Claim Form Received / Highview Parking / DCB Legal

Umkomaas

Discontinuation beckons. Hang in there. 

deezee3k

Hi everyone. Hope you've all been keeping well.

Today I received the WS on behalf of the claimant.

As you can see from when I last posted on here, this ordeal has been pushed to the back of my mind. 

All documents need to be delivered to all parties no later than 28 days before the hearing.

So I need to write and submit my witness statement by Wednesday.

Is there anything else that I need to submit?

I have a busy few days ahead of me and I have started reading other Witness Statements and I have started to get ideas together for my own.

Any pointers would be greatly appreciated.

Thanks, as always.

Coupon-mad

So I need to write and submit my witness statement by Wednesday.
Is there anything else that I need to submit?  
Any pointers would be greatly appreciated.

Look at the threads with recent good WS by @jrhys and @Nosy, which will show you how to set out the bundle and what to include, giving you a steer about the costs assessment, exhibits, index and organisation of it all, page numbering needed, etc., etc.

Le_Kirk

You should base your WS on your defence because it is there to back up and support your defence as already filed" and whilst @Coupon-mad has given you two good examples on which to base your format and style, it should be about your case.

deezee3k

Hi everyone.

I recently received the Claimant's Witness Statement - Highview Parking - copied below in the next couple of posts.

I'll also post my Witness Statement that I have drafted in the posts after with a bit more information.

I'd be so grateful if people could spend a bit of time looking at them and make any suggestions.

THE FIRST WITNESS STATEMENT OF YVETTE YATES I, Yvette Yates, of 10 Flask Walk, London, NW3 1HE, state as follows: -

1. I am an employee, employed by Highview Parking Limited (“my Company”). I am duly authorised to make this Statement on my Company’s behalf.

2. I make this Statement in support of the Claimant’s Claim and in response to the Defence.

3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.

 

Parties

4. My Company provides private car park management services to private landowners, to manage the way motorists are permitted to park on their private land. My Company does so by issuing parking charge notices to any vehicle parked in a way the landowner does not permit.

5. The Defendant is the recipient of a parking charge notice (“PCN”) issued by my Company. The details are set out herein.

 

Accreditation

6. At all material times, my Company was accredited by the Accredited Trade Association (“ATA”) known as the British Parking Association (“BPA”). The BPA has a Code of Practice (“Code”) that its members are expected to adhere to, or otherwise face potential sanctions. My Company operates in accordance with the Code.

7. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency (“DVLA”) my Company must be a member of an ATA. It is therefore essential for my Company to comply with the Code.

 

Background

8. My Company issued a PCN (“Charge”) to the Vehicle (“Vehicle”) with details listed below: PCN No. Location (“Land”) VRN Issue Date Reason for Issue XXXXXXXXXXXX Urban Exchange, M4 Car Reg. 04/07/2018 Vehicle remained on private property in breach of the prominently displayed terms and conditions

9. At the time of issue, my Company was instructed by the owner of the Land (“Landowner”) to manage parking on the Land. A copy of my Company’s agreement with the Landowner (“Landowner Agreement”) is exhibited to this Statement at “EXHIBIT 1”.

 

Contract

10. At the time of issue, my Company was prominently displaying signs on the Land setting out the Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. The signs formed the basis of the Contract with the driver (“Contract”).

11. The following was a term of the Contract: - 2 “1 Hour 30 Minutes Free Parking. This car park is controlled by ANPR cameras and/or Warden patrols. If your vehicle remains on site and fails to comply with any of the terms and conditions stated below at any time, you agree to pay an £95 Parking Charge. 1 hour 30 minutes maximum stay for customers only. No return within 2 hours”.

12. In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being the Consideration. It is evident from the photographic evidence exhibited within this Statement at “EXHIBIT 3” that the Vehicle entered the Land at 13:04 and exited the Land at 15:16. The Vehicle remained parked on the Land for 2 hours and 11 minutes, thus breaching the Contract.

13. The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days.

14. A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at “EXHIBIT 4”.

15. A copy of the Charge Notice and Reminder Notices are exhibited to this Witness Statement at “EXHIBIT 3”.

deezee3k

Part 2 - Highview WS

Defendant’s Liability

16. Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.

17. My Company uses Automatic Number Plate Recognition (“ANPR”) technology on the Land to manage the parking. Cameras capable of accurately recording vehicle registration numbers are constantly monitoring the entrance and exit to the Land. A photograph is taken of each vehicle as it enters and exits the Land. Any vehicle found to have breached the Terms of parking will be issued with a PCN.

18. In order to identify the owner of the vehicle issued with a PCN, my Company submits a request to the DVLA. Upon receipt of the Defendant’s details, notices are sent to the Defendant (copies are exhibited at “EXHIBIT 3”). These Notices ask who the driver was, whether themselves or someone else, and make payment if they are liable. On the balance of probabilities, it is submitted that if the Defendant was not the driver, they would explain that or nominate.

19. In this regard during cross examination, my Company will request further details without concession on the history or usage of the Vehicle i.e. who was insured to drive the Vehicle. Defence

20. The case is simple. The ANPR cameras recorded the Vehicle on the Land in excess of 1 hour and 30 minutes. The signs very clearly state that there is a 1 hour and 30 minutes maximum stay period. The cameras are provided with criteria and issue charges where those criteria are met (i.e. above the maximum stay period). There can be no reason, other than to frustrate the matter, why the Defendant has submitted a legally complex defence in response to that. The Defendant simply needs to answer the questions that has been avoided throughout the Defence; were they driving? did they overstay? The answer to the latter being, yes, as is evident from the photographs within “EXHIBIT 3”.

21. The Defendant was afforded a 28-day period in which they could appeal and I am instructed they did not. The potential next step was clearly communicated to the Defendant in notices. It is respectfully submitted that if the Defendant genuinely believed the Charge had been issued incorrectly, they would have engaged with the appeals process further.

22. The Defendant emailed my Company on 16/02/2021 following receipt of the Letter of Claim. It is respectfully submitted that my Company is not in receipt of any requests from the Landowner to cancel the Charge. The Defendant was provided with the opportunity to pay the sum of £95.00 to my Company in relation to the Charge as a gesture of goodwill, it was confirmed if the payment was not made within 14 days the full amount would be required. The Defendant failed to make the payment and as such, the full amount remains due and owing. A copy of the correspondence is exhibited at “EXHIBIT 5”.

23. The Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my Company’s time.

24. Notwithstanding the above, I respond to the issues raised in the Defence by way of sub-headings as follows (as the defence is quite repetitive, I will only deal with each point once, but for the avoidance of doubt nothing within the defence is accepted unless I specifically state otherwise): - 4 The Contract i. The Defendant alleges that there is no contract between them and my Company. It is my Company’s position that there is and the details of which are set out above. Parking Eye -vBeavis established that this form of contract is perfectly workable; Defendant’s Allegations ii. It is respectfully submitted that a Charge Notice and Reminder Notices were sent to the address registered with the DVLA, the onus is upon the Defendant to keep their details up to date with the DVLA. It is respectfully submitted that the Defendant was placed on notice and failed to respond or pay; iii. My Company does not seek to rely on the Protection of Freedoms Act 2012 to recover the Charge. As previously stated, this claim is issued against the Defendant on the basis that they are the owner of the Vehicle and did not nominate. On the balance of probabilities, it is submitted that if the Defendant was not the driver, they would explain that or nominate; iv. During cross examination, the Defendant will be asked to answer the question ‘were you the driver?’ It is respectfully suggested that the Defendant bear in mind that, under oath, they will need to answer that question truthfully. There is no sensible reason why, if the Defendant was not driving, they did not nominate the person who was. Once it is established, they were the driver, it is clear they entered the Contract and is liable; CPR Compliance v. The Defendant questions whether the Particulars of Claim comply with the Civil Procedure Rules. I submit that the Claim was issued via the County Court Business Centre and in this regard, I refer to Practice Direction 7E (“the PD”) which specifically provides the guidelines for doing so. I respectfully submit that the Particulars of Claim (“the Particulars”) are in keeping with the PD. The following sections are of relevance: - 5.2(1) provides a limited character count for the Particulars of Claim; and 5 5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form. vi. It is my Company’s position that the Particulars were sufficient to allow the Defendant to identify the subject matter of the Claim. The Defendant could not have submitted a Defence with the detail it contains if the Particulars were so insufficient as to prevent them from understanding the claim. Further, with respect, if the Defendant were of the genuine belief that the Particulars of Claim were insufficient, the correct procedure would have been to make an Application to the Court. The Defendant has chosen not to do so; vii. In addition to the above, I also refer to CPR 1 and respectfully remind the Defendant of their obligation to deal with the case justly and at proportionate cost. Bearing in mind the claim amount, my Company has taken proportionate steps to recover the debt; Terms / Signs viii. The Terms on the signs were adequate in respect of overall size, font size, plain English, location and content. The Plan demonstrates where the signs were located and it is submitted they are adequate to constitute notice of the Terms to the Driver. If the Defendant did not understand the Terms on the signs, they should have exited the land and found alternative parking; ix. The signs clearly outlined the Terms of parking and the Defendant was on notice of the Terms upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These Terms state that if breached, the Defendant agrees to pay within 28 days of issue; x. In respect of the ‘rules’, as per Schedule 2 of the Consumer Right Act 2015, specifically referred to: - Rule 6 – It is submitted the sum is not disproportionate for the reasons set out within the ‘amount claimed’ section of this Statement, nor is it ‘compensation’. Rule 10 – As is evident from the Plan, signs were displayed throughout the Land. The Driver was aware of the fact that parking was managed from the point of entering the Land and could leave if they did not agree to the Terms. It is not unreasonable for the 6 Driver to need to potentially walk no more than 10 meters to fully familiarise themselves with the full Terms. This would have all happened before the conclusion of the contract. Rule 14 – The price is stated on the sign. Rule 18 – The fact the Driver was able to park means my Company fulfilled its obligations. xi. The phrase ‘double recovery’ suggests the same amount is being recovered twice. This is not what is claimed, as explained later in this Statement; xii. The Terms clearly stated what would happen if the Terms were breached: - “If your vehicle remains on site and fails to comply with any of the terms and conditions stated below at any time, you agree to pay an £95 Parking Charge”. With no concession made in this regard, if a Driver ever does not understand the Terms on the signs, they can exit the land and find alternative parking. They are under no obligation to park on the Land. Penalty / Amount Claimed xiii. In respect of the Defendant’s allegation that the claim is a penalty, my Company is not seeking more than the original charge as the core debt. The core charge remains the same for each PCN (i.e. £95); however, my Company is now also seeking further costs/damages; xiv. My Company is instructed to manage the Land, the Landowner agreement previously referred to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation. The Landowner’s legitimate interest in managing the Land is because it is a shopping centre, and the flow of traffic is key. If the same vehicles remain on the land for more than 1 hour and 30 minutes or use the parking for purposes other than shopping at that shopping centre, then it directly effects the business of the shopping centre. Because there is a clear legitimate interest/commercial justification, the same as that established in ParkingEye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case; xv. The amount charged is in line with the guidelines given by the ATA. “Part 20.5 of the BPA COP states “We would not expect this amount to be more than £100. If the charge is more 7 than this, operators must be able to justify the amount in advance”. It is my Company’s position there is no requirement for the amount of the charge to bear any relevance to the actual or potential cost of parking. The PCNs are a fee charged by my Company for providing the service and it stays within the guidelines given by the ATA. As with many other ‘services’; the service provider is entitled to charge as they deem appropriate; xvi. The PCNs were not paid within the prescribed 28 days or indeed at all. In view of this the sum of £70 is also claimed as a debt recovery cost pursuant to the signs which states “failure to make prompt payment may incur additional costs”. The Defendant was on notice of the fact that the outstanding amount may increase as a result of any necessary debt recovery action. In support I draw the Court’s attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: - “There is nothing … which enable[s] the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14”; xvii. The sum added is a contribution to the actual costs incurred by my Company as a result of the Defendant’s non-payment. My Company’s employees have spent time and material attempting to recover the debt. This is not my Company’s usual business and the resources could have been better spent in other areas of the business, generating profit. Had the Defendant of paid as per the Contract, there would have been no need for recovery action so the amount due would not have increased; xviii. With respect of Parking Eye -v- Beavis [2015], whilst it is accepted the original charge is designed to include the ‘operational costs’; this was with reference to maintaining the land, taking payment or sending the relevant notices. It was never intended to include the need to pursue the debt in Court to recover it. If that were the case, it would override the Civil Procedure Rules (allowing fixed costs and recovery of court fees) which of course is not the case. The Defendant has misunderstood the phrasing ‘operational costs’; xix. Within paragraph 20 of the Defence, the Defendant alleges my Company has failed to adhere to the Landowner's definitions, exemptions, grace period, hours of operation and instructions to cancel charges due to complaints. The Defendant is a third party to the Landowner Agreement. Privity of contract applies; Dismissal of Claim 8 xx. The recent successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the claim does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a claim of this type does not constitute an abuse of process that would allow for the entire claim to be struck out.

25. In view of the above, it is my Company’s position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable.

 

Conclusion

26. My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any event.

27. In the alternative to the contractual costs set out above, my Company reserves the right to claim additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary. It is my Company’s position that this is unreasonable behaviour and it is respectfully requested that the Court considers whether they conclude the same.

28. It is my respectful submission that the Defence is entirely without merit and as such it is requested that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith.

29. I may not be able to attend the hearing. Should this be the case, I will instruct an advocate to attend on my behalf and ask that the Court accepts this as my written notice given pursuant to CPR 27.9(1). Should I be unable to attend, I request the Court decides the claim in my absence, taking into account this Statement and any other evidence I may file. This paragraph demonstrates my compliance with paragraphs (a) and (b) of CPR 27.9(1).

 

30. In the event an advocate does attend the hearing, I request their fee be added to the amount sought.

 

STATEMENT OF TRUTH I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Signed Yvette Yates on behalf of the Claimant Dated 1st October 2021 DCB Legal Limited Direct House Greenwood Drive Manor Park Runcorn WA7 1UG Ref: 101185.7958d Solicitors for the Claimant

deezee3k

Hi everyone.

I’ve had a go at writing my Witness Statement. Please can it be looked at and suggestions be made.

The case escaped my attention after the defence was filed

I would like to submit it tomorrow but may be ok to submit on Thursday, which I know gives very little time for suggestions/changes.

 

Does it read well and make sense?

Is anything missing? Beavis?

Are all the sections relevant given that I am defending as the keeper and not the driver?

 

Brief background

Highview parking event from 2018 – so non POFA compliant?

I am the keeper of the vehicle but on probability was not the driver the day of the parking event

I didn’t receive initial PCNs due to not registering a change of address

Agreed for case to be put on hold due to Highview and DCBL claiming from me different amounts – Highview reduced the charge as a gesture of goodwill but didn’t notify DCBL

Case was not put on hold and court papers served

 

Thank you so much for any time you can spare to help.

IN THE COUNTY COURT

 

Claim No.: <CLAIM #>

 

Between

Highview Parking Limited

(Claimant) 

 

- and -  

 

<NAME>

 (Defendant)

 

BUNDLE – TABLE OF CONTENTS

 

Contents	Page(s)
Witness Statement	2 – 8
Exhibit 01 – Debt collection letters	9-10
Exhibit 02 – Email request for confirmation of correspondence	11
Exhibit 03 – LOC email	12
Exhibit 04 – Highview Parking Terms and Conditions	13
Exhibit 05 – Excel vs Wilkinson Approved Judgement – Bradford CC	14-22
Exhibit 06 – Extract from Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907	23
Exhibit 07 – Schedule of Costs	24

IN THE COUNTY COURT

 

Claim No.: <CLAIM #>

 

Between

Highview Parking Limited

(Claimant) 

 

- and -  

 

<NAME>

 (Defendant)

 

 

WITNESS STATEMENT OF DEFENDANT

 

 

1.         I am <NAME> of <ADDRESS>, and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.         In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

Sequence of events:

3.           The PCN was issued for the alleged incident on 4th July 2018 at Urban Exchange, M4. The PCN is exhibited to the Claimant’s Statement at “Exhibit 3”.

4.           I never received the original PCN as it was sent to a previous address.

5.           I only became aware that a PCN existed sometime after the fact when in the forms of a ‘Notice of Debt Recovery’ and then a ‘Final Reminder’ letters from a debt collection agency (Exhibited in this statement as ‘Exhibit 01’) started to arrive at yet another previous address, even though my address records with the DVLA were up to date..

6.           Unfortunately, this did not afford me an opportunity to appeal via the normal process as I missed all windows.

7. When I was finally made aware of this PCN, over 2 years after the event, correspondence with the Claimant has been confusing, frustrating and even distressing.

1. On 8 January 2021, an email from ‘Appeals PCN’ shows an offer of a “reduced charge of £95” detailed in the Claimant’s ‘Exhibit 5’.
2. On 13 January 2021, I spoke with DCB Legal about this case. They informed me that I owed £165, so there was no correspondence between the Claimant and DCB Legal.
3. Given the confusion in the above Paragraphs i. and ii., the case was agreed to be put on hold.
4. The next letter I received in April 2021 was the N1SDT Claim Form, which was extremely distressing, demonstrating that the case had not been put on hold.
5. I continually requested confirmation that my email correspondence were being received (exhibited to this statement as ‘Exhibit 02’), something I was never given.

 

Non Compliance with POFA

8.        The PCN issue by the Claimant’s “Exhibit 3” is not compliant with the Protection of Freedoms Act 2012 ('PoFA'), and it was therefore incapable of invoking the ‘keeper liability’ provisions set out in the PoFA, Schedule 4 exhibited to this statement as “Exhibit XX”.

9.        The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort”. POPLA report 2015 Page 13 is exhibited to this statement as “Exhibit XX”..

10.        My research has revealed that Highview Parking Limited is a parking firm which has chosen never to use 'keeper liability' wording (primarily as set out in para 9 of the POFA Schedule 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a non-POFA PCN like this one and as I have demonstrated above in Paragraph 12:

                        i.         On the balance of probabilities, I was likely not the driver on that day. As outlined in my defence and here in Paragraph 14 the identity of the driver(s) at the material time is unknown. I was not the only insured driver of the vehicle in question and I am unable to recall who was or was not driving on this visit to Urban Exchange, M4 on an unremarkable day over 3 years ago.

11.        Following on from the 3 points above, where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, the Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a Highview Parking Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.

12.        The Claimant willingness to not comply to PoFA is further recognised in the Claimant’s own Witness Statement Paragraph 24 iii (pasted in “i” below) and as I’ve demonstrated throughout the Witness statement the identity of the driver(s) at the material time is unknown and therefore as the registered keeper the Claimant is in no position to suggest that I have entered into a contract:

                        i.         “My Company does not seek to rely on the Protection of Freedoms Act 2012 to recover the Charge. As previously stated, this claim is issued against the Defendant on the basis that they are the owner of the Vehicle and did not nominate. During cross examination, the Defendant will be asked to answer the question ‘were you the driver?’ It is respectfully suggested that the Defendant bear in mind that, under oath, he will need to answer that question truthfully. There is no sensible reason why, if the Defendant was not driving, they did not nominate the person who was. Once it is established, they were the driver, it is clear they entered the Contract and is liable;”

13.        Paragraph 20 of the the Claimant’s Witness Statement poses two questions, which I will respond to in turn in Paragraphs 14 & 15:

                              i.         “were they driving?”

                            ii.         “did they overstay?”

 

14.        In response to “were they driving?” – On the balance of probabilities, I was likely not the driver on Wednesday 4th July 2018, given that the core days of my job role at the time were Monday to Friday and I used pubic transport to travel from Rochdale to Trafford, with the incident occurring in Manchester.

 

15.        In response to “did they overstay?” – This is difficult to answer, given the differing and confusing terms that have been provided in the Claimant’s Witness Statement (Paragraph 11) and those acting on their behalf displayed in the Exhibits;

1. In an email I received from ‘DCBL Legal LOC Replies’ on 16 February 2021 (exhibited in this statement as ‘Exhibit 03’), the terms and conditions referenced “one hour free parking, two hours maximum stay”.
2. In the same email, the ‘Terms and Conditions’ attachment (Exhibit 04) shows an undated photograph that is a “Guide to 2 hours free parking”. Given this is a busy car park in a city centre and allowing adequate amount of time to exit, the overstay that is claimed would not be unreasonable.

‘Exhibit 2’ of the Claimant’s Witness Statement shows an undated photo of the car parking signs that show “1 hour 30 minutes free parking”.

deezee3k

Justification for length of Response to Claim & Witness Statement:

16.           In response to the Claimant’s belittling comments about me in their witness statements from Paragraph 20 and 23 (copied below for reference). I am a litigant in person that had zero prior knowledge of UK parking law, I think it is wholly reasonable that I:

                        i.         researched parking law to the best of my ability in the limited time that I’ve had since being made aware of the claim

                       ii.         made use of a widely available template which covered lots of bases. I have no baseline for what would be considered a legally complex defence and as such I took the decision to include everything which I deemed as potentially valuable in being able to best represent my case and demonstrate that this claim is without merit. Further to this, Paragraph 23 of the Claimant’s Witness appears to have been copied and pasted from the Witness Statement of other Highview Parking cases that I have researched, given the same typing error in all (referred to with ‘(sic)’ below.

 Para 20: "…There can be no reason, other than to frustrate the matter, why the Defendant has submitted a legally complex defence in response to that.”

Para 23:“The Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted the this (sic) is disingenuous and a waste of both the Court’s and my Company’s time”.

 

Abuse of process – the quantum

17.           In addition to the disputed Parking Charge Notice claim amount of £95, the Claimant has added a sum of £70 that is disingenuously described as 'debt recovery costs'. The added £70 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is exhibited to this statement as ‘Exhibit 05’). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

18.           At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims. That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued. The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

19.           The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP [2021] F83YX432 (the transcript of which is exhibit XX-04), where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to s62 of the CRA, as it created imbalance between the parties.  Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant.

20.           Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied.

 

Redacted Landowner Contract

21.           The Claimant has appended a ‘Witness Statement” (Claimant’s Exhibit 1) as evidence of their company’s agreement with the Land Owner (“ Landowner Agreement”) This document has little or no probative value and which offends against the rules of evidence. The ‘Client’ signatory of the ‘Agreement’ could be anyone, even a stranger to the land, and the Claimant provides no evidence that the ‘Client’ is the landowner.

22.           It is also clear that the document has not been signed by two Directors, nor by one Director in the presence of attesting witnesses, and as such cannot – according to the Companies Act – be considered a validly executed contract. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

23.           Furthermore, the “Witness Statement” was arbitrarily executed on 25th September 2020 – A date which has no material meaning to this Claim.

24.           In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 for which a link to the transcript has been exhibited to this statement as “Exhibit 04” the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. In this case the Claimant has failed to even provide a redacted Contract of their right to operate.

25.           Full extract for paragraphs 74 & 75 is exhibited to this statement as ‘Exhibit 06’ ... ref to Paragraphs 74 & 75: The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

 

The effect of the demands on myself and my family:

26.        Letters from DCBL provided in ‘Exhibit 01’ which were headed as ‘Notice of Debt Recovery’ and ‘Final Reminder’ were particularly worrisome. The letter contained such menacing wording “Can’t Pay? We’ll Take It Away!”. These notorious enforcement agents are seen on TV and my impression is that they just go out of their way with the sole aim to recover the monies for their client.  I didn't realise until this point that I was being pursued to court, that in fact these earlier letters were never from the DCBL 'bailiff arm' seen on TV because the wording was misleading and designed to intimidate me.  I honestly believed they were going to come knocking on my door and take away my car.

27.        After thinking the case was on hold, a “Claim Form” arrived, I realised that this was not going to disappear and I would need to take action to defend myself. The threats at this stage were twofold in nature: those to start legal proceedings against me could cause considerable anxiety, distress and harm having bailiffs turn up at my door to remove goods and having a CCJ being recorded at the credit reference agencies for 6 years.

 28.        My employability was under threat, not only a CCJ would harm my employment prospects should I lose my current job. What matters most to me is the threat of my credit rating being destroyed causing significant problems applying for loans and a mortgage, which I was in the process of.

29.           I have wasted so many hours of my life on this, more importantly, I was brought to a state of considerable anxiety and distress on multiple occasions, not knowing whether that I would end up with a County Court judgment and a bailiff would come at any time to remove all my goods, whether I missed a court claim form such that legal proceedings might have already been brought upon me or it had already been reported to a credit rating agency.

30.        The thought of having to go to court to defend yourself is frankly terrifying and I had to work tirelessly to prepare for the court proceeding

31.        The aggressive tone of the Claimants’ letters has been extremely intimidating. Which I now understand to have occurred even from early at the earliest stages where the PCN threatens with enforcement action and court proceedings.  I am sure the Claimants are fully aware of the effect this has on people who are not experienced in the law or litigation, but just to be clear: it is terrifying. Even more so when the people who are bullying you refuse to listen to you. I was unable to stop this Claimant from its aggressive pursuit of me, made me feel vulnerable, frustrated and helpless.

32.        As a result I suffered a great deal of distress over a long period.  It’s hard to express in words how bad it made me feel. Each time I began to think they must have dropped the case, another letter arrived. I feel they were using these letters not as a genuine means to progress the matter in a fair and open way, but as a weapon to frighten me into giving up.

 

CPR 44.11 - further costs

33.           As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records.

34.           Therefore, I am appending with this bundle a fully detailed costs assessment (exhibited in this statement as ‘Exhibit 05’) which covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).

deezee3k

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

35.          As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

36.           The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings) are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

Statement of Truth

I believe that the facts stated in this witness statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Witness’ signature:

Redx

An interesting saga , they talk about ownership , yet the DVLA do not keep a register of owners and never have , ownership is irrelevant !

There is no legal requirement to name the driver in civil cases , so a keeper can decide to do nothing , it's up to the claimant to sue the driver , if known , otherwise they fail because they choose to ignore POFA , even after 9 years !!

I am glad to see Wilkinson and Cohen in there , as a counter to the spurious extras

I couldn't find anything obvious , errors or omissions etc , so looks very good to me

Let's see what others think