PCN residential address WS stage vs UKCPM/gladstones

Coupon-mad

 are you suggesting that I remove the Exaggerated claims and all subsequent sections?

Yes. Do not repeat the defence.

You need Chan & Akande. 

"As for the POC, I think it was more specific this time. It talks about my car not displaying parking permit".

Surely not? Gladstones never plead the breach, Do you mean they did a fuller POC?

taleb

@Coupon-mad yes, I believe so. this is taken from their WS

On the 19th December 2018 vehicle registration number XXXXX was observed by the Claimant to be parked in breach of the terms and conditions applicable at the site. The photographic evidence shows the vehicle to be parked and unattended at the site without displaying a valid permit. Exhibit reference GS4

PCN

17. A PCN was affixed to the vehicle’s windscreen at the time of the contravention. Exhibit reference GS5 The PCN afforded the recipient two options, to pay the £100 charge (discounted to £60 if paid within 14 days) or appeal the charge via the appeals process. No payment was made and no appeal was received.

18. 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 GS6

19. 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.

20. The Defendant submitted an appeal on the 19th February 2019, which was considered but rejected. Exhibit reference GS7

21. No payment was made and no further response was received.

They go on to deny all the other points in my defence

Coupon-mad

But I wasn't asking about their WS.

It's about the POC only. Cases are struck out at hearings on this issue.

You need Chan and Akande. 

taleb

thanks for your responses @Coupon-mad

this is from Gladstones WS contesting the Set Aside application

===================

Should the court elect to proceed as described above, the Claimant respectfully requests the

following Order be made;

a. The judgment entered on the 16th January 2023 be and is hereby set aside;

b. The Witness Statement of Joshua Reid stand as the Particulars of Claim and service of the

Claim be dispensed with;
===================

so I assume that the WS becomes the PoC and it is quite detailed in setting out what happens

this is the bit where they set out the alleged contravention (would it be useful if I share that WS):

=====================
The Claimant prays in aid of its case, the contents of this statement together with the attached

exhibits. The Claimant’s position is straightforward. They were authorised to operate a parking

management scheme on the land in question. There was clear and unambiguous signage in place

at the site, which formed the basis of the contract. The driver of the Vehicle parked in breach of

those Terms and Conditions, thereby entering into the Contract which is now breached owing to a

failure to make payment. The driver of the Vehicle failed to respond to the PCN affixed to the

Vehicle within the given time scales. Therefore, as the identity of the driver was not known to the

Claimant, they were entitled to obtain the Registered Keepers’ details from the DVLA and pursue

the Registered Keeper instead.
======================

is this ambiguous enough for me to use Chan and Akande?

Coupon-mad

so I assume that the WS becomes the PoC and it is quite detailed in setting out what happens.

Only if the Judge used their version as the basis for his/her Order and actually put in writing that "The Witness Statement of Joshua Reid stand as the Particulars of Claim and service of the Claim be dispensed with"

taleb

here's the updated WS
=======================================

IN THE COUNTY COURT AT XXXXX

Claim No.: XXXXX

Between

UK CAR PARK MANAGEMENT LIMITED

(Claimant) 

- and -  

MR XXXX XXXX XXXXX

 (Defendant)

_______________________________________________________________________________________________

Table of Contents
Exhibit 01. Links to judgements included in the witness statement
Exhibit 02. Tenancy Agreement
Exhibit 03. Parking Enforcement Contractual Agreement
Exhibit 04. Photo of vehicle parked within designated area
Exhibit 05. Photo of non-distinct signs of old and new parking operators 
_______________________________________________________________________________________________

Witness Statement of Defendant 

1.     I am XXX, of (ADDRESS) 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 honest belief. 

2.     In my statement, I shall refer to (Exhibits 1-5) 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 deny that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability'.

 

The facts known to the Defendant:

4.     It is admitted that the Defendant was the registered keeper of the vehicle at the material time, but liability is denied.

5.     I was a resident of the block of flats at XXXXX where the car park is situated on the date of the contravention. The car parking area contains unallocated parking spaces demised to the residents and their guests via the leasehold.

6.     On the 19th of December 2018 the Claimant proceeded to issue a parking charge notice as my vehicle was allegedly in breach of the terms of parking at XXXXX, which I strongly deny all liability to.

7.     Unbeknown to me, the car park operator had changed on the weekend preceding the date of the alleged contravention. No notices of the change were visible on the site, notwithstanding the new parking signs which were not distinctly different from the old ones (See exhibit 5).

8.     The only notification given was in the form of an unaddressed envelope that was slipped through the letterbox on the Sunday afternoon preceding the alleged contravention date. The envelope contained a permit issued by the Claimant, being the new car park operator. The envelope gave no indication of its contents and could easily have been discarded given that it contained neither my name nor my address, only having the flat number.

9.     Under the terms of the tenancy agreement (See Exhibit 2), references are made to the usage of parking spaces in section “3.15” of the lease titled “Use of the property", under clause “3.15.14”. I expressly note that none of the conditions of the lease were breached.

10.  I assert that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. I will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

11.  This position is supported by the recent Court of Appeal decision in Duchess of Bedford House RTM Company Limited & Ors V Campden Hill Gate Ltd (2023) ECWA Civ 1470 which reaffirms residential parking rights using not only a fair interpretation of the lease but also Section 62 of the Law of Property Act 1925

12.  Two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and CPMS v Akande would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

13.  Notwithstanding points 9-12, the Claimant relies on the agreement with the freeholder (See Exhibit 3) to assert the right to issue PCNs in relation to vehicles parked in breach of the terms and conditions. The said agreement states that: (i) permit holders (and visitors) only, (ii) no parking outside of a designated area.

·       I, being a resident, was a permit holder, a fact never contested by the Claimant, and which I asserted in my original appeal against the PCN.

·       As the Claimant’s own photos show (Exhibit 4), the vehicle is parked within a designated area.

·       Hence, it is asserted that my vehicle was, at all material times, parked in accordance with the terms and conditions. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.

Hearsay evidence

14.  The Claimant’s 'witness' is a para legal employed by the claimant’s solicitors and has no direct knowledge of the actual events that form the basis of the claim. Any evidence provided by this individual is second-hand, supposedly relying entirely on information supplied by the claimant, and thus cannot carry the same weight as testimony from someone who witnessed or was directly involved in the incident.

15.  While the Civil Evidence Act 1995 allows hearsay evidence in civil proceedings, it is required to be given less weight, especially when it comes from someone with no firsthand knowledge. Furthermore, under CPR 32.2, the court has the discretion to exclude hearsay evidence when it is of limited probative value. In this case, the witness provides only second-hand information from the claimant and cannot be considered reliable or probative.

16.  The Claimant's Witness Statement (WS) fails to comply with CPR Practice Direction 32, paragraph 18.2, as it does not clearly distinguish between what the witness knows firsthand and what has been provided to them by others. It is evident that the individual providing the statement, being a legal assistant with no direct involvement in the events, relies on information provided by their client and lacks personal knowledge of the facts. As a result, this statement amounts to hearsay, which weakens its credibility. 

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:

Date: 18/12/2024

 

Exhibit 01 – Links to judgements included within witness statement

 

Duchess of Bedford House RTM Company Limited & Ors V Campden Hill Gate Ltd (2023) ECWA Civ 1470

https://www.casemine.com/judgement/uk/6576d76952aae60ac079d0bd?utm_source=amp&target=amp_jtext

 

Jopson v Homeguard Services Ltd (2016)

https://www.parkingcowboys.co.uk/wp-content/uploads/2016/12/JOPSON-V-HOMEGUARD-2906J-Approved.pdf

 

K-Sultana Saeed v Plustrade Ltd [2001]

https://www.casemine.com/judgement/uk/5a8ff71460d03e7f57ea734b

 

Civil Enforcement Limited v Chan (Ref E7GM9W44)

https://www.scribd.com/document/676990676/Civil-Enforcement-Limited-v-Ming-Tak-Chan-CC-Luton?doc_id=676990676&order=652107815

 

CPMS v Akande

https://www.dropbox.com/scl/fi/2jef4c7bljyp6dse24p70/Judgments.pdf?rlkey=jsgusx180wzjz2f6er0436xw2&st=03x4tsbq&dl=0

taleb

Coupon-mad said:

so I assume that the WS becomes the PoC and it is quite detailed in setting out what happens.

Only if the Judge used their version as the basis for his/her Order and actually put in writing that "The Witness Statement of Joshua Reid stand as the Particulars of Claim and service of the Claim be dispensed with"

no, this is the Judge's Set Aside order:
Judgement set aside and any warrant or other enforcement discharged providing the Defendant by 4pm on 25th September 2023 files a full defence with the court and serves a copy on the claimant

I haven't received any other PoC
I assume they wouldn't consider the original service letter, which I never got because it was sent to my old address?

Coupon-mad

Get a copy of the POC emailed to you now - this week - by calling the CNBC.  The original claim was inadequately pleaded and nothing replaced the original POC.  You need it in order to argue that the claim should be struck out.

taleb

thanks @Coupon-mad, I'll give them a call tomorrow
any thoughts on the updated WS
also, for the previous judgements, am I ok to include them as links?
If not, can I attach the exhibits as separate files to the email, rather than combining them in one file?

Coupon-mad

I think links are fine these days when emailing a WS because it's an electronic submission, but take two copies of printed versions (if the hearing goes ahead) just to get the Judge onside if they want to read your authorities.

I think para 12 is in the wrong place and should be moved to sit above the section 'Hearsay evidence' and needs its own sub-heading AND an extra intro paragraph stating that you also take the point that the Particulars of Claim (never served, but eventually obtained from the CNBC in December 2024 by email) disclose no breach blah blah (copy from the defence by @hharry100 for that extra paragraph).