UPDATE - CASE WON Preparing for court - Witness Statement queries

helencooke01

Hi Coupon-mad

Thanks for the speedy response, really appreciate it.

Coupon-mad wrote: »

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.

According to the Notice of Allocation to the Small Claims Track these are the dates to be adhered to:

3. The Claimant do by 30 May 2019 file and serve a reply to defence with full particulars of claim.

4. By 30 May 2019 the CLAIMANT must send to the Court and to the DEFENDANT copies of all the documents he intends to rely upon at the final hearing. These must be in a bundle with each page clearly numbered. The Claimant MUST bring the originals of those documents to the final hearing.

5. By 6 June 2019 the DEFENDANT must send to the Court and to the CLAIMANT copies of all the documents he intends to rely upon at the final hearing. These must be in a bundle with each page clearly numbered. The Defendant MUST bring the originals of those documents to the final hearing.

6. By 20 June 2019 the CLAIMANT and DEFENDANT must send to the Court and to each other, copies of their own witness statements and those witness statements of all the witnesses they intend to rely upon at the final hearing.

So I have interpreted that as Gladstones should have sent all their exhibits, evidence etc by 30 May? Have I read it incorrectly?
Interestingly there is another case on here previously for the same location (Whittle Square) where the judge ordered the evidence and WS returned at different dates.

Coupon-mad wrote: »

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.

Unfortunately before I discovered any advice existed on the Internet I entered into correspondence with Trace (the debt collection company) offering to pay the £60 as I genuinely wanted the issue to go away. When this failed I also raised a case with the IPC as PCM had not allowed me any chance to appeal and had also failed to deliver the Notices to me. I also corresponded with PCM and Gladstones so there is a fair amount of evidence that I did offer to pay the £60.
Following this we then visited the location and realised the signs were unclear and sparse, no road markings, other people parking there on a regular basis etc etc and realised that actually being issued a PCN was unfair and we shouldn't be paying anything.
I'm worried that if I don't address this issue then Gladstones will and it will make me look like I'm deliberately omitting information, I don't want the Judge to think that I'm being dishonest.
Do you think it's okay to omit all that information?

Coupon-mad wrote: »

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):


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

Thanks, I will update with all these changes.

Helen

Coupon-mad

So I have interpreted that as Gladstones should have sent all their exhibits, evidence etc by 30 May? Have I read it incorrectly?

No, you are right - that is great! So your WS first of all points out that the Claimant has failed to meet the court directions and you are prejudiced in replying because you have not seen a shred of evidence they intend to rely upon.

Obviously file & serve your full WS & evidence anyway, and in time, to score points...

Ask in your WS (or in a covering letter if it reads better in your file, and looks less cluttered) that the Judge strikes the claim out for abuse of process, vacates the hearing and grants your costs on the indemnity basis.

Explain that this is due to the 'wholly unreasonable and vexatious conduct' of the Claimant, whose sparse particulars were nothing like enough to sustain a claim under any rule of law, and that their continued disregard for the Defendant and court, plus the fact the PCN was a predatory one based on ONE MINUTE of photos and no grace period allowed to even read the signs, which breaches the IPC Code of Practice and the Consumer Rights Act regarding transparency of terms and the doctrine of good faith, should be viewed as meting the bar for unreasonableness.

Enclose in your lovely ordered file, a COSTS SCHEDULE with your hours spent so far, maybe ten hours, at the Litigant in Person rate of £19 per hour, plus postage costs and paper/printing costs, then 'provisional travel and loss of leave/salary costs in the event of a hearing' as a second section.

That way you have filed your costs in 2 parts and can ask the Judge to grant the first part of those costs 'on the indemnity basis'. This MUST be justified by you saying how the Claimant has met the high bar for unreasonableness. Do a list, like here, it could earn you a couple of hundred pounds if the judge is convinced by your list:

https://forums.moneysavingexpert.com/discussion/comment/75807521#Comment_75807521

so there is a fair amount of evidence that I did offer to pay the £60.

I already explained why that CANNOT be mentioned at the hearing, not by you and not by them! So don't mention it AT ALL. Please re-read what I said about WP offers.

helencooke01

Hi Coupon-mad

Thanks, I have re-read your earlier post and digested it, sorry in my haste earlier I didn't fully understand the point about 'without prejudice'. I have removed those areas from my WS and where they were linked into my evidence.

Where there are points about the Traffic Management Act etc, do I need to reference the relevant parts of these documents in my evidence?

I have also redrafted my WS as you suggest and also drafted a covering letter asking the Judge to strike out the claim.

Both are below and I would be most grateful for any further feedback.

Thanks

Helen
______________________________

WS Cover Letter

IN THE COUNTY COURT AT XXXXX

CLAIM No. XXXXX


Between:

Parking Control Management (UK) Limited (Claimant)

- and -

Mrs XXXXX (Defendant)

__________________________________________________ __________________________________
WITNESS STATEMENT COVERING LETTER – Mrs XXXXX
__________________________________________________ __________________________________


To Whom It May Concern
The Notice of Allocation to the Small Claims Track (Hearing), dated 14 May 2019, clearly states that:
‘By 30 May 2019 the CLAIMANT must send to the Court and the DEFENDANT copies of all the documents he intends to rely upon at the final hearing. These must be in a bundle with each page clearly numbered. The Claimant MUST bring the originals of those documents to the final hearing’.
To date the Defendant has not yet received any such documents from the Claimant and so the Defendant would respectfully request that the Judge strikes the claim out for abuse of process, vacates the hearing and grants the Defendant costs on the indemnity basis.
This is due to the 'wholly unreasonable and vexatious conduct' of the Claimant, whose sparse particulars were nothing like enough to sustain a claim under any rule of law, and their continued disregard for the Defendant and court. In addition to this the PCN was a predatory one based on ONE MINUTE of photos and no grace period allowed to even read the signs, which breaches the IPC Code of Practice and the Consumer Rights Act regarding transparency of terms and the doctrine of good faith. The Defendant requests that the Claimant’s behaviour should be viewed as meeting the bar for unreasonableness.
There are a number of features that when present together might mean that costs should be granted on an indemnity basis.

These being:
1a) The failure to supply information that has been requested.
1b) A failure to properly set out a case in respect of liability pre-litigation.
1c) An unwillingness to discuss the case and narrow issue.
1d) A claim that is unreasonably made and without merit.
1e) A failure to follow the standard Small Claims track directions

Any denial of bad practice and unreasonable behaviour by the Claimant is just that, not fact as has been evidenced to the court. Based on the above the Defendant will be seeking their costs (CPR Rule 27.14(2g) on an indemnity basis due to the unreasonable and vexatious stance of a UK CPM Ltd. Please see below a breakdown of costs.
________________
Updated WS

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 an 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 briefly stopped my vehicle XXXXX in the parking complex at Whittle Square, Gloucester, near Domino’s Pizza.
2.2 The vehicle was in no way contravening any Highway Regulations, and was only temporarily stopped for a couple of minutes, safely without obstructing or obscuring any vehicular traffic.
2.3 My husband was 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 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.
2.4 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”. This was the first communication I had received on the matter and the letter was very vague.
2.5 Due to the lack of any correspondence from PCM (UK) Ltd and the fact that notice was not ‘given’ they have clearly failed to comply with the Protection of Freedoms Act (POFA) 2012. See Exhibit HP1.
2.6 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 loading space close to Domino’s Pizza. He identified the area in question as suitable for stopping 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 stopped briefly behind another vehicle. Over the past few months I have recorded numerous vehicles using this space, to demonstrate it is in common use as a parking bay. See Exhibit HP2

4. Grace Period

4.1 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 briefly stopped 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 stopped 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

Date

Coupon-mad

That's good.

Sign the covering letter separately from the WS, as a separate page, and hand the letter in separately and ask the court usher to put that letter and your costs schedule (part 1, the bit claiming £19 per hour LiP and postage/printing costs, pre-hearing) in front of the Judge this week, urgently because the Claimant has not complied and the hearing should be vacated, you believe, under the court's case management powers (and not at any cost to you, no need for you to pay or formally apply because the Judge has already made an order).

You need to understand that the TMA and Highway code only apply to ON STREET Council parking rules, and that if this goes to a hearing the Claimant's rep will try to pooh-pooh it as irrelevant.

But the point you are making is that to a circumspect driver, Whittle Square looks like public road, not private land, and a driver would reasonably conclude that (in the absence of loading ban signs & lines) that loading is exempt activity and is not 'parking'.

This is a useful summary rather than delve through the TMA or Highway Code:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695793/operational-guidance.pdf

Read and print off page 44 and 45, and highlight the parts in p44 about observation time (not just one minute then) and p45 about loading/unloading being exempt activity.

The point is a Judge might be swayed by what the 'proper' rules are and agree with you that it is reasonable to conclude loading/unloading is allowed unless otherwise indicated.

helencooke01

Coupon-mad wrote: »

That's good.

Sign the covering letter separately from the WS, as a separate page, and hand the letter in separately and ask the court usher to put that letter and your costs schedule (part 1, the bit claiming £19 per hour LiP and postage/printing costs, pre-hearing) in front of the Judge this week, urgently because the Claimant has not complied and the hearing should be vacated, you believe, under the court's case management powers (and not at any cost to you, no need for you to pay or formally apply because the Judge has already made an order).

You need to understand that the TMA and Highway code only apply to ON STREET Council parking rules, and that if this goes to a hearing the Claimant's rep will try to pooh-pooh it as irrelevant.

But the point you are making is that to a circumspect driver, Whittle Square looks like public road, not private land, and a driver would reasonably conclude that (in the absence of loading ban signs & lines) that loading is exempt activity and is not 'parking'.

This is a useful summary rather than delve through the TMA or Highway Code:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695793/operational-guidance.pdf

Read and print off page 44 and 45, and highlight the parts in p44 about observation time (not just one minute then) and p45 about loading/unloading being exempt activity.

The point is a Judge might be swayed by what the 'proper' rules are and agree with you that it is reasonable to conclude loading/unloading is allowed unless otherwise indicated.

Hi Coupon-mad

Thanks, this is really useful.

I've sorted out part 1 of the costs schedule and added it to my WS covering letter. My evidence has to be in by 6th June (Thursday) so I'm going to hand deliver it to court on Wednesday morning along with the cover letter/pt1 costs schedule.
Probably a really silly question but I wasn't planning on sending a copy of the WS covering letter to Gladstones as I don't want to alert them to their error - is this okay?

Thanks for the link - I'll have a read through and print off the relevant section to include in my file.

Helen

helencooke01

Update: I have just phoned the Court to see what time they open on Wednesday and was 'interrogated' by a very abrupt gentleman who told me that the Court is unable to take hand delivered evidence etc, they do not have facilities for that and that I need to either email or post my documentation.

I told him that I knew of other people who had hand-delivered their documents to the same court and he said 'they're not supposed to'.

Should I press on and hand-deliver? I was 100% confident in my mind, and based on the guidance on the forum, that this was the right thing to do, but now I'm not sure!

Thanks

Helen

Umkomaas

I'd carry on with the hand delivery, and if it's a problem on arrival, explain that you've neatly bundled and itemised it to enable a busy Judge to more easily and efficiently read through your submission.

In terms of emailing it, usually there is a 'page limit' (50 pages?) on how much a court will print, so if your bundle is greater than the print limit, explain that as a further reason for the hand delivery.

If it's still refused, then go home and press the 'Send' button. You do know to email the bundle to the Claimant, no need for any frills for them.

I'd take the bound bundle with you to the hearing and hand it over to the Judge, tell him it's a much more manageable piece for reference than a pile of paperwork sim0ly coughed up from the court printer.

Coupon-mad

Hand deliver it!

And email to the Claimaint's solicitor.

Le_Kirk

helencooke01 wrote: »

Update: I have just phoned the Court to see what time they open on Wednesday and was 'interrogated' by a very abrupt gentleman who told me that the Court is unable to take hand delivered evidence etc, they do not have facilities for that and that I need to either email or post my documentation.

I told him that I knew of other people who had hand-delivered their documents to the same court and he said 'they're not supposed to'.

Should I press on and hand-deliver? I was 100% confident in my mind, and based on the guidance on the forum, that this was the right thing to do, but now I'm not sure!

Thanks

Helen

I wonder what the abrupt gentleman thinks is the difference between hand delivered to the court and delivered to the court by the postman!

helencooke01

Hi all

My mum tried to take the evidence to court this morning and was flatly refused. They have stopped taking any hand delivered evidence and advised that it needed to be posted or emailed.
As I have already put everything nicely into a folder, indexed etc, it has gone in the post recorded delivery before 1PM tomorrow. The deadline is Thursday so we should be okay.
A bit disappointing but not sure what else I could do!

I had another question re: the letter I have sent for the Judge asking for the claim to be struck out - I assume I don't send a copy of this to the solicitors as I don't want to alert them to the fact they have messed up?

Thanks

Helen