responded.
7. As the claimant has repeatedly failed to clarify the nature of the claim, the defendant has assumed that it relates to an alleged breach of contract.
8. Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (Exhibit C – Tenancy Agreements) that exists between the tenant and their landlord extends to the use of the specified parking space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage. The tenant’s contract makes no assertion that a permit must not be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so (Exhibit C - pages xyz). The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.
a. Regarding signage: the defendant argues that there was no signage visible to the drivers entering the parking space in situ at the time of the alleged parking contravention and woefully insufficient in conveying the terms of any alleged contract, particularly the most onerous, i.e., the £100 penalty.
b. Exhibit - D demonstrate that there are no signs of parking notice for the drivers while entering the parking by the driver.
c. On this matter, the defendant defers to the ruling of 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 alleged breach of parking terms were clear – both upon entry to the site and throughout.
i. The residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkyingEye distinguished.
9. I contend, therefore, that the tenant’s agreement provides an unfettered right to park in their assigned bay for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (Exhibit D), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
10. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and tenants are unaware of any such vote having been passed by the residents, including myself which I was resident of the Flat1 for 5 years till Aug 2017.
11. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would notify tenants of the existence of any contract between the property management company and provide the parking permits to the tenants, here most of the tenants have never received any permits (Exhibit E – Witness Statements from Tenants).
12. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to residents and their legitimate visitor.
13. I did, at all material times, park in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.
14. My vehicle clearly was 'authorised' as per the lease and primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.
15. The claimant may argue that I parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit F), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.
16. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit D) as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.
17. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
18. This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.
19. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule (Exhibit F)
I believe that the facts stated in this witness statement are true.
Defendant
Signed
Counter Claim:
I also counter-claim the amount of £1500.00
The amount consists of
£100 for trespass at a level that the claimant has!already!determined to be reasonable
£100 for tortious interference with the quiet enjoyment of!my!friends property
£500 for tortious interference in our already difficult!personal!circumstances. No money can compensate the distress!caused by the claimants unlawful actions.
£500 as expenses towards my effort to prepare and respond to!notices sent by claimants respondents for last 8 months.
£300 in accordance with the Data Protection Act 1998 Section for!unlawfully obtaining and processing my personal details in a!manner likely to result in damage or distress
The claimant obtained my details from the DVLA database in breach!of its Keeper at Day of Event contract that it must have a reasonable cause.
Ignoring my request to claimants respondents in accordance with!GDPR2016/18 to give me the details about how they illegally!obtained my personal data, details of data storage location and!security of my personal data, and how my personal data was!processed.
0
Comments
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So what's your counter claim for then........0
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If that’s your Witness Statement it’s too late to file a counterclaim.
If it’s your Defence (assuming you’ve not already sent any form of defence to the court already) then it shouldn’t have any attachments or detailed references to prior court cases. You need to look at the example of a ‘concise defence’ as provided in the NEWBIES FAQ sticky, post #2 by legally qualified and forum regular bargepole and adapt your case around that.
If you are at defence stage, then that’s the correct time to issue a counterclaim - but you must also pay the counterclaim fee with your defence. For £1,500 you pay £70. If you don’t pay it at this time, it’s completely disregarded.
https://www.gov.uk/make-court-claim-for-money/court-feesPlease note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Thanks for your quick responses.
@umkomaas - I have already submitted defence statement and counter claim and I have paid fee for the same. Now I have been asked to submit witness statement with bundle. I posted above the witness statement based on the Johnersh & also bargepole post.
@BrownTrout - Counter claim was submitted as part of acknowledgement of the claim. As descried at the end of the first post.0 -
You may win your case but your counter claim will fail0
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Thanks again for the quick response. I had difficult personal circumstance's, I have medical records and have witness to highlight the impact their notices had. Do I need to provide those evidences as part of witness statement and do I need to mention it in the witness statement now?0
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Sorry to say but they have no relevence to this.0
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any feedback on the witness statement will help0
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Did you pay a fee for the supposed counter claim? Forget that bit (remove the below) but I hope you didn't pay a fee - it's your friend's property so you have no case for trespass or tortious interference with property that isn't owned by you.Counter Claim:
I also counter-claim the amount of £1500.00
The amount consists of
£100 for trespass at a level that the claimant has!already!determined to be reasonable
£100 for tortious interference with the quiet enjoyment of!my!friends property
£500 for tortious interference in our already difficult!personal!circumstances. No money can compensate the distress!caused by the claimants unlawful actions.
£500 as expenses towards my effort to prepare and respond to!notices sent by claimants respondents for last 8 months.
£300 in accordance with the Data Protection Act 1998 Section for!unlawfully obtaining and processing my personal details in a!manner likely to result in damage or distress
The claimant obtained my details from the DVLA database in breach!of its Keeper at Day of Event contract that it must have a reasonable cause.
Ignoring my request to claimants respondents in accordance with!GDPR2016/18 to give me the details about how they illegally!obtained my personal data, details of data storage location and!security of my personal data, and how my personal data was!processed.
#4 denies you were the driver. NEVER LIE IN A COURT STATEMENT!
You then say in #13:
ooops...I did, at all material times, park in accordance with the terms granted by the lease.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks, I will amend 4.0
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Remove #4 entirely if defending as driver:4. It is denied that the Defendant was the driver of the vehicle. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.
a. In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).
b. It is averred that the claimant has failed to do this on numerous points
c. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.
i. The claimant may seek to rely on the findings of Elliot V Loake (1982) in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.
Once that and the counter claim have gone, your WS and evidence cases look good.
Can any tenants attend with you as witnesses, otherwise their statements have less evidential value?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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