This is a tough one!

Blazkowicz

Costs Schedule was sent as part of the WS bundle.

nosferatu1001

"I also noted that their witness statement is invalid"
Invalid how?

Blazkowicz

So a recent case was thrown out by the judge becasue the Witness Statement was signed by a member of BW Legal, who had not visited the site. the Judge purportedly used this as the very reason it was struck out due to the fact that it constituted an invalid WS. I know that won't be the decision of every judge, however I wanted to point it out. A strong point of my defence is that their evidence is simply not sufficient to prove the absence of a permit, and there is no statement from a single individual on the Claimant's side that has ever visited the site, let alone was present at the time of the PCN.
It's not my main argument, I have a collection of defences. 

nosferatu1001

OK, but we didnt know that was the case here - as you hadnt said  
Hows your WS otherwise?

Blazkowicz

Sorry Nosferatu, my mistake. 
The WS was particularly comprehensive and included Coupon Mad's supplementary witness statement regarding abuse of process. Their witness statement is further invalidated (in my opinion) by the fact that it is less a witness statement and more a rebuttal of each of my defence points. 

nosferatu1001

Thats what you raise then
YOu point out the claiant has no witness to the actual events. This is obvious by the following errors....

Blazkowicz

I won. But not because of Abuse of Process.
Will write a full breakdown later today.

Le_Kirk

Well done, looking forward to the report.

Blazkowicz

So, as mentioned above, I won.
Thank you all SO MUCH.
I simply would not have come close to the confidence in these proceedings if it wasn’t for the members of this forum and Pepipoo. I’d like to extend a specific thank you to RedX who was up just as late as I was on the night I wrote my witness statement and helped considerably with it. CouponMad was also a massive help, from the Newbie's thread all the way to their direct help with this case. 

The ruling however is potentially a worry in its ramifications: Abuse of Process was not the reason for the rejection of PP and BW Legal’s claim.

TL/DR: It was ALL about the Claimants witness statement. The judge rejected their claim on the basis that the witness statement was invalid because it was written by paralegal based in Leeds and included no actual witnessing of the events. She supported this with case precedent and law as linked below. She did not touch on abuse of process at all or make any comment when I tried to argue it.

Read on for full report…

I arrived (incidentally on the last day that cases are being heard - tomorrow they are reportedly not hearing anything that is not totally urgent) and signed in. I had my court bundle and all correspondence from PP and BW Legal over the 5 years of this issue.  The claimants representation was a barrister, not a lay person, and he seemed to imply during our discussion before court that he knew exactly how it would go. He said we were "on the same page shall we say" and then "I’m not sure how long they will be able to continue bringing cases like this before the courts.". 

The Judge started straight away by reading the paragraph in my skeleton argument pertaining to the Claimant's Witness Statement being invalid on the grounds that it was the statement of a paralegal in Leeds, on behalf of a legal entity in Dorset (PP), in turn on behalf of a PPO. She stated that this was simply not sufficient or compliant in anyway and clearly did not satisfy the regulations pertaining to Witness Statement. She therefore rejected the validity of the witness statement and said to the barrister “And I haven’t even got to the stage that we hear from the defendant”. She supported her reasoning with a recent case from February 2020: Punjab National Bank vs. Techtrek India Ltd 2020 EWHC 539 (Transcript here: https://www.bailii.org/ew/cases/EWHC/Ch/2020/539.html). She quoted paras 17 and 18 from this case. She then produced the Civil Procedure Rules 1998 and quoted Practice Direction 32, para 18.2:

18.2 A witness statement must indicate:

(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and

(2) the source for any matters of information or belief.

Practice Direction 32 can be found in full here:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32#18.1

She used this as her concise reasoning that the witness statement was not compliant. She asked for comment form the barrister – he did not have any salient rebuttal (incidentally he told me after the hearing that BW Legals witness statements are notoriously poor). She then asked for me to comment. I pointed out the further points in my own Witness Statement that focused on the errors in their witness statement and the fact that the attached exhibits within it included photographs from totally different dates, none of which included my vehicle. She really went to town on the Claimant for this one. Said that if there was any doubt in her mind that the witness statement was invalid – that very much sealed its fate. I said that I had 5 further defences to put forward and she said “well thankfully Mr…………, I only need to base my decision on one and already have”. I then said that I was particularly keen to attend to their Abuse of Process I said that they must have been fully aware of many similar cases failing and this should have halted their intention to bring the case as far as court proceedings.  I pointed out that I had informed them of all the precedents that I had included in my defence and yet they still used the courts as a form of debt collection and I felt this constituted unreasonable behaviour. She disagreed and said she did not feel they had been unreasonable in bringing the case to court.

Worryingly at one stage she said that “if the case was isolated to the concept of breach-of-contract in regards to the permit not being displayed in the windscreen area, then the claim would have succeeded” then went on to say that as the claimant is the party put to strict proof – she did not feel the witness statement sufficiently complied and “falls very short of the requirements as I have set out”, then she again quoted the recent court case mentioned above and Practice Direction 32.  

The barrister tried to submit full resolution versions of the photographs in the Witness statement that he had been sent by B W Legal, saying that they were better quality and more accurately show there was no permit. I objected, stating that these versions of the photographs had not been served to me or the court, and their submission in the middle of the hearing constituted and ambush. The Judge agreed and rejected them.

She drew things to a close and asked if there were any further comments. The barrister appealed, and said that in this instance the judge had erred. She raised her eyebrows to the roof and said very curtly “I reject your appeal.” And said something to the effect of  ‘I have very easily come to this decision without needing to consider the many further defences submitted by the defendant. Any further hearing on this claim is unlikely to succeed in any way, thus I will not authorise further litigation.” She asked if he would like the form to contest. He said no!! He made it clear that he had appealed under direct instructions from his client and not because he considered there any chance of an appeal being successful.
I then asked for my costs to be awarded. She couldn’t find the cost schedule so I gave her mine. She ednied me costs of £95 for loss of earnings, stating that I was a salaried employee and had taken a day of holiday, thus had not incurred said losses. I submitted the argument that I worked 60% or so on commission and my absence would mean I would likely miss a chance to earn any. She said that without any quantifiable evidence to support this, no amount could be awarded. She awarded mileage and parking. She then asked what further costs were, and read this section of my costs schedule:

Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)
Research, preparation and drafting of documents (6 hours at Litigant in Person rate of £19 per hour) £114.00
Stationery, printing, photocopying and postage: £15.00

She looked impressed at this and had to look up Civil Procedure Rule 27.14(2)(g). After reading it, she asked why I felt they had been unreasonable (this was galling because she clearly hadn’t read the 2 pages in my defence and 4 in my Witness Statement supporting this argument). I paraphrased by saying that I had pointed out on many occasions that they were bringing a case to court that included a clear abuse of process, I also said that I had provided them with the case precedents and yet they still chose to bring it to court, I said: “5 of the cases I reference happened in this very court and two of the cases were ruled by Judges who are currently in the building presiding over family court" (I had noticed this on the boards in the entrance hall). She said “But I have not made my decision on the basis of abuse of process, it was on the basis of the witness statement and its invalidity” and for that reason she did not award me any further costs. So I got about £8.20 – which is still lovely, but I would have liked to have got the full £232.81!

All in all – it’s very clear that a strong weapon against B W Legal is now the witness statement angle, not just abuse of process. I put forward a robust and significantly informed defence regarding abuse of process and that was met with silence and was essentially ignored. This is the second case I have read of it turning out this way, the other case is described in the “Link Parking/BW Legal beaten in court” thread by user: Keypulse.

This does not necessarily mean that the abuse of process argument is not a valid one, because it unequivocally is, however the Witness Statement argument is clearly becoming a strong additional defence against B W Legal cases.

DoaM

Excellent write up ... and congratulations. Just be thankful you got a judge who at least has some degree of nous ... once they've made up their minds they're usually not wiling to budge, so at least yours was on your side.

Another one bites the dust!