Witness statement advice

cathryn1988

Hi, I created a thread in October but cannot seem to add a comment. 

I am assisting my neighbour with her witness statement following an alleged overstay at a HIghview-owned car park in 2017. She actually broke down (believed the battery was flat) but when her son arrived to recover her he was able to start the car with some messing about. She wrote to Highview after the £125 letter and explained that she had not received any prior letters as she was away caring for a relative and explained why she 'overstayed'. 

I have relied heavily on this sight for the amazing advice but I can no longer see the wood from the trees. Will the attached be acceptable? Does it make sense, I have reproduced a lot of the example. Thank you for any help and all of the help so far! The numbers need to be changed and exhibits added and I have removed any reference to her or claim info. 

cathryn1988

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. 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. I have not received the claimant’s witness statement and do not know the information upon which the claimant seeks to utilise. Despite requests, I have not been able to photos of signage present in 2017. Such signage has been changed at least twice since. From my research, I conclude that DCB tend to append signage to their witness statement that does not exist at the relevant car park. I have attached a video that was recorded in November 2021 and photographs taken of changed signage in 2022. Internet records show the scarcity of signage and this has also been appended for consideration exhibit xx.

4. The car park has two points of entry/exit. (Exhibit 01) details the route usually undertaken by myself in 2017, as at 2021. There is a small sign on the roundabout next to the Tesco Petrol station, referring to full terms and conditions with a time limit. The only safe way to view the terms and conditions is to stop and review which is not permissible when on a roundabout. Further similar-sized signage is available upon entering the car park (exhibit 02).

5. At the point of entry, the entrance terms and conditions sign is not visible or readable (exhibit xx-02 and xx-03). The car park is split into two parts, although there is a high degree of ambiguity over where the retail car park starts and the Tesco car park ends. Both have different signage/limits and rules and both are run by Highview. Patrons can enter the facilities via Camarthen Road or Ffordd Cynore.  Controversy over these rules which seemed to deliberately mislead consumers arose when the car park was featured on ‘the Ferret’. This saw the maximum stay period in Tesco increase to 4 hours. There is no physical border and only small signage as depicted in (exhibit xxx). The signage has very recently been changed but at the time did not mention anything related to a risk of paying £85. It referred to a penalty charge and the writing was largely illegible. I did not take too much notice as I did not intend to stay longer than my usual 1 hour and 20 minutes.

6. After finding a suitable place to park, I began shopping in the retail section. I planned to pick up some toiletries for a relative I was caring for. I planned to complete my shopping then undertake my fortnightly food shop at Tesco. Upon my return to the vehicle, I found that I was unable to start it.

 

7.  Further attempts were made but I was unable to move the vehicle. I panicked and called my son-in law. He talked me through various issues that the car may have and we concluded that the battery was flat. He was working away and could not assist. I called my son who did not answer and then sought assistance from Tesco. The lady at customer service said they could give me the number for a recovery service. Having not been a member, I knew this would be a costly option. My son eventually returned my call and said he would need to source some jump leads. I was waiting for what seemed a considerable period of time but had not realised that I had exceeded either of the conflicting limits of the car park.  When my son arrived, he found that the vehicle would not start as the ignition mechanism had jammed. Using considerable strength, he was able to temporarily engage the ignition. This issue seemed to be recurring and led to me trading in the vehicle shortly after. I felt somewhat embarrassed by the situation I had caused but was happy to be able to return home. I was unaware of the time.  I believe that my inability to move the vehicle without assistance, leads to any potential agreement to contract (express, implied or otherwise) being frustrated by an inability to carry out the terms.

8. In March 2017 I received a letter dated 23/02/2017 requesting payment of £125.00 (I do not recall the exact date I opened the letter). I decided to write to Highview and explain the circumstances around the alleged over stay. I had liaised with customer services at Tesco at the time of the incident and felt confident that the matter would be set aside. Exhibit xx shows the letter I wrote to Highview. I explained the circumstances surrounding the alleged ‘breach’ and made reference to my very difficult personal situation.  Highview were aware of the full circumstances and the frustration of the contract upon receipt of this letter (April 2017). They chose not to respond in a sympathetic or helpful manner, merely stating that they are ‘no longer dealing with the issue’ Exhibit XX and refer to a debt recovery agency. I passed a copy of the appeal letter to this agency and have, to date, heard nothing from them. I have never had any correspondence from them and presumed that this matter was closed. I then received a court summons in 2021. Highview did not comply with their regulator’s code of practice and offer a POPLAR number nor did they offer any ADR which is at odds The Court’s Objective.

12. Further, 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 xx-09 for comparison. 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.

 

Fruitcake

What happened when the neighbour complained to the store manager and/or CEO and landowner if different? It is not too late to get a landowner cancellation.

You should refer to, and include a transcript available online of the Jopson vs Homeguard case, (Laura Jopson vs Homeguard Services) case number B9GF0A9E. Around para 19 or 20, Judge Harris stated that attending to a vicissitude of small duration such as a flat tyre is not parking.
Attempting to start a broken down car would certainly constitute a small vicissitude.

Where and when did the alleged event occur? It may have cropped up here before.

The last paragraph needs amending Highview (now Group Nexus) are BPA members, not IPC. You need to quote the section of the BPA CoP relevant at the time of the alleged event.

Did the defence query landowner authority? I hope so.

Exhibits need to be numbered and referred to in the text of the WS. Standard format is defendant's initials followed by sequential numbers.

cathryn1988

 Headings as if I include anything further it thinks I am posting links 

The Beavis case is against this claim

Redacted Landowner Contract

Abuse of process - the quantum

Solicitor costs

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

Fruitcake

You mention redacted landowner contract. Does that mean the neighbour already has the claimant's WS? If so, please upload it to Dropbox or similar and post the link here. Change https to hxxps if you need to.
Redact personal information, but leave anything already in the public domain.

What is the deadline for submitting the WS?

Please explain what you mean by your previous post. It is too cryptic for a simple man like me to understand.

cathryn1988

Thank you Fruitcake. I will amend as necessary. Includes that but I can't upload as I am too new. 

We spoke to Tesco customer service and they were pretty sympathetic but unhelpful as it was so long ago. I have not written to the landowner to get cancelled, I must have missed something here. That is a really useful case, I will add in. 

Thank you 

Fruitcake

You can upload a broken link as I advised in my post above. Change https to hxxps. Someone here will change it back to a live link.

Like I also said, what happened when the neighbour complained to the manager and/or CEO.

Please answer all questions you are asked. 

cathryn1988

 Sorry fruitcake, didn’t mean to be cryptic, I’m just a bit naff at trying to get the rest of the ws uploaded. It errors and tells me that I’m trying to upload links (I’ve checked, they’ve been removed) so I just added the headings. 

The redacted landowner part - purely lifted from here so it must make sense in my witness statement. I’ll amend. I’ve received no witness statement from other side. I’ll amend this. The deadline is 2pm tomorrow. 

Fruitcake

Do you mean you've asked to see an unredacted contract, or that you are expecting to get a redacted version? 

The claimant is likely to send their WS as late as possible in the hope they will get to see yours first. You are doing the same of course.
2pm? It would normally be 4pm, not that you should be relying on such fine timings.

It's normally not less than two weeks before the hearing.

If the claimant's WS fails to arrive by the deadline, which they sometimes do, fire off a draft court order asking for the claim to be struck out for failing to comply with the CPR.

cathryn1988

I mean that I am expecting to see a redacted version (I lifted this from the sample witness statement and seem to not have a good comprehension of what it actually means). 
The letter states 2pm. I had liked to have done this sooner but I have two small children, work and other commitments. I am feeling sorry I took this on to be honest. 
She didn't complain to the landowner. She asked Tesco for help at the time of the breakdown but wrote a letter back to highview the same year explaining the situation. Their response was that the matter was with the debt recovery company. There was NOTHING heard from debt recovery or highiew after this until a court letter in Oct 2021. It would appear that I should have still contacted the landowner? We spoke to tesco to ask for CCTV etc but they do not have anything that far back or a record of her speaking with a member of staff. 

Re the links. I had deleted the links and it would still not let me upload. I will retry. 

cathryn1988

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 a user faces mitigating circumstances. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of  ‘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.

 

Redacted Landowner Contract

15. The Claimant tends to append a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?). It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

 

16. In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

 

Abuse of process - the quantum

17. The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The addition from £85 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit xx-12 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands. No evidence has been provided that this case was ever referred to a debt recovery agency, making the additional £40 detailed questionable.

 

18. 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.

 19. 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)

 ''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.''

20. 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.

 21. This Claimant knew or should have known, that by adding £60 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 - -10), 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.

 22. This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon 'stock' images of signs which are not as they appear in situ.

 23. Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all (despite the Claimant claiming it is in their Witness Statement in writing and by appending signage that does not exist at the car park), but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

Solicitor costs

24. The claim includes a sum of £50, described as ‘solicitor costs’. The claimant is known to be a serial litigant, issuing thousands of claims each week, via bulk-processing. Given a standard working week, the solicitor can spend no more than a few minutes per claim, hardly justifying £50. No phone calls have been received and all letters are standard format, requiring little or no intervention. The claimant is under strict proof to detail how these costs are incurred.

25. The £50 solicitor cost wa disputed in the test case of ParkingEye V Beavis and Wardley. HHJ Moloney refused to award £50. Hi award was judgement for the claimant for £85 plus issue costs. These were presumably £25 filing fee plus £25 hearing fee.

26. The £50 was also struck out by DJ Sparrow on 19 August 2015 un Parking Eye V Mrs S. Claim number B9FC508F.

 24. 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 and they knew the circumstances of the alleged overstay. 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. This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

 

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

25. 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. Whilst it is expected that Highview will attempt to discredit defences by claiming they come from online forums, I acknowledge their use as an invaluable tool in assisting myself, as a layman to refute this claim which the claimant had every opportunity to fairly discuss. The internet and associated forums are regularly used by solicitors themselves and the claimant has never disclosed particulars of this claim, instead they have used pre-format forms. 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.

 

26. 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: