Having a PCN CCJ Set Aside and Defending

bohomark

Coupon-mad said:

It is just your defence. Well done!

Thank you for all your help.

bohomark

Hi everyone.

I'm submitting my defence today. I just wondered, since there are costs from the hearing to set aside, as well as ongoing costs, should I mention them in the defence?

Coupon-mad

Attach a costs assessment page and mention it in the body of the email and repeat what the first Judge said about those costs being reserved.

bohomark

So, the judgment was set aside. Hooray.

The new hearing is in just under three weeks. Here is the Claimant's new witness statement. I'd really appreciate some feedback, before I submit my response, since they seem to take apart most of my arguments, except that of the lack of adequate signage, which I think is pivotal.

Thanks in advance.

bohomark

I can't upload a PDF and they haven't sent a digital file, so this is a link to the file on my Dropbox. Please let me know if you have any issues accessing it.

Thanks

https://www.dropbox.com/scl/fi/kix3p6g762p6iyhmxg6ig/K1F-Claimant-Witness-Statement-Redacted.pdf?rlkey=bdx16j6ehdo7ii2ygvsc2sxj3&dl=0

Coupon-mad

Standard WS but what exhibits are appended?  Does it include:

- proof that you didn't pay the tariff?

- sign images dated from 2022?

They make a lot of the fact that you didn't reply to pre-action letters but presumably that was because they breached the BPA CoP by not bothering to do a soft trace before litigation?

bohomark

Coupon-mad said:

Standard WS but what exhibits are appended?  Does it include:

- proof that you didn't pay the tariff?

- sign images dated from 2022?

They make a lot of the fact that you didn't reply to pre-action letters but presumably that was because they breached the BPA CoP by not bothering to do a soft trace before litigation?

Hi,

Thanks for getting back to me.

From the original proceedings:

1. They do not appear to include any proof that I did not pay.
2. They include all the initial letters informing me of the penalty.
3. The witness statements from the original proceedings.
4. The claim form, which I never received.
5. They also include the original images of the signage, which are graphics of the signs, not pictures of the actual signs.
6. An aerial photo of the site with the location of each sign and a code to denote the type of sign (out of date).

In my witness statement to have the original judgement overturned, I showed actual photos of the signs, showing them to be dilapidated and unmaintained. They also fail to address the fact that a good deal of the signs on shown on the aerial photo were not visible due to barriers put up around building work, which encompassed the whole south side of the carpark.

Newly added, since the original proceedings:

1. They have added photographs of the actual signage, time stamped October 2022, however these do not match my images taken just a few months later and they do not list which image is at which point on their aerial view of the location, it is therefore possible that they have cherry picked the images of the best signs. There is also nothing to indicate that these very conveniently timestamped images, are genuine. Anyone could drop a time and date onto an older image.
2. They still rely on the aerial image which is inaccurate due to the building work.
3. They include the contract between ParkingEye and the Landowner (redacted).

Thanks again.

 

Coupon-mad

1. They do not appear to include any proof that I did not pay.

So that potentially kills the case and is surely the first thing to raise.  The terms DON'T say that £100 is payable for cars staying over 2 hours.  It's not that simple.

If you had seen these terms (which you didn't) they say that people staying between 2 and 24 hours must pay a tariff of £15 or summat.

This is the Claimant's claim to prove.  The alleged breach is NOT like Beavis, it's not an overstay.  It's "not paying the tariff" which was the only "relevant obligation".  So where is the evidence of breach?

Now the Judge might ask 'did you pay?' and you could truthfully answer that you have no recollection because you were tired/sleeping for a couple if hours, you recall you did use the loo and the shop & you assume the payment keypad was on the shop's till.  You may have used it.  The shop may have pointed it out.

The burden is on the Claimant.

It is by no means clear that payment of the £15(?) tariff wasn't taken at the till, given how exhausted you were and you knew nothing of any wrongdoing so you can't prove it now. After two hearings you were expecting to see ParkingEye's evidence of all this, and surely the fundamental burden in a breach of contract claim is that the Claimant must evidence the breach.

In this case, be clear, the breach alleged is NOT 'overstay' it is instead: not paying the tariff.  Where's the evidence?

Moreover, you were relying in seeing their evidence because NONE of their letters were served in 2022/23 and you knew absolutely nothing about this whole issue until you heard about the CCJ.  All of it is unknowns.  You have only marginally better knowledge on what happened than the Judge. You can recall stopping there.

The fact you knew nothing about it was due to their clear & obvious breach of the BPA Code of Practice and the CPRs, in failing to take steps to 'trace' the Defendant's address pre-action (mandatory at LBCCC stage).

The BPA CoP makes it crystal clear that the DVLA car reg address is a red herring when it comes to a claim (even if you'd updated the address in Summer 2022, they could not have asked the DVLA twice in 2022).  The BPA CoP makes further address checks compulsory because DVLA addresses change, and silence to every letter was reason to believe you'd moved.

Anyway: bottom line: where is the evidence of not paying a tariff? 

bohomark

Ok thanks @Coupon-mad. I will read through the mountain of paperwork they sent and make sure that there is no evidence that I didn't pay. The only issues are the following:

1. I said, in my original statement, that I pulled off the motorway, slept and immediately left on waking, not knowing how long I had been there (this is the truth), nor having seen any signs, since none were visible either enroute to the parking bay or from the parking bay. I was therefore unaware either that there was a contract, or that it included a limit on free parking. This is backed up by images of the carpark, where there is building work, obscuring all the signs that may have otherwise been visible from the space in which I was parked. I think that this is a strong argument, but it does make it difficult to argue that I may have paid. I did have a passenger, who may well have gone into the services, but this may be difficult to argue, since I didn’t mention the passenger in my original statement. I wasn’t hiding the fact that I had a passenger, but I had no cause to mention them being there.
2. ParkingEye did have the correct address from the DVLA (it has never changed), and I may well have received the penalty letters. I never argued that I didn’t receive the letters, just the Claim Form, which was sent out during the postal strike (again the absolute truth). If I had seen the letters, I probably chose not to act on the letters because I have tried their appeals process before, and find it to be a complete waste of time, since they only ever find in their own favour. I’m sure that they will therefore argue that I had ample time to show that I had paid, via the appeals process, but had my partner paid, when she went into the services, I would have had no evidence to show the payment anyway. It was a long time ago.

I don't know, what do you think?

Coupon-mad

Ok, I see that.  Different than I thought.

I do think that the passenger should now be mentioned in your WS because you really cannot be sure that the passenger didn't pay the tariff - and PEye have not proved it wasn't paid.  They've not tipped the balance of probabilities given there were 2 of you in the car and you were asleep.

Unless they have?

It's easy to spot and the exhibits are quick to look through if you ignore the site & signage photos. It'll be a one page 'whitelist lookup' or a page showing redacted VRMs and payments made.   You are looking for a plain looking list. A word document.