UPDATE - CASE WON Preparing for court - Witness Statement queries

helencooke01

Hi all

I have a court date in July (Gladstones are the claimant on behalf of PCM) and am struggling with a few issues around the Witness Statement that I'm hoping someone can assist with?

I have spent a lot of time reading the Newbies thread over the last few months and have searched so much on the forum that my head is swimming.

I am responding to the claim as the Registered Keeper rather than the driver. The driver was my husband (no secret to this, and PCM/Gladstones are aware). However as no NTK was received I was not able to advise PCM that I was not the driver and so I am now being pursued as the Registered Keeper. I am happy to attend court but my husband is not willing to attend - is this allowed?

In regards to the Witness Statement, do I need to submit 1 from myself and 1 from my husband?

Thanks in advance

Helen

KeithP

Whoever is listed as the Defendant on the Claim Form must defend the claim.

There is no obligation on any other witness to attend, the Witness Statement does carry more weight if the witness attends too.
It is easy for the statement of a non-attending witness to be dismissed as hearsay.

Umkomaas

Have you sent a SAR to the PPC to ask for all personal data they hold about you and the VRM of your vehicle including letters sent to you. You need to see if the NtK is PoFA compliant before trying to get the driver in the cross hairs.

bargepole

helencooke01 wrote: »

Hi all
In regards to the Witness Statement, do I need to submit 1 from myself and 1 from my husband?

You are the Defendant, and only you are required to file and serve a WS.

It might contain a paragraph along these lines:

The Claimant is seeking to hold me liable as the Registered Keeper, pursuant to Schedule 4 of the Protection of Freedoms Act 2012 ("POFA"). However, the legislation only applies in circumstances where a parking operator does not know the identity of the driver. I have previously informed both the Claimant, and their legal representatives, of the name of the driver at the material time, and exhibit a copy of an email message sent to the Claimant on [DATE] as Exhibit AB1. Consequently, the Claimant has no cause of action, and the claim must fail for this reason alone.

helencooke01

Thanks for the quick responses.

To clarify, I did send a SAR to PCM and it showed that they sent 2x letters to me. I did not receive either of these letters (the first communication I received was a debt collection letter) but apparently this doesn't matter to PCM as they can prove they printed the letters! They can't prove they posted them but this doesn't seem to be important from what I have read.

I have cited failure to comply with POFA as the first part of my defence as notice was not 'given'.

Do I still only need to send 1 WS?

Thanks

Helen

bargepole

helencooke01 wrote: »

Do I still only need to send 1 WS?

Yes, just your WS. I thought that was made clear in my previous response, and don't understand why you would think otherwise.

helencooke01

Hi

I didn't know if your guidance would change based on my providing further information around why Gladstones/PCM are pursuing me as the Registered Keeper. Clearly not.

I always seek clarification if I'm not sure of something as I'd rather ask twice and get it right.

Thanks

Helen

Coupon-mad

Keep going Helen - bargepole is a legend and has advised you well.

As long as you are the Defendant, show us your draft WS and evidence and we'll suggest changes that might assist.

helencooke01

Hi Coupon-mad, thanks. My WS is attached below and I would appreciate any comments etc.

I have 1 other query - on 30th May I have received a reply to my defence and full Particulars of Claim from Gladstones. They were also meant to send any evidence that they are going to reply on in Court, but have included nothing. Should I highlight this or wait for it to get to the hearing as they have failed to comply with the Judge's directions?

Thanks

Helen

helencooke01

IN THE COUNTY COURT AT XXXXX

CLAIM No. XXXXX


Between:

Parking Control Management (UK) Limited (Claimant)

- and -

Mrs XXXXX (Defendant)

__________________________________________________ __________________________________
WITNESS STATEMENT – Mrs XXXXX
__________________________________________________ __________________________________

1. Preliminary

1.1 I, XXXXX, of XXXXX am the Registered Keeper in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

1.2 Attached to this statement is a paginated bundle of documents marked HP1, HP2 etc., to which I will refer.

1.3 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.

1.4 The claim refers to a parking incident involving vehicle XXXXX on 9th May 2018 at the location of Whittle Square, Gloucester.

1.5 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 already submitted.

2. Sequence of Events

2.1 On 9th May 2018 my husband parked my vehicle XXXXX in the parking complex at Whittle Square, Gloucester, near Domino’s Pizza.
2.2 The vehicle was parked in an area commonly used for parking, behind another parked car. The vehicle was in no way contravening any Highway Regulations, and was parked safely without obstructing or obscuring any vehicular traffic. As such, I believe that my husband parked my vehicle responsibly and legitimately within a designated parking bay.
2.3 My husband was parked for less than 10 minutes before returning to my car and leaving Whittle Square.

2.2 Almost 3 months after this occurred, I received correspondence from Trace Debt Recovery UK Limited (letter dated 24 July 2018) demanding “OUTSTANDING PAYMENT” for “parking charges”. I Immediately contacted Trace to ascertain to what the letter referred, as this was the first communication I had received and the letter was very vague.
2.3 Communications with Trace, Parking Control Management (UK) Limited and Gladstones ensued and despite my efforts at mediation and offering to pay the initial £60 charge this was rejected. An appeal to IPC was also rejected despite my assertion that PCM (UK) Ltd had failed to comply with the Protection of Freedoms Act (POFA) 2012. See Exhibit HP 1, Exhibit HP1A.
2.4 The distinctly threatening and aggressive correspondence continued as the Claimant has pursued an entirely unreasonable and vexatious process designed to deny any reasonable opportunity for explanation or appeal process, which has led to the Court action now. I respectfully suggest that parking companies using the Small Claims track as a form of aggressive, automated monetary demand against motorists is not something the Court should be seen to support.

3 The Parking Bay

3.1 On entering Whittle Square, my husband looked for an available parking space close to Domino’s Pizza. He identified the area in question as suitable for parking based on the points listed below.

3.2 There is no raised kerb to restrict access to this area from the highway. See Exhibit HP2

3.3 There are no road markings, such as yellow lines, adjacent to this area to indicate this is not a parking bay. See Exhibit HP2

3.4 The area in question is in common usage as a parking bay and indeed my husband parked behind another vehicle. Over the past few months I have recorded numerous vehicles using this parking space, to demonstrate it is in common use as a parking bay. See Exhibit HP2

4. Grace Period

4.1 My husband was parked for, according to PCM, a period of 8 minutes. The photos provided in PCM’s SAR response cover just over a period of 1 minute. The Parking Charge Notice appears to be in contravention of the IPC Code of Practice which states that a grace period must be allowed for a driver to locate signage, go up to it, read it and then decide whether to accept the terms or not. See Exhibit HP3, Exhibit HP3a.


5. Inadequate Signage

5.1 On entering Whittle Square, my husband did not see any signage from my vehicle clearly indicating the parking restrictions. When my husband parked my car, there were no signs adjacent to the space, or in the vicinity that could possibly be read from my vehicle. I believe that in the case of “Vine vs London Borough of Waltham Forest” the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they have not seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no signage directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle when parking, as in the case here. See Exhibit HP3, Exhibit HP3b

5.2 The signage in place at Whittle Square is difficult to read. A key factor in the case of “ParkingEye vs Beavis” was that the relevant signs were “large, prominent and legible so that any reasonable user of the car park would be aware of their existence and nature” and that “the charge is prominently displayed in large letters and at frequent intervals within it”. That is not the case here. See Exhibit HP4

5.3 The signage does state that “Vehicles must park fully within the confines of a marked bay”. My normal understanding of a “marked bay” would be the use of white painted lines to indicate the bay, as in the adjacent area. See Exhibit HP 5

In this case, the “bays” appear to be defined using contrast paving, but the use of the same colour and style of paving for the whole of this area, as indicated in Exhibit HP6, did not in any way suggest to my husband that he had parked in anything other than a parking bay.

5.4 Upon later investigation, I believe the signage and operating practice of the Claimant in use at Whittle Square fails the Claimant’s own accredited parking operator scheme (The Independent Parking Committee (IPC)), on the basis that the signage on entering the site “should make it clear that the motorist is entering onto private land” and include a very large “P” to alert the motorist to the fact that the signage relates to parking restrictions. There is no “P”, however sized, on the signage in use. See Exhibit HP 7

5.5 The IPC guidelines state that text on signage ‘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.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read and impossible to read from a vehicle.
5.6 Having visited the site numerous times recently I have noted that the signage both at the entry to Whittle Square and in place around the location have changed since 9th May 2018. There is additional and revised wording and images. It is my belief that this is an attempt to redress the deficiencies and ambiguous nature of the previous signage. See Exhibit HP7. Further alterations include the addition of steel bollards to restrict vehicular access and the addition of painted markings to identify emergency access. See Exhibit HP8

5.7 The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’. The fact that there is no signage around this area and that it is known that other motorists use this area as a legitimate parking bay (see Exhibit HP2), I would question that the Claimant is deliberately obscuring this fact to generate spurious Parking Charge Notices solely for financial gain.

6 Declaration

I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

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


Signature

Coupon-mad

on 30th May I have received a reply to my defence and full Particulars of Claim from Gladstones. They were also meant to send any evidence that they are going to reply on in Court, but have included nothing.

Surely the date for WS has not yet passed, as you are still working on yours? They have done an interim reply in legalese, to scare and intimidate weaker people into feeling the Claimant has a better case than they do. It's all smoke & mirrors.

In your WS do NOT mention offering to pay £60.

It does you no favours and does not have to be declared and quite possibly that correspondence was on a 'without prejudice' basis (which means offers cannot be discussed at the hearing except when it comes to the matter of costs for the losing party at the end, when a party can pipe up and say ''well...we offered to settle at £xx and they refused'').

But you are looking to win the case, so no letting the Judge think you admit part of the claim at sixty quid, because you DON'T.

In this section you should not call this parking, call it 'loading activity for no more than a couple of minutes' and point out that there were no lines & signs prohibiting normal loading/unloading (e.g. would need double red lines, or hatched lines, or double yellows with yellow kerb blips and signs specifically addressing LOADING, not just parking, which means leaving a vehicle stationary on land for a period of time):

2.1 On 9th May 2018 my husband [STRIKE]parked[/STRIKE] briefly stopped my vehicle XXXXX in the parking complex at Whittle Square, Gloucester, near Domino’s Pizza.
2.2 [STRIKE]The vehicle was parked in an area commonly used for parking, behind another parked car.[/STRIKE] The vehicle was in no way contravening any Highway Regulations, and was [STRIKE]parked[/STRIKE] only temporarily stopped for a couple of minutes, safely without obstructing or obscuring any vehicular traffic.[STRIKE] As such, I believe that my husband parked my vehicle responsibly and legitimately within a designated parking bay.[/STRIKE]
2.3 My husband was [STRIKE]parked for less than 10 minutes before returning to my car[/STRIKE] collecting a pre-ordered item which meets the definition of loading in the Traffic Management Act, Traffic Orders and Highway code, and he had no reason to think that [STRIKE]and leaving[/STRIKE] Whittle Square was not governed by the usual rules of the road, or that it was privately managed, or that any loading ban applied because there were no such signs & lines.

And here, do NOT admit to EIGHT minutes as they've made that up and have no evidence:

[STRIKE]My husband was parked for, according to PCM, a period of 8 minutes.[/STRIKE] The photos provided in PCM’s SAR response cover just over a period of 1 minute.