Post CCJ set aside - final hearing preparation

Mega_Maniac

Having re-read their WS for the original hearing I have also just realised a glaring mistake in their statement. I don't think it's damning, just a stupid mistake... but I'll look to include it under the "so generic they didn't even look at their own evidence"

Basically, they include several photos of the van with no ticket in the windscreen (there is some white paper on the dash, not a ticket - they took a close photo of it). They then also have a print out of the paybyphone backend which shows that I do have a session purchased with the 'wrong' location code.

But in their WS they state that the evidence shows that I had a paper ticket in the windscreen (as above, I did not) and that I did not have an electronic ticket (as above, I did). Their own evidence is completely contrary to their own WS. 

Mega_Maniac

Writing my WS now, getting there slowly.

I have something I'm not sure on:

I do not know if I should keep in sections that say things along the lines of "The Claimants PoC are inadequate leaving me unable to defend claim." : I think I can argue that the POC are inadequate, as they only say "invalid session" which does not tell me that it was because I parked a van and not car. However, at this stage I have had a hearing, along with C's witness statement and evidence... so I currently do know everything about the claim... so in this WS should I be excluding anything like this?

Edit - realising most of the defence from @Harry77, which I started basing this WS upon is focussed around poor PoC. I am not thinking this is likely all irrelevant, as this is second hearing and the claim has been further explained.

edit: For now I have removed everything about poor PoC, hopefully that is the right direction. 

Mega_Maniac

Ok, so calling it a night having written the below. 

I expect it could be much better... and if anyone has any wise words before my deadline tomorrow then please do let me know (not quote sure why all the numbers are 1, they aren't in the actual doc!):

------------------------

SiP Car Parks Limited Limited (Claimant)

V

XXXX (Defendant)

Witness Statement of Defendant

1.      I am XXXX, XXXX 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.

1.      In my statement, I shall refer to (Exhibits 1 - 7) 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:

1.      The facts in this WS come from the Defendant's own knowledge and honest belief. Conversely, in the Claimant’s witness Statement for the original hearing the Claimant sets out a cut-and-paste incoherent and sparse statement of case. In fact, in the Witness Statement of ‘**name of witness**’ - employee of the Claimant, it is clear that ‘The Witness’ has a shockingly poor comprehension of the evidence provided by SiP themselves.

Hearsay Evidence

1.      The Claimants 'witness' is a legal assistant employed by the claimant and has no direct knowledge of the actual events that form the basis of the claim. Any evidence provided by this individual is second-hand, supposedly relying entirely on information supplied by the claimant, and thus cannot carry the same weight as testimony from someone who witnessed or was directly involved in the incident.

1.      While the Civil Evidence Act 1995 allows hearsay evidence in civil proceedings, it is required to be given less weight, especially when it comes from someone with no firsthand knowledge. Furthermore, under CPR 32.2, the court has the discretion to exclude hearsay evidence when it is of limited probative value. In this case, the witness provides only second-hand information from the claimant and cannot be considered reliable or probative.

2.      This is further evidenced by the witness making clear and grievous errors with the evidence provided to them by the Claimant. 

1.      In paragraph 17 of the Claimant’s witness statement they state: “The exhibited photographs of the charge confirm that there was one pay and display ticket displayed in the windscreen of the vehicle…” - This is false. The Claimants own evidence shows there was no paper ticket displayed in the windscreen of the vehicle. (Exhibit 1, 2)

1.      In paragraph 19 of the Claimant’s witness statement they state: “As the Defendant’s vehicle was not displaying a valid pay and display ticket... nor was there an electronic ticket purchased “ - This is false. The Claimants own evidence shows a print out from their paybyphone.com backend, showing a purchased session on the dates in question. (Exhibit 3)

1.      These two glaring errors in the witness statement demonstrate why such hearsay ‘evidence’ should be treated with little weight by the court, the witness is unable to accurately state facts, even when presented with them by their own employer.

1.      The claimant's Witness Statement (WS) fails to comply with CPR Practice Direction 32, paragraph 18.2, as it does not clearly distinguish between what the witness knows firsthand and what has been provided to them by others. It is evident that the individual providing the statement, being a legal assistant with no direct involvement in the events, relies on information provided by their employer and lacks personal knowledge of the facts. As a result, this statement amounts to hearsay, which weakens its credibility. Further, the claimant's witness has failed to indicate the source of any information and belief, as required under PD 32.18.2.

Unclear and vague signage and contractual terms

1.      The signage on which the Claimant relies is vague, and makes no attempt to inform drivers that there are different contracts for different classes of vehicles. 

1.      In Paragraph 11 of their Witness Statement, the Claimant mentions that there is a ‘unique location code’ - there is no information whatsoever about this on the contractual signage. (Exhibit 4)

2.      The specific wording on the contractual signage for digital payments only states: “Parking is permitted for...vehicles with an electronic ticket purchased by phone in advance of the vehicle being left unattended, remaining valid for the duration of the vehicles stay” (exhibit 4) - Given that an electronic ticket was in fact purchased by phone (exhibit 3), that remained valid for the duration of the stay - I had in fact fulfilled the terms as described. 

1.     The contractual sign does not inform the driver about any further terms or information available on alternative signage.

1.      The car park is open sided, and it is possible to exit the car park without ever being aware of additional signage. (Exhibit 5)

1.      As I used the paybyphone.com website to purchase a ticket, the location code would have been saved in my account from previous parking sessions. As such I did not need to visit the pay station to know the location code. (Exhibit 6)

1.      Further, having viewed the evidence supplied by the Claimant, I can see the additional ‘tariff’ sign is itself inadequate and confusing. 

1.      I do not believe I approached the additional signage, specifically looking for the location code. But for the avoidance of doubt, I will also address this 'tariff' signage: By far the largest number on the sign is the code that I used: ‘88841’ (Exhibit 7), this is further corroborated by the text at the top of the sign showing the same code. Then, in less legible text and in a separate colour to the rest of the sign is an additional location code for “Van/Minibus/Motorhome”. If someone were to approach this signage it would be perfectly probable for them to read the first code they saw and understand this to be correct - given the contractual terms make no mention of an alternative code, and to depart the car park using this code, having purchased a session in good faith.

1.      No Further terms are presented on paybyphone.com website

1.       Given the possibilities presented above, it would be reasonable to expect the paybyphone.com website to either inform the user at the point of purchase that there are alternative terms they should read. The website does not do this.

1.      Given how simple it is to do a number plate search to discover the class of vehicle, it would also be reasonable to expect that an excluded vehicle class trigger a warning or rejection. This is not the case.

Penalty Charge, Not Genuine Pre-Estimate of Loss

1.     The additional costs claimed by the Claimant appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015], parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £60 is neither justified nor explained.

1.      The claimant has provided no breakdown or explanation of how this amount was calculated or why it is appropriate. It can only be viewed as a punitive charge designed to penalise the defendant, which is contrary to established legal principles that prohibit excessive and unfair contractual penalties.

1.      The claimant’s demand for additional costs of £60 per PCN is entirely baseless. It is not supported by any clear contractual term, it violates the CRA's requirements for fairness and transparency, and it constitutes an unlawful penalty charge. The court should strike out this portion of the claim as unenforceable.

Coupon-mad

Add in a section under your paragraph about the terms being ambiguous (and I agree, they are) talking about Section 69 of the Consumer Rights Act 2015, like in this WS para 23 to 27 (read the whole thread.  The OP won!):

https://forums.moneysavingexpert.com/discussion/comment/80577410/#Comment_80577410


I'd get rid of this because this is difficult to argue (SIP will say it is commercially justified because they charge a higher tariff for vans and it wasn't paid):

Penalty Charge, Not Genuine Pre-Estimate of Loss

1.     The additional costs claimed by the Claimant appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015], parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £60 is neither justified nor explained.

Mega_Maniac

Thanks, I'll have a read. 

I'd get rid of this because this is difficult to argue (SIP will say it is commercially justified because they charge a higher tariff for vans and it wasn't paid):

Penalty Charge, Not Genuine Pre-Estimate of Loss

1.     The additional costs claimed by the Claimant appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015], parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £60 is neither justified nor explained.

This was one of the sections I lifted from another thread, and changed details, so I may have misunderstood. But I thought this referenced the £60 "debt damage cost". If I change it to the following:

1. The additional 'debt damage costs' claimed by the Claimant appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015], parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £60 is neither justified nor explained.

Does that make more sense?

Mega_Maniac

I have added the following from the thread you linked, thank you for that. I haven't given it it's own section, but inserted it below my paragraph about signage:

1.  The contractual sign does not inform the driver about any further terms or information available on alternative signage.

1.      I draw attention to Section 69 of the Consumer Rights Act 2015, which addresses contract terms that may have different meanings.

1.     The Consumer Rights Act 2015 reads (Exhibit xxx):

“Section 69: Contract terms that may have different meanings
Contract terms can be ambiguous and capable of being interpreted in different ways, especially if they are not in writing or in an accessible format. In these cases, this section ensures that the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that is used.”

1.      In the context of the insufficient signage in this case, the signage is a crucial aspect of the contract between myself and the parking company. Ambiguities in the signage, particularly when they are not in writing or in an accessible format, should be interpreted in a manner most beneficial to the consumer, as outlined in Section 69.

1.      The signage provided by the parking company lacks clarity and is open to different interpretations. As per Section 69, in cases of ambiguity, the interpretation that is most beneficial to the consumer should prevail.

1.      Despite being pointed to the tariff signs only after receiving the witness statement from the Claimant, the ambiguous nature of the signage fails to communicate parking restrictions effectively. The lack of clear contractual terms, in violation of the Consumer Rights Act 2015, hinders a clear understanding of the terms and places an unfair burden on the consumer.

1.      In light of Section 69, I request that the court interprets any ambiguities in the signage in a manner that is most advantageous to me as the consumer. This aligns with the principles of fairness and consumer protection enshrined in the Consumer Rights Act.

Coupon-mad

Looks good. 

Mega_Maniac

Great, thanks! 

I was up until 12.30 doing this last night, and then went straight to bed. I basically had stress dreams the entire night that it was all awful, I'm very glad this is close to being all the admin I need to do on this. 

Mega_Maniac

Can I check: should I be including the following line:

"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 "

When the parking firm have not outsourced this to a separate legal firm?

Mega_Maniac

Ok, I have removed the bit above as I was unsure. 

@Coupon-mad - sorry to tag you, just want to be sure of the email I "file and serve" to, and as it needs doing in the next hour - I believe the following is correct:

The Court:
"manchestercivil@justice.gov.uk"

CC:

SiP:
legal@sipcarparks.co.uk , info@sipcarparks.co.uk