Notice of Allocation to the Small Claims Track (Hearing)

Aliseries

Hello, 
This is the WS I have created.  Does this read OK
Many thanks
Aliseries

 Name of Witness: xxxxxx

                                                                                                                                                                                     Witness Statement No.: One

                                                                                         

IN THE COUNTY COURT AT xxxxxxxx

 

                                                                                                                                                                                      Claim No.: xxxxxxxx

 

                                              Between

                                              EURO CAR PARKS LIMITED

                                              (Claimant)

                                                       V

                                              xxxxxxxxxxxxxxxxx

                                              (Defendant)

                                                 ________

                          WITNESS STATEMENT OF xxxxxxxxxxxxxx

                                  

 

I, xxxxxxxxxxxxxxx, of xxxxxxxxxxxxxxxxxxx will say as follows:

 

INTRODUCTION

I make this Witness Statement (hereinafter referred to as WS) in readiness for the hearing listed on xxth xxx 20xx at xxxxx County Court and in support of my Defence against the Claimant’s claim.

 

BACKGROUND.

1.      I used the BP garage on Limekiln St, Dover CT17 9EF on the 4th November 2021, the business has the fuel filling stations, a small parking area and a facility where you can valet your vehicle (a jet wash and vacuum cleaner).

2.      On the date above that the parking charge was laid against me I was using the BP facilities to valet my car prior to selling it.  I spent an extended amount of time using the jet washing machine and then after this I used the vacuuming machine to clean the car, both to high standard to ensure I would get the best price for the car when selling it.

3.      I make refence to Exhibit 1 that shows the vehicle at the end of jet washing with the location data and Exhibit 2 details from the government website showing the date that the vehicle was sold on the 13th November 2021.

4.      I would like this to show that I was not parking at the BP Jet Wash area but using the facilities that were provided in the area which I had paid to use.

 

CRA breaches

5.      Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which

introduced new requirements for “prominence” of both contract terms and “consumer notices”. In a parking context, this includes a test of fairness and clarity of signage, and all notices, letters and other communications intended to be read by the consumer.

6.      Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of dusk/darkness) and all terms must be unambiguous and contractual obligations clear.

7.      The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean that there has to be a finding of bad faith).

 The Beavis case is against this Claim

8.       The Supreme Court clarified that “the penalty rule is plainly engaged” in parking cases, which must be determined on their own facts. That “unique” case met a

commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, particularly the brief, conspicuous yellow and black warning signs set a high bar that this Claimant has failed to reach.

9.      Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a “legitimate interest” in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor “concealed pitfalls or traps”.

10. In the present case, the Claimant has fallen foul of these tests. There is one main issue that renders this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable.

11. i)             Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their Trade Body lets them, until the Government bans it. The driver thus has no idea about any risk, nor even how much may be added on top. Court of Appeal authorities which are on all fours with a case involving a lack of “adequate notice” of a charge include:

ii)            Spurling v Bradshaw [1956] 1 WLR 461 (“red hand rule”) and

iii)           Thornton v Shoe Lane Parking Ltd. [1970] EWCA Civ2, both leading

authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

iv)           Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine

won because it was held that she had not seen the terms by which she would later be bound, due to “the absence of any notice on the wall opposite the parking space”.

 

Conclusion

 

12. In conclusion, the Claimant has failed to provide clear evidence that a contract was formed, nor has it shown that the parking charge notices were validly issued. The unlawful nature of the additional charges further invalidates the Claim. The Claimant’s attempt to impose liability for these inflated charges is unsupported by both statutory law and leading case precedents. I ask the court to dismiss the Claim and award appropriate costs for the time and effort expended in defending against these unjust claims.

13. 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.

 

Defendant’s Signature:

 

 

 

Date:

 

EXHIBIT 1  Shows a cleaned car at the Jet Wash

EXHIBIT 2  Show date of transfer of vehicle to new owner from a .gov.uk website

Coupon-mad

Normally there are more exhibits which I list in the NEWBIES thread. So many people miss those! No idea why.

Aliseries

Hi All,  

Just an update.
I created the witness statement with the additional exhibits. My son sent this off to the solicitors and court on Wednesday.
He got a reply from the court that the claim had been discontinued on the 30/04/25.  He had had no email correspondence from the claimant, but he is guessing they may have sent him a letter that had arrived after he had been deployed abroad.

Anyhow thank you for your advice and help.

Thanks

Aliseries

Gr1pr

Par for the course,  so well done,  ECP & DCB Legal fold again,  over with 

The chances are that the email from DCB Legal to the defendant went into their spam folder,  the email contained the N279 NoD document,  so if you find it please post a redacted picture of it in this thread,  for adding to the discontinuations thread by Umkomaas,  which is heading for 550 at the moment 

Coupon-mad

Aliseries said:

Hi All,  

Just an update.
I created the witness statement with the additional exhibits. My son sent this off to the solicitors and court on Wednesday.
He got a reply from the court that the claim had been discontinued on the 30/04/25.  He had had no email correspondence from the claimant, but he is guessing they may have sent him a letter that had arrived after he had been deployed abroad.

Anyhow thank you for your advice and help.

Thanks

Aliseries

Oooh congrats!

ANOTHER ONE BITES THE DUST!

This could be DCB Discontinuation number 550 if he can find the NoD in his junk emails.  

Please ask him to check whichever email was used for the case. We need a pic of the NoD attachment please or you can't stand up and be counted.