Defence Statement due tomorrow - Leave for my Wedding overseas also tomorrow!

Smith8

Umkomaas said:

You definitely do not want your hearing 'on the papers', we see the vast majority of such cases lost. 

Noted, thank you.

Finally, do you recommend we write our phone number and email address in the 'Contact Details' of the N180?

Umkomaas

Smith8 said:

Umkomaas said:

You definitely do not want your hearing 'on the papers', we see the vast majority of such cases lost. 

Noted, thank you.

Finally, do you recommend we write our phone number and email address in the 'Contact Details' of the N180?

You need to have all correspondence going via email (snail mail too vulnerable to non-delivery, and PPCs have a disproportionate level in this regard - go figure!), so I wouldn't see any problem in providing an email address. Why not set up a throwaway Gmail address for the duration of this project, once finished let it drift into the ether? That way you won't be getting your regular email inbox clogged up with this stuff. 

I wouldn't provide a landline phone number. I don't see the court having any need to phone you until such time as a telephone/video link is being set up; they will contact you then for relevant connection detail. 

If you're going to give a mobile number, transpose two digits, oops fat fingers!

Jenni_D

Whilst it is a courtesy, is it a requirement for the DQ to be copied to the Claimant? If not then advising the court of email/phone details shouldn't be an issue. (A copy of the DQ without those details could still be sent to the Claimant).

Umkomaas

👆 Agree 👆 good advice covering all bases without problems. 

Smith8

Thank you for all of that, Umkomass and Jenni_D, much appreciated.

Smith8

Hello again, hope you're all keeping well.

So, Minster Baywatch are pushing though with the Court Hearing. I only knew when I rang the court to ask if it had been listed.  I've received their WS 2 wks post the order date, and now my WS is overdue.  The hearing is the end of this month.

I've just done my WS and was hoping for any recommendations before I submit it asap.  My Defence is posted earlier in this thread and included the latest references, etc. 

I am wondering if I should exhibit some more case law examples or transcripts in my WS or if what is in my Defence Statement will suffice.  Obviously short on time and my WS has taken me a fair while thus far.

Thoughts and obversations much appreciated.

IN THE COUNTY COURT AT 

Claim No: 

Between

MINSTER BAYWATCH LIMITED

(Claimant) 

- and -  

 (Defendant)

________________________________________________

                                                                   WITNESS STATEMENT OF DEFENDANT

 

1.     I, *****am the defendant against whom this claim is made.

2.     The facts in this statement are true to the best of my belief and my account has been prepared based upon my own knowledge.

3.     I am not liable to the Claimant for the sum claimed, or any highly inflated amount at ­all and this is my Witness Statement in support of my defence as already filed. 

4.     I am the registered keeper of the vehicle in question, however I was not the driver of this allegation given I was on crutches under medication following a surgical procedure.  I was a passenger at the time question.

 BACKGROUND

5.     I first learned of this allegation in May 2022, when I was handed a few items of unopened mail including those from Minster Baywatch and Gladstones Solicitors (some 5 months after the alleged event).  As I reside at an operational military base this is my registered address, hence the vehicle was registered there at the time in question.  Owing to the security of the buildings in which I work, and some restructuring, the generic mail can be somewhat of an issue.  This combined with the nature of my job within a front-line operational flying Squadron, holding short-notice standby commitments and multiple Worldwide deployments throughout the year, naturally causes delays in receiving surface mail.  

6.     When I first learned of this claim the Claimant had already issued court proceedings.  The threatening tone of the letters were intimating a claim in excess of £270 which is seemingly ‘double recovery’ for costs of the Claimant’s debt recovery charges.  I am still confused over the exact amount being claimed as the Claimant’s witness statement differs from that of the Letter Before Claim (LBC) and Penalty Charge Notice (PCN) (Exhibits 01 & 02), all three papers claim a different amount for ‘debt recovery costs’.

THE DAY IN QUESTION

7.     I am unfamiliar with the area and was passing through at the time.  The vehicle alternator had failed and it was limped along the road looking for refuge, we pulled over at the side of the road well outside of the entrance to the car park (Exhibit 03). The bonnet was raised and the vehicle was not left unattended whilst a solution was sought.  

8.     It is pertinent that no signs, payment machines or carpark operator staff were seen that alerted us to any relevant obligation or contract, nor even that this might be private land.   Due to the absence of signage, I find it very difficult how the claimant can justify that the driver or keeper would be entering into a contract by pulling over at the side of a road outside of the car park.  If there is no signage the driver cannot deduce who a contract will be with.

POST ALLEGED OFFENCE

9.     I chose to re-visit the site in question to satisfy myself of any unbeknown wrongdoing.  Noteworthy, is the distance from the nearest payment machine and tariff board inside the carpark, which is 253 ft from where my vehicle sought refuge outside of the main car park.  The distance to the nearest of the smaller signs is 177ft.  The nearest sign to the entrance of the main parking area is 135ft inside the car park itself (Exhibit 06).  It is very clear the area where the vehicle sought refuge is outside of the car park in question.  The claimant is put to strict proof to the contrary.

10.  The claimant is a member of the British Parking Association, BPA (Exhibit 04).  The BPA Code of Practice (Exhibit 05) states:

18.2 “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park…”

18.3     “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle.”

‘Exhibit 03’ clearly shows the outline of the Disabled Car Park and the Main Car Park areas with parking bays marked.  There is a parking sign at the entrance to the Disabled Car Park, yet no signage at the entrance to the main car park area itself or in the vicinity of where the broken-down vehicle sought refuge.  This is contrary to the BPA Code of Practice.

11.  During the re-visit, I entered the carpark where I observed the Bransby Wilson tariff sign and payment machine (marked ‘BW Tariff Board 1’ at page 37 of the Claimant’s witness statement).  Both the payment machine and tariff board clearly state ‘This car park is managed by Bransby Wilson’. There is no mention of Minster Baywatch (Exhibit 07).

12.  It is only when you explore the far peripheries of the car park where there are some smaller signs with illegible terms.  It is on these signs you can barely make out a small dark logo ‘Minster Baywatch’ (Exhibit 08). Of note, the parking terms between the tariff payment signs and these smaller periphery signs are in fact different.  The Minster Baywatch sign requires a ticket or an active Ringo payment.  The Bransby Wilson one permits retrospective payments up to midnight.  The wording of the contract and payment details are on the Bransby Wilson tariff sign.  It is the payment that is the consideration for the contract terms and who the contract is with. The offer to park is by Bransby Wilson.  

13.  Lord Denning's "Red Hand Rule" is relevant here because it should be obvious at the time with whom a motorist is forming the contract.  It is denied that any contract was entered into with Minster Baywatch Ltd.

14.  I feel Thornton vs Shoe Lane should also be mentioned because terms and conditions (such as forming a contract with another unidentified party) cannot be added post event.

NON-COMPLIANCE WITH POFA 

15.  I believe the notice to keeper was not compliant with the Protection of Freedoms Act 2012 (PoFA) and therefore incapable of holding the keeper liable with the ‘keeper liability’ requirements set out in the PoFA, Section 4. PARA 9 (Exhibit 09) states:

(4)  The notice must be given by—

(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or 

(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5)  The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. 

(6)  A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

CALCULATION OF ‘RELEVANT PERIOD’

16.  Alleged event: *** (use *** as per PoFA Sect 4, Para 9.5).

Notice To Keeper (Exhibit 10): Dated *** (use *** as per 9.6).

Equates to: 20 days.

The Claimant has elected not to comply with the requirements of PoFA, Sect 4, Para 9 by not delivering the NTK within the clearly defined relevant period. In fact, the Claimant exceeded the legislated timeframe by almost 50%, in this case 20 days as opposed to the required 14 days. Therefore, the PCN is non-compliant.

MY FIXED WITNESS COSTS PURSUANT TO CPR 27.14

17.  As a litigant-in-person, I have spent a considerable time researching and learning the law in processing and preparing my defence and 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 traveling 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.

18.  The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at Practice Direction 27A, Para 7.3:

“The amounts which a party may be ordered to pay under rule 27.14(2)(e) (loss of earnings) and (f) (experts’ fees) are:

(1)  for the loss of earnings or loss of leave of each party or witness due to attending a hearing or staying away from home for the purpose of attending a hearing, a sum not exceeding £95 per day for each person…”

CONCLUSION

19.  The Claimant is put to strict proof that, at the time of the alleged event the signage was evident, correct and clearly visible where the vehicle was broken down outside of the car park.  The operator did not comply with the ‘Entrance Signs’ section of the British Parking Association Code of Practice, therefore is incapable of forming a legally binding contract.  The Notice to Keeper was not compliant with the Protection of Freedoms Act 2012 and therefore incapable of holding the keeper liable.  The claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents for a principal.  The sum claimed is regarded to be highly unfair with additional charges which constitutes ‘double recovery’.  The court is invited to find the quantum claimed to false and an abuse of process; adding costs/damages/fees onto a parking charge is now banned.  The tactics employed by the Claimant and their representatives were aggressive and threatening.  The narrative used in their letters, along with an inflated cost model, all constituted to harassment and bullying.  

This claim is entirely without merit and I urge the court to dismiss the claim on the evidence provided in both this witness statement and my defence statement.  

This whole process is with no substance and can only be seen to be wasting the precious time of the court and the Defendant.

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: 

Dated:

Fruitcake

I have only skim read but you should include the Jopson v Homeguard comments by the judge that attending to a vicissitude of some small duration is not parking. I would suggest that a failed alternator/breakdown constituted a vicissitude of some small duration.
This was an appeal court case and is therefore persuasive on the lower courts. The transcript is available online and should be included in your WS as an exhibit.

It is not an offence so do not use that word.

You need to include images of signs as exhibits.

You need to state that MB and Bransby Wilson are completely separate companies and quote their company numbers at Companies House to back this up.

You need an index of exhibits.

Coupon-mad

Penalty Charge Notice

It isn't.

You need the rest of the usual stuff about the false added £70, which is an attempt at double recovery, plus Excel v Wilkinson and a pic of the Beavis case sign.  As seen in recent WS bundles, such as the ones by @aphex007 (and @laurenjo12 this week).

You also seem to be missing challenging the landowner authority, which is a feature of every case.  However, whilst you SHOULD make those suggested additions, don't hang around spending days perfecting it, as your WS is overdue. get this emailed to the local court and the solicitors TOMORROW without fail, before 3.30pm.

Don't forget your costs assessment, as seen in aphex007's bundle, plus all your Exhibits and a clear index.  ALL pages must be numbered and you must sign & date the WS (electronic signature is OK) then save it as a PDF - not a word doc, obviously!

Smith8

Thank you Fruitcake & Coupon-mad.

Thankfully I do have the Index and Exhibits inc costs but they wouldn't load, so I just wanted to get the main body on here asap.

A point to mention is the Claimant sent a copy of a contract saying they have permission to act for Bransby Wilson in their WS. Theres a few loose and questionable points within.  

I'll go through and tweak now with those extras - thank you!

Smith8

I've managed to load the Exhibits now, if theres any further comment on these whilst I modify my WS. Thank you.