PCN from UKCPM Gladstone - URGENT help with witness statment

Brightlinks

Hi All

I am new here, I have read all newbies steps and followed them correctly. I need to send my WS to court and Gladstones as soon as possible.

To the cut long story short. we moved in 2019 to block of flats and not aware of PPC. first few tickets were cancelled by the managing agent. Car was parked at non marking area at the time of Pandemic. I had a verbal chat with warden and he advised that they don't give a ticket on non marked bays. if someone park on marked bay than they issued PCN.

Post was not regular at the time pandemic -4 x  PCN issued in June 2020 but never received any letter only debt recovery letter. LBC received from gladstone an we contacted our managing agent and after 3 months chase they advise that they can not do anything at this stage so decide to fight.

Prepare the defence and submitted as advised and need to prepare my witness statement. 

we are the leaseholder for one of flat in the block. we have asked for parking space when we received initial PCN from management agent but they advise we are in the waiting list ( but there is no such list which they confirmed now). In our lease not explicit mention about the parking space but does mention about to use the common road and area for loading unloading purpose.

Please advise if i need to correct anything in my whiteness statement ? Any advise will be helpful 

Witness statement --

I am X, of XXX, and I am the Defendant in this matter, and will say as follows.

Attached to this statement is a paginated bundle of documents marked xx7 to which I will refer.

1. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.

2. I confirm that I am the Registered Keeper of the vehicle in question on the March 2018 and thereafter date.

3. I confirm that my vehicle was parked on non-marked bay outside of yellow lines. The vehicle was parked there due to pandemic and government restriction imposed.

4. It is denied that the Defendant was the driver of the vehicle. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.
a. In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).
b. It is averred that the claimant has failed to do this on numerous points
c. Furthermore, the claimant may allege that there is a reasonable presumption that the registered keeper was also the driver, allowing them to circumvent the regulations of POFA 2012. The defendant expressly denies that there is any presumption in law that the keeper is the driver. The defendant denies that the keeper is obliged to name the driver to the private parking firm. POFA 2012 makes no such requirement for a keeper to do this.
i. The claimant may seek to rely on the findings of Elliot V Loake (1982) in alleging that the keeper can be presumed to have been the driver. In this criminal case, forensic evidence was produced to a criminal standard. Therefore, the same logic can absolutely not be applied in this instance.

5. It is denied that the original PCN was issued to notify me of this alleged contravention on that particular day or any further direct notice from the claimant. I was served debt recovery notice from their agents.

6. I am the leaseholder of the flat at block of the flats where the incident happened. UKCPM issued us a parking permit by charging £5 but than cancelled advising that issued in error. We are still awaiting for parking space allocated to us by managing agent L&Q.

7. As the claimant has repeatedly failed to clarify the nature of the claim, the defendant has assumed that it relates to an alleged breach of contract.

8. Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (Exhibit C – Lease agreement ) that exists between the tenant and their landlord extends to the use of the  space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage. The tenant’s contract makes no assertion that a permit must not be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so . The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.
a. Regarding signage: the defendant argues that there was no signage visible to the drivers entering the parking space in situ at the time of the alleged parking contravention and woefully insufficient in conveying the terms of any alleged contract, particularly the most onerous, i.e., the £100 penalty.
b. Exhibit - D demonstrate that there are no signs of parking notice for the drivers while entering the parking by the driver.
c. On this matter, the defendant defers to the ruling of ParkingEye Ltd v Barry Beavis (2015) UKSC 67, insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any alleged breach of parking terms were clear – both upon entry to the site and throughout.
i. The residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkyingEye distinguished.

9. I contend, therefore, that the tenant’s agreement provides an unfettered right to use of common area for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc. I refer previous cases such as Pace v Mr N [2016] C6GF14F0 [2016] (xx), where it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

10. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and tenants are unaware of any such vote having been passed by the residents, including myself which I was resident of the Flat1 for 5 years till Aug 2017.

11. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would notify tenants of the existence of any contract between the property management company and provide the parking permits to the tenants, here most of the tenants have never received any permits.

12. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to residents and their legitimate visitor.

13. I did, at all material times, park in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding me in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, I deny having breached any contractual terms whether express, implied, or by conduct.

14. My vehicle clearly was 'authorised' as per the lease and primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

15. The claimant may argue that I parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit F), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

16. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 (Exhibit D) as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

17. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

18. This is clear from several cases. An example In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

19. Finally, having outlined my witness statement with supporting evidence, I encourage the court to strike out the claims against the Defendant as there are no sound grounds of claim and to grant compensation in accordance to the defendant cost of schedule (Exhibit F)


I believe that the facts stated in this witness statement are true.

Defendant

Signed

Le_Kirk

Just looking at that statement of truth tells me you have not used the latest exemplar witness statement (WS) which is by @aphex007, which you can use for style and format; make sure that your WS backs up and supports, with evidence, your defence.

1505grandad

Are you defending as keeper only?

You have admitted being driver in at least paras 13 and 15

KeithP

1505grandad said:

Are you defending as keeper only?

You have admitted being driver in at least paras 13 and 15

Indeed, and in paragraph 4 the Defendant states...

Brightlinks

Thanks for highlighting - I will correct it now and defending as keeper.

Brightlinks

Le_Kirk said:

Just looking at that statement of truth tells me you have not used the latest exemplar witness statement (WS) which is by @aphex007, which you can use for style and format; make sure that your WS backs up and supports, with evidence, your defence.

thanks for suggestion, I am trying to look the post but can not find, I will appreciate it if you can guide me.

Brightlinks

Hello everyone,

can some one please guide me where to find WS bundle by @aphex007

KeithP

If you were to click on that coloured username you have been given, you will be taken to his profile page.
From there, click on Threads and scroll down to see his threads. There are only two threads - should be easy to find what you are looking for from there.

Brightlinks

KeithP said:

If you were to click on that coloured username you have been given, you will be taken to his profile page.
From there, click on Threads and scroll down to see his threads. There are only two threads - should be easy to find what you are looking for from there.

Many thanks found -

Draft WS Bundle (redacted) v3

1505grandad

A heads-up  -  you will see that in the above mentioned WS example refers to the BPA CoP because they are BPA AoS members  -  your claimant is an IPC AoS member so you should be using/quoting the relevant version of the IPC CoP. (See the first Q&A list in the first post at the start of the NEWBIES thread for clarification re logos)

Coupon-mad

I would remove your 3 and 7 which add nothing.

As well as basing yours on the one by aphex007 (but change the bit about the BPA CoP to quotes you must go & find in the IPC CoP instead) also read what @Johnersh (a solicitor) recently said here about a residential site - use some of this:
https://forums.moneysavingexpert.com/discussion/comment/80119838#Comment_80119838