Witness statement, is this enough.

tuskt

Thank you all for getting me this far, The witness statement has to be submitted next week. I have amended the previous version for any further constructive criticism. 

 

Witness statement

Index

 

 

 

SC01. Entrance to the car park, showing parking sign, swivelled sideways.

SC02. View of road where the broken-down car stopped.

SC03. Alternative view of road where the broken-down car stopped.

SC04. My parking charge notice exiting ***** pm.

SC05. My mother’s Parking charge notice exiting ***** pm.

SC06. Clear signage from the Beavis case.

SC07. Unclear Xercise4less sign from google April 2019

SC08. Excel vs Wilkinson: G4QZ465V Transcript

SC09. Recorder Cohen judgment chevalier-Firescu v Ashfords LLP  Transcipt F83YX432

SC10. Witness costs

 

 

In the county court at ****

 

Claim number ******

 

Premier Park limited

V

************

 

Witness statement of the defendant

 

I am ************* and I am the defendant against whom this claim is being made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

In my statement I will refer to various exhibits, which are numbered and included within the evidence pack.

 

Sequence of events

 

 

1.      On ***** 2019 I received a call from my elderly mother. Her car had broken down and been pushed by some people, from the dual carriage way onto the entrance road of the car park for Xercise4less (Exhibit SC01). This meant that it was now causing an obstruction on the car park road. (Exhibits SC02, and SC03). With my son we went to assist. I was the passenger; my son was driving my car ******** when we went through the entrance of the carpark.

 

 

2.      We pulled in front of my mother’s car, attached a towrope, and proceeded to tow her car away. My son drove my car ****** and I was in my mother’s car when we exited the carpark. We only stopped on the road for the time it took to attach the towrope. We did not go to the parking bays or the gym building and did not go near the signs attached to the buildings. Both the towing car and the towed car exited the carpark at exactly the same time **** 2019, 20:07 pm. ANPR photograph also shows tow rope attached. (Exhibit SC04 and Exhibit SC05)

 

3.      I emailed Premier Park as soon as I received the parking charge notice. This was the first time I was aware of the alleged infringement. I explained we were there solely to tow away my mother’s car. My mother also appealed at the same time and her parking charge notice was cancelled.

 

4.      It cannot be the intention of the landowner/gym to penalise every driver who either drops people off or, as in this case, merely attends to tow a broken-down car out.  The claimant is put to strict proof of the terms of their enforcement, which is surely for parking events only, not every car captured crossing the threshold. This is predatory ticketing, contrary to the BPA Code of Practice. It is clear that no other motorist was deprived of parking in any of the parking bays.

 

5.      The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred, because there was no valid contract. Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

 

6.      Inadequate signage. A key factor in the “ParkingEye v Beavis” was that the relevant signs were large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, that “motorists could hardly avoid reading the notice” (clear black on yellow) and “the charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” I have included a copy of this sign in (Exhibit SC06) for comparison. As shown in (Exhibit SC07) the sign at the xersixe4less entrance is considerably smaller does not contain charge. In November 2019 when I took the photograph, the sign was partly obscured by a bush (Exhibit SC02). In April 2019 (google photograph) the sign had been swivelled round and could not be seen all from the entrance. (Exhibit SC01)

 

 

7.      Abuse of process –In addition to the disputed Parking Charge for £100 the Claimant has added a sum of £60 that is disingenuously described as 'debt recovery costs’. The added £60 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 Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued. After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''. (the transcript of which is exhibit SC07).

 

8.      Recorder Cohen judgment.  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, 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.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. (transcript of which is exhibit SC08).

 

9.      As a litigant-in-person I have had to spent a considerable time researching the law online, processing and preparing my defence and this witness statement. I ask for my fixed witness costs.

 

 

The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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                                          Date 2nd November, 2021

 

Coupon-mad

I didn't see anything about the lack of landowner authority, which was in your defence if you used the forum template.  I'd add it after #4 and put the C to strict proof if the terms if the agreement, including grace periods and exemptions.

Also, as you were not the driver and your defence denied liability, you can expand on the lack of liability and say PP failed to comply with the POFA so you cannot be held liable because you were not driving and they can't rely on the keeper liability provisions of Schedule 4.  Put into evidence the POPLA Appeal decision posted in POPLA Decisions this week and expand on the wording omission and the fact POPLA has declared this NTK is not compliant.

It's pedantic and up to the Judge but the POPLA Assessor in that case was concise and adamant.

tuskt

Another one bites the dust

 Thank you to all the contributor’s to this community especially in my case, Le_Kirk, Coupon-mad,  D_P_Dance, Redx, and 95Roller.

I’m so glad this is over

95Rollers

Great result👍 and no problem. Happy it worked out.  Obvioisly you sent your WS, but did they send theirs to you?

Coupon-mad

Yay, as you say, another Premier Park one bites the dust!

tuskt

Hi 95rollers, BW legal didn't send me witness statement.   

Coupon-mad

Ah so they mucked it up and ran out of time!

Le_Kirk

tuskt said:

Another one bites the dust  Thank you to all the contributor’s to this community especially in my case, Le_Kirk, Coupon-mad,  D_P_Dance, Redx, and 95Roller. I’m so glad this is over

Great, so glad it is over for you with a positive outcome.