My CCJ was set aside. Have now received a Trial date for Sept. Please help me understand this situ

prowla

I think you should be fined for those seat covers! :-)

Bennyharvey

prowla said:

I think you should be fined for those seat covers! :-)

🤣🤣🤣 You're probably right there!

Bennyharvey

Hi all, I'm looking for feedback on the following initial draft of my Witness Statement, any feedback or advice is appreciated! The deadline is 3rd September though I'd like to obviously get it done as soon as possible. 

- In my defence for when my CCJ was set aside, I explained that there were severe postal service issues which could explain why PCM's letters weren't received (though they haven't offered any proof of postage anyway). I also explained that my ex-boyfriend was withholding my mail following me ending the relationship (abusive) and threatening Police involvement before he returned my mail. Should I include these two points in my WS?

- Should I reference Beavis? I have digested the NEWBIES thread but I am unsure of which additional cases/information to add.

- I will do a costs assessment

WITNESS STATEMENT

I, [Witness Name], residing at [Address], 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 on my own knowledge.

In my statement, I shall refer to (EXHIBITS A-) 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

I respectfully bring to the Court's attention that the Claimant's Witness Statement, signed by [Solicitor's Name] of [Solicitor's Firm], does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As [Solicitor's Firm] does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this non-compliance, I, the Defendant, respectfully request that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

Facts and Sequence of Events

Date and Time of the Incident: On 1st November 2022, at approximately 17:50, my car was parked in the car park situated at [Car Park Address], whilst I was at work. Since this was the car park I used daily for work, I had a parking permit affixed to my offside rear windscreen.

Parking Permit issued through Employer: From January 2020 until June 2023, I worked full-time for a small business situated on [Business Address]. In June 2021, my employer issued me with a Parking Control Management Ltd. parking permit for [Car Park Address], as shown in EXHIBIT.

Parking Permit Displayed: I parked my car at these premises five days per week. I displayed my permit in a plastic pocket that was affixed to my offside rear windscreen. When I received a Parking Charge Notice (PCN) for an alleged contravention that occurred on 1st November 2022, this was my first and only PCN received for parking on these premises. I can only assume that on every other occasion that a Parking Warden patrolled the premises, I was not issued with a PCN because the Parking Warden had noted the Permit affixed to my rear passenger windscreen. Please see EXHIBIT for a photograph of the vehicle demonstrating how the permit was affixed.

There was no Breach of the Terms & Conditions: The issuing letter of the Permit reads “Please always display the attached permit clearly in the windscreen of your vehicle”. The terms and conditions sign visible in the car park states “Vehicles must be parked with a valid green parking permit displayed fully within the windscreen”. Please see EXHIBIT for an image of this sign. In neither case does it specify that the permit is to be displayed in the front windscreen only. Since the definition of ‘windscreen’ is ‘a screen that protects against the wind’, I believe it is reasonable to assume that any of the windscreens on a car are suitable for the Permit to be displayed within.

PCN not Affixed for Safety Reasons: The photographic images taken by the warden are taken at poor and limited angles resulting in the omission of my parking permit affixed to the rear offside windscreen. Please see EXHIBIT for the photos provided by the Claimant. The Claimant asserts that the warden’s notes state that a PCN was not affixed for ‘Safety Reasons’. If the warden could not affix a PCN to my car due to ‘safety reasons’, I believe this, along with the lack of any lighting in the car park during nightfall, is the reason why my parking permit was missed. I reiterate that my car was parked at this site for five days a week for the duration of two years, with the parking permit permanently affixed to my car, and this was the only time I was ever issued with a PCN.

Prompt Appeal: Upon receiving the PCN from Parking Control Management Ltd on 15th November 2022, I promptly lodged an online appeal on 17th November 2022. In my appeal, I stated that I have a valid permit and that this permit was displayed. I explained that I was advised by my MOT provider not to obstruct my front windscreen with the permit to avoid issues in my upcoming MOT. My MOT provider explained that such was the angle of my front windscreen that the placement of the permit affixed here was going to obstruct the view of the driver to the extent that it could affect my MOT test. I had no reason not to accept this advice and move the parking permit to the rear offside windscreen. Please see EXHIBIT for proof of my appeal.

No Response to Appeal: Further to submitting my appeal on 17th November 2022, I did not receive a response via postal mail or email. The Claimant alleges that a response to my appeal was posted to me on the 18th November 2022; however, they can offer no proof of postage to support this. Despite submitting my appeal electronically, and receiving an acknowledgement to my email address, no attempt was made to contact me via email.

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Johnersh

The DJ isn't going to strike out a claim over a  defective witness statement. The correct request should be to strike out the statement on the basis that there is essentially no actual knowledge, but the paralegal is engaged in mere recitation if information contained on the company computer, which is in any event disputed. The factual witness is the parking attendant.

Whilst part 32 CPR doesn't apply to small claims, it's worth reading paras 33 and 39 of JD wetherspoon v harris. I think the points hold good in relation to witness evidence more generally. It's a judgment that ought to be persuasive given that Terence Etherton went on to become Master of the Rolls...

One might also consider whether an adverse inference should be drawn from a failure to call the parking attendant as a witness or to attempt to address the argument that a permit was displayed or as to why it was unsafe to issue a windscreen PCN.

If C claim that it's appropriate to charge the requisite sum for the infraction of displaying a permit in the wrong windscreen, then that is probably a penalty even under Beavis (remembering that it was only not a penalty in that case because of the commercial interest in deterring overstay in a retail park). That's not an argument available to them here, where there was no overstay or breach of other parking provisions such as 45-degree 'showroom parking'. At worst there has been momentary inconvenience (to have to check 2 windscreens).

Bennyharvey

@Johnersh thank you for your advice. I will rethink the preliminary matter.

I agree re their failure to call the parking asst as a witness, and the 'safety issue' that prevented them from affixing a PCN (I cannot think what this could be other than that it was nightfall?). I'm not sure how to word this but I will think on it. 

Excuse my ignorance but can you explain what you mean that it's a penalty even under Beavis? I know the basic outline of the Beavis case, if that helps!

Do I have a leg to stand on with the windscreen issue? My point being that they didn't specify FRONT windscreen and I naively and genuinely thought that any windscreen would be fine since I thought motorists were no longer allowed things on their front windscreen like phone holders, permits etc.

Coupon-mad

Yes - you have legs to stand on.

Yes - your WS should mention the facts as you know them. Ambiguous terms must be interpreted in the way which most favours the consumer (the CRA 2015 says so) therefore your interpretation is the one that counts in law, when terms are vague or ambiguously drafted. A windscreen is any windscreen!

@Johnersh was saying that in Beavis, the Supreme Court said that parking cases turn on their own facts and that 'the penalty rule is engaged' (i.e. there is always potential that a parking charge is unenforceable).

But in Beavis, they escaped their charge being held to be purely punitive (and thus, unrecoverable) because the terms and signs in that retail park were prominent, brief & clear AND there was an overriding 'legitimate interest' (a commercial justification) allowing a charge higher than any 'loss' to be applied under the contract, in order to deter shoppers from overstaying and bay-blocking that might inhibit new arriving shoppers from parking.

None of that applies to your PCN. Beavis is fully distinguished from your case.  In your case it is a penalty (punishment only), and thus unrecoverable.

Here's the case paragraphs Johnersh mentioned:
https://www.civillitigationbrief.com/2015/09/08/the-witness-who-knows-nothing-and-wants-to-be-an-expert-a-review-of-the-cases/

Bennyharvey

Thank you @Coupon-mad. Do you think it wise then to reference Beavis case in my case? Excuse my inability to grasp this. I can't get my head around whether or not the above suggests so.

I read up on J D Wetherspoon Vs Harris and I understand that and it's helpful. I will work on referencing it. Thank you. 

Really appreciative of this forum. 

Coupon-mad

Beavis is already mentioned in passing in the template WS examples, surely?

Bennyharvey

Coupon-mad said:

Beavis is already mentioned in passing in the template WS examples, surely?

Yes it is. I mean that is it relevant to my case?

For context, I'm trying and failing to wrap my head around which cases, if any, to reference in my WS. I've had a look at the WS examples that other forum members have written and I'm struggling to get my non-legally wired brain around the referencing of other cases and whether (or how) they're applicable to mine. 

Bennyharvey

Another draft of my witness statement, any feedback appreciated! 

1. I, NAME & ADDRESS, 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 A-) 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

1. I respectfully request that the Court strike out the claim due to non-compliance with Practice Direction 32. The Claimant's Witness Statement, signed by (NAME), a Paralegal at Gladstones Solicitors, does not comply with the requirement that a witness statement must be made by someone with direct knowledge of the facts. Gladstones Solicitors, acting on behalf of Parking Control Management UK Ltd. (PCM), lacks direct involvement in the events, failing to comply with paragraph 18.2 of Practice Direction 32, which requires the statement to be in the witness’s own words and detail their direct knowledge. Therefore, I request that the claim be struck out pursuant to CPR 3.4(2)(c).
   
   

2. The case of JD Wetherspoon Plc v Harris [2013] EWHC 1088 (Ch.) demonstrates the Court's power to strike out parts of a witness statement made by someone lacking personal knowledge. In particular, paragraphs 33 and 39 highlight that statements should be made by individuals with direct involvement in the events in question and not based on secondhand information or speculation, please see EXHIBIT.
   
   

3. The witness statement from (NAME), a paralegal, is not based on first-hand knowledge and consists largely of speculation. It is a recitation of the defence and lacks factual evidence from the parking attendant employed by PCM, who could provide relevant testimony regarding the permit. Despite being their employee, no attempt was made to obtain a statement from the parking attendant. This absence of critical testimony regarding the permit's visibility and the limited photographic evidence raises questions.
   
   

4. Additionally, the parking charge notice (PCN) was not affixed to the vehicle. The only reason given was "safety reasons," yet no safety issues are visible in the photos of the vehicle, nor am I aware of any. This lack of explanation from the parking attendant further underscores the need for their testimony to clarify the circumstances regarding the permit's display and the issuance of the PCN.
   
   

5. I request the Court to consider drawing an adverse inference from the failure to call the parking attendant as a witness, as their testimony could provide crucial insights into these matters.

Facts and Sequence of Events

1. Date and Time of the Incident: On 1st November 2022, at approximately 1750, my car was parked in the car park, situated at SITE LOCATION, whilst I was at work. Since this was the car park I used daily for work I had a parking permit affixed to my offside rear windscreen.

1. Parking Permit issued through Employer: From January 2020 until June 2023 I worked full-time for a small business situated on LOCATION. In June 2021 my employer issued me with a Parking Control Management Ltd. parking permit for SITE LOCATION as shown in EXHIBIT

1. Parking Permit Displayed: I parked my car at these premises five days per week. I displayed my permit in a plastic pocket that was affixed to my offside rear windscreen. When I received a Parking Charge Notice (PCN) for an alleged contravention that occurred on 1st November 2022, this was my first and only PCN received for parking on these premises. I can only assume that on every other occasion that a Parking Attendant patrolled the premises I was not issued with a PCN because the Parking Attendant had noted the Permit affixed to my rear passenger windscreen. Please see EXHIBIT for a photograph of the vehicle demonstrating how the permit was affixed. 

1. There was no Breach of the Terms & Conditions: The Issuing letter of the Permit reads “Please always display the attached permit clearly in the windscreen of your vehicle”. The terms and conditions sign visible in the car park states “Vehicles must be parked with a valid green parking permit displayed fully within the windscreen”. Please see EXHIBIT for an image of this sign. In neither case does it specify that the permit is to be displayed in the front windscreen only. Since the definition of ‘windscreen’ is ‘a screen that protects against the wind’, I believe it’s reasonable to assume that any of the windscreens on a car are suitable for the Permit to be displayed within.

1. PCN not Affixed for Safety Reasons: The photographic images taken by the Attendant are taken at poor and limited angles resulting in the omission of my parking permit affixed to the rear offside windscreen  Please see EXHIBIT for the photos provided by the Claimant. The Claimant asserts that the Attendant’s notes state that a PCN was not affixed for ‘Safety Reasons’. If the Attendant could not affix a PCN to my car due to ‘safety reasons’, I believe this, along with the lack of any lighting in the car park during nightfall, is the reason why my parking permit was missed. I reiterate that my car was parked at this site for five days a week for the duration of two years, with the parking permit permanently affixed to my car, and this was the only time I was ever issued with a PCN. 

1. Prompt Appeal: Upon receiving the PCN from Parking Control Management Ltd on 15th November 2022, I promptly lodged an online appeal on 17th November 2022. In my appeal I stated that I have a valid permit and that this permit was displayed. I explained that I was advised by my MOT provider not to obstruct my front windscreen with the permit to avoid issues in my upcoming MOT. My MOT provider explained that such was the angle of my front windscreen that the placement of the permit affixed here was going to obstruct the view of the driver to the extent that it could affect my MOT test. I had no reason not to accept this advice and move the parking permit to the rear offside windscreen. Please see EXHIBIT for proof of my appeal.
   
   

2. No Response to Appeal: Further to submitting my appeal on 17th November 2022, I did not receive a response via postal mail or email. The Claimant alleges that a response to my appeal was posted to me on the 18th November 2022 however they can offer no proof of postage to support this. Despite submitting my Appeal electronically, and receiving an acknowledgement to my email address, no attempt was made to contact me via email. 

1. Postal Mail Issues: The Claimant has provided no proof of postage to support their sending of their letter to reject my appeal dated 18th November 2022 and their letter dated 6th December 2022 that explained that 14 days had passed since they rejected my appeal and that they had not heard from me. I did not receive either of these letters. There were significant issues with the postal service in my area at this time. These issues were serious and widespread enough that on the 26th April 2023 the constituency’s MP Claire Coutinho wrote to the Chief Executive of Royal Mail to address the postal service issues affecting LOCATION at that time, please see EXHIBIT. Additionally, please see EXHIBIT Ofcom's 2023 investigation report into Royal Mail's failure to meet delivery targets; and EXHIBIT, an article from 'Inside Croydon' discussing the serious issues with the postal services in South London during this same time period. 

1. Personal Circumstances: In March 2022, my partner and I planned to move in with his father to save money while searching for our first home. To manage my mail during this transition, I set up a Royal Mail redirection service three weeks before the move to our new address with my partner and his father, as shown in EXHIBIT. However, due to increasing abuse in the relationship, I had to urgently find a different place to live, making our original moving plans impossible. Consequently, my mail started arriving at my ex-partner's address. Although he initially promised to forward my mail, my ex-partner refused to do so, unlawfully withholding and disposing of it. Realising I couldn't safely get my mail through my ex-partner, I arranged a new redirection to my current address, as shown in EXHIBIT. The situation prevented me from receiving my postal mail, and I did not receive notification of my County Court Judgment until my new redirection was set up, starting on 25th June 2023. Following Police involvement, I received some of my missing mail from my ex-partner, though in this I received no correspondence from PCM or Gladstones Solicitors. 

Conclusion

1. I respectfully urge the Court to dismiss this claim due to the multiple irregularities and procedural deficiencies outlined in my statement.

1. Firstly, the Claimant's failure to comply with Practice Direction 32 renders their witness statement inadmissible, as it is primarily based on secondhand information provided by a Paralegal without direct knowledge of the facts. The absence of a statement from the parking attendant, who could offer firsthand testimony regarding the alleged contravention, further weakens the Claimant’s case. Given these factors, I request the Court to draw an adverse inference from the Claimant’s failure to produce crucial evidence and witnesses.

1. Furthermore, the evidence clearly indicates that I had a valid parking permit displayed in compliance with the stated terms and conditions, as it was visible in the offside rear windscreen of my vehicle. The Claimant's reliance on limited photographic evidence and the unexplained "safety reasons" for not affixing the PCN raise significant doubts about the accuracy and fairness of the charge.

1. I was employed at this place of work for over 3.5 years, during which I possessed a valid permit for this site for 2 years. In this entire period, I received only this one PCN. This singular incident likely occurred because the permit was missed, despite being properly affixed to my vehicle's windscreen.

1. The facts and evidence presented in my statement demonstrate a clear lack of breach of the terms and conditions. Consequently, I respectfully ask the Court to strike out this claim.

Statement of Truth: