My parking bay - County Court claim received!

Coupon-mad

Quitto said:

I know there is nothing reasonable about it.

Do I need to write about the events on the day and following that? I am not sure this is relevant in my case. There is nothing to say apart from that I was issued a ticket and ignored it. 

There is loads more in support of your defence.

Don't pay!  This is just copy & paste stuff.

Search the forum for witness statement residential Jopson and copy & adapt one from 2023 (change 'best match' on the search filter to NEWEST).

B789

Here is a link to a copy of the Jopson case to assist you:

https://www.dropbox.com/s/9ezhkj6epu66l1r/JOPSON-V-HOMEGUARD-2906J-Approved.pdf?dl=0

Coupon-mad

And wording about it is in hundreds of threads.

Quitto

Do I have to reference any cases in my WS? Is it mandatory to strengthen my case?

Also, would it be okay to post my WS here for your review?

Jenni_D

Yes

Yes (but redact any personal info)

 

Coupon-mad

Quitto said:

Do I have to reference any cases in my WS? Is it mandatory to strengthen my case?

Also, would it be okay to post my WS here for your review?

Yes, yes and yes - as you will have seen in all the other WS examples you've been reading for inspiration on how it looks.  Don't just write it from scratch.  Use the structure seen in the WS posted by @aphex007 or @SJRRJS

Quitto

Thank you ladies and gentlemen, I am almost there.

Do I need to claim further costs CPR 44.11? I am not sure whether I have the basis for it. Most cases claim there were no reasonable grounds to issue PCN in the first place. Would it apply to my case?

Coupon-mad

Not if you cannot show unreasonable conduct in litigation.

Quitto

Coupon-mad said:

Not if you cannot show unreasonable conduct in litigation.

I will delete that section then

Quitto

Dear experts, please have a look at my draft WS:

WITNESS STATEMENT OF DEFENDANT

1.       I am XXXXX of XXXX, 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 own knowledge.

 

2.       This matter relates to a parking charge issued to my vehicle (registration: XXXXX) on XXXXX. It is admitted that at all material times I was the registered keeper of this vehicle. I confirm the vehicle was parked in a bay number XXX at all times.

 

3.       Despite being a landholder to the flat and relevant parking bay number XXXX in accordance with the Lease (exhibit xxx), a parking charge was issued to the vehicle by the Claimant.

 

4.       Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (exhibit xxxxx) that exists between the tenant and their landlord extends to the use of the specified parking space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage (exhibit xxxx).

 

5.       I would also like to draw your attention to the email (exhibit xxx) received from XXXXX (the landlord) on XXXX that further confirms my ownership of the allocated space and that the use of this parking bay is not permitted without my consent. The Claimant has never requested or received my consent to operate on my property.

 

6.       The Lease makes no assertion that a permit must be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so (exhibit xxxx). The Lease agreement’s lack of specificity on any conditions related to parking in the landholder’s bay can only be construed that none of the restrictions asserted by the Claimant apply.

 

7.       I contend, therefore, that the Lease agreement provides an unfettered right for the landholder to park in their assigned bay. This cannot be superseded, altered, or ignored by a parking management company post hoc.

 

8.       The Claimant signage (xxxx) is effectively offering the parking bay I am the landholder of and for which I paid £XXXX premium in XXXXX (or approximately £XXXXX in today’s money according to the Bank of England inflation calculator) to anyone at a daily charge of £100. And thus, appear to be running business on my property without my consent.

 

9.       The majority of the correspondence received from the Claimant, their debt recovery partners, and their representation, has been threatening, misleading, and in several instances, absolutely duplicitous (exhibit xxxxx; threats to credit rating, etc.)

 

10.    Accordingly, it is maintained that the defendant has no liability for this debt and that the Claimant has acted immorally and deceitfully on several occasions, pursuing the alleged debt in an aggressive and intimidating fashion, with the singular intention of coercing the debt from the defendant with continued threats of legal action. No effort was made whatsoever to address the very reasonable assertions made by the Defendant that the driver had every right to park in the bay in question; if this particular parking management company truly aimed to protect the rights of residents, this matter could have been resolved amicably and swiftly, without the need of involving the courts.

 

Comment on Claimant’s Witness Statement dated XXXXXX

 

11.    The Claimant’s solicitor sent his client’s Witness Statement very close to the deadline solely via post to my address.

 

12.     Whilst the document underlines how the Defendant’s Defence utilises a template taken from the Internet, the Claimant’s Witness Statement makes assumptions that it could only be taken from a template that has not been adapted appropriately to this specific case and assumes the Defendant’s lack of understanding of its content.

 

13.    The Claimant refers to the Clause XX of the Lease that states: “To comply with such reasonable regulations as the Landlord or the Superior Landlord may make from time to time relating to the orderly and proper use of the Common Parts and security of the building and including (for the avoidance of doubt) regulations as to the manner of use of any car parking space or visitors car parking spaces and the nature of any vehicle which may be parked thereon.”. Please note that this Clause specifically excludes “the Premises” I am the landholder of, which constitutes Flat XXXX on the XXX floor of the Building shown edged red on the attached plan and the parking space edge red on the attached parking space plan” (exhibit XXXX) and, therefore, the definition of “parking space” is contradictory and cannot include my allocated bay.

 

14.    The Claimant references the Letter to Residents dated XXXX in their witness statement but fails to acknowledge that both, the letter and a “parking permit”, were issued to the same address and name the Defendant’s car was registered to and any subsequent correspondence in relation to penalty charge was sent. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to parking bay owners.

 

15.    In addition, The Claimant assertion that they have a legitimate interest in the efficient operation of the site, in my experience as the site’s resident, does not reflect the reality. Cars are constantly (some permanently) parked on site in a way that block refuse collection, loading and parking in residents’ bays. This can be illustrated by the refuse parking and loading diagram obtained from XXXX planning portal (application reference XXXX), Google Maps aerial images and examples of photographs I took at various times (XXXX).

 

ParkingEye v Beavis is distinguished

 

16.    I suggest that a penalty of £100 for the parking charge notice ‘Consequences which are out of all proportion to any legitimate interests’ of the claimant, distinguished from the charge levied in the Beavis case. (xxxxx)

 

17.    The Supreme Court held that the intention cannot be to punish a motorist, or to present them with concealed pitfalls, traps, hidden terms, or unfair/unexpected obligations, or can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests.

 

POFA and Consumer Rights Act

 

18.    Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 (POFA), the sum claimed exceeds the maximum sum which may be recovered from the keeper.

 

19.    Pursuant to Schedule 2 paragraph 6 of the Consumer Rights Act 2015, the sum claimed could be regarded as unfair by the court as it considers the test of fairness laid out in Section 71.

 

The Quantum and abuse of process

 

20.    The Claimant continues to pursue a hugely disproportionate sum; it is denied that the quantum sought is recoverable, indeed it represents a penalty. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] KSC67. Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that admin costs inflating it to £135 'would appear to be penal'.

 

21.    In addition to this, the ‘additional charge’ constitutes a double recovery and the court is invited to find the quantum claimed is false and an abuse of process as found by HHJ Jackson in Excel v Wilkinson in which £60 had been added to a parking charge. (Exhibit xxxx)

 

22.    This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

 

23.    The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

 

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

 

24.    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.

 

25.    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.

   

Signed: ………………