Witness statement, prep for court hearing. CSTLaw

blaha389

thanks for yours responses. I do apologize, there are a fair amount of things I can't understand and need to put through translation to fully understand, even then transition isn't always accurate, so I'm doing my best. 

Please see the updated draft, I have added the fact that I'm a professional driver in paragraph 10, though it might be relevant and helpful.  

Also, I will further post their WS, which I do not know how to respond to, I would appreciate your help with this as well

Preliminary matter: The claim should be struck out

 

3.       The Particulars of Claim ('POC') fail to plead the conduct which allegedly caused a parking charge to arise. No breach or terms are specified, and it has not been pleaded whether or not the Claimant is relying upon the Protection of Freedoms Act 2012, Schedule 4 ('the POFA'). The Claimants can only use the POFA in this case, but that law is not even specified in the POC, hence my confusion. I could not understand from the POC, the basis of claim or liability sought. Two persuasive claim Appeal cases - Civil Enforcement Ltd v Chan and Car Park Management Service Ltd v Akande both confirm that poorly pleaded parking claims such as this should be struck out (See both transcripts in Exhibit 01)

 

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 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)

   

5.      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

 

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

 

7.       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.

 

8.        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.

 

 

9.        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”.

 

10.        In my capacity as a professional driver, I want to emphasize that I take road signs and signals very seriously and adhere to all relevant laws. It is not in my practice or habit to ignore or dismiss any signs under any circumstances. On the night in question, I genuinely believe that the signs were not clearly visible due to the darkness and inadequate lighting in the area. As a professional, my focus is always on safety and compliance, and had the signs been visible, I would have acted accordingly to ensure that proper precautions were taken.

 

 

Unreasonable Charge

11.  The ‘Principal Balance’ Costs as set out in the Claimants Statement of Account section within the Letter before Claim do not show how such costs have been accrued and calculated. I highlight this attempt at ‘double recovery’ to the Court as it shows a blatant disregard for the process by using the threat of a County Court Judgement to extort sums not entitled. An ‘abuse of the process’ such as this is not tolerated. (Excel vs Wilkinson G4QZ465V)(See Exhibit 03).

 

12.  Any debt recovery costs to the Claimant; which are negligible due to the automated letter systems in place are covered by the original £100 PCN. 8% interest (if any) should only be claimed against the original £100 PCN.

 

13.  The Claimants addition of a £70 Debt Collection fee for the printing and posting of a pre written letter is astounding, absurd and quite frankly unreasonable. Add to this the addition of a £50 legal fee for yet another single pre written letter from ELMS and it becomes apparent that the Claimant is attempting to seek unliquidated damages as liquidated damages.

blaha389

Conclusion

 

14.    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.

 

15.    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

 

16.    I ask  the judge to read the persuasive Judgment from His Honour JudgeHHCMurch (August 2023) and the persuasive Judgment from Her Honour Judge Evans (May2024), and deliver the same outcome given this is the same vague POC. In the CivilEnforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

 

17.    In the matter of costs, I ask:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 

 

18.    Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

  

  

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.

blaha389

If you can help me with responding to this, please.

Le_Kirk

You don't need to respond to a WS from the claimant, in your WS, you can use anything they say if it benefits you and counter anything they say that is incorrect.  Do not get drawn into playing WS ping-pong, judges hate that.  I note in their WS they state it refers to three PCNs; are you defending three in the same claim?  You don't mention that in your statement.

LDast

That's not a WS.  The claimant's WS is written in the third person, which is inappropriate for a witness statement. A WS should represent the personal account of the witness and should be written in the first person, as per CPR Practice Direction 32, paragraph 18.1, which requires a witness to state their evidence clearly, in their own words.

blaha389

Le_Kirk said:

You don't need to respond to a WS from the claimant, in your WS, you can use anything they say if it benefits you and counter anything they say that is incorrect.  Do not get drawn into playing WS ping-pong, judges hate that.  I note in their WS they state it refers to three PCNs; are you defending three in the same claim?  You don't mention that in your statement.

Yes, it was three. 
I have added an extra paragraph and mentioned that this happened on three separate occasions. Would this be enough ?

I am thinking of adding something about that all three PCNs provided by the Claimant in exhibit xx showing a photograph of the car entering the parking at night and exiting early morning so it will prove that it was night time . but seems unnecessary as shorly Judge will know it anyway? 

7.       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 this particular car park on three occasions 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. 

8.        I primarily traveled on the bike and only used my car on three occasions due to adverse weather conditions, specifically when it was raining. On each of these occasions, it was both dark and raining, which significantly reduced the visibility of any signs or markings in the car park.  Due to the poor weather conditions and reduced visibility, I was unable to see the signage, which impacted my understanding of the parking terms or restrictions in place at the time.

 

9.        The car park 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. 

 

Also, most (but not all) of the WS I have read included this sections: 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

CRA breaches

ParkingEye v Beavis is distinguished

Should I include them in my WS?

Coupon-mad

Also, most (but not all) of the WS I have read included this sections: 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

CRA breaches

ParkingEye v Beavis is distinguished

Should I include them in my WS?

Not if you don't understand them.

I like your WS as it is.

blaha389

great. thank you very much.

On the funny side, one of the pages of their WS is upside down! - how professional 

1505grandad

Typo  -  "8.        I primarily traveled on the bike...."

"Travelled or traveled

The spelling distinction also applies to the past tense form of the verb “travel.” In British English, “travelled” with a double “l” is the most common. In American English, “traveled” with one “l” is standard."

blaha389

Winner!

Hearing took 15 min - Case dismissed.

Judge greet us at the start of the hearing and then start questioning their representative (solicitor, from what I heard when she was checking-in with usher). Insufficient POC wasn't mentioned at all. Mostly about signage and photo evidence they provided. There was no one photograph taken in the dark hours. Judge read couple of paragraphs from my WS about insufficient lighting, Rep tried point out to partially visible sign seen on PCN, which Judge couldn't see neither could I. Then she's mentioned that I did not take opportunity to appeal at any stage, Judge hasn't commented on that. I was waiting for my turn to speak while they exchanged few more thoughts about signage. Then Judge turn to me saying - I don't need to hear from you, based on your defence and WS and claimant evidence I'm dismissing the case. 

After he has finished judgment, he asked whether anyone wants to add something, I took this opportunity and asked about costs, then he asked about my job and hourly rate and awarded me 56£ as for 2h at rate 28£/h. 

Thanks very much everyone here for help, I wouldn't be able to fight and go there with confidence, if not this forum and your help.

Today pizza and beer are on GEMINI PARKING SOLUTIONS!