Phase 1: CCJ Removed. Phase 2: Claim Discontinued. Phase 3: Costs.

Coupon-mad

Yep, really good.

You do not need this sentence in para 5 because it's now repetition:

"The claim resulted in an unexpected default CCJ against the Defendant found on record by chance, which the Claimant vigorously defended as justified for a year."

The only other thing is, did you already send a defence after getting the CCJ set aside?  And you used the template defence?  If so, that entire middle section and stuff about the DLUHC's code of practice and the Semark-Jullen case et al is pure repetition and should be removed from this WS.  You don't need to say things twice.

Le_Kirk

Witness statements can be/should be written in the first person whereas your paragraph 3# start with "the Defendant".

Not_A_Hope

In para 5 you wrote :-

Despite this, the Claimant disregarded the court's instructions and failed to reimburse the Defendant the N244 fee as directed within the time set by DDJ Grand.

I cannot see what you have included in your schedule of costs and whether this includes the N244 fees. Do you need to add a sentence or two to make sure this new judge addresses this failure.

What happens in the case of a late discontinuance? Do you need to ensure the judge considers all your costs if it doesn’t get as far a hearing. I have heard of cases where PPC have deliberately discontinued to avoid paying costs. If this happened you might then have to go through the small claims process threatening to take the PPC to court.

Harvez63

Morning All, waking at 5:30 again to get this done! 

@Coupon-mad I've removed 24 through to 37 as it is covered in my defence I believe.

Thank you @Le_Kirk

See below;

1.   I am Mr xxxxxx of xxxxxxxxxxx, 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 and research. 

 

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: 

 

3.   I would like highlight point 8, from the letter received from DDJ Kirkconel on 3rd April 2023, the following statement “The Claimant must send the documents so that they are received by no later than 4.00pm on 2nd May 2023. The claimants documents must include a copy of the agreement (redacted if necessary to preserve commercial confidentiality) giving authority to regulate parking on the land in question”.

 

4.   The deadline of 4.00pm on 2nd of May 2023 set by DDJ Kirkconel on 3rd of April 2023 has been ignored by the Claimant. 

 

5.   This is a continuation of the contempt already displayed by this Claimant, who has been repeatedly ignoring court rules and deadlines, both in the pre-and post-action phases.  The claim itself was improperly served because they used an address they had prior knowledge was wrong and this action caused an unexpected default CCJ. However, just one day prior to the set aside hearing, the Claimant agreed to a consent order admitting that the claim form had been improperly served. Despite this, the Claimant disregarded the court's instructions and failed to reimburse the Defendant the N244 fee as directed, and reserve this claim within the time set by DDJ Grand, neither received until a little over a week after the deadline set by the courts. 

 

Sequence of events

 

6.   I visited the Subway shop on Spring Road, Southampton, on 28th December 2017.

 

7.   It was the first time visiting the car park and a last minute decision to get food on the way home. On entry to the car park I did not see any obvious or prominent contractual signage or during the 13 minute stay during which I remained within the car the entire time. 

 

8.   The car park is entered from a busy road with pedestrians, moving cars and delivery vehicles to consider.

 

9.   My partner went inside Subway shop whilst I remained in the car. The car park was empty so I manouvered the car to reverse into a marked bay adjacent to the building. From the drivers seated position whilst parked, there were no signs visible in the car park, and no signs were obvious or prominent during the reversing manoeuvre.

 

10. The car park is located between the Subway shop and a Tesco store. The car park is adjacent to these two premises and appears to serve these stores. However, after the event, I learnt that the car park is owned by Vets4Pets in the building adjacent to the Subway shop.

 

11. Shortly after this event I received the PCN which was posted to my address. There followed a barrage of letters from debt collectors threating “Debt Recovery” and “CCJs”. The original PCN "invoice" was for £100, discounted if paid within 14 days. 

 

12. I appealed the PCN through the Claimants' online appeal portal but it was refused. I have since researched online about this unregulated Claimants appeals service and I could not find any instances where a motorist has had a successful appeal. There are however, hundreds of reports of motorists having their appeal rejected.

 

13. Five months later (26th June 2019)  I received a letter from the Claimants' legal team now demanding an added £60 for "initial legal costs" on top of the original charge of £100”. 

 

14. 16 days later (12th July 2019) I received the second letter from the Claimants legal team threatening even more added fees bringing the total sum claimed to £247.30 which included additional amounts for estimated interest (£12.30), court fees (£25) and solicitors costs (£50).

 

15. After receiving the threatening letters from the Claimants legal team, I went back to the car park and found there was now a small sign on entry reading “Parking restrictions in place, see additional signs for full details” [exhibit 01]. This sign was not in place or was much smaller then the sign that was in place in 2017. This entrance sign is not readable by a driver on entry to the car park whilst trying to turn to cross a busy road, across a public footpath and into the car park due to its location. 

 

16. The additional sign as evidenced in [exhibit 02], was not only very small but it was in a very dark corner of the car park and at a height that’s not readable from the drivers seat in a car and in the direction of a brick wall/deadend, which one wouldn’t walk or look towards if exiting the car [exhibit 02]. (Note to self: make clear which photos are from the time of the event and which are more recent as proof that they must have been inadequate at the time.)

 

17. There are two additional signs on a low wall adjacent to two parking spaces which read “Vets4Pets Veterinary Surgery, Client Parking Only” [exhibit 03]. I did not park nor manoeuvre within these spaces.

 

18. Whilst researching the car park, the positions of the signs have been moved every 6 months according to Google Street View historic data. [Exhibits 01 & 04-08].

 

19. I visited the car park again on 1st May 2023 and the signs have now quadrupled in size and number compared to 2017 when only 2 small signs existed with a font size only readable from a metre or less. [Exhibits 08, 09 10].

 

20. The new exit sign which was not in place on 28.12.2017 now makes it clear that parking restrictions are in place [Exhibit 11].

 

21. Some of the new signs are already falling apart yet again and the condition of the signs shows that they aren't being checked or maintained to ensure they’re in a readable state [Exhibit 12]. 

 

22. I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice version 8 – January 2020 section 19.3 (Exhibit 13). This specifically states that signs with specific parking terms must be placed throughout the site, so that drivers are given the chance to read them at the time of parking or leaving the vehicle. It is no such signs are visible during my stop. (note to self: quote BPA relevant to date of parking event, update)

 

23. It is therefore denied that I entered a legally binding contract, as no clear and visible signage existed on the road onto the site, or at the car park entrance where I parked my car and on the date of the 28thDecember 2017, at no point did I believe any permission to park was needed. Even if the court believes the sign (that was not prominent and was not seen) is capable of offering and creating a contractual agreement, that offer was not made by this Claimant.

 

CPR 44.11 - further costs

 

 

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 the Claimants representative did not have reasonable cause to issue the PCN, as there were no Claimant signs clearly and prominently displayed on the approach road to Subway shop car park, at the entrance to the car park, or near the space in which my vehicle was stationary. It is denied that clear and visible signage exists within this car park; therefore it is denied I am in breach of terms and conditions. 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.

 

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. 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. Throughout the process, I have spent a significant amount of time and resources, and paid court fees to try to resolve this matter. 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, trying to reach the Claimant, processing and preparing an application package, set aside hearing materials, my Defence, this witness statement, supporting evidence, and trial bundle, among other things. This has led to a significant accumulation of wasted efforts. A conservative and reasonable account of the litigant in person time, costs, and court fees I have incurred are detailed in the Schedule of Costs.

 

27. At the same time, the Claimant has engaged in wholly unreasonable behaviour and vexatious litigation, if not outright misconduct. The catalogue of errors begins from the absence of signage, terms, conditions, and any contractual basis – and continues with the failure to use my current address they acknowledged having had all along, obtaining a Judgment in Default using a wrong address acquired in a way that did not adhere to regulation, the lack of interest to provide any relevant details or help appeal the wrongly entered Judgment even if they later admitted their mistake. Ignoring court rulings and deadlines. This has caused significant stress.

 

28. Even if the Claimant would argue that some single point listed above is a genuine error or otherwise reasonable, put together, they reveal a pattern of behaviour that is wholly unreasonable which is based on unfounded allegations and Particulars of Claim.

 

Due to the Claimant’s unreasonable behaviour, I seek my costs on an indemnity basis.

 

29.  I seek my costs on an indemnity basis following the Claimant’s wholly unreasonable behaviour throughout the process, pursuant to CPR 27.14(2)(g), as detailed in the Schedule of Costs. 

 

30. When considering the Claimant’s behaviour, I would like to draw the Court’s attention to Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/1994/40.htm. The authority articulates the definitions of unreasonable or improper behaviour as follows:

 

31. "Unreasonable" also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.

 

32. "Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.

 

33. If the Court finds the Claimant’s behaviour unreasonable, considering Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40 cited above and pursuant to CPR 27.14(2)(g), the Court can order "such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably." In this case, I seek my litigant in person costs as detailed in the Schedule of Costs, pursuant to CPR 46.5, and on an indemnity basis, pursuant to CPR 44.3.

 

 

34. CPR 44.4(3) states that when deciding the amount of costs, the court will also have regard to “(a) the conduct of all the parties, including in particular (i) conduct before, as well as during, the proceedings; and (ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute”, and “(c) the importance of the matter to all the parties.” In this case, the Claimant’s conduct before and during the proceedings has been unreasonable. Unlike the Particulars of Claim state, clearly visible signs, terms, and conditions were absent, and the Claimant failed to use my current address in any correspondence to address this matter. This led to the Judgment entered in Default, which this Defendant considers a highly important matter. Yet, the Claimant did not offer any help to resolve it, even if it was a direct consequence of their negligence with addresses and threatened my business due to the inability to obtain credit during a quiet period.

 

35. 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.

Harvez63

@Not_A_Hope, I did get my N244 back from them as the judge ordered it originally.

I've seen enough cases I'm pretty confident the claimant is waiting to see if I submit my WS within the deadline, then they will discontinue at the last minute to try and case maximum stress; but there's none here. I dont mind if they do, its just more evidence for when I start a new case against them. I think if this doesn't completely show the unreasonable behaviour, then I dont know what does. 

Regarding my cost assessment, is this to form a separate document or does this fit within the WS above?

Not_A_Hope

Fair enough. I did try scrolling back but could not find any reference to you receiving your set aside fee amongst the 57 pages of this thread. 

Usually most people have a separate page attached to their WS for their costs.

Coupon-mad

That WS looks great!

A costs schedule is just a separate page headed with the claim number and title 'costs schedule'.  The Judge doesn't expect a form.

Harvez63

I've updated the exhibits a little. Some I made previously and cannot change without re-doing them completely which just show a different arrow annotation type, I might just have to take that one on the chin, or if it even matters?

Jenni_D

"other than...."

#pedant  

Harvez63

Thank you @Jenni_D

I've got to submit this bundle off Monday, I guess just number the pages and email to the courts and Claimant as a .PDF doc? FYI, still had NOTHING from BWL.

Do I bother to mention cost assessment below includes for the defence of the CCJ?

Defendant's Cost Assessment 

My Fixed Witness Costs

Further costs for Claimant's misconduct, pursuant to Civil Procedure Rule 44.11

Loss of earnings through attendance of court hearing = £95

Research, preparation and drafting documents : £19 Litigant in Person rate x 40 hours = £760

TOTAL COSTS CLAIMED = £855 

By the way, I'm not interested in that money in the slightest. The above is on the low side of hours actually spent. I want them to be as out of pocket as possible through their conduct, and I'm being kind to them on actual hours spent anyway so its all truthful.

Let's be honest; they are going to cancel before the hearing seeing as they've ignored judges orders by 2 weeks now and not submitted anything. But then, once this happens, we start phase 3 and go after them as a separate case  if anyone is up for it