Support needed – Horizon/Gladstone Witness Statement (Hearing confirmed)

JackR1

Update on this case: I have received the notice of allocation to the Small Claims Track with a hearing taking place in a couple of weeks.

Gladstone has given notice to the court that they will not be attending and asked that the claim be decided in their absence. In their witness statement, Gladstone has also included the claimant's response to my defence (see below).

THE CLAIMANT’S RESPONSE TO THE DEFENCE

1. The Claimant notes the Defendant’s point that the Particulars of Claim refer to a parking charge of
   £95.00 whereas the signs at the Site specify £85.00. This discrepancy arose from an administrative
   error and the contractual sum displayed on the signage and demanded by the original Parking
   Charge Notice was and remains £85.00. The Claimant does not seek to recover any higher
   principal sum.
2. The Schedule of Losses appended after the witness statement has been amended to reflect the
   principal sum of £85.00 now sought, together with the reasonable additional sums particularised
   therein. No prejudice arises to the Defendant from this correction and it does not provide any
   proper basis for striking out the claim.
3. As to the Defendant’s repeated assertions regarding landowner authority, it has already been
   explained in the witness statement that there is a landowner and that the Claimant operates the Site
   under written authority from the landholder. The Claimant’s standing to issue and enforce parking
   charges at the Site has therefore been clearly addressed. The underlying landowner agreement
   itself is not required in order for a valid contract to be formed and enforced against the motorist.
4. The Defence consists largely of lengthy narrative disputing alleged procedural or technical issues
   (including CPR pleading points, arguments about Codes of Practice and generic criticisms of
   parking operators). It does not, however, provide a substantive defence to the contravention itself.
   The Defendant admits being the registered keeper, does not positively deny that the vehicle was
   parked at the Site for longer than the clearly advertised maximum stay, and advances no coherent
   alternative explanation consistent with the contemporaneous photographic and ANPR evidence of
   the overstay.
5. In any event, the claim is brought against the Defendant as the contracting party and, in the
   alternative, on the evidential basis that, on the balance of probabilities, the Defendant was the
   driver. That inference arises from the absence of any credible evidence to the contrary or any
   nomination of another driver.
6. The level of the PCN (£85.00) is within the range expressly approved by the Supreme Court as
   being lawful, reasonable and enforceable, and capable of including both a deterrent element and
   the operator’s legitimate business costs. The further fixed sum claimed for late payment is
   provided for in the contractual terms and industry Code of Practice and has been held not to
   amount to an abuse of process where, as here, it was clearly signposted to motorists.

It is therefore submitted to the Honourable Court that notwithstanding the defence that has been filed, the
Claimant has satisfied the burden of proof in this case and is entitled to judgment.

Gr1pr

Gladstones never attend the court in these cases , but the claimant may send an advocate, so assume that someone will attend from their side and plan accordingly

I hope that you have submitted your WS + Exhibits ?

JackR1

Following a conversation with a friend last night, I have also become aware that I might have made a crucial mistake in this process!

As I am not familiar with any of these legal processes, I confused the 'Defence' I previously submitted with my 'Witness Statement' and as a result I have not submitted any Witness Statement for which the deadline was 9th March.

My friend (no legal background) said that as I have not submitted a Witness Statement by the deadline, the court will most likely prevent me from giving any evidence at the hearing and they might throw my defense out as a result. He did add that the court would most likely still let me defend my case based on documents provided as evidence in the Claimant's bundle. Gladstone did me a massive favour by including the Notice to Keeper as evidence. Given that the NTK is non-POFA, I guess this will be my main argument during the hearing.

I would highly appreciate any input on the above. Is there any point of still sending a witness statement as the deadline was 9th March? What can I expect during the hearing i.e. have I lost my opportunity to defend my case in court? Can I still reply / question the arguments from the Claimant based on their submitted evidence? Is the non-POFA indeed my main argument?

Gr1pr

Get it done ASAP, by email , TODAY, because you cannot introduce it at the hearing, you cannot ambush them

If asked about it at the hearing, apologise and state your confusion as a Litigant in Person, not familiar with the legal system, ask for permission to use it rather than adjouring the proceedings, in the interests of all concerned , to bring the case to a conclusion

Le_Kirk

Don't forget to send a copy to claimant's solicitor as well.

Coupon-mad

Yep - assuming the hearing isn't Friday, just do it today or by, say, lunchtime tomorrow (with Chan and Akande trabscripts as exhibits - and a link to HHJ Moloney's Cambridge judgment in Beavis, which proves that the cost of pre-action stage is already in the PCN).

You can of course attack this (below) because if you weren't driving AND due to the POC not actually pleading 'overstay' how can you be criticised for not responding o a new allegation only now added by Elise Davies?! (presumably her and if so, look carefully … tell me … DOES THE ELECTRONIC SIGNATURE LOOK LIKE 'DAVIES'?).

"…does not positively deny that the vehicle was parked at the Site for longer than the clearly advertised maximum stay, and advances no coherent alternative explanation consistent with the contemporaneous photographic and ANPR evidence of the overstay."

Doing a WS is vital and easy. Just copy a recent one and adapt the start. My notes of good examples recently, include threads by:

@aza123 = has Chan & Akande

@Kpmp54 is recent & has Chan & Akande and also Smith, Edward & Wilkinson which would ALL apply to your case.

Obviously all those standard transcripts are linked in the second post of the NEWBIES thread that you missed… the bit about WS stage and exhibits, under big red capitals: IMPORTANT: KNOW WHAT HAPPENS WHEN!

JackR1

The hearing is taking place on 15th April and I am trying to get it out by lunchtime today. It just takes me a bit longer than I expected as I was afraid to simply copy/paste huge sections of other WS as the court's instructions are that "it must be in the witness' own language", so have been reformulating things (although some of my wording will probable make some of you cringe).

@Coupon-mad You are absolutely spot on! It is Elise Davies indeed. 😀

I will post my full witness statement in this thread once it is completed. In the meantime, I have a couple of specific questions that I would appreciate people’s views or input on.

JackR1

Do the below points make sense?

The Claimant states in point 26 of their witness statement that they are pursuing the Defendant as “the contracting party and, in the alternative, on the evidential basis that, on the balance of probabilities, the Defendant was the driver." This assertion is both incorrect and unsupported.

Furthermore, this contradicts the claimant’s statement in point 21 of their own Witness Statement that “The defendant is therefore pursued as the Registered Keeper of the Vehicle”.

The Defendant has never been identified as the driver, nor has any other person. The Claimant has provided no evidence whatsoever that the Defendant was driving at the time of the alleged breach. Only the driver—as the person who could have potentially seen and accepted any terms on the signage—could possibly be the contracting party.

The Claimant relies only on an assumption, claiming that an inference should be drawn because the Defendant has not nominated another driver. However, there is no legal requirement for a registered keeper to name a driver in a private parking matter, and no such presumption exists in law.

If the Claimant wishes to pursue the Defendant as the driver, the burden rests entirely on them to prove, on the balance of probabilities, that the Defendant was in fact driving. Mere speculation or assumption is not enough.

JackR1

Paragraphs 3 to 11 in my WS address the vaguely worded POC including numerous appeal judgments such as Chan and Akande to support my points. I added the below paragraphs to this section as well.

Again, does this make sense?

Taking the above paragraphs 3 to 11 into consideration, I find the Claimant’s accusation in paragraph 25 of their Witness Statement baffling, stating that the defendant "…does not positively deny that the vehicle was parked at the Site for longer than the clearly advertised maximum stay, and advances no coherent alternative explanation consistent with the contemporaneous photographic and ANPR evidence of the overstay."

Given that no driver has been identified AND the vague / generic wording by the Claimant in the POC is not actually pleading ‘overstay’, how can I be criticised for not responding to a new allegation that has only now been brought forward by the Claimant in their Witness Statement.

JackR1

Can someone review the below Non-PoFa statements I made? I feel like my point about the 28 day period is not fully correct, but am struggling how to best rephrase it.

The Notice to Keeper (“NTK”) issued by the claimant on 12th April 2024 (see exhibit x) fails to comply with several mandatory requirements under Schedule 4 of the Protection of Freedoms Act 2012 (POFA).

1. The notice fails to provide any warning as stated in Paragraph 9(2)(f) regarding the transfer of liability to the keeper.
2. The notice fails to comply with Paragraph 9(2)(i) that dictates that the date on which the notice is sent (where it is sent by post) is specified.
3. The notice also fails to state the date from which the mandatory 28-day period in Paragraph 9(2)(f) begins (or ends). This omission makes the legal timeframe indeterminate and prevents the notice from establishing keeper liability under PoFA.

Accordingly, the Claimant has failed to comply with PoFA and cannot transfer liability to me as keeper. There is therefore no lawful basis for this claim against me.