Witness Statement Stage - Tesco Express PCN

breezy2022

Coupon-mad said:

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.

Thanks. I have removed all of point 14 and updated with this point:

14.     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.

breezy2022

I have updated point 8 & 9 as i have come across some additional evidence from their original appeal rejection:

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”. This statement is in direct contradiction to what was stated in the Claimants response to my initial appeal. Please refer to Exhibit G where the Claimants response confirms “The car park is controlled by warden patrols.”. 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. 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 most probable reason a physical PCN was not affixed is due to the Claimants intention to deceptively catch other drivers/ customers in the same trap, instead of genuinely trying to deter parking “contraventions”.

Coupon-mad

breezy2022 said:

Coupon-mad said:

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.

Thanks. I have removed all of point 14 and updated with this point:

14.     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.

Not sure where you got that from?

That paragraph is nothing to do with what I said above and doesn't come from the current Template Defence (I know, because the current Template Defence doesn't reference Crosby, which is old news).

breezy2022

Coupon-mad said:

Not sure where you got that from?

That paragraph is nothing to do with what I said above and doesn't come from the current Template Defence (I know, because the current Template Defence doesn't reference Crosby, which is old news).

I got it from the witness statement template in this thread: https://forums.moneysavingexpert.com/discussion/comment/77614685/#Comment_77614685

Is the paragraph below the one you mean i should include? Taken from this thread: (https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1)

13. 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.

If so, this point is included in my witness statement already (point 23).

If not, would you be able to share the paragraph? I need to submit my WS imminently. Thank you 

breezy2022

@Coupon-mad : Or are you referring to this paragraph, which is also already included in my WS too?:

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.

breezy2022

Final question, i am planning to submit via email, does the signature on the witness statement have to be wet ink and scanned back in or can i add an electronic signature?

Coupon-mad

Oh, you've used the old RobertCox WS which is still linked in the NEWBIES thread at the mo, but is superseded by better ones in 2022.

Bin it, stop reading it.

Use the one by @aphex007 which I already directed you to on 7th November to use as your base, and includes the other 'Whilst' paragraph.

breezy2022

Coupon-mad said:

Use the one by @aphex007 which I already directed you to on 7th November to use as your base, and includes the other 'Whilst' paragraph.

ah, the aphex007 one is where i got the original paragraph which contained the word 'banned' (Point 26 in Aphex007 WS Bundle):

26. 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

Coupon-mad

But aphex007's final bundle (not his first effort before he got his advice from us) included the 'Whilst' paragraph as no 28 and I am not sure why so many people kerp missing it out: 

https://www.dropbox.com/s/cd5oqk90qga96p9/Draft_Witness_Bundle_%28redacted%29_v3.pdf?dl=0

Did you find his thread and just read his first draft, not his final draft?