PCN residential address WS stage vs UKCPM/gladstones

taleb

here's the final version of the WS, if you have any final thoughts

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IN THE COUNTY COURT AT XXXXXX

Claim No.: XXXXX

Between

UK CAR PARK MANAGEMENT LIMITED

(Claimant) 

- and -  

MR XXXX XXXX XXXXXX

 (Defendant)

________________________________________________________________________________________________________

WITNESS STATEMENT OF DEFENDANT

1.     I am XXX XXX XXXX, of XXXXX 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 I 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 alleged 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 XXXXXX, 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 02).

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 the flat number.

Primacy of existing residential parking rights

9.     Under the terms of my tenancy agreement for the flat at XXXXX, references are made to the usage of parking spaces in section “3.15” of the lease titled “Use of the property", under clauses “3.15.3/6/14” (See Exhibit 04). I expressly note that none of the conditions of the lease were breached.

10.  Clause 3.5.12 in the same section states that the tenant needs to be notified prior to the commencement of the Tenancy of Agreement in writing or by the provision of copy documents of any agreements or restrictions contained in any Superior or Head Lease affecting the Property which may bind the Landlord, his Tenant, invited guests or visitors in the use or occupation of the Property. No notification or documents were ever provided.

11.  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 (See links 1 and 2, Exhibit 01).

12.  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 (See link 3, Exhibit 01), 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

13.  Notwithstanding points 9-11, the Claimant relies on the agreement with the freeholder (Exhibit 05) 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 (See Exhibit 03), 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

14.  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 one seen on Appeal). I believe 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 on the following persuasive authority.

15.  The appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and CPMS v Akande (See links 4/5, Exhibit 01) 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 of 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, the Court should strike out the claim, using its powers pursuant to CPR 3.4.

16.  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 detail and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has ever been served, in breach of the four month deadline set out in CPR 7.5(1). The POC was only obtained upon request from the CNBC via email on 20 December 2024.

Hearsay evidence

17.  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.

18.  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.

19.  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: 23/12/2024

Coupon-mad

That's very good.

taleb

thanks for all the feedback guys
I'll submit it tomorrow, and I'll keep you updated with the progress

taleb

another one bites the dust
just had my hearing earlier today, and you'll be pleased to know the claim was dismissed
the judge was great. as soon as I got in, he told me he was dismissing the claim
I was literally there for a couple of minutes. didn't have to say a word
He dismissed the claim because of POFA rules. The claim was on POFA basis, but they didn't state in their letter that they didn't know the name of the driver...doh
I'll let you guys know any more details once I get the order letter.
special thanks to @coupon-mad and all the other regulars for your help, this's been years in the making

Coupon-mad

taleb said:

another one bites the dust
just had my hearing earlier today, and you'll be pleased to know the claim was dismissed
the judge was great. as soon as I got in, he told me he was dismissing the claim
I was literally there for a couple of minutes. didn't have to say a word
He dismissed the claim because of POFA rules. The claim was on POFA basis, but they didn't state in their letter that they didn't know the name of the driver...doh
I'll let you guys know any more details once I get the order letter.
special thanks to @coupon-mad and all the other regulars for your help, this's been years in the making

Nicely done and thanks for the update!

ANOTHER ONE BITES THE DUST!

I'd keep hold of your paperwork though because they could appeal this, if you were known to be the driver. You appealed ages ago. If you admitted to parking in that appeal or in your defence then the Judge has erred.  Hopefully you didn't? But a Judge cannot invoke PoFA omissions where the D is pursued as the known driver. Hopefully you weren't.

It would have been far better if he'd found in your favour due to your lease, or non-prominent signs. Those would be less open to challenge.

Did nobody for them turn up?

Did you ask for costs?

taleb

@Coupon-mad
I never admitted to being the driver (I wasn't), not in the appeal or the defence
Nobody turned up from their side, as they already said so in their WS
I asked for costs in my defence, let's see what the judge orders
He did say that he didn't think that they'll take any further, but let's see
I personally thought he ruled on the technicality because it's a matter of fact, so they can't argue it, unlike the lease/signs/PoC. Let's see if they do

if they decide to appeal, do they have to pay? maybe that'll dissuade them, because they've already paid me for setting the judgement aside, so it'll just add to their costs. I guess I would have to file a defence against that appeal if it happens. I assume I could just use the same defence/WS

again, thanks a lot for your help, and let's hope this is the end of that

Coupon-mad

Ah it will be the end now that I know you weren't driving. All is good!

  

The PoFA only comes into play when a keeper is being pursued. I was worried the Judge might have used it wrongly, which has happened and a company appealed and overturned it