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County Court claim - Witness statement
can_not_think
Posts: 9 Forumite
I am at Witness statement stage, and starting to panic a bit, feel like I'm a bit out of my depth and only recently discovered this forum. I have read the newbies thread which has got me thus far....
Background:
residential ticket, I wrote the first appeal on behalf of a family member, but I was not the driver or registered keeper or keeper- really thought it would be no biggie as we where residents, and they'd just say whoops our mistake. but obviously not!
At IAS appeal the system asked us for the driver and registered keeper to ID themselves, so at this point, the driver and RK logged into the system and appealed using their name, at which point I thought they'd chase them and leave me out of it.
They are basing everything on the first appeal and saying why would I write it if it wasn't my car and I wasn't the driver, I've sent them the IAS appeal, and many letters since the LBC, telling them I have nothing to do with it, but they have just carried on and now my court date is soon and I need to submit my WS.
My defence:
DEFENCE (already submitted)
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The facts are that the Defendant was not the owner, registered keeper or Driver of the vehicle, registration XXXX.
3. The Defendant denies that any contract was formed between themselves and the claimant.
4. The registered keeper and driver identified themselves to the Claimant during the appeal process to the IAS, on the 14/06/2016 and is willing to provide a witness statement to this effect.
5. The Defendant avers that the Claimant did not incur additional costs and they are put to proof that they have actually incurred and can lawfully add an extra sums.
6. The Claimant did receive full payment for the year permit of £25 from the registered keeper of the vehicle. No agreement was signed that created any 'relevant obligation' to display it. The Defendant had no idea about any £100 penalty for not doing something.
7.The Registered keeper would have an unconditional right to park at the property as superceeded by the lease, which does not mention any need to have a permit to park at the property. 3.29. Parking
Right to park, according to primacy of contract the lease cannot be fettered by any alleged parking terms. Nowhere in the lease for the property does it state that a permit must be displayed to park on the premises. The lease contract states:
The lease states in Schedule 2 Clause 4, on page 21:
The right to use the Communal Facilities, for all purposes incidental to the occupation and enjoyment of the Premises.
The definition of Communal Facilities described in Schedule 6, on page 35, includes car parks:
“Communal Facilities” means party walls, fences, gutters, drains, roadways, pavements, entrance ways, staircases, lavatories, accessways, passages, lifts, escalators, turntables, courtyards, external paviours, car parks and service or loading areas and other such amenities which are or may be used or enjoyed by an occupier of the Premises in common with any other person or persons.
The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.
8. Any contract that may have been formed between the driver of the vehicle and the Claimant would be unlawful as derogation from grant.
9. The Defendant believes the ticket to be unfair, as the claiment used predatory, and misleading tactics to lure drivers on the Estate into incurring parking penalties, which is against the ICP code of practise.
10. The Defendant believes any contract formed between the driver and the Claimant is unfair defined under the terms of the Consumer Contracts Regulations 1999 section 5-1 and 5-2. Section 8-1 states that an unfair contract is not binding on the consumer. Specifically in section 2 1 (e) where it states, requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.
11. The Defendant believes It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.
12. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
13. The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. The signage at the entrance to the site states “Resident parking only”.
14. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.
I believe that the facts stated in this Defence are true.
My WS draft:
I am xx the defendant in this matter. Will say as follows:
1. I am not the driver, owner or keeper of the vehicle marked xxxxx, I attach the V5c exhibit xx page xx
2. On the Morning of the alleged incident DATE I left my home to go for a walk and found the PCN placed on the vehicle registration XXX
3. I removed the PCN from the vehicle, as I am related to the owner of the car, believing the PCN to be a mistake as the vehicle belonged to a resident of the estate. I was under the impression that the estate was for resident parking only, as per the signage at the entrance of the site, put up by the site owner (See attached exhibit xx - page xx - Photo sign at entrance to site) . Which states in large letter “RESIDENTS PARKING ONLY”. I had assumed the signs with smaller print dotted around the estate to read something similar, to instruct non residents not to park at the estate.
4. I used the online appeal website (Exhibit xx - page xx - Letter to Claimant appeal.) to appeal the ticket, I logged onto the system to submit the appeal on behalf of the keeper of the vehicle, In the appeal. I have not been very clear in stating who the driver or keeper of the vehicle was. I have dyslexia and often mix my tenses and possessions. Within the letter I have used a variety of tenses including “I” “We” “Our”. The letter is confusing in itself as I have written “My car” but then later say “Me or the registered car owner” and later again I write “myself or the car owner”. I believe the letter to be confused because I was writing this on behalf of the registered keeper and have mixed my own experiences along with theirs.
5. The appeal was declined exhibit xx - page xx, In the reply from PCM, they state “You parked in a manor” The rejection made an assumption as to the identity of the driver that the claimant has never proven.
6. I was planning to appeal to the IAS website, however I realised at this point when asked on the appeal site to confirm I was both, the driver and registered keeper, as I was neither I did not complete the appeal. I then passed the matter on to the Registered Keeper to appeal.
7. The registered keeper and driver appealed on the IAS website, the appeal positively identified the registered keeper and driver Exhibit xx - page xx. I presumed that I would not hear anything more as the Registered Keeper and driver had now been identified.
8. I had not received or seen any letter to remind me of any upcoming renewal, this letter was hand delivered to the house dated DATE but would have been opened and viewed by the car owner and person responsible for renewing the permit.
9. I moved house later that year, and I did not receive any further correspondence until receiving the letter before claim, In DATE.
10. I sent the claiments solicitors a letter dated DATE, exhibit xx - page xx In which I denied any debt, and reminded the claimant that I was not the driver nor the registered keeper, and so had no liability.
11. I attempted one further time, to provide them with evidence I was not the registered keeper or driver of the vehicle when I sent them copies of my directions questionnaire, I attached and highlighted the appeal document from the IAS where the registered keeper and driver had identified themselves and they had acknowledge this within the document. Copies were also delivered to the court, showing the same. Exhibit xx page xx
12. The lease of the property myself and the registered keeper lived grants a right to park, a private motor vehicle. Exhibit xxx - Page 12 3.29 (a) with no mention of a permit being required. this is further confirmed in Exhibit xx - Schedule 2 Clause 4, on page 21: The right to use the Communal Facilities, for all purposes incidental to the occupation and enjoyment of the Premises.
The definition of Communal Facilities described in exhib xx Schedule 6, on page 35, includes car parks:
13. I refer to the Court to DISTRICT JUDGE COONAN comments in In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. “I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right.”
14. I believe the claimant acted in a predatory manner due to the time the ticket was issued, I believe they attended at this time to purposefully ticket residents of the estate, following the recent expiration of passes, of which a single letter of reminder was issued almost 6 weeks prior to the permits expiring, in my view in the hope residents would forget to renew and then be able to collect £100, four times what they would have got if residents had renewed. I would be interested to see from the claimant how often they attend the estate at this time, to prove that this is in fact standard practise from them, and not preditatory which is against the ICP code of practise exhibit xx - page xx
15: In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking, The supreme court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company. Similarly, it would be hard to establish commercial justification for charging residents hundreds of pounds a year to park in their own parking spaces.
16. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160.
I believe that the facts stated in this witness statement are true
Thanks in advance for any help.
Background:
residential ticket, I wrote the first appeal on behalf of a family member, but I was not the driver or registered keeper or keeper- really thought it would be no biggie as we where residents, and they'd just say whoops our mistake. but obviously not!
At IAS appeal the system asked us for the driver and registered keeper to ID themselves, so at this point, the driver and RK logged into the system and appealed using their name, at which point I thought they'd chase them and leave me out of it.
They are basing everything on the first appeal and saying why would I write it if it wasn't my car and I wasn't the driver, I've sent them the IAS appeal, and many letters since the LBC, telling them I have nothing to do with it, but they have just carried on and now my court date is soon and I need to submit my WS.
My defence:
DEFENCE (already submitted)
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The facts are that the Defendant was not the owner, registered keeper or Driver of the vehicle, registration XXXX.
3. The Defendant denies that any contract was formed between themselves and the claimant.
4. The registered keeper and driver identified themselves to the Claimant during the appeal process to the IAS, on the 14/06/2016 and is willing to provide a witness statement to this effect.
5. The Defendant avers that the Claimant did not incur additional costs and they are put to proof that they have actually incurred and can lawfully add an extra sums.
6. The Claimant did receive full payment for the year permit of £25 from the registered keeper of the vehicle. No agreement was signed that created any 'relevant obligation' to display it. The Defendant had no idea about any £100 penalty for not doing something.
7.The Registered keeper would have an unconditional right to park at the property as superceeded by the lease, which does not mention any need to have a permit to park at the property. 3.29. Parking
Right to park, according to primacy of contract the lease cannot be fettered by any alleged parking terms. Nowhere in the lease for the property does it state that a permit must be displayed to park on the premises. The lease contract states:
The lease states in Schedule 2 Clause 4, on page 21:
The right to use the Communal Facilities, for all purposes incidental to the occupation and enjoyment of the Premises.
The definition of Communal Facilities described in Schedule 6, on page 35, includes car parks:
“Communal Facilities” means party walls, fences, gutters, drains, roadways, pavements, entrance ways, staircases, lavatories, accessways, passages, lifts, escalators, turntables, courtyards, external paviours, car parks and service or loading areas and other such amenities which are or may be used or enjoyed by an occupier of the Premises in common with any other person or persons.
The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.
8. Any contract that may have been formed between the driver of the vehicle and the Claimant would be unlawful as derogation from grant.
9. The Defendant believes the ticket to be unfair, as the claiment used predatory, and misleading tactics to lure drivers on the Estate into incurring parking penalties, which is against the ICP code of practise.
10. The Defendant believes any contract formed between the driver and the Claimant is unfair defined under the terms of the Consumer Contracts Regulations 1999 section 5-1 and 5-2. Section 8-1 states that an unfair contract is not binding on the consumer. Specifically in section 2 1 (e) where it states, requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.
11. The Defendant believes It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.
12. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
13. The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. The signage at the entrance to the site states “Resident parking only”.
14. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.
I believe that the facts stated in this Defence are true.
My WS draft:
I am xx the defendant in this matter. Will say as follows:
1. I am not the driver, owner or keeper of the vehicle marked xxxxx, I attach the V5c exhibit xx page xx
2. On the Morning of the alleged incident DATE I left my home to go for a walk and found the PCN placed on the vehicle registration XXX
3. I removed the PCN from the vehicle, as I am related to the owner of the car, believing the PCN to be a mistake as the vehicle belonged to a resident of the estate. I was under the impression that the estate was for resident parking only, as per the signage at the entrance of the site, put up by the site owner (See attached exhibit xx - page xx - Photo sign at entrance to site) . Which states in large letter “RESIDENTS PARKING ONLY”. I had assumed the signs with smaller print dotted around the estate to read something similar, to instruct non residents not to park at the estate.
4. I used the online appeal website (Exhibit xx - page xx - Letter to Claimant appeal.) to appeal the ticket, I logged onto the system to submit the appeal on behalf of the keeper of the vehicle, In the appeal. I have not been very clear in stating who the driver or keeper of the vehicle was. I have dyslexia and often mix my tenses and possessions. Within the letter I have used a variety of tenses including “I” “We” “Our”. The letter is confusing in itself as I have written “My car” but then later say “Me or the registered car owner” and later again I write “myself or the car owner”. I believe the letter to be confused because I was writing this on behalf of the registered keeper and have mixed my own experiences along with theirs.
5. The appeal was declined exhibit xx - page xx, In the reply from PCM, they state “You parked in a manor” The rejection made an assumption as to the identity of the driver that the claimant has never proven.
6. I was planning to appeal to the IAS website, however I realised at this point when asked on the appeal site to confirm I was both, the driver and registered keeper, as I was neither I did not complete the appeal. I then passed the matter on to the Registered Keeper to appeal.
7. The registered keeper and driver appealed on the IAS website, the appeal positively identified the registered keeper and driver Exhibit xx - page xx. I presumed that I would not hear anything more as the Registered Keeper and driver had now been identified.
8. I had not received or seen any letter to remind me of any upcoming renewal, this letter was hand delivered to the house dated DATE but would have been opened and viewed by the car owner and person responsible for renewing the permit.
9. I moved house later that year, and I did not receive any further correspondence until receiving the letter before claim, In DATE.
10. I sent the claiments solicitors a letter dated DATE, exhibit xx - page xx In which I denied any debt, and reminded the claimant that I was not the driver nor the registered keeper, and so had no liability.
11. I attempted one further time, to provide them with evidence I was not the registered keeper or driver of the vehicle when I sent them copies of my directions questionnaire, I attached and highlighted the appeal document from the IAS where the registered keeper and driver had identified themselves and they had acknowledge this within the document. Copies were also delivered to the court, showing the same. Exhibit xx page xx
12. The lease of the property myself and the registered keeper lived grants a right to park, a private motor vehicle. Exhibit xxx - Page 12 3.29 (a) with no mention of a permit being required. this is further confirmed in Exhibit xx - Schedule 2 Clause 4, on page 21: The right to use the Communal Facilities, for all purposes incidental to the occupation and enjoyment of the Premises.
The definition of Communal Facilities described in exhib xx Schedule 6, on page 35, includes car parks:
13. I refer to the Court to DISTRICT JUDGE COONAN comments in In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. “I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right.”
14. I believe the claimant acted in a predatory manner due to the time the ticket was issued, I believe they attended at this time to purposefully ticket residents of the estate, following the recent expiration of passes, of which a single letter of reminder was issued almost 6 weeks prior to the permits expiring, in my view in the hope residents would forget to renew and then be able to collect £100, four times what they would have got if residents had renewed. I would be interested to see from the claimant how often they attend the estate at this time, to prove that this is in fact standard practise from them, and not preditatory which is against the ICP code of practise exhibit xx - page xx
15: In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking, The supreme court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company. Similarly, it would be hard to establish commercial justification for charging residents hundreds of pounds a year to park in their own parking spaces.
16. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160.
I believe that the facts stated in this witness statement are true
Thanks in advance for any help.
0
Comments
-
Here is the witness statement from the driver and RK to go along with mine:
I, xxxxxx, will say as follows:
1. I am the registered keeper of the vehicle registration.
2. The defendant used the online appeal website to appeal on my behalf.
3. When the defendant informed me that the IAS appeal required the registered keeper of the
vehicle to confirm themselves as such I did so and filed the appeal myself (Exhibit xxx - IAS
appeal). On which I confirmed myself to be the registered keeper and driver of the vehicle.
I believe that the facts stated in this witness statement are true.0 -
In #10 you have a typo, 'claiments'.
Did they really spell it 'manor'?In the reply from PCM, they state “You parked in a manor”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 -
Yes, they did - but should I correct it to manner, in mine? - you should see their witness statement, it has so many typo's and in many parts refers to "his car" "his this and that" I'm not a he! I thought maybe they'd finally got the message, that it's not my car, but think they just haven't read it properly.0
-
If you are stating it as your words then yes, but if you are quoting from them then put "manor (sic)........"can_not_think wrote: »Yes, they did - but should I correct it to manner, in mine?0 -
Ok is everything else looking good in the WS I'm going to print a deliver it this Friday.0
-
All OK as long as you are also including those cases as exhibits (the WS should refer to their exhibit number) and attaching some proof that this was never your car.
You must also include a COSTS SCHEDULE with a separate section claiming additional costs on the indemnity basis for unreasonable conduct...can't get much more unreasonable than dragging to court, a person who has nothing to do with the car in question and CANNOT be liable in law, as that is only a driver or keeper, not some interested party who helped write someone's appeal!
You need to really push for a high 3 figure sum in costs on the INDEMNITY basis. Search the forum for that word and see other examples.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 -
[FONT=Times New Roman, serif]Read this[/FONT]
[FONT=Times New Roman, serif] [/FONT]
[FONT=Times New Roman, serif]https://www.merriam-webster.com/words-at-play/sic-meaning-usage-editorial-citation[/FONT]
[FONT=Times New Roman, serif] [/FONT]
[FONT=Times New Roman, serif]Nine times out of ten of these tickets are scams so consider complaining to your MP, it can cause the scammer extra work.
Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. 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, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]You never know how far you can go until you go too far.0 -
Coupon-mad wrote: »can't get much more unreasnable than dragging to court, a person who has nothing to do with the car in question and CANNOT be liable in law, as that is only a driver or keeper, not some interested party who helped write someone 's appeal!
Thank you for this - this is what I've been thinking all along - in their own evidence bundle they have inserted the IAS appeal which clearly states the driver and registered keeper (and written in their witness statement I submitted the appeal to the IAS (then clearly submitted the appeal filled in by the car owner) I feel like it's some sort of farse- I've been so worried all along I've missed something because I have no idea why they have carried on with this case???
The amount of stress this has caused me, but I just want it to be over now. To be honest I wasn't planning to ask for any costs, Just to walk away with this stressful situation finished is enough for me!0 -
We are talking about £300 or more in costs...that's what you should ask for IMHO.
Like this:
In the County Court at vvvvvvvvvvvClaim No.: vvvvvvvvv
Betweenparking company's name
(Claimant)
-v-
your name
(Defendant)
DEFENDANT'S SCHEDULE OF COSTS
(a) Ordinary Costs
Loss of earnings/leave, incurred through attendance at Court xx/xx/2019 £xx.00
Return mileage from home address to Court (xx miles at £0.45p) £x.xx
Parking near Court £5.00
(or, train or bus fare...£x.00)
Sub-total £xxx.xx==================
(b) Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)
There is no reasonable justification or lawful explanation for the Claimant's conduct, which constitutes unwarranted harassment; such conduct to be explained at the hearing.
The following additional costs are sought on the indemnity basis for the Claimant's unreasonable conduct.
The Defendant avers that such costs must apply, given the facts, primarily in order to compensate for the time taken in handling this meritless and wholly vexatiously pleaded court claim, and secondly to send a message to this legally-represented serial litigant that their conduct in the instant case is an abuse of process:
Research, preparation and drafting of documents (xx hours at Litigant in Person rate of £19 per hour) £xxx.00
Stationery, printing, photocopying and postage: £15.00
Sub-total £xxx.xx==================
(a) + (b) = £ ______ TOTAL COSTS CLAIMEDPRIVATE '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 -
........... and make sure you get that costs schedule in asap so the judge and the claimant cannot talk about being ambushed.0
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