County Court Claim from Watford in Aug 19 - need to file a defence TODAY!

ripofflondon

Hi all

Long time no speak.  I managed to get my amended defence in as outlined above and Gladstones a few months later sent in their witness statement.   

The hearing date is set for tomorrow Tues at Brentford County Court in person - TBH I thought it was later in August.   

I am looking first at the thread I started and so apologise in advance if this is covered elsewhere, but was wondering how to prepare / what to say / not say at the hearing?  

Here is their WS:  

I, A*** P*** of Gladstones Solicitors Limited, will say as follows

INTRODUCTION
1. I am a Legal Assistant, in the employment of Gladstones Solicitors Limited, who act for the Claimant in this matter. I have conduct of this action, subject to the supervision of my principal. The matters to which I refer within this witness statement are within my own knowledge, or based on information provided to me by my client within the course of my instruction, save where expressly stated to the contrary. I am duly authorised by the Claimant to make this statement on their behalf.
2. I make this witness statement in readiness for the hearing listed on 2nd August 2023 in the County Court at Brentford and in support of the Claimant’s claim against the Defendant. 
3. Within this statement, I make reference to various documents. These are now produced by me to the court as exhibits and are specifically referred to within the statement by reference to their exhibit numbers. These exhibits have been provided to me by the Claimant in support of their claim. Any reference to an exhibit number within this witness statement is a reference to the corresponding exhibit unless otherwise expressed to the contrary.

THE CLAIMANTS AUTHORITY TO ISSUE PARKING CHARGES.
4. The Claimant is and was at all material times involved in the management and enforcement of parking on private land. The Claimant achieves this by way of a variety of schemes including, but not limited to, warden controlled sites and ANPR.
5. The Claimant does so in accordance with the authority granted to them under the terms of a Landholder agreement. In accordance with the terms of the Landholder agreement the Claimant is authorised by the land owner to manage and enforce parking on the land in question. The Claimant does so in return for a right to raise charges from the users of vehicles who infringe the ‘regulations’ (a relevant obligation) which relates to the entitlement to use the same. As a result, the Claimant does issue Parking Charge Notices (hereinafter referred to as PCN) in relation to vehicles parked in breach of the terms and conditions, on sites that they manage. The landholder agreement confirms that the Claimant has a legitimate commercial interest and sufficient standing to; a. Issue PCNs as a result of the Terms and Conditions (as detailed in the signage) being breached; and b. Bring proceedings in its own name.
6. The Claimant is and was at all material times a member of an Accredited Trade Association (ATA) as evidenced by the logo displayed on the signage at the site and the Claimants correspondence.
7. The Claimant is and has been at all material times a signatory to the Keeper at the Date of the Event agreement (hereinafter referred to as the ‘KADOE’). Under the terms of the agreement with the DVLA the Claimant is entitled to request that the DVLA provide the Claimant with the details of a vehicles registered keeper as at a specific date (hereinafter referred to as the ‘Data’), under the reasonable cause criteria, provided that certain criteria are met.

THE CLAIM SITE DETAILS
8. The Claimant provides, manages and enforces private parking at the land located at Aldenham Square - Edinburgh Mews, Watford, Hertfordshire, WD19 4FS (hereinafter referred to as the ‘Site’).
 9. Now shown at Exhibit reference GS1 is a copy of the agreement between the landowner and the Claimant (hereinafter referred to as the ‘Agreement’), which sets out, inter alia, the Claimant’s standing and rights to manage and enforce the regulations in situ at the Site.
10. The “regulations” referred to above (hereinafter referred to as the ‘Terms and Conditions’) are displayed on signs erected by the Claimant at various points throughout out the Car Park, Exhibit reference GS2.
11. The Terms and Conditions of the Site, Inter alia, express the following conditions for any motorist using the Site; No parking outside of a designated parking area / parking bay e.g. access roads / yellow lines / paved / hatched or landscaped areas.
12. The signs are displayed at various points throughout the site as evidenced by the attached site plan (Exhibit reference GS3), and the Driver would have had the opportunity to read and understand them when entering and then parking at the Car Park. An objective observer would consider this action to have been done in acceptance of the Terms and Conditions. It is the signage that forms the basis of the contract between the driver and the Claimant (hereinafter referred to as the ‘Contract’).
 13. The signage also states that any breach of the terms and conditions of using the site will result in the issuing of a Parking Charge in the sum of £100.00, plus additional costs if the same remains unpaid.
14. It is the Claimant’s case that such terms and conditions are clear and fair to all motorists, in accordance with their ATA’s Code of Practice and established case law. However, if the motorist believes them not to be, they always have the option to leave, and not enjoy the benefits offered from using the private car park. The signage situated across the Site forms a unilateral offer to 3 anyone wishing to park their vehicle at the location. As the offer is a unilateral one, there is no need for the motorist to communicate their acceptance, their performance of parking (as opposed to leaving) in accordance with the Terms and Conditions is the act of acceptance.
15. If a driver choses to remain in breach of the terms and conditions of parking at the site, it is the Claimants position that they agree to pay the parking charge, detailed on the signage, plus any additional costs associated with the same. Given that the Driver has the choice as to whether to accept them or refrain from remaining at the site, it is the Claimants case that the Terms and Conditions should not be considered unfair or unreasonable.
16. Every recipient of a PCN from the Claimant is afforded the opportunity of appealing the PCN, via the Claimants internal appeals process, if they consider that it is issued in error or was unlawfully issued. In the event that the recipient fails to exercise their right to appeal via the internal appeals process or they are dissatisfied with the outcome they have the right to make an appeal to the appeals service hosted by their ATA.
17. Both limbs of the appeals process are designed to ensure that a person who is aggrieved by the issuing of a PCN has the opportunity to have the opportunity to engage in ADR both with the Claimant itself and an independent appeal entity at an early stage.

THE DEFENDANT’S BREACH OF THE TERMS AND CONDITIONS
18. On the 17th September 2019, (hereinafter referred to as the ‘Contravention Date’), vehicle registration number T***, (hereinafter referred to as the ‘Vehicle’) was observed by the Claimant to be parked in breach of the terms and conditions applicable at the site. The photographic evidence (Exhibit reference GS4) shows that the Defendant’s vehicle is parked on access road, which is not a designated area for parking.

PCN
19. A PCN was not affixed to the vehicles windscreen at the time of the contravention.
20. As a result of the above the Claimant obtained the details of the vehicles registered keeper from the DVLA, under the terms of the KADOE. The Defendant was named as the Registered Keeper. The address supplied by the DVLA as being the Registered Keepers address is an address by which notices concerning the Vehicle can be sent and is deemed to be current, given that it is the Registers Keepers responsibility to update the DVLA of any changes. The Claimant issued a postal PCN to the Defendant as they were the Registered Keeper of the vehicle at the time of the contravention (Exhibit reference GS5).
21. The PCN gave the Registered Keeper three options: i. To pay the PCN; ii. If they were not the driver to provide the Claimant with the driver’s full name and a serviceable address, in order that liability could be transferred; and iii. To appeal the PCN initially via the Claimants internal appeals process and then if dissatisfied by the outcome to appeal the PCN to the IAS.
22. No payment was made and no response was received, the Claimant therefore issued a liability notice (Exhibit reference GS6), on 18th October 2019.

THE DEFENCE
23. The Defendant alleges that on the contravention day, he parked his vehicle for between 5 and 10 minutes in a square outside a block of flats while he went to a shop.
24. The Defendant alleges that he did not get any paper ticket on the date of the contravention and the first he knew of this matter was a letter in the post a few weeks or months later.

THE CLAIMANT’S RESPONSE
25. The Claimant would like the Court to note that the Defendant is using a generic defence which can be found on the internet and it is highly doubtful that the Defendant would understand the complexities of all the references to the Civil Procedure Rules, the requirements in the Protection and Freedoms Act (POFA) and in established case law, which is often the case when a Defendant is questioned about such references at Court. Therefore, everything that the Defendant has outlined is not accepted and denied by the Claimant.
26. Whilst the Defendant admits in his defence that he parked his vehicle for between 5 and 10 minutes in a square outside a block of flats while he went to a shop, the Claimant states that the land where the Defendant has parked his vehicle is a private property where restrictions apply at all times. The photographic evidence clearly show that a vehicle is parked within a clear view of one of many signs displayed around the site, which clearly states that only vehicles displaying a valid UK CPM permit are permitted to park at this site and no parking outside of a designated area is permitted.
 27. The Defendant’s statement that ‘he parked his vehicle while he went to a shop’ proves that he did not have a valid permit and therefore was not authorised to park at the site. By entering and remaining on the site the Defendant as the driver agreed to the contractual terms and as his vehicle was in contravention of the agreed terms and conditions for all users of this site, therefore the charge has been issued correctly.
28. The Claimant confirms that a copy of the evidence was sent to the Defendant with the initial PCN and as evident from the documents annexed hereto, the PCN was issued to the Defendant at the same address as confirmed in his defence. There is no reasonable explanation as to why this would not have been received. The initial PCN was issued and sent to the Defendant two days after the date of the contravention, on 19th September 2019, therefore was POFA compliant. Notwithstanding that, despite receiving the reminder dated 18th October 2021, the Defendant still failed to contact the Claimant.
29. In addition to the above, the signs are displayed at various points throughout the site as evidenced by the attached site plan (Exhibit reference GS3), and the Driver would have had the opportunity to read and understand them when entering and then parking at the Car Park.
30. The Claimant is satisfied that the Defendant was given reasonable amount of time to pay the charge or to contest it. The initial PCN and further correspondence were sent to the Defendant’s correct address and received (as confirmed by the Defendant), however as the Defendant has failed to pay the outstanding amount, therefore this has led to proceedings being issued and a final hearing being necessary. It is therefore submitted to the Honourable Court that notwithstanding the defence that has been filed, the Claimant has satisfied the burden of proof in this case and is entitled to judgement.

Anyone have any thoughts / advice?

Mark

KeithP

ripofflondon said:

Hi all

Long time no speak.  I managed to get my amended defence in as outlined above and Gladstones a few months later sent in their witness statement.   

The hearing date is set for tomorrow Tues at Brentford County Court in person - TBH I thought it was later in August.   

I am looking first at the thread I started and so apologise in advance if this is covered elsewhere, but was wondering how to prepare / what to say / not say at the hearing?  

I can see nothing in your thread that tells us you have filed and served a Witness Statement and evidence.

So I'll ask the question...

Have you filed a Witness Statement and evidence with the court and have you also served copies of those on the Claimant?

ripofflondon

I did both those things Keith, yes - in fact you were one of the ppl who very kindly helped me with it.  

Gladstones obviously saw it, for at clause 25 they even refer to it as 'the Defendant is using a generic defence which can be found on the internet' ! 

KeithP

ripofflondon said:

I did both those things Keith, yes - in fact you were one of the ppl who very kindly helped me with it.  

I've just re-read your thread and cannot see anywhere that you have said you have filed and served a Witness Statement and evidence.
I certainly did not help you with that and I cannot see than anyone else did either.

Still, if you have done that, then just have a look at this video to see what to expect tomorrow...

www.youtube.com/watch?v=n93eoaxhzpU

Just three or four people sitting round a table having a discussion.

Good luck.

ripofflondon

Ouch Keith.  You are right.  It was the defence I filed (which you did help me with) and I appear to have confused this with the Witness Statement. 

So - is there anything I can do at this late hour?  I don't even have any evidence as such apart from the letters they sent, which are in THEIR WS and evidence bundle in any case.  

KeithP

Some months ago you received a Notice of Allocation. The Notice that gave the hearing date.

There was a paragraph on it something like:

Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ . . . ] [14 days before the hearing].

Might be on the back.

Those 'documents on which you intend to rely' are your Witness Statement and evidence.

You must at least turn up. Failure to do that will see you landed with exceptional costs for unreasonable behaviour.

I fear you are doomed to failure, but looking back over this thread you just haven't given this issue the attention it needed.

Coupon-mad

No it's too late.  This is a clanger dropped (sorry) because our advice in the NEWBIES thread is clear and your Court Hearing Order also told you about your deadline.

But you MUST be reasonable and definitely attend the hearing and if you are allowed to speak (which the Judge might not allow because you are not a witness and are in breach of your hearing Order) then have a crib sheet of notes and a printed copy of their WS, highlighting any holes in their case, undated signage photos, etc.

ripofflondon

OK, I am sure I did receive that NoA and missed the para you quoted.  

I assume I am too late to put my WS in now but, even if I did, what would I be putting in it that's any different to the first few paras of my Defence?   These are:

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.

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

 3. The Defendant parked for between 5 and 10 minutes (DEFINITELY not longer than 10) in a square outside a block of flats while he went to a shop on 17 Sep 2019, having stopped there on the morning of 17 Sep 2019 on his way somewhere else. Roughly one week before 17 Sep 2019 he had parked in the same place and someone who (it is assumed) worked for the Claimants approached him as he alighted from his car. He asked the Defendant ‘do you live here?’ and the Defendant answered ‘no, but I’m just quickly going to the shop’ whereupon this person said ‘oh, you’re just going to the shop? That’s OK’ and walked off. The Defendant did not get given any paper ticket on 17 Sep 2019 and the first he knew of this matter was a letter in the post a few weeks or months later Then this Claim arrived in early October 2022



Yes I accept I need to turn up to the hearing.  But my issue has now become 'what to say at court (now that I realise I didn't put in my WS)?' 

Coupon-mad

My reply told you what to say.  Cross your fingers the Judge lets you speak.

Umkomaas

I assume I am too late to put my WS in now but, even if I did, what would I be putting in it that's any different to the first few paras of my Defence?

Too late for your own WS, but if you want to read a very good example of one, have a look at that produced by @aphex007

Tap on his @aphex007 username to take you to his Profile page. Scroll down, under 'Activity' tap 'Threads', find his relevant thread, tap and find his finalised WS (page 15, v3).