Witness statement, prep for court hearing. CSTLaw

blaha389

Hi all,

I was one of those who listened to a `fried` advice to ignore my PCNs as it's simple scam. Now, I have received the Claim Form got scared and for a second considered paying it all (nearly 800£!), however, after finding this forum and gathering information about the process I am ready to fight!

Here is my story: I was self-employed and a student, during the pandemic, I had to find extra sources of income, so I found a job in a local supermarket doing night shifts, but I had to drive there as it wasn’t within walking distance.

At the close distance to the supermarket, I noticed a blue sign stating that this car park is owned by City Council, so I knew there is no charge after 20:00 so I parked my car but to be 100% sure I went to ticket machine (marked green in the photo) and read that there is no charge between 8 pm and 8 am. So, I left my car happily and went to work. Unfortunately, as it came out, I parked in the top section of the car park and completely overlooked the sign that is private parking (marked red on the photo). There is not much of a fence or anything clear to see that is two separate car parks I assume is all the same one - City Council car park.

I have parked there 3 times and I have received 3 separate PCNs. All 3 were included in one LBC.

(I have attached a photo of the Claim Form and a view of the car parks taken from Google Maps)

 I have since changed my name, will stating this on top as defendant will be sufficient?               

 

Can you please check the draft of my defense? (English is not my first language so I must admit I struggle with understanding and writing in such an official manner)

Thank you!

 

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

               NEW NAME  (FORMARLY KNOWN AS OLD NAME)                        

 (Defendant)

_________________

DEFENCE

 

1.  The Defendant denies 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', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

 

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver

3. At the time of alleged offence, defendant work two jobs and was working night shifts in local supermarket as covid pandemic dramatically reduced sources of defendant income. After leaving the car defendant found the ticket machine situated in centre of the car park where clear information provided by City Council stated that parking is allowed without charge between 20:00 – 08:00.

4. The claimant states the defendant was parked in a private car park without a permit. In fact, defendant was parked on land situated next to the city council car park which defendant initially intended to park. Given time of the night and weather conditions, private car park was with no readily observable nor readable signage, which lead to defendant mistake. There is no clear, visible at night sings to separate two parings situated next to each other. The signage was only observed on a subsequent visit after having received the PCNs. 

 

KeithP

Hello and welcome.

The Particulars of Claim are so vague that it is not possible for you to properly defend yourself against them.
With that in mind, your Defence needs to include the Chan paragraphs.

With a Claim Issue Date of 6th February, you have until Monday 26th February to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 11th March 2024 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute. 

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

LOL - the POC don't even give 3 dates, let aline break down the £510 or specify the breach.

4. The claimant states the defendant was parked in a private car park without a permit. 

No they don't.

Did you miss the linked alternative defence (for cases with poorly pleaded POC) in the third post of the Template Defence?  Look again.

So glad you didn't pay this.

Fruitcake

First of all, your English is excellent. Secondly, you are doing well so far and seem to have a good understanding of what is needed. 

The name on your defence needs to be the one on the claim form, with your new name in brackets (I think). There are a few legally trained posters, including a couple of solicitors who may be able to explain that point better.

As already advised, for your defence paragraph 2 you need to add there the details of the CEL v Chan case as detailed in the template defence sticky Announcement.

Using the wording and the printouts of the Chan case transcript from this thread.

MET Parking taking me to court N1 received Help! - Page 4 — MoneySavingExpert Forum

Use the whole of the defence template, but only show us the parts you have changed. Don't forget to check and renumber paragraphs as you go, and show us your new draft when you are ready.

I would remove your current paragraphs 3 and 4 and replace them completely. Note that no offence was committed. Instead use words like, the alleged event.

I suggest saying something like,

"At the material time, the defendant entered a car park that displayed signs bearing the name of "city council" under the reasonable assumption it was a council owned and run car park. There were no signs nor surface markings to indicate the contrary, nor that the council car park gave access to private land. The operator is put to strict proof that the contrary is true."

Please tell us where the alleged event occurred. It may have appeared on this forum before. Get your own photos of the site and signage if possible.

Complain to the landowner and your MP.

troublemaker22

It’s fine to state your new and previous names exactly as shown in the draft Defence. 

blaha389

Thank you all for your comments. I think I have a better understanding of how to write my defense.

Please tell us where the alleged event occurred. It may have appeared on this forum before. Get your own photos of the site and signage if possible.

As per POC - "..car park located at HILTON BATH BATH BA1 5BJ"
I went there yesterday, but the sign is not there, and private parking does not exist anymore, I had a brief chat with the parking warden who said he has been working for the council for nearly 3 years and it was the council-owned car park since he started. 




Please see the draft of my defense below. Am I on the right track?
. 

_________________

DEFENCE

_________________

1.  The Defendant denies 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', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

Preliminary matter: The claim should be struck out

2. The Defendant draws 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.

3. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) 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. 

 

4. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. See below.

 

5.  Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. See below.

 

 

 The facts known to the Defendant:

6. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver.

 

7. At the material time, the defendant entered a car park that displayed signs bearing the name of "city council" under the reasonable assumption it was a council-owned and run car park. There were no signs nor surface markings to indicate the contrary, nor that the council car park gave access to private land. The operator is put to strict proof that the contrary is true.

8. The driver is not in the habit of breaching rules and firmly believes that the signage was inadequate.

 

9.  The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  Defendant trusts 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 been served.

 

10. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

Coupon-mad

Looks fine.

blaha389

Great, many thanks @Coupon-mad
Also, I remember seeing advice in one of the threads saying not to submit it too soon.
When should I submit my defence if I received the Claim Form on the 6th and haven't done AOS?

KeithP

blaha389 said:

I remember seeing advice in one of the threads saying not to submit it too soon.
When should I submit my defence if I received the Claim Form on the 6th and haven't done AOS?

Please re-read my post on your thread on 10 February at 5:30PM.

Having said that, if your Defence is ready to file now then file your Defence now and don't bother with an Acknowledgment of Service.

Fruitcake

I believe you have 19 days to submit a defence from the issue date if you have not completed the AoS, or 33 days to submit a defence if you completed the AoS after the service date, which is 5 days after the issue date. 
However, there is no advantage in waiting unless you need more time or want a few more of the regulars to comment before you submit it.

Do not miss the filing date.

blaha389

I was hoping they discontinue after the defence stage.
Here we go, I have received the allocation. 




I will be working on the Witness statement now, from what I understand this: https://forums.moneysavingexpert.com/discussion/comment/80516020#Comment_80516020
is where I should be looking?