Witness Statement Stage - Tesco Express PCN

breezy2022

Hi,

I have been following the steps on the newbie forum in my fight against a Parking Charge Notice. This is the first time I am posting on this forum as I would like to seek advice please. Any guidance or advice would be greatly appreciated.

I am currently at the Witness Statement stage. My Defence Statement* is at the end of this post (I used the template provided on the newbies thread while inputting case specific details for points 2 and 3). I have received the Claimant’s Witness Statement via post, in which they have denied all the points in my defence statement and even state my defence is a “generic defence found on the internet…”. They also state that “the generic defence relied upon by the Defendant also references the alleged new statutory code of practice which has not yet received royal accent, therefore not relevant to the facts of the case.”

Summary of case: Vehicle parked in a Tesco Express Car Park in West London. Car was a lease car. Parking Charge Notice was received in the post. All steps from the newbies forum were followed. I am now at the Witness Statement stage, awaiting a court date. 

My main line of defence in this case is the contradictory parking signs. As per my Defence Statement (below), the vehicle was not parked on yellow lines or a hatched area, which the parking signs on site state is prohibited. The vehicle was parked parallel to a marked bay and was not obstructing the entrance or exit of the car park. The Claimant in their Witness Statement, accept the signage references “no parking on yellow lines or hatched areas”. The reason I believe this is relevant is because at the time of the PCN being issued by the Claimant, there were no yellow lines painted where the car was parked. Fast forward a couple of months after the incident, I received the PCN in the post so went back to the site to take pictures (as advised on the newbie forum) and captured images which show that yellow lines had been painted there. I included these in the first appeal which was subsequently rejected. Side note: In their witness statement, the Claimant states their parking signs conform to BPA Code of Practice.

A second point, there was no physical PCN displayed on the vehicle, rather I received the Parking Charge Notice in the post. In their Witness Statement, the Claimant states the site is “managed remotely” and therefore a “PCN was not affixed to the vehicles windscreen at the time of the contravention”. I am not clear on the Claimants definition of “managed remotely”, but the pictures taken of the alleged incident, which were subsequently used to issue the PCN, were physically taken at the parking site by a worker of the Claimant, at the time of the incident. These pictures were not taken from a  camera located on site and therefore there is no reason why a physical PCN could not be affixed to the vehicle. The reason a physical PCN was not affixed is due to the deceptive nature of this industry, where instead of genuinely trying to deter parking “contraventions”, they wish to exploit customers for money. I had witnessed many vehicles parked in the same spot on separate occasions prior to this incident. The Claimant argued this is irrelevant in their witness statement and that I have “no knowledge whether those customers had been issued with a PCN for the same contravention”

To summarise, I am demoralised by the Claimants Witness Statement shutting down all the points outlined in my Defence Statement. I am determined to continue the fight against this charge as I don’t feel it is justified but would like some advice/ support from others in the forum on how to write up the Witness Statement. I have seen the Witness Statement examples but am struggling to decipher what my Witness Statement will say that paragraphs 2 & 3 of my Defence Statement don’t already cover? Any help will be greatly appreciated. Thank you

 

Defence Statement

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

 

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

3. The defendant entered the car park in question to visit their local convenience store (Tesco Express) on 23/11/2018, which they visit frequently. The defendant parked their car in a parking spot which has been used by other customers in the past, as observed by the defendant on previous visits to the store. When the defendant left the car park, a Parking Charge Notice was not displayed on the defendant’s car. A Notice to Keeper was received on 10/01/2019, which failed to meet the obligations of Schedule 4 of the POFA Act 2012 as the Notice to Keeper arrived after 15 days following the alleged parking offence. Upon receiving the Notice to Keeper, the defendant collected photographic evidence of the unclear, contradictory signage and road markings. The signage stated “no parking on yellow lines or hatched areas”. There were no yellow lines or hatched markings where the car was parked on 23/11/2018. Upon a future visit to the store, the defendant noticed additional yellow line road markings had been painted so collected additional photographic evidence. This was submitted to the Claimant to dispute the entirety of the charge, via email, on 29/01/2019. Subsequently, the defendant received a barrage of debt collection notices throughout the remainder of 2019 which then ceased, only to start again in January 2022.

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

5. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated.  

* Points 6 - 27 of the defence statement are taken from the template so i wont include in this post

 

Trainerman

Hello and welcome. There will be detailed responses later, but just to help your morale, let me point out a couple of howlers in their blurb straight away. Firstly. the phrase is Royal assent. Did they really say 'accent'???

It actually received Royal Assent in 2019. Further, although it is withdrawn, that is only to consult on fees, the rest of it (IE good practice etc) will remain as is, I believe.

PPCs and their roboclaims acolytes often try to run down a witness statement by saying it is a template.....usually themselves using a template !

Don't let them grind you down, more detailed help will arrive !

Coupon-mad

there were no yellow lines painted where the car was parked. Fast forward a couple of months after the incident, I received the PCN in the post so went back to the site to take pictures and captured images which show that yellow lines had been painted there. 

This is really good as evidence, so don't be demoralised!

Copy & adapt the WS bundle by @aphex007

1505grandad

Who is the claimant and solicitor if one is involved.

For future reference as driver is admitted to/known by claimant PoFA not applicable - (the WS mentioned above is  a "driver admitted" example). 

breezy2022

Thank you all for the reassuring words. 

1505grandad said:

Who is the claimant and solicitor if one is involved.

The Claimant is Private Parking Solutions and the Solicitors are Gladstones.

breezy2022

Trainerman said:

Firstly. the phrase is Royal assent. Did they really say 'accent'???

Yeah, they said "accent". They also made a few other spelling mistakes in their Witness Statement. 

breezy2022

Coupon-mad said:

there were no yellow lines painted where the car was parked. Fast forward a couple of months after the incident, I received the PCN in the post so went back to the site to take pictures and captured images which show that yellow lines had been painted there. 

This is really good as evidence, so don't be demoralised!

Copy & adapt the WS bundle by @aphex007

Thank you. I will make use the WS bundle mentioned. 

breezy2022

I have drafted my Witness Statement (please see below). Any thoughts/ advice on this would be greatly appreciated.

specifically, should i remove the following?:

• point 4 - not sure if this is valid as this was a lease car and the Claimant's witness statement states the timelines were met. 
• point 9 - not sure if relevant
• point 10 - not sure how to phrase this point tailored to my scenario. 
• point 11 - does it apply to my case?
• 
  

1.     I am xxx of xxx 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.

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:

3.     I drove to my local convenience store (Tesco Express) on 23/11/2018. I visit this store frequently to pick up groceries. The car park seemed busy, so I parked my car in a parking space which was not obstructing vehicles entering or exiting the car park. I had witnessed this parking space been used by other customers on previous visits to the store. I returned to my car no longer than 10 minutes after parking my car and left the car park.

4.     A Parking Charge Notice was not displayed on my car when I drove away from the car park on 23/11/2018. Instead, a Notice to Keeper was received on 10/01/2019 via post, which failed to meet the obligations of Schedule 4 of the POFA Act 2012 as the Notice to Keeper arrived after 15 days following the alleged parking offence.

5.     The Claimant in their Witness Statement claims their parking signs conform to BPA Code of Practice. The signage stated, “no parking on yellow lines or hatched areas”. The Claimant in their Witness Statement, accept the signage references “no parking on yellow lines or hatched areas”.  Please refer to Exhibit xx. I refer to photographic evidence submitted by the Claimant in their Witness Statement, Exhibit xx, to demonstrate that there were no yellow lines or hatched markings where the car was parked at the time of the incident on 23/11/2018.

6.     Upon receiving the Notice to Keeper, I returned to the car park in January 2019 with the intention of collecting photographic evidence of the unclear, contradictory signage and road markings (or lack of in this case). During this visit, I noticed additional yellow line road markings had been painted in area my car was parked on 23/11/2018. Please refer to photographic evidence Exhibit xx. This evidence was submitted to the Claimant to dispute the entirety of the charge, via email, on 29/01/2019.

7.     The Claimant did not accept the evidence and therefore continued pursuit of their Parking Charge Notice. I received a barrage of debt collection notices throughout the remainder of 2019 which then ceased, only to start again in January 2022.

8.     In their Witness Statement, the Claimant states the site is “managed remotely” and therefore a “PCN was not affixed to the vehicles windscreen at the time of the contravention”. I am not clear on the Claimants definition of “managed remotely”, but the pictures taken of the alleged incident, which were subsequently used to issue the PCN, were physically taken at the parking site by a worker of the Claimant, at the time of the incident. These pictures were not taken from a camera located on site and therefore there is no reason why a physical PCN could not be affixed to the vehicle.

9.     The reason a physical PCN was not affixed is due to the deceptive nature of this industry, where instead of genuinely trying to deter parking “contraventions”, they wish to exploit customers for money.

10.  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'. The BPA Code of Practice says “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand”. It also states that “Signs play an important part in establishing a parking contract” with drivers. Due to the contradictory message on the signage, I have included a copy of this sign in exhibit xx for comparison.

 

The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

11.  ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach.

12.  Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

13.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/ cumbersome obligations nor any 'concealed pitfalls or traps'. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests (See Exhibit xx for paragraphs of ParkingEye v Beavis).

 

Abuse of process - the quantum

14.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two wellknown ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable.

15.  My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: (link - i cant post)

16.  Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 27), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the roboclaim race to court and to side-step the £50 legal fees cap set in the Small Clams Track.

17.  Adding debt recovery/costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

18.  This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

19.  The Code's Ministerial Foreword is unequivocal about abusive 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."

20.  The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response (also in February 2022), they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced. This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

21.  The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.

22.  These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

23.  Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

 

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 the Claimants signs were contradictory and unclear 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.  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.

Le_Kirk

Paragraph 4 would be useful to you if you are defending as keeper since they failed to be able to transfer liability from driver to keeper but you, by your own admission, are defending as driver.
Paragraph 9 is an assertion, do you have any evidence to back up this claim?
Paragraph 10 is relevant if, in your defence, you are claiming some issue with the signs such as they being illegible.

I had witnessed this parking space been being used by other customers on previous visits to the store. 

Also change as above.

Coupon-mad

The added costs/damages are not 'banned' because that decision is on hold and is being revisited with a Government Impact Assessment.

That fact is covered in a paragraph in the Template Defence that starts with the word 'Whilst' so I'd go and get that and amend.

breezy2022

Le_Kirk said:

Paragraph 4 would be useful to you if you are defending as keeper since they failed to be able to transfer liability from driver to keeper but you, by your own admission, are defending as driver.

Yeah, i admitted to being the driver only once i reached the defence statement stage. Is it still valid to claim they failed to transfer liability? The timelines can be quite confusing with lease cars so i am not certain they have failed to meet the criteria. 

Le_Kirk said:

Paragraph 9 is an assertion, do you have any evidence to back up this claim?

The only evidence i have of this is circumstantial i.e. the fact that they don't issue physical PCNs on windshields, as naturally, this would deter other drivers who see this from parking in similar/ the same spot (backed up by point 8 in my statement)