Witness statement Draft for NTK

Le_Kirk

If you are using the standard defence template from the first page of the forum, there is no need to edit, add to or delete from any of the points there as it was written by @Coupon-mad and she would not mislead anyone.

MissssyD

@Le_Kirk and @Coupon-mad I received the Claimant’s witness statement and finally a copy of the original pcn issued. Should I post their WS here so I can get some feedback would that be ok? Thanks 

Le_Kirk

What you do with the claimant's WS is to read it carefully and check for any allegations that are factually inaccurate or wrong and any items that help your case and then, if you haven't sent your WS, use items in it and, if you have already submitted it, compose a supplementary WS pointing out the inaccuracies and the points that help you.  Post your/their WS here if you need any guidance.

MissssyD

Witness statement from The Claimant 

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 owner 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 XX 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 2 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: - “Free parking for customers only. 2 hours maximum stay” 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 to this Statement at “EXHIBIT 3” that the driver entered the Land at 1200 and exited the Land at 1440 The Defendant remained on the Land for a total of 2 hours and 40 minutes, thus overstaying the maximum period of parking allowed. 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, along with the Charge Notice Reminder is exhibited to this Witness Statement at “EXHIBIT 3”. 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 issue a PCN, my Company requests the details of the Registered Keeper from the DVLA. Upon receipt of those details, a Charge Notice is sent to the owner of the Vehicle via the post. The 3 Charge Notice is then followed up with other reminder notices. Copies are exhibited at “EXHIBIT 3”. 19. The Defendant does not dispute being the Driver or Keeper of the Vehicle. My Company reasonably believes that the Defendant was the Driver, because they would otherwise have nominated a driver. Since the Defendant was identified as the owner of the Vehicle, they are pursued on the balance of probabilities that they were also the Driver. Defence 20. 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. 21. If there was any doubt regarding their liability, the Defendant has had ample time to challenge the Charge or request evidence in support. Despite correspondence being sent to the Defendant by a debt collection agency and a Letter of Claim being issued in accordance with the Pre-Action Protocol for Debt Claims, no challenges have previously been raised. 22. Notwithstanding the above, I respond to the issues raised in the Defence as follows: - i. The Defendant denies receiving documents and alleges they were therefore unable to respond. I submit that a Charge Notice was sent to the address registered with the DVLA and 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. ii. The Defendant questions whether the Particulars of Claim comply with the Civil Procedure Rules (“CPR”). 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 4 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. iii. 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. iv. 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. v. The Defendant refers to a previous debt recovery company failing to provide them with evidence of the original PCN. My Company cannot make comment on the processes followed by any debt recovery company prior to the Claim being issued. In any event, my Company correctly issued the PCN to the address provided by the DVLA and as such it can reasonably be assumed that the Defendant was in receipt of the same. vi. The Defendant alleges to have sent a request for evidence to XX on XXX and xxx. My Company is not aware of any such requests. The only request for evidence made by the Defendant was made to XX on 2021, following which the Defendant was provided with the evidence currently held on file. vii. The Defendant alleges that XX have failed to provide any evidence to them. In response to this point, I repeat the above point and exhibit to this Statement at “EXHIBIT 5” a copy of the correspondence sent to the Defendant. It is therefore submitted that the Defendant would have been able to identify the debt. viii. The Defendant alleges that XX  have failed to comply with COPR 16.5 (4). XX Ltd have complied fully with the CPR as explained in Paragraph 22 ii-iv of this Statement. ix. The Defendant alleges that my Company is not entitled to recover the debt and that the Claim lacks validity. This is denied. It is my Company’s position that the PCN was issued to the Defendant correctly and as such is a legally owed debt. My Company has taken all the 5 reasonable and correct steps to recover the debt from the Defendant and as a result of their non-payment has instructed for legal proceedings to be issued as last resort. 23. 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. Amount Claimed The PCN Amount 24. The amount of the parking charge falls within the “between £50 to £100” bracket quoted at paragraph 111 of Parking Eye -v- Beavis [2015]. It is also in keeping 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 than this, operators must be able to justify the amount in advance”. 25. The amount charged is set at a rate that covers the operational costs of the parking management scheme and acts as a deterrent, as was found to be appropriate in Parking Eye -v- Beavis [2015]. Contractual Costs 26. As payment was not made within the prescribed time, or indeed at all, the additional sum is claimed as a contractual cost pursuant to the Contract which states: - “Failure to make prompt payment may incur additional costs.” 27. As set out above, the PCN amount is intended to include the ‘operational costs’. It is submitted that debt recovery action is not an operational cost and as such claiming the costs of doing so would not fall foul of the 2015 decision. 28. The sum added is a nominal contribution to the actual costs incurred by my Company as a result of the Defendant’s non-payment, and capped at the amount permitted under the ATA Code. My Company’s employees spent time and resource attempting to recover the debt, as well as instructing external debt recovery providers, all at a cost to the Company. This is not my Company’s usual business and, but for the Defendant’s refusal to pay, would not have been necessary. 6 29. When consider the recoverability of this element of the claim, I respectfully 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.” CPR Costs 30. My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any event. 31. 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. Conclusion 32. 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. 33. 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). 34. In the event an advocate does attend the hearing, I request their fee be added to the amount sought. 

MissssyD

Just to confirm this is the first time I have seen the pcn which they failed to submit to me when requested for it. The driver was not aware the car park at the site  was restricted to parking let alone monitored by ApNR when they visited the site. They failed to act on pofa and the request from DVLa was almost 5 months later. TheY obtained the previous residential address from DVLA as it was about the same time we moved and also Royal Mail would be redirecting the mail. Is there a deadline for submitting supplemental WS before the hearing?  @Le_Kirk and @Coupon-mad if you could suggest anything that would be really helpful please that I have not included in my WS previously, I would really appreciate it. Thank you 

bargepole

4.         I was the registered keeper of the vehicle in question in this case.   This is submitted in XX-01.   At the time of the alleged incident, the insurance covered more than one family member. I have no obligation to name to a private parking firm who the driver was. It remains the responsibility of the Claimant to prove their case.  

This is a very dangerous route to go down, and the Judge may well conclude, on balance of probabilities, that you were the driver. Or may ask you a direct question, which you must answer truthfully.

The requirements of POFA only help you if you were the keeper, but not the driver. If that is true, you should state clearly that you weren't driving, and were elsewhere at the time - at work, at home, or wherever.

If you were driving, you should say so, and forget POFA. Concentrate on the inadequate signage,

Redx

Plus he explained it 2 months ago 😋👍👍

https://forums.moneysavingexpert.com/discussion/6301728/driver-not-driver-undue-reliance-on-pofa-in-court-defences#latest

MissssyD

Thank you @bargepole I definitely wasn’t the driver. If the judge asks who the driver was I would have to let him/her know? 

@Redx sorry I missed that one on the forum. 

Do I need to submit the additional WS to the court as the claimant have stated that I was the driver? There are a few inaccuracies too but I have pointed this out in my WS already in relation to the signage. 

Thank you 

bargepole

I definitely wasn’t the driver. If the judge asks who the driver was I would have to let him/her know? 

No, you don't have to name the driver. But your statement should say something like the following:

On the material date and time, I was working at my office at XYZ Ltd, of High Street, AB1 2CD.  The driver was a family member who is insured to drive the vehicle under  my insurance policy. Due to the Claimant's failure to comply with the statutory requirements of Schedule 4 of POFA 2012, the Claimant is unable to transfer liability to me as the vehicle's keeper, and therefore has no cause of action in this matter.

Redx

MissssyD said:

Thank you @bargepole I definitely wasn’t the driver. If the judge asks who the driver was I would have to let him/her know? 

@Redx sorry I missed that one on the forum. 

Do I need to submit the additional WS to the court as the claimant have stated that I was the driver? There are a few inaccuracies too but I have pointed this out in my WS already in relation to the signage. 

Thank you 

Follow the advice by Bargepole , read a lot of his posts , it really is with it !!

There is no legal compelling reason to actually name the driver , if asked by the court or claimant , so no need to drop anyone in it , you just state truthfully that it was a family member and definitely not you ! So as in the paragraph that Bargepole posted above , put it in writing , learn it in your head too. It is for the claimant to either comply with the law of POFA , or have the right person in the dock ! You are not liable in law , due to both failures by the claimant. You respectfully decline to name the driver but can say , a family member !

POFA is there to assist you as a non driving keeper who is not responsible for the PCN because the claimant has failed to prove their case or comply with the law ( it's not mandatory to do so , but foolish not to )

It does not assist a keeper who was also the driver , never has , hence the warning by Bargepole

So yes , ensure that it's in a WS , or supplementary WS , plus on your crib notes on the day , so you can say it parrot fashion if asked , or bring it up if not asked. A claimant will ALWAYS aver that the keeper was driving , they ALWAYS do