Claim Form Received

Le_Kirk

Your WS must back up and support what you said in the defence so I hope you put the "gym user and being blocked in" as part of your defence.  Include whatever proof helps your defence.  As you say, six years is a long time and people should  not be expected to be able to recall what happened on "an unremarkable day [nearly] six years ago".

ppjj29

Le_Kirk said:

Your WS must back up and support what you said in the defence so I hope you put the "gym user and being blocked in" as part of your defence.  Include whatever proof helps your defence.  As you say, six years is a long time and people should  not be expected to be able to recall what happened on "an unremarkable day [nearly] six years ago".

My defence stated this (not detailed I know!):

"The alleged event was over five years ago so it is difficult for the Defendant to remember the complete facts, however it is known that the Defendant did park in the stated car park on the alleged date of the event. It is also known that there were major construction/building works going on at the time of the alleged event. These construction works at the time did affect the flow of traffic in the car park and also severely affected visibility of the car park terms and conditions signs."

Le_Kirk

Then you must use whatever part of your WS backs up that defence (remember you are signing a Statement of Truth at the end so no lying!) and use whatever photos or data from the gym that proves "on the balance of probabilities" that you were there that day as an authorised gym user.

ppjj29

Le_Kirk said:

Then you must use whatever part of your WS backs up that defence (remember you are signing a Statement of Truth at the end so no lying!) and use whatever photos or data from the gym that proves "on the balance of probabilities" that you were there that day as an authorised gym user.

To get to the point of proving my attendance at the gym I must include my original appeal. Is there any issue in including this, even if I cannot recall if it was completely factual?

Also, how much of the witness statement should I keep included? I am using this as a template: https://www.dropbox.com/scl/fi/p0ih264hihw3i8agt1ouq/WS-Wallace-REDACTED.docx?dl=0&rlkey=r9tgauieud7z4agqgkx9gkd92

However I am unsure how much of that is relevant. 

My plan is to:

- State the sequence of events. I attended the gym, noticed the construction works, went to the gym for X amount of time and then left. Vaguely recall being temporarily stuck in the car park which my appeal supports
- Provide a copy of my original appeal 
- Provide a copy of Highviews response requesting proof of gym attendance
- Provide proof of my attendance to that gym in the last 12 months
- Provide proof of that particular gym being the closest to my address at the time

Is this along the right track?

1505grandad

"I am using this as a template: https://www.dropbox.com/scl/fi/p0ih264hihw3i8agt1ouq/WS-Wallace-REDACTED.docx?dl=0&rlkey=r9tgauieud7z4agqgkx9gkd92"

A heads-up  -  I believe that is member @wobs2k thread which has been flagged as a template WS and is about PPS.

However you will notice that the WS is about UKPC Ltd (BPA AoS member) but the exhibits are about PPS (IPC AoS member).

I brought this up a few weeks ago and the OP responded 19th June:-

"Very odd, the file at that link is not my witness statement! It was a while ago now but I’m certain I shared the correct link originally. I’ll find it again and share ASAP "

However it remains the same as when I first queried the anomaly.

Le_Kirk

The latest witness statements to use for examples of style and format are: -
@wobs2k @aphex007 @Daiapolon2021
You don't use the content of example witness statements as your witness statements as the cases will be different.  All you need to prove is what you said in the defence, for example, I am a member of the Gym XYZ Co., here is my membership card, gym attendance log; I was blocked from leaving the car park by building/constructions works and here is my appeal at the time proving that etc.

Coupon-mad

There is no CCTV footage at all. They don't use CCTV.

They have zero evidence if where any obstructions were (or were not) blocking cars' access and egress.  

Your account is honest and consistent with your first appeal all those years ago.  The Judge will like that from you, as a reliable witness.  Crack on!

You cannot and will not be prosecuted for perjury, stop worrying! They haven't even bothered to retain a copy of your appeal, so their so-called case evidence is worse than lax if they've deleted the vital records except for the basics that suit them.

YES include everything, including proof of being a gym member and the appeal and the photos that you sent to them at the time.  You had not breached any contract and they KNEW years ago that any delay in leaving was outside of your control.  If anything, they should have suspended enforcement altogether that day due to the disruption.

They should certainly have cancelled the PCN and it is appalling that they say they have deleted your appeal yet are trying to sue you!  Say that to the Judge at the hearing - and stop worrying, your honest belief as a witness carries a lot of weight!

ppjj29

Thanks all, very useful!

I have put the below together - any thoughts?

 

 

Index

 

 

 

 

Content	Page number
Witness Statement	2 - 7
Exhibit 1 – Proof of previous address and route map	8-9
Exhibit 2 – Photographs of construction works	10-11
Exhibit 3 – Appeal letter sent to Highview Parking	12-14
Exhibit 4 – Response to appeal letter provided via SAR	15
Exhibit 5 – Proof of use of LOCATION XXX GYM	16
Exhibit 6 – Letter to CAR PARK land owner	17
Exhibit 7 – Beavis case sign	18
Exhibit 8 - ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198	19
Exhibit 9 – Schedule of Costs	20
Exhibit 10 – Britannia Parking v Crosby transcript	21-27

 

 

In the County Court at xxxxx

 

Claim Number: xxxxxx

 

 

 

Highview Parking Ltd (Claimant)

 

V

 

XXX (Defendant)

 

WITNESS STATEMENT OF DEFENDANT

FOR IN PERSONs HEARING ON xx/xx/xxxx

 

 

 

 

1.         I am Mr XXX of CITY, 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. As these parking charges are over five years old it is hard to remember the exact circumstances. I can confirm that I was the driver at the time.

 

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 and signage

 

3.         In 2016, XXX GYM at LOCATION was my most local gym which I frequented between 3-5 times a week. I would often stay in the gym from between 1–3 hours depending on whether I was training by myself or with a friend with whom I often met up with. On this particular occasion, I believe I met up with my friend for an extended gym session. I was living in ADDRESS at the time and this gym was my closest XXX Gym. (Exhibit 1 – showing proof of my address at the time taken from my credit report, along with a Google maps screenshot showing the nearest Pure Gym to my address at the time).

 

4.         When entering the gym on the date of the alleged contravention, I recall there being major construction works taking place which affected the whole of the underground parking structure. From what I recall, the parking signs/terms and conditions were not visible and the construction works caused an obstruction of the throughway meaning vehicles were intermittently struggling to enter/exit the parking structure. (Exhibit 2 – images taken by myself showing the extent of the construction works on XXX GYM car park at the time of the alleged contravention).

 

5.         I believe I entered the gym for a workout, having met up with my friend which meant I was going to be up to 3 hours.

 

 

6.         Upon leaving the gym, I recall being concerned about having to exit the car park in a timely manner and I recall taking photographs as proof of the disruption in case I faced any issues. My friend often walked to the gym so there would have been no discussion with them about parking issues due to them not driving. (Photographs visible in Exhibit 2).

 

7.         I vaguely recall struggling to locate the parking terms and conditions to find out what may happen if I was to overstay through no fault of my own.

 

8.         I received a penalty charge notice dated DATE informing me that I am being charged £95 for staying over the “allowed” 3 hours in the car park.

 

9.         I do not remember submitting an appeal, however I did find an appeal that was submitted on my personal computer. When fulfilling my SAR request, LAND OWNER advised that they no longer held a copy of my appeal. (Exhibit 3 – the appeal sent to Highview Parking).

 

10.     As part of my SAR request, Highview Parking provided a copy of a letter explaining that for them to uphold my appeal, I would need to provide evidence that I used the gym or shops in the retail park at the time of the alleged contravention. (Exhibit 4 – the appeal response letter allegedly sent by Highview Parking). I do not recall receiving this letter. If I had, I would have provided proof from my XXX Gym online account that proves I was using the gym on this date. I have provided proof of me continuing to use the LOCATION XXX Gym (and subsequent car park) at times when I meet my friend (Exhibit 5 – proof of use of XXX Gym). I now live in LOCATION so my closest gym is XXX GYM LOCATION

 

11.     I believe that the parking charge notice had been cancelled due to not having any further contact from Highview Parking and not receiving any response to my appeal. Many years later I started receiving letters from DCB Legal demanding payment in 2020. I attempted to email the landowner of LOCATION to no avail. (Exhibit 6 – email to landowner).

 

12.     A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this

 

 

sign in Exhibit 7. In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in

relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers. Due to the nature of the construction works, the signs were not clearly visible and therefore a contract could not have been formed with myself.

 

The Beavis case is against this claim

 

13.     This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

 

14.     However, there is no such legitimate interest where there is no fee to be paid to use the Urban Exchange car park. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

 

 

 

Abuse of process - the quantum

 

15.     The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt recovery charge'. The added £70 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process. (Exhibit 8 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19)). That case was not appealed and the decision stands.

 

16.     Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

17.     The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre- Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

 

18.     This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

 

19.     This Claimant knew or should have known, that by adding £70 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (Exhibit 9), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and

14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

 

 

 

CPR 44.11 - further costs

 

20.     I am appending with this bundle, a fully detailed costs assessment which also 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). In support of that argument, I remind the court that I appealed and engaged with the Claimant at every step of the process. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery, especially for a car park that doesn’t charge a tariff.

 

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

 

21.     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.

 

22.     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.

 

 

SIGNATURE

 

…………………….. xxxxxxxxxxxxx DATE       xx/xx/xxxx

Coupon-mad

Highview are not in the IPC and this (Crosby) is old news and should never be used now, as a similar case was appealed and it overturned the decision:

Exhibit 10 – Britannia Parking v Crosby transcript

21-27

Where is Excel v Wilkinson?

You seem to have based the second half of this - and some of the exhibits - on an old example instead of the two newer ones from 2022 you were pointed to use:

@Daiapolon2021
@aphex007

...both of which mention and explain why the DLUHC calling the added false £70 'extortion' should still be persuasive on Judges despite the fact that new statutory Code is temporarily paused for an Impact Assessment.

ppjj29

Coupon-mad said:

Highview are not in the IPC and this (Crosby) is old news and should never be used now, as a similar case was appealed and it overturned the decision:

Exhibit 10 – Britannia Parking v Crosby transcript

21-27

Where is Excel v Wilkinson?

You seem to have based the second half of this - and some of the exhibits - on an old example instead of the two newer ones from 2022 you were pointed to use:

@Daiapolon2021
@aphex007

...both of which mention and explain why the DLUHC calling the added false £70 'extortion' should still be persuasive on Judges despite the fact that new statutory Code is temporarily paused for an Impact Assessment.

Doh. Used the wrong template.

I have just located Daiapolon2021's and will use this.