Claim from form country court for unpaid PCN charges

alexrider

Hello Kind Experts, 

Please help me out in the last step to get the WS statement right,

After reading up the forums and internet I have prepared my WS as given below, but its mostly copy of my defence statement, along with some additional documents, please let me know if I should be changing anything or inclduing any other details of if Im in the wrong direction in preparing WS,

          In The County Court of XXXXX    

           Claim No : XXXXXX

PARKING AND PROPERTY MANAGEMENT LTD                

                                                                                                                  (CLAIMANT)

-AND-

XXXXXXXXXX

                                                                                                              (DEFENDANT)   

WITNESS STATEMENT OF DEFENDANT for REMOTELY by WAY OF CVP

1.     I XXXXXXXXXXXXXXX, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my 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:

 3.     The defendant’s vehicle was briefly stopped in communal area for unloading items (with hazard lights on) and carrying items to defendant’s property situated in 6th floor, as contractors were carrying out works in the property. The defendant had no option but to leave the vehicle in the communal area as the usual car park was closed by management company under guidance from Royal Berkshire Fire and Rescue service due to Grenfell fire safety regulations due to health and safety reasons.  The management company failed to provide alternative parking arrangements onsite for loading/unloading or for emergency use. The defendant’s vehicle was briefly stopped to side where it’s not causing any inconvenience to residents or blocking any entrance/exit/fire exits. The Defendant being leaseholder, the right to access the premises without causing any trouble to other residents since the usual parking space was shut. The Defendant contacted the management company over phone when received the parking charges, The management company said that they cannot intervene as it is dealt by external parking management company and to be discussed with parking company. The defendant then appealed to Parking and property management with the same reasons and appeal was rejected and passed on to law firm.

 4.     The car park cannot be run as if it is privately owned because it is owned by a TMA. Councils are not permitted to operate car parks as if they are privately own, irrespective of whether they employed the unregulated parking company themselves or employed an agent who in turn employed the unregulated parking company The car park being not relevant land because it is owned by the council who are a Traffic Management Authority (TMA), therefore the PoFA does not apply, the unregulated parking company is not permitted to obtain keeper data from the DVLA.

 5.     An unregulated private parking company was introduced by the residential management company to manage communal spaces of flats without consulting landlords and leaseholders of the property. The landowners and management company failed to ballot all leaseholders in accordance with Section 37 of the Landlord and Tenant Act 1987. A resident's lease cannot be varied without a ballot in favour as defined by the Act. Such a variation of lease is derogation of grant. A third party cannot takeaway or vary a leaseholder’s existing right to park.

 6.     In the persuasive appeal court case of (Laura) Jopson vs Homeguard (Services Ltd) case number 9GF0A9E the judge stated in paragraph 19 of the case that loading and unloading is not parking. The defendant’s case is no different. The defendant’s vehicle was briefly stopped whilst items were being unloaded and carried into the defendant’s property.

 7.     The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

 8.     It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

 9.     Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

 10.   The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

 11.   Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

12.    Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.   

13.   Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

14.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

15.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

16.   The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

17.    Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

18.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

19.   In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

Please let me know if I should be chnaging anything in the above or adding anything else, Im also planning to add the follwoing additional docuemnts along with the above WS,

1.  Lease Copy pf the flat
2.  Proof of leaseholder
3.  Car park closure confirmation
4.  Appeal rejection copy from Parking mgmt company
5.  Communication with management company regarding parking arrangements made without leaseholders ballot

Thanks in advance,much appreciated for your time and guidance

KeithP

I didn't read that, mainly because you told us it is pretty much a copy of your Defence.
That is not what a Witness Statement is.
Have you read the sample Witness Statement linked from the second post of the NEWBIES thread?

Also worth noting that the court won't read that extra stuff you have listed unless you explicitly refer to them in your Witness Statement and argue their relevance.
For example, you are supplying a copy of your lease of the flat. Your Witness Statement needs to refer to that document and explain how that document supports your position.

alexrider

Thanks @KeithP for pointing me to right direction, sorry but i wasnt sure where to start and how to put the WS togetehr, I will try to explain sequence of events and provide evidence related to that event

Fruitcake

alexrider said:

Thanks all for your inputs, I have gone through my lease, however I dont see any points related to Car park mentioned in lease apart from the following,

"If the Tenant has the benefit of lease of a space in the Car Park ( 'The Parking Lease') and the parking lease has not been determined, the Parking Lease is disposed of at the same time, in the same manngher and to the same person as this lease"

and this is under Assignemnt, Underlying and Charging Section of lease

Also please note my Flat doeasnt have a car park lease, but I usually use visitor/Contractor car park by speaking to concienrge if I have to unload/load the material or if I need to use for any other purposes on site,

Just to give back ground on circumstances I have recieved parking ticket is :

I have left my car on communcal space to unload the material into flat with hazard lights on as usual car park was closed and no alternative arrangemnts were made on site by managment company ( on usual circumstances I use visitor/contractor car park)

What your lease doesn't say is just as important as what it does say.

If there is no mention of a PPC, permit scheme, PCNs, paying PPCs/PCNs, and court claims, then you say so.

Fruitcake

You will need to include transcripts of the court cases you have referred to along with your other exhibits.

alexrider

Thanks @Fruitcake thats good point, think that points out any lease changes should be ballotted, which I have highlighted in my WS,

@KeithP Thank you pointing me to right direction, I have been scrtaching my head from last couple of days and couldnt get into right, Hopefully this time got this in right direction, ofcourse this might need tweaks which I'm hoping subject experts will feedback and help me to get this right to win the case,

WS :

               In The County Court of XXXXXXX    

                                                                                      Claim No : XXXXXX

PARKING AND PROPERTY MANAGEMENT LTD                

                                                                                                                 (CLAIMANT)

-AND-

XXXXXXXXXX

                                                                                                              (DEFENDANT)   

WITNESS STATEMENT OF DEFENDANT for REMOTELY by WAY OF CVP

1.     I XXXXXXXXXXXXX, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my 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:

 3.     The Defendant is leaseholder of the XXXXXXXXXXXXXXX, please find the attached proof of leaseholder and lease copy.

 4.     An unregulated private parking company was introduced by XXXXXXX - residential management company to manage communal spaces of flats without consulting landlords and leaseholders of the property. The landowners and management company failed to ballot all leaseholders in accordance with Section 37 of the Landlord and Tenant Act 1987. A resident's lease cannot be varied without a ballot in favour as defined by the Act. Such a variation of lease is derogation of grant. A third party cannot takeaway or vary a leaseholder’s existing right to park.  Please find the communication from management company to confirm no ballot has taken place while introducing the external private parking company.

 5.     Chatham Place car park was closed on XXXX by XXXXXX– residential management company under guidance from Royal Berkshire Fire and Rescue service due to Grenfell fire safety regulations due to health and safety reasons.  Copies of communication regarding car park closure from management company provided.

 6.     XXXXXXXXXX- residential management company failed to facilitate alternative arrangements onsite for loading/unloading/ emergency purposes or lifted restriction regarding the third party unregulated private parking company restrictions. Copies of communication attached related to the conversation with management company.

 7.     On 18th of September 2020 Defendant stopped the car briefly in communal area whilst items were being unloaded and carried into the defendant’s property (as the usual car park was closed and no alternative option was available onsite). Please note every care was taken to stop the car to a side where it’s not obstructing or causing inconvenience to anyone or blocking access to other premises or emergency vehicles.

 8.     On recieving notice of Parking Charges from Parking and Property management company Defendant contacted the XXXXXX - residential management company explaining parking charges levied on leaseholder under circumstances the car was stopped for unloading the material while the usual car park was shut. The management company said that they cannot intervene as it is dealt by external parking management company and to be discussed with parking company

 9.     Defendant had appealed to the Parking management company explaining the circumstances mentioned where the car was stopped briefly to unload the material, however parking management company have rejected the appeal and passed on the law firm.  Please find the copied of appeal and rejection attached.

 10.   Defendant would like to bring it to courts notice that loading and unloading is not parking. In the persuasive appeal court case of (Laura) Jopson vs Homeguard (Services Ltd) case number 9GF0A9E the judge stated in paragraph 19 of the case that loading and unloading is not parking. The defendant’s case is no different. The defendant’s vehicle was briefly stopped whilst items were being unloaded and carried into the defendant’s property. Copy of Judgement provided for reference.

 11.   The car park cannot be run as if it is privately owned because it is owned by a TMA. Councils are not permitted to operate car parks as if they are privately own, irrespective of whether they employed the unregulated parking company themselves or employed an agent who in turn employed the unregulated parking company The car park being not relevant land because it is owned by the council who are a Traffic Management Authority (TMA), therefore the PoFA does not apply, the unregulated parking company is not permitted to obtain keeper data from the DVLA.

 12. The fact in this witness statement are true to the best of my knowledge and belief.

 SIGNED:

 DATED:

Have attahced my defence for reference

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied.  

3.       The defendant’s vehicle was briefly stopped in communal area for unloading items (with hazard lights on) and carrying items to defendant’s property situated in 6th floor, as contractors were carrying out works in the property. The defendant had no option but to leave the vehicle in the communal area as the usual car park was closed by management company under guidance from Royal Berkshire Fire and Rescue service due to Grenfell fire safety regulations due to health and safety reasons.  The management company failed to provide alternative parking arrangements onsite for loading/unloading or for emergency use. The defendant’s vehicle was briefly stopped to side where it’s not causing any inconvenience to residents or blocking any entrance/exit/fire exits. The Defendant being leaseholder, the right to access the premises without causing any trouble to other residents since the usual parking space was shut. The Defendant contacted the management company over phone when received the parking charges, The management company said that they cannot intervene as it is dealt by external parking management company and to be discussed with parking company. The defendant then appealed to Parking and property management with the same reasons and appeal was rejected and passed on to law firm.

4.       The car park cannot be run as if it is privately owned because it is actually owned by a TMA. Councils are not permitted to operate car parks as if they are privately own, irrespective of whether they employed the unregulated parking company themselves or employed an agent who in turn employed the unregulated parking company The car park being not relevant land because it is owned by the council who are a Traffic Management Authority (TMA), therefore the PoFA does not apply, the unregulated parking company is not permitted to obtain keeper data from the DVLA.

5.       An unregulated private parking company was introduced by the residential management company to manage communal spaces of flats without consulting landlords and leaseholders of the property. The landowners and management company failed to ballot all leaseholders in accordance with Section 37 of the Landlord and Tenant Act 1987. A resident's lease cannot be varied without a ballot in favour as defined by the Act. Such a variation of lease is derogation of grant. A third party cannot takeaway or vary a leaseholder’s existing right to park.

6.       In the persuasive appeal court case of (Laura) Jopson vs Homeguard (Services Ltd) case number 9GF0A9E the judge stated in paragraph 19 of the case that loading and unloading is not parking. The defendant’s case is no different. The defendant’s vehicle was briefly stopped whilst items were being unloaded and carried into the defendant’s property.

 7.       The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

8.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

 9.     Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

10.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

11.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

12.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

13.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

14.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

15.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

 16.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

 17.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

 18.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 19.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 In the matter of costs, the Defendant seeks:

20. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant and will seek further costs pursuant to CPR 46.5.

21.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence 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 onest belief in its truth.

 

 

Please note that I have not included the points mentioned from points 7 ( defence document ) onwards  in WS, as they are mainly referecing to signage and excess charges of £85 which I felt may not be relevant to my defence, please kindly let me know if any of this should be included in my WS,

Thanks for your inputs and guidance

ParkingMad

The defendant’s vehicle was briefly stopped in communal area for unloading items (with hazard lights on) and carrying items to defendant’s property situated in 6th floor, as contractors were carrying out works in the property. The defendant had no option but to leave the vehicle in the communal area as the usual car park was closed by management company under guidance from Royal Berkshire Fire and Rescue service due to Grenfell fire safety regulations due to health and safety reasons.  The management company failed to provide alternative parking arrangements onsite for loading/unloading or for emergency use.

This situation has similarities with Kettel & Ors v Bloomfold Ltd [2012] EWHC 1422 (Ch) (25 May 2012). 

Explained here:

https://www.todaysconveyancer.co.uk/kettel-ors-v-bloomfold-ltd-2012-ewhc-1422-ch-25-may-2012/

You need this transcript as an Exhibit:

https://www.bailii.org/ew/cases/EWHC/Ch/2012/1422.html

Examples of good recent WS are by @Nosy and @jrhys.

 

You also need to provide the transcript of Jopson, not just talk about it. 

And anyone working on a WS this year, should read the new Code of Practice from the DLUHC which is currently live and laid before Parliament as part of the already enacted Parking (Code of Practice) Act 2019 and find the bits that talk about the rights of residents in their leases.  And certainly append the full lease as an Exhibit too.  And of course use @bargepole's paragraph about the part of the new Code that bans 'debt recovery' fees as there is no evidence they were ever incurred and in any case, adding £60 or £70 per PCN is hugely disproportionate which is why the Govt has stepped in and banned it. The PAP is not intended to be abused by either party as a vehicle to drive up excessive and unnecessary costs, not that the debt collector was ever paid.

Fruitcake

If you are a leaseholder then any variation of the lease must be agreed by ballot in accordance with the Landlord and Tenant Act 1987, Part IV, Section 37. All landlords and tenants must be balloted.

Le_Kirk

That is the old statement of truth, you need: -

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.

In paragraph 2 you state that you will be referring to exhibits but you do not explain how (it is normally your initials and a sequential number) - and in paragraph #5 & 6 you don't put any reference number at all; you need to hep the judge!

In you paragraph 7 you need to alter: -

Please note every care was taken to stop the car to a the side where it’s it was not obstructing or causing inconvenience....
Did you refer to Jopson v Homeguard (unloading is not parking) in your defence?  If so, you need that as evidence: -

9GF0A9E
LAURA JOPSON - v - HOMEGUARD SERVICES LIMITED 

alexrider

Le_Kirk said:

That is the old statement of truth, you need: -

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.

In paragraph 2 you state that you will be referring to exhibits but you do not explain how (it is normally your initials and a sequential number) - and in paragraph #5 & 6 you don't put any reference number at all; you need to hep the judge!

In you paragraph 7 you need to alter: -

Please note every care was taken to stop the car to a the side where it’s it was not obstructing or causing inconvenience....
Did you refer to Jopson v Homeguard (unloading is not parking) in your defence?  If so, you need that as evidence: -

9GF0A9E
LAURA JOPSON - v - HOMEGUARD SERVICES LIMITED 

Thanks  @Le_Kirk have updated the latest statement of truth

with regards to paragraph 2, Im mentioning while providing ereference will give exibits with evidence, do I need to provide all the exibit references in paragraph 2 ?

Paragraph 5 & 6, will be providing the evidence of communication, may be I should giv it a title and reference to that ? or do you mean in soemother way ?

have merged para graph 7 and 10 to provide reference after explaination,

 On 18th of September 2020 Defendant stopped the car briefly in communal area whilst items were being unloaded and carried into the defendant’s property (as the usual car park was closed and no alternative option was available onsite). Please note every care was taken to stop the car to a side where it was not obstructing or causing inconvenience to anyone or blocking access to other premises or emergency vehicle access. Defendant would like to bring it to courts notice that loading and unloading is not parking. In the persuasive appeal court case of (Laura) Jopson vs Homeguard (Services Ltd) case number 9GF0A9E the judge stated in paragraph 19 of the case that loading and unloading is not parking. The defendant’s case is no different. The defendant’s vehicle was briefly stopped whilst items were being unloaded and carried into the defendant’s property. Transcript of judgement provided as an exhibit.