PCN residential address WS stage vs UKCPM/gladstones

taleb

thanks for your feedback @Coupon-mad
here's the updated version
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IN THE COUNTY COURT AT XXXXXXX

Claim No.: XXXXXX

Between

UK CAR PARK MANAGEMENT LIMITED

(Claimant) 

- and -  

MR 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 XXXXXXX 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 XXXXXXX, 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.

Primacy of existing residential parking rights

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

Overreach beyond freeholder agreement

12.  Notwithstanding points 9-11, 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.

Particulars of Claim (POC) in breach of Procedure Rules

13.  I draw to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

14.  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.

15.  The claim appears to be using generic wording which has obstructed any semblance of clarity.  I trust that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has ever been served, and the POC was only obtained upon request from the CNBC via email on December 2024.

Hearsay evidence

16.  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. 

17.  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.

18.  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

 

KeithP

In para 14 you correctly mention "Two recent persuasive appeal judgments...".

Perhaps the first sentence of para 13 should be adjusted to read...
13.  I draw to the attention of the allocating Judge that there are now two persuasive Appeal judgments to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the ones seen on Appeal).

Coupon-mad

Looks good. 

taleb

thanks @KeithP I'll make that change

Le_Kirk

In your paragraph #4, you should use "I" not "the defendant".  In paragraph #5 you should say "alleged" contravention.

taleb

thanks @LeKirk I'll amend that
btw, I've called up the county courts call centre and they said I had to email my local court to ask for the POC
I emailed them this morning, I really hope they get back to me either tomorrow or early next week, as I don't have much time left with all the bank holidays

Coupon-mad

taleb said:

thanks @LeKirk I'll amend that
btw, I've called up the county courts call centre and they said I had to email my local court to ask for the POC
I emailed them this morning, I really hope they get back to me either tomorrow or early next week, as I don't have much time left with all the bank holidays

No - don't accept that - it is wrong. Ring the CNBC again in the morning at 8.30am. They told you wrong. The CNBC has the POC and they must email it to you.  Don't confuse them by talking about your WS or hearing.

taleb

@Coupon-mad thanks for pointing out that I needed to call CNBC. It seemed I called the Central London courts yesterday
I called CNBC this morning as you suggested, and they emailed me the POC while I was on the call
And as you predicted, it is a generic one that was done through money claims online. Here it is:
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THE DRIVER OF THE VEHICLE WITH REGISTRATION XXXXX (THE 'VEHICLE') PARKED IN BREACH OF THE TERMS OF PARKING STIPULATED ON THE SIGNAGE (THE 'CONTRACT') AT XXXXXX, ON 19/12/2018 THUS INCURRING THE PARKING CHARGE(THE 'PCN'). THE PCN WAS NOT PAID WITHIN 28 DAYS OF ISSUE. THE CLAIMANT CLAIMS THE UNPAID PCN FROM THE DEFENDANT AS THE DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE CLAIMANT CLAIMS £100 FOR THE PCN, £70.00 CONTRACTUAL COSTS PURSUANT TO THE CONTRACT AND PCN TERMS AND CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £68.12 PURSUANT TO S69 OF THE COUNTY COURTS ACT 1984 AT 10.25% PER ANNUM, CONTINUING AT £0.05 PER DAY.

Le_Kirk

Sparse/vague POC eminently suitable for Chan and Akande.

Coupon-mad

Perfect. Just in time!

Now you can state in your WS that you have finally obtained a copy of the expired Particulars of Claim (never served within 4 months) and it is clear that this Claim should be struck out, based in the parking case Appeal authorities of HHJ Murch in Chan and HHJ Evans in Akande.