Feethams Leisure Car Park - Darlington

Le_Kirk

You are the (main) witness and you write your witness statement in support of your defence along with evidence. 

Sinkymse

Le_Kirk said:

You are the (main) witness and you write your witness statement in support of your defence along with evidence. 

So just reiterating what I've previously said?

Thanks

Gr1pr

Sinkymse said:

Le_Kirk said:

You are the (main) witness and you write your witness statement in support of your defence along with evidence. 

So just reiterating what I've previously said?

Thanks

No 

Study recent approved examples of Witness Statement plus Exhibits bundles in other threads on here, to give you the right ideas on your own bundle 

Le_Kirk

Sinkymse said:

Le_Kirk said:

You are the (main) witness and you write your witness statement in support of your defence along with evidence. 

So just reiterating what I've previously said?

Thanks

No, do as advised by @Gr1pr. There is a difference between defence, a series of technical/legal arguments written in the third person and a witness statement, which is your narrative written in the first person.

Coupon-mad

Sinkymse said:

Le_Kirk said:

You are the (main) witness and you write your witness statement in support of your defence along with evidence. 

So just reiterating what I've previously said?

Thanks

No. This is explained in the NEWBIES thread and I even list some recommended exhibits.  It's all there for you.

Sinkymse

Coupon-mad said:

Sinkymse said:

Le_Kirk said:

You are the (main) witness and you write your witness statement in support of your defence along with evidence. 

So just reiterating what I've previously said?

Thanks

No. This is explained in the NEWBIES thread and I even list some recommended exhibits.  It's all there for you.

Thanks, I've attached my first draft of the witness statement. Please let me know if it is missing anything that should be included?

I, ... , declare as follows:

1. I am the registered keeper of the ... licence ... .

2. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.

Summary of events

3. In March 2024, I received a PCN through the post for parking at ... the parking event stated: Failure to purchase the parking tariff for the registration mark of the vehicle on site and/or within the time allowed. 

4. I appealed the PCN accepting that my car had been parked at ... on 9 March 2024 and explaining that I had paid for a ticket however, due to factors out of my control, this was not within the ‘allotted time’.

5. I exited my car to the nearest pay machine which an elderly gentleman was stood at. I waited for a couple of minutes as he was having trouble with the machine so I asked if he needed any help. When I tried to pay for my parking it was obvious that the machine was faulty/broken. 

6. I then decided that I would pay using the 3rd party service. Since this car park is below a shopping area, the service for doing this was poor which extended the time it took for me to pay for the parking. Having entered the car park at 18:05 and at 18:25 paying for 6 hours, I exited the car park at 23:23, 5 hours and 23 minutes after entering the car park.

7. I assume the Claimant has CCTV footage of me arriving and leaving the car-park. This footage should show me spending a considerable amount of time at the payment machine, trying to get a ticket and then a further period of time stood on my phone trying to purchase a ticket on that also. I politely request that the Claimant submit a copy of their CCTV footage between 18:05 and 18:25 on 9th March 2024.

8. I also politely request that ... provide their machine’s maintenance and repairs records, which will confirm that their machine was not working on the day I parked.

9. I politely request that the claim brought against me by ... be dismissed.

10. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

11. However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the view that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

12. In addition, the Beavis case considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both. 

13. Schedule 4 of POFA 2012 is clear in stating that there is a limit to the amount that can be claimed:

Right to claim unpaid parking charges from keeper of vehicle:

(5) the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

Therefore, the Claimant is not entitled to claim any of the following sums:

i. Damages cannot be claimed as the law puts a limit on how much can be claimed from the keeper.

ii. Debt recovery costs are not recoverable and have no legal basis.

iii. Operational costs are not recoverable from the Defendant.

iv. Interest payments under section 69 of the County Courts Act 1984 are not recoverable because the Claimant is not entitled to claim Debt or Damages.

14. The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unreasonable and as such, is banned. In a very short section called 'Escalation of costs' the new Code says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." The Ministerial Foreword is unequivocal and robust, saying this about existing cases such as the present claim: "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."

In the present case, the Claimant has added a sum that their notorious industry variously describes as damages for debt recovery. These are banned costs which they have neither paid nor incurred. I aver that by continuing to pursue claims including this objectionable sum - when this serial litigator Claimant is indisputably aware due to their 'approved operator' membership of an Accredited Parking Association - that these exaggerated 'costs' are banned by the Government, appears to meet the high bar of wholly unreasonable conduct.

I believe that knowingly inflated claims such as this case should not be allowed to continue. I further observe that this conduct by parking firms operating under their previous Codes of Practice (described by several District Judges as 'self-serving') has caused inflated default judgments and consumer harm on a grand scale in recent years. The Court is invited to strike out the false 'damages/debt recovery' element at the very least and to consider whether the appropriate sanction may be to strike out the entire claim, in order to signal that the Court shares the Government's view regarding one of the most vexatious, greedy and intimidating elements of some members of the private parking industry's conduct in litigation.

15. Summary of evidence requested from Claimant

i. CCTV footage of the ticketing machine between 18:05 and 18:55 on 9th March 2024.

ii. Ticketing machine’s maintenance and repairs records, which will show that their machine was not working on the day I parked.

In the matter of costs

16. I remind the court that I had paid for 6 hours of parking and only stayed for 5 hours 23 minutes and appealed in writing as soon as I received the PCN, hence the Claimant knew all along that the tariff has already been paid. Not only could this claim have been avoided and the Claimant has no cause of action but it is also displeasing to pursue an inflated sum that includes double recovery. 

17. I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. However I am aware that I chose not to spend additional funds to make a counter-claim.

18. If the claim is not struck out, I therefore seek:

i. Standard witness costs of attendance at court, pursuant to CPR 27.14; and

ii. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.”

iii. That any hearing is not vacated but continues as a cost hearing.

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.

Twinkle91

Hi. I’m not going to be any help to you I’m afraid but your case is virtually identical to mine - same car park, very similar scenario etc. I’m just a month or so behind you in ‘the system’ I think. I really hope it all goes OK in Jan and I shall look out with interest for any of update/feedback.


Good luck!

Coupon-mad

Not a bad WS draft.

A couple of recent ones that won were by:

@imulsion

@Defendant911

You might want to read them to see if you missed anything out.

Sinkymse

Twinkle91 said:

Hi. I’m not going to be any help to you I’m afraid but your case is virtually identical to mine - same car park, very similar scenario etc. I’m just a month or so behind you in ‘the system’ I think. I really hope it all goes OK in Jan and I shall look out with interest for any of update/feedback.


Good luck!

Thanks. Hope all goes well for you also. I did write to Darlington MP Lola McEnvoy about the situation, she is aware of it and has invited Excel Parking to parliament to discuss the car park however I don't believe this has happened yet. She has also spoke to the IPC and the owner of the car park who lease the area to Excel in the hope of pressuring them further. It may be worth emailing her your situation also so that she is aware of it.

Twinkle91

Yes, I saw that from the thread. I have written to her also (as well as my own MP) but have yet to receive a reply. Couple of questions if I can:

• Did you raise a complaint to the Landowner (assuming that you managed to determine who that it)?
• Do you have a copy of the wording you submitted with your response to the Letter of Claim?

Thanks