Witness statement re parking ticket for small claim court

Notsoquick72

Hello! I wonder if someone might agree to have a look at my witness statement for the small claim court regarding an unfair parking ticket, and offer some feedback? I did inspire myself from the sticky thread and robertcox999's witness statement, but feel completely over my head. I'm so useless with this site that I don't even know how to attach my WS to this thread.

Summary of the case: On 2nd March 2019, I parked at Vantage Point in Brighton. I paid cash at the machine (twice) but did not get a ticket; thought the machine was out of paper and left my car. The next day, I tried to call them to check but their tel lines were unmanned. Received a parking ticket. I wrote to the company straight away but fear I did not do the right thing as they don't seem to have considered this as an appeal. They have now opened a small claim claim against me. Their evidence seems to indicate that their machine was working and that I never registered my car there, which is puzzling.

I have written a WS but am scared this will not be enough. Any help would be greatly received.
Many thanks!

Trainerman

Make sure you redact all personal information. People on here will try to help. Just to be sure, I assume you have a claim form, filed AoS, filed Defence already and are now on witness statement. Is that right ?

1505grandad

Also can you post the Defence you filed verbatim please.

Coupon-mad

We do need to know exactly what your defence said.  Word for word, as your WS can only build on that.

Typical rubbish PCN from OPS:

Vantage Point in Brighton. I paid cash at the machine (twice) but did not get a ticket; .

That is not a car park to ever choose (ever) in Brighton. I am sort of local (West Sussex) and have never parked there and never will.

Loads of threads about Vantage Point including one where a fairly regular poster has shown their WS and is ahead of you.

Also forget the Robert Cox example, as things have changed.  Start again using the ones by @jrhys and @Nosy and adding in the new stuff about this month's Code of Practice.

I've written a new section on that, as explained here with some very useful reading links for ALL defendants of a PPC claim:

https://forums.moneysavingexpert.com/discussion/comment/79021699/#Comment_79021699

I am particularly keen that the Brighton/Horsham/Worthing area Judges see a WS that includes all they need to know about the statutory Code of Practice.

I want them to be confident to ignore HHJ Simpkiss' flawed judgment in OPS v Wilshaw, where he believed every word OPS' barrister said (including an argument based on ancient and out of date stuff about 'ticket cases') and caused damage to future defence cases against that rogue ex-clamper clan (temporarily).

Notsoquick72

Damn, so I've used the wrong WS as inspiration?

I did acknowledge the claim and filed the following defence:

On 29/05/2019, I received a PCN through the post for parking at Vantage Point Brighton; the parking event stated: no payment/ticket.

I replied on 19 June by email, accepting that I had parked at the Vantage Point on 2 March 2019 and explaining that I had paid indeed, twice in fact, but that the machine had failed to give me a ticket.

I also explained that my phone only allowed me to take a couple of pictures before it ran out of battery, hence I was not able to pay a third time by phone. I took pictures of the machine as I was trying to make payment.

I did call the company on 0330 043 0240 upon my return home, but they had an answer phone with nobody answering the line, hence I was unable to sort the issue out there and then.

I realise now that this was not a well drafted defence, but well... it's what I've got to work with now.

I then failed to file the Directions Questionnaire because I did not receive it (although the court had my new address and my email address), so a judgement was made against me before xmas, which I then had to ask to set aside (I had not received the order to pay and had therefore ruined my impeccable credit rating). I was successful with this and must file my witness statement tomorrow for a trial hearing in 2 weeks. Worked on it last weekend, got lost in the MSE forum rabbit hole and realised this was way beyond my capabilities.

How can I share my draft WS on this forum?

Jenni_D

Notsoquick72 said:

How can I share my draft WS on this forum?

Copy/paste into Notepad (to strip out formatting that the forum may not like), then copy/paste into one or more replies here. (Obviously you can't show any evidence here). Make sure you redact any personal information before posting.

PS - if you've been through a set-aside then you've already done the harder part.

Notsoquick72

I, (...), declare as follows:

1. I am the registered keeper of the Renault Clio registered under number XXX.

2. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.

Summary of events

3. In June 2019, I received a PCN through the post for parking at Vantage Point Brighton; the parking event stated: no payment / ticket (evidence1). 

4. I appealed the PCN on 19 June 2019 (evidence2), accepting that my car had been parked at the Vantage Point on 2 March 2019 and explaining that I had paid for a ticket indeed, twice in fact, but that the machine had failed to give me a ticket.

5. Considering I entered my vehicle registration number and cash twice into a machine that seemed to be working but subsequently failed to provide me with a ticket yet kept the cash, it was reasonable for me to assume that it had accepted my payment but simply run out of paper. 

6. Considering the Claimant also accepts payments through a telephone app, it also seemed reasonable to assume that a paper copy was secondary to the vehicle registration number being registered as having been paid on the system, which I had done twice through the ticket machine - without any error message.

7. In the letter, I also explained that my phone only allowed me to take a couple of pictures of the failing ticket machine before it ran out of battery. Please find those images as evidence3.

8. I did call the company on 0330 043 0240 upon my return home, but they had an answer phone with nobody answering the line. I am awaiting my telephone statement from those days that will confirm this and politely request permission to file them as soon as I receive them.

9. I categorically refute the accusation by One Parking Solution that I did not pay for parking, when in fact I paid twice in cash, and it is them who inconvenienced me massively by not providing me with a ticket. I believe the onus is on One Parking Solution to prove that I did not pay for their ‘service’. 

10. I assume the Claimant have CCTV footage of me arriving and leaving the car-park, or they would not have contacted me in the first instance. This footage should also show me spending a considerable amount of time at the payment machine, waiting for a ticket and making note of the phone number on the machine. I politely request that the Claimant submit a copy of their CCTV footage between 14:58 and 15:15 on 2nd March 2019.

11. I also requested that the Claimant provide an account of their paper-roll usage over 90 days before and after the alleged date: if the payment machine was working properly, surely those would not show any variation apart from regular day/time usage. 

12. I also politely request that One Parking Solution provide their machine’s maintenance and repairs records, which will confirm that their machine was not working on the day I parked.

13. On 19/06/2019, I received an email noting my comments without addressing any of them nor informing me of the outcome of my appeal (evidence 4). It informed me that the matter had been escalated to solicitors, and that I should contact QRD Solicitors. 

14. I contacted QRD Solicitors on the number shown on the letter to ascertain the status of my appeal, but an insurance handler named Alisha told me that QDR Solicitors no longer represented the Claimant.

15. I did not hear from One Parking Solution after that, until I received this claim.

16. I politely request that the claim brought against me by One Parking Solution be dismissed.

17. I deny that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into – by conduct or otherwise – whereby it was ‘agreed’ to pay a ‘parking charge’ within 28 days. I strongly deny being indebted to One Parking Solution.

The Beavis case is against this claim (The Claimant uses this case to prove their point)

18. 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.

19. However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the view 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.

20. In addition, the Beavis case 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. 

The Claimant is not entitled to the sums claimed. 

21. Schedule 4 of POFA 2012 is clear in stating that there is a limit to the amount that can be claimed:

Right to claim unpaid parking charges from keeper of vehicle:

(5) the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

Therefore, the Claimant is not entitled to claim any of the following sums:

i. Damages cannot be claimed as the law puts a limit on how much can be claimed from the keeper.

ii. Debt recovery costs are not recoverable and have no legal basis.

iii. Operational costs are not recoverable from the Defendant.

iv. Interest payments under section 69 of the County Courts Act 1984 are not recoverable because the Claimant is not entitled to claim Debt or Damages.

22. The Department for Levelling Up, Housing and Communities ('DLUHC') has published, as of 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with, found here: links not allowed here.

The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unreasonable and as such, is banned. In a very short section called 'Escalation of costs' the new Code says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  The Ministerial Foreword is unequivocal and robust, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

In the present case, the Claimant has added a sum that their notorious industry variously describes as damages for debt recovery.  These are banned costs which they have neither paid nor incurred.  I aver that by continuing to pursue claims including this objectionable sum - when this serial litigator Claimant is indisputably aware due to their 'approved operator' membership of an Accredited Parking Association - that these exaggerated 'costs' are banned by the Government, appears to meet the high bar of wholly unreasonable conduct.

I believe that knowingly inflated claims such as this case should not be allowed to continue.  I further observe that this conduct by parking firms operating under their previous Codes of Practice (described by several District Judges as 'self-serving') has caused inflated default judgments and consumer harm on a grand scale in recent years.  The Court is invited to strike out the false 'damages/debt recovery' element at the very least and to consider whether the appropriate sanction may be to strike out the entire claim, in order to signal that the Court shares the Government's view regarding one of the most vexatious, greedy and intimidating elements of some members of the private parking industry's conduct in litigation.

23. Summary of evidence requested from Claimant

i. CCTV footage of the ticketing machine between 14:58 and 15:15 on 2nd March 2019.

ii. Ticketing machine’s maintenance and repairs records, which will show that their machine was not working on the day I parked.

iii. An account of the Claimant’s paper-roll usage at that very same site over 90 days before and after the alleged date: if the payment machine was working properly, surely those would not show any variation apart from regular day/time usage.

In the matter of costs

24. I remind the court that not only I tried to contact the Claimant on their advertised telephone line, which I discovered was not manned, but I also explained what had happened in writing as soon as I received the PCN, hence the Claimant knew all along that the tariff has been paid. 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. 

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. However I am aware that I chose not to spend additional funds to make a counter-claim.

26. If the claim is not struck out, I therefore seek:

i. Standard witness costs of attendance at court, pursuant to CPR 27.14; and

ii. 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.”

iii. That any hearing is not vacated but continues as a cost hearing.

Statement of truth

I believe that the facts stated in this defence 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.

Any suggestion welcome!

KeithP

That's a Witness Statement, right?

Then the Statement of Truth needs to reflect that.  

Notsoquick72

Thanks @KeithP . I would reply directly to your message by haven't found how to quote you yet in my post (this forum is wonderful in its content but not super newbie intuitive). 
Anyway, I've amended the statement of truth, changing 'defence' for 'witness statement'.

Notsoquick72

Also, how can I bring my WS and my bits of evidence together into a clean 'bundle'? Is there an app I should use so I can file this efficiently with the court and the Claimant?

bargepole

Notsoquick72 said:

Also, how can I bring my WS and my bits of evidence together into a clean 'bundle'? Is there an app I should use so I can file this efficiently with the court and the Claimant?

Convert all the files into PDF format, then you can combine them into a single document using a free online tool, such as Merge PDF - Combine PDF files online for free (smallpdf.com)

You should also number all pages at the bottom right, so that you can refer to the relevant page number when speaking to the Judge.