Witness statement, prep for court hearing. CSTLaw

KeithP

It might be a good idea to check whether or not the Claimant has paid that fee.

Coupon-mad

I've removed the old WS examples from the NEWBIES thread last week because people kept blindly copying irrelevant parts.

Just search for newer ones from this summer.

blaha389

KeithP said:

It might be a good idea to check whether or not the Claimant has paid that fee.

I checked this morning, and unfortunately, they paid. 

LDast

On a side note, a classic example of an allocating judge not bothering to read the long defence.

blaha389

OK. I had some time to read multiple threads and think I better understand what is needed here. Please correct me if I'm wrong. 
See my WS below, I have mentioned poor POC, as well as poor lightning in the area which makes it difficult to see signs on the site. Should I focus only on one issue?

Exhibits 5 and 6 I added as photos under the paragraph for you to see. 

GEMINI PARKING SOLUTIONSLONDON LIMITED (Claimant)

V

XXX XXX (Defendant)

 

Witness Statement of Defendant

 

1.       I am XXX, (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.

 

2.       In my statement, I shall refer to (Exhibits 1-6) 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:

 

Preliminary matter: The claim should be struck out

3.       I draw to the attention of the court 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.

4.       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 and Practice Direction Part 16.  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, the Court should strike out the claim, using its powers pursuant to CPR 3.4. (See Exhibit 01)

 

5.       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 Exhibit 02)

 

6.       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 Exhibit 03)

 

7.       Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit 04)

 

8.       I believe that the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

  

Facts and sequence of events

 

9.     It is admitted that on the material dates, I was the registered keeper and the driver of vehicle XXXXXXX.

 

10.       These parking charge notices occurred at the time I worked night shifts in the local supermarket, while my business was greatly affected by the lockdown caused by COVID pandemic. I entered the car park in question and parked up in the dark, the only visible signs, in the absence of daylight, displayed signs bearing the name of "city council" under the reasonable assumption it was a council-owned and run car park.

 

11.        The lighting in the area is far below satisfactory, (See Exhibit 05, 06) there is only one streetlight, and it is above a blue sign bearing the name of "city council". The streetlight is directed in the opposite direction to the car park, there is no lighting near any of the other signs.

 

 

 

Conclusion

 

12.    The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

 

13.    I ask the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

  

  

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.

 

Defendant’s signature:

 

Date: xxx

 

Le_Kirk

Witness statements are written in the first person,  whilst you start off as such, you do slip in a couple of "the defendant". Also there are two judgements, Chan and Akande. If you check the Judgment link (found in NEWBIE sticky) you will find them both. Go here: -
https://forums.moneysavingexpert.com/discussion/comment/80939024/#Comment_80939024

Coupon-mad

Yep add in words I've already written about CPMS v Akande and refer to the judgments document as ONE Exhibit (not several exhibits). Thus you can delete your paras 5, 6 and 7.

I'm worried you have not addressed the fake added £70 at all, as seen in all recent WS.

blaha389

Yesterday I received the WS of the Claimant - 46 pages!
Added some facts about their photo evidence of the site and signs taken in daylight being irrelevant to the case as the alleged breach was recorded at night. 

Please see below the updated WS. Please let me know what you think, whether I missed something or is ready to go. 
Thanks in advance.

Preliminary matter: The claim should be struck out

 

3.       The facts in this witness statement come from my 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". I am unable, based on the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. This lack of specificity places me, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

 

4.       I draw to the attention of the court 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). 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 in the following persuasive authority.

 

5.       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 and Practice Direction Part 16.  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 judgments, and multiple similar judgments and strike out Orders demonstrate the path taken by many District Judges in the English Courts since 2023. The Court should strike out the claim, using its powers pursuant to CPR 3.4. (See Exhibit 01 which includes the persuasive judgment in Chan and a host of other judgments and orders made before, or at, hearings in 2023 and 2024)

   

6.      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.  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 been served.

  

Facts and sequence of events

 

7.     It is admitted that on the material dates, I was the registered keeper and the driver of the vehicle.

 

8.       These parking charge notices occurred at the time I was working night shifts in local supermarket, while my business was greatly affected by lockdown caused by COVID pandemic. I entered a car park in question and parked up in the dark, the only visible signs, in the absence of daylight, displayed signs bearing the name of "city council" under the reasonable assumption it was a council owned and run car park.

 

9.        I parked my car, in the car park which was located in a dark area with limited visibility. It is important to note that the claimant's photographs, which are being used as evidence, were only taken during daylight hours. These photographs do not accurately reflect the conditions at the time of the (unidentified) alleged breach and therefore may not present a true representation of the situation or the visibility issues that were present during the night.

 

10.        The lighting in the area is far below satisfactory. As seen in the evidence provided by the Claimant, there is no lighting near any of the signage, there is only one streetlight, and it is above blue sign bearing the name of "city council" (See Exhibit 02). According to IPC Code of Practice Part E, Schedule 1, it states that “if parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge”.

 

11.        Due to the lack of signs/copy of the alleged contract, woefully inadequate pleaded case and the age of the alleged breach, which is nearly three years ago, I am unable to recall the exact reason for the PCN. I don't even know what it is that I am accused of and this claim is surely not compliant with Part 16 and is a serial abuse of the MCOL system, as held by HHJ Murch at Luton Court (and more recently confirmed in another similar appeal judgment at Manchester Court, by Her Honour Judge Evans in Car Park Management Services v Akande). (See Exhibit 01)

 

Exaggerated Claim and Unreasonable Charge(s)

 

12.       For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award me such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charges of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form for each claim is inexplicably circa £200 plus, I aver that this inflation of the considered amount is a gross abuse of process.

 

13.       This Claimant has routinely pursued a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

 

14.       The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here: 

"Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

15.       Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

 

16.       Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

 

17.       This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

 

18.       The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

 

19.       In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

 

20.       This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

 

21.       Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

 

22.       In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

 

23.       Gladstones indisputably issue tens of thousands of inflated parking claims every year and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims. Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Gladstones and nothing to do with the Claimant's alleged £100 PCN. I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit. 

 

 

Conclusion

 

24.    The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

 

25.    There is now ample evidence to support the view -long held by many District Judges -that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case

 

26.    With the DLUHC's ban on the false 'costs' there is ample evidence to support the view -long held by many District Judges -that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The I believe that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale

 

27.    I ask the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

  

  

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.

 

Defendant’s signature:

 

Coupon-mad

46 pages is minor. I've seen 175 pages from a parking Claimant!  The PPC still  lost.

That's out of date at 26: "with the DLUHC's ban". There is no ban yet.

You need to respond in your WS to their WS.

Le_Kirk

blaha389 said:

3.       The facts in this witness statement come from my 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". I am unable, based on the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. This lack of specificity places me, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

4.       I draw to the attention of the court 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). 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 in the following persuasive authority.

Your paragraph #3 reads like a defence!  Did you not put that exact statement in your defence?  Also with regard to #4, I refer you to posts made here 11 September at 5:16PM and here Today at 12:44AM both LINKS