Defence - Countrywide Parking Management & BW Legal

Coupon-mad

I wouldn't respond to their WS... unless (unusually) the court has ordered you to do that too?

jrhys

I OCRd the full letter from the court on p2 of the thread. The pertinent bit is below. Does this count as the court ordering me to?

jrhys said:

6) Each party may, by 4pm on 15 Aprll 2021 file in court a concise written response to the documents and statements served by the other party. At the same time a copy of the response must be served on the other party

jrhys

@san2020 - you asked for a word template of the witness statement and defence. See below for a defence template, and for my WS.

I recommend downloading and editing them, rather than using google docs - the three-column header (case, name, defence) seems to confuse google. also, please make sure to first read, then delete all text in red, and make sure you replace things like <date> and <signature> with the date and your signature.

here is the defence (c-m + team - maybe worth someone triple-checking the wording is the same as the stickied forum version, and also whether the template needs a bit of a refresh to move towards Excel v Wilkinson rather than Semark - Jullien?):

https://drive.google.com/file/d/1Z3hboowpIEF0XxQo5QBtXdHelwObRYec/view?usp=sharing

also - running back through the defence made me laugh given it predicts BW's deliberately deceptive use of the Vine v Waltham case in their witness statement (showing they didn't really read it and actually just use a template, which actually has the wrong date of the Vine case in it time after time). That very same BW WS that says I'm disingenuous for drawing inspiration from an online template!

and here is my WS. Note that this is not a "template". This is my witness statement (plus some bits on contracts and redactions that I didn't actually use, but you should), that leaned heavily on @robertcox999 's one. It will almost certainly be of no use in its entirety to anyone else with its wording, so please don't just submit it. Take it, and adjust it.

https://drive.google.com/file/d/10_T0OSPwcewp5MrODOIvxFOa1GSKa7Oz/view?usp=sharing

Le_Kirk

 In summary, the Claimant’s witness statement fails to provide any evidence that there was neither the signage in place at the site in question at the material time on the material date to be able to reasonably bind any persons to any Terms and Conditions, nor a valid flow of contractual license in place between the Claimant and the landowner to sue visitors, and as such the Claimant has no Cause of Action.

It is "either or" OR "neither nor".  I don't think you can start a paragraph with "In summary" when you have not said anything beforehand.  In summary would come at the end of your witness statement.

jrhys

Cheers Le_Kirk.

I'll adjust the wording, and retain the concept of an exec summary. I'd want to receive an exec summary before I was given a wordy, line by line response to something.

SayNoToPCN

concise written response to the documents and statements -> you are told concise, so be concise. For example, you can summarise the useless photos by grouping them together, saving space. 

It also starts may, so you are not compelled

Yep their WS is the usual prolix (great word, look it up!) garbage. It is not a statement of facts, it fails to actually set out what is within the knowledge of the para legal and where not, where they got the info from!, it advances legal arguments not found in the PoC, etc. 

jrhys

SayNoToPCN said:

concise written response to the documents and statements -> you are told concise, so be concise. For example, you can summarise the useless photos by grouping them together, saving space. 

It also starts may, so you are not compelled

Yep their WS is the usual prolix (great word, look it up!) garbage. It is not a statement of facts, it fails to actually set out what is within the knowledge of the para legal and where not, where they got the info from!, it advances legal arguments not found in the PoC, etc. 

Will definitely cut down.

I agree I don't have to. Do you think I should? - the main reasons for doing it are to highlight the clear contradiction in their evidence of entry signage and to flag the lack of proof of a valid contract with the landowner at the time.

I raised the contradiction strongly in the WS, but the contract issue was only mentioned in my defence.

Love prolix.

Coupon-mad

I would do it because if the Judge decides your WS arrived too late and discounts it, your reply to their drivel arrived in time and will serve as your crib sheet at the hearing and the Judge will at least know what your points are, about their evidence and allegations.

Very unusual for a Court to order all of that!

SayNoToPCN

I didn't say don't do it, just you had not been ordered to. 

jrhys

Right I'll be submitting my response tomorrow, before 4pm. I've been more concise below, but I'm sure there are areas I could cut down.

I've also not really responded to the bit of their WS that challenged the 'double recovery' as, to be honest, I've spend a long time (much longer than the 12 hours claimed for) reading through each of these cases etc. and I'm a bit tired. Can someone please let me know whether I should be focusing my challenge more on this?

My WS had a section on that bit anyway, and I've cut some statements like "Indigo v Watson is Scottish and so is not binding on this Court" since I didn't want to patronise the Judge.

1.              I respond concisely to the material points of the Claimant’s witness statement below, grouping like paragraphs. I also prepend a summary of my response.

Summary of response

2.              The Claimant has failed to present images of the Terms and Conditions at the location on the material date of sufficient quality so as to be legible; instead presenting illegible images, images taken prior to the material date, at a different location or with no indication as to their location, and one high quality image of the signage artwork that clearly differs in its wording.

3.              The Claimant has also failed to prove a valid flow of contractual license in place between themselves and the landowner to sue visitors and cannot bind persons by these terms. In any case, the Claimant’s exhibits P16, P23 and P25 prove the absence of entrance signage purported to be at the Site on the material date, distinguishing this case from ParkingEye Ltd. v Beavis [2015] UKSC 67, VCS v Crutchley [2017] and VCS v Ward [2019].

4.              As in Vine v London Borough of Waltham Forest [2000] EWCA Civ 106, the Claimant has failed to prove the existence of any notice that could be considered sufficiently visible so as to offer any person a fair opportunity to learn of the terms by which they would be bound. As such, the terms in this case match the unfair terms of Example 10 in Schedule 2 of the Consumer Rights Act 2015 (‘CRA 2015’), and, pursuant to Section 62 of the CRA 2015, such unfair terms are not binding.

5.              Further, the Claimant has, in witness statement exhibits P3 and P7, knowingly presented deceptive evidence of alleged prior signage that clearly contradict the relevant evidence, presented in exhibits P16, P23 and P25, of a lack of signage on the material date.

Response to material points

6.              Paragraph 6 of the Claimant’s witness statement refers to the redacted ‘Customer License Agreement’ (‘Agreement’) in exhibit P1-P2. The Agreement has no probative value in the matter of the Claimant’s standing and rights to manage and enforce these Terms and Conditions:

6.1.          Whilst the agreement contains mention of a start date, the signatures are not dated. There is therefore no proof that the contract was signed prior to the alleged parking event.

6.2.          The document has not been signed by two Directors of either company, nor by one Director in the presence of attesting witnesses. As such the Agreement cannot – according to the Companies Act – be considered a validly executed contract.

6.3.          In the event that the ‘Client’ signatory of the Agreement (‘the Client’) is the landowner, the Claimant has provided no proof of this. The Claimant argues that the charges are contractual and so must demonstrate that there is a flow of the authority to sue visitors from the landowner to the Claimant.

6.4.          In the alternative, the Claimant has provided no evidence of a valid written contract between the landowner and the Client stating that the Client may act on the landowner’s behalf.

7.              Paragraph 10 of the Claimant’s witness statement refers to a number of exhibits, many not relevant to this case:

7.1.          Exhibits P5, P6, P9 and P10 relate to other parking areas and are not relevant.

7.2.          Exhibits P8 and P11 give no indication to their location and are dated a number of days prior to both the material date and the Agreement.

7.3.          Exhibits P12 and P13 show examples of illegible signage in the approximate location of the alleged parking event and are dated a number of days prior.

7.4.          Exhibits P3 and P7 purport to show the presence of a sign upon entry to the parking area. Exhibit P3 is not dated. Exhibit P7 is dated a number of days prior to both the material date and the Agreement. Paragraph 10 suggests, disingenuously, that the entrance sign was in situ on the day of contravention, despite proof in exhibits P16, P23 and P25 to the contrary.

7.5.          Exhibit P4 gives no indication as to its visibility from the entrance to the parking area and the text is illegible.

7.6.          Exhibit P14 shows wording that is different to the wording on other exhibits, where legible.

8.              Paragraph 14 of the Claimant’s witness statement refers to VCS v Crutchley [2017] which is distinguished, as HHJ Wood QC’s judgment refers to a large sign near the entrance such that it is made clear that visitors are entering onto private property and thus a contractual licence is being provided, proven by the Claimant’s exhibits P16, P23 and P25 not to be present in this case.

9.              Paragraph 18 of the Claimant’s witness statement refers to a number of exhibits photographs.

9.1.          Exhibits P17, P18, P19 and P22 are various images of my vehicle, with and without PCN affixed.

9.2.          Exhibit P21 is a duplicate of exhibit P4.

9.3.          Exhibit P16 clearly shows an absence of entrance signage (bottom right of the image as presented; top left when properly oriented), contrary to paragraphs 10, 37, 38, 38.2, 41, 44, 48, 75, 76 and 78 of the Claimant’s witness statement.

9.4.          Exhibit P20 shows the reasonable and considerate nature of my parking, such that vehicles may manoeuvre freely, in accordance with the intentions of the parking management.

10.           Paragraphs 20 and 22 of the Claimant’s witness statement refers to exhibits P23 and P25 contain images that show an absence of entrance signage, contrary to paragraphs 10, 37, 38, 38.2, 41, 44, 48, 75, 76 and 78 of the Claimant’s witness statement.

11.           Paragraphs 27, 28, 29, 86, 89 and 90 of the Claimant’s witness statement refer to the use of similar wording between my defence and that of previous defendants in cases brought by claimants represented by the Claimant’s representation, and challenge my Statement of Truth. As a litigant-in-person, it is reasonable to leverage online resources to develop the knowledge required to defend myself and to take inspiration from prior defences. The Claimant may have been better served checking their own template witness statement and removing those paragraphs irrelevant to this case (see paras. 81, 82, 83) and the (incorrect) reference (para. 39) to Vine vs Waltham, predicted in my defence.

12.           Paragraph 39 of the Claimant’s witness statement refers to Vine vs Waltham Forest LBC 2002 [sic]. In Vine v London Borough of Waltham Forest [2000] EWCA Civ 106, Lord Justice Roch held that “if the appellant had not seen the notice, then she could not have consented to, or voluntarily assumed the risk, of her car being clamped”. As did the Respondent in that case, the Claimant in this case has failed to prove the existence of any notice that could be considered sufficiently visible so as to offer any person a fair opportunity to learn of the terms by which they would be bound.

13.           Paragraph 58 of the Claimant’s witness statement refers to ParkingEye Ltd. v Beavis [2015] UKSC 67, which is distinguished due to the absence of signs and the lack of legitimate interest in this case.

14.           Paragraph 58 also refers to VCS v Ward [2019] which is distinguished (in the same manner as is VCS v Crutchley [2017]) as HHJ Saffman’s judgment refers to a large sign near the entrance that makes clear that beyond the sign is private property and thus a contractual licence is being provided, proven by the Claimant’s exhibits P16, P23 and P25 not to be present in this case.