WS Help needed for pending CCJ

Dontbelievethehype

Hi,
Could anyone please give my WS a check over. I have a court date in December and with the help of this site and hours of reading all the fantastic information, I have got to this stage. Now is the crunch time so any help would be grateful.

So in a nut shell I'm the regestered keeper of a vehicle that over stayed in a NCP paid car park for 15 mins. I have had all the usual bully tactics from the charming BW Legal but held my nerve and waiting for the hearing day. I shall post my WS under this message. One main dilemma I have is do I keep my mitigation as the driver and reason for overstaying or take it out completely? Thank you in advance

Dontbelievethehype

1. I XXX XXX am the registered keeper of vehicle in question, and although in the particulars of claim it is unclear as to who the claim is specifically aimed at, for the element of doubt on said date Xth XXXX 20XX I was the driver of the vehicle, and I deny any liability to the claimant.
2. I entered the car park on XXX, in good faith and honest intentions and adhered to terms on display as best as they could be deciphered.
3. I was in XXX that day for a 10k running event which started approximately 10 mins walk from the XXX car park. This event started at XXX, Allowing for my estimated running time of 45-50mins, bag collection after the event and 10 mins walk back to my vehicle, the £4 I paid for two hours parking I felt was enough time to get back to my vehicle and exit the car park in under two hours.
4. However upon walking back to my vehicle I started to fell my right calf becoming tight, I hurried back and as I got to the car park and my vehicle my right calf cramped up and at that point it was not safe for me to drive out of the car park until this had cleared. I have experienced this before and know it will clear after several minutes of gentle self massage to the calf. Which indeed it did so and I was safe to drive my vehicle out of the car park.
5. The Claimant asserts that I entered into a contract with them, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. It claims that I was in the relevant car park for a total of 2 hours and 15 minutes, when 2 hours had been paid for. It is these 15 minutes with which the Claim is concerned. I confirm that the essence of my defence to this claim is that:
6. a. I did not breach the terms and conditions of parking
7. b. The Claimant's signage did not make it clear whether after the paid for parking period offered included time spent after entering the site via its ANPR cameras looking for a space and parking in it and locating and reading the terms and conditions and deciding to accept them, and time spent when leaving the site via the same cameras exiting the space, and then driving out onto a public highway. It is trite law that any uncertainty in a contract should be resolved against the person who offered it under the contra preferentem rule;
8. c. Even if I did breach the terms, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association to apply separate grace periods of at least 10 minutes at the start and end of each period of parking to allow for potential delays in finding a space, exiting the car park and to allow time for drivers to find and read the terms and conditions offered, and the 15 minute overstay is well within these grace periods.

1. It is my understanding that there are three elements to a contract: offer, acceptance and consideration. I could not possibly have accepted any contract offered by the Claimant at the precise moment I drove through the ANPR cameras, at the start of minute One, of the 2 hours and 15 minute period, because at that point no offer had been made. An offer must be communicated to an offeree. There was no offer communicated at the entrance to the car park, but only inside it - the Claimant’s signage setting out the terms and conditions were dotted around the site and could not be seen immediately on entry, and I could not read them from my car. It took me 3-4 minutes to drive in, find a space, find a sign, read it and decide to avail myself of the parking. At that point I say an offer was made (insofar as the sign was capable of making an offer), and I accepted it.


1. Contractually, the Claimant’s signage did not specify that the paid for period parking included time spent finding a space and then leaving the car park via the ANPR cameras. Had this been clear to me, I would have endeavoured to returned to the car earlier. Or paid for a longer period of time.
2. In addition to considering the contractual element of the claim, I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member. A copy of paragraph 13 of the CoP, which relates to grace periods. In order to be an accredited member of the BPA, compliance with the CoP is compulsory, and a copy of paragraphs 4.1 and 6 of the CoP is at page. The significance of being a member of the BPA and subscribing to its CoP is that the Claimant is only entitled to ask the DVLA for the details of a car’s registered keeper if it is a member (so without membership a private parking company would not be able to function without the ability to trace drivers/registered keepers). Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the carpark once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking (paragraphs 13.2 and 13.4). It is worthy of note that the recommendation is a minimum of 10 minutes, not a maximum.
3. There is no explanation for why the Claimant has declined to apply any grace period at all in my case, which is a clear breach of the CoP.
4. In the now infamous parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:
5. 96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
6. 111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.'' (emphasis added).
7. In this case, the data produced and relied upon by the Claimant shows that the period passing between my car entering and leaving via the ANPR cameras was 15 minutes. Applying the "minimum" 10 minutes either side of the parking, the minimum total grace period I should have been allowed by the Claimant under its own compulsory CoP was 20 minutes. I was therefore well within the grace period. Whilst I accept that following the paid for parking time I was on site for around 15 minutes, this was because of the cramp in my calf, which was outside of my control. The Claimant should have taken a reasonable and proportionate approach, complied with its own obligations under the CoP (not to mention exercised common sense) and should have applied the grace period. Furthermore, the issue the court is being asked to deal with is de minimis and the court's valuable time should not have been taken up with this matter.
8. The claimant and their legal representatives have acted unreasonable at every turn, even after I opted to defend this claim. I have received continuous attempts to bully me into paying them the unconscionable sum they seek to extract from me, which is in excess of the maximum allowed by POFA schedule 4 (5) “the maximum sum which may be recovered from the keeper by virtue of the conferred by this paragraph is the amount specified in the notice to keeper”.
9. The claimant and their legal representatives have sent correspondence to my address totally dismissing my defence casting judgment themselves before any hearing, with more bully tactics demanding I pay unconscionable sum, which are unrecoverable by statute within 14 days.
The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at
the hearing, such as are allowable pursuant to CPR 27.14. I believe that the facts stated in this Witness Statement are true.
1.
2.
3. Signature of Defendant:

The_Deep

How much are they asking for? If they have added £60 read this










https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Dontbelievethehype

Hi The Deep,

They are claiming £241

Redx

There is no pending CCJ

You are at the WS plus Exhibits plus costs schedule stage , prior to the court date next month

The CCJ only happens if you lose , in which case pay up , in full , within 30 days to get it expunged

If you win , no CCJ

Dontbelievethehype

Hi Redx,

Sure understood about the CCJ wording, thanks. Should have just headlined as pending CC hearing.

Any feedback on my WS also would be great thanks.

waamo

Dontbelievethehype wrote: »

Hi The Deep,

They are claiming £241

How do they arrive at that figure?

Dontbelievethehype

Hi Waamo,

Breakdown of claim is as follows, Claimed £167, Court fees £25 Legal Rep cost £50. Total £242

waamo

They seem to have added on a spurious amount to the amount claimed. See the abuse of process thread linked to by The Deep.

You aren't supposed to add anything new but personally I would mention it in the witness statement.

nosferatu1001

You can mention abuse of process, as thats true regardless of whether it was initially pleaded or not.

You MUST read the abuse of process thread. MUST.
They will have made up, out of thin air, that £167 figure and hoped a jugde woudnt notice.

Dontbelievethehype

waamo wrote: »

They seem to have added on a spurious amount to the amount claimed. See the abuse of process thread linked to by The Deep.

You aren't supposed to add anything new but personally I would mention it in the witness statement.

Thanks Waamo, I shall definitely be adding this to the witness statement. Looks like £67 0f the £167 is for costs and interest.

Do you think I should leave the mitigation in the WS?