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

Coupon-mad

• They confirm that they are pursuing me as Keeper.
• They state that they are NOT relying on POFA and they do not to seek to invoke statutory keeper liability under POFA.

That is a hopeless argument and makes no legal sense. There is no alternative keeper liability rule of law.

If it had been that simple, there would have been no reason for Parliament to enact Schedule 4 of the POFA (which sets out the ONLY way registered keepers can be liable).

Search the forum or Google to see stuff about skellys. They are normal. You don't need one. Do not reply but the very fact that the legal representatives have read your WS and had ample time to analyse and reply to it using a skeleton, proves its late service did not disadvantage the Claimant!

Also if they are pathetically relying on Elliot v Loake please… just search the forum! Yawn!

JackR1

Claimants "Skeleton Argument" below with my comments and Questions in bold:

This is a low value claim, limited to no more than £300.00 which arose as a result of unpaid Parking Charge Notice (PCN) issued to the Defendant by the Claimant for a parking contravention which occurred on private land managed by the Claimant.

Procedural Issues

The Defendant has attempted to file and serve their witness statement outside of the time frame that was set out on the Notice of Allocation to the Small Claims Track (Annex 1). The Order required both parties to file and serve their witness statements by no later than XXX.

The Defendant filed and served their witness statement on XXX, despite the Notice of Allocation to the Small Claims Track (Annex 1) requiring witness evidence to be filed and served by XXX. The Defendant is therefore in breach of the Court’s Order.

By reason of CPR 32.10, the Defendant may not rely upon that witness evidence or call that witness to give oral evidence at trial unless the Court grants permission. No application for permission or for relief from sanctions has been made.

In the premises, the Claimant respectfully invites the Court to exclude the Defendant’s witness statement from evidence. In the alternative, and insofar as the Court considers the Defendant’s non-compliance to justify a wider sanction, the Claimant invites the Court to exercise its case management powers under CPR 3.4(2)(c) on the basis that there has been a failure to comply with a rule and with the Court’s Order.

I understand that my late submission can result in three courses of action from the court: 1) Allow the WS 2) Adjourn and impose a penalty 3) Deny the WS.

The one outcome I wish to avoid is the case being adjourned - not because of any potential penalty, but because this matter has already taken far too much time. An adjournment would result in further waist of time for both the court and myself.

Q: If the WS is refused, I would appreciate clarification on what I am still permitted to do at the hearing. I understand that I would not be able to rely on the evidence contained in my WS; however, would I still be entitled to cross‑examine the Claimant on their WS? Additionally, would I still be allowed to make legal submissions on points of law and on the evidence relied upon by the Claimant? Finally, if my WS is not allowed, surely the claimant’s response to my WS would not be allowed either, correct?

If so, many of the substantive points raised in my WS could still be addressed during the hearing. While refusal of the WS would obviously be disappointing, I believe I would nonetheless retain a strong chance of success.

The Defendant’s Witness Statement

1. Except where admitted, the Defendant’s witness statement is denied in its entirety. No surprise.

2. The statement 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 filed with the Claimant’s witness statement and ANPR evidence of the overstay. Already addressed in my WS. Nothing new here.

3. As to the Defendant’s repeated assertions regarding landowner authority, it has already been explained in the Claimant’s 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. Already addressed in my WS. Nothing new here.

4. It is denied that there was any absence of offer, acceptance, or consideration. The signage displayed at the Site constituted a unilateral offer to all motorists entering and remaining on the land. The offer was clear: motorists were permitted to park only in accordance with the prominently displayed terms and conditions, failing which a PCN in the sum of £85.00 would be issued. By choosing to remain at the Site otherwise than in accordance with those terms, the motorist accepted that unilateral offer by conduct, thereby becoming contractually liable for the stated parking charge. The Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 confirmed that a parking scheme of this nature, communicated by signage at the site, is capable of creating a binding contract between the operator and the motorist, and specifically noted signage stating that failure to comply with the time limit would “result in a Parking Charge of £85”. The problem here is that the claimant has not provided any evidence of what these terms and conditions that form the base of the contract are. Therefore, both the court and myself are not able to determine the exact terms that were offered AND if a contract was indeed formed with the unknown driver.

5. The Defendant’s suggestion that there was “nothing of value given in return” is misconceived. The consideration flowing from the Claimant was the grant of permission to enter, remain and park on private land subject to the terms in force. The consideration flowing from the motorist was compliance with those terms, or, in the event of breach, payment of the parking charge specified on the signage. That is the well established contractual analysis in private parking cases of this type. The Defendant’s attempt to deny the existence of any contract is therefore unsustainable. Again as above, Not denying, not agreeing, that contract was formed, but cannot verify.

6. Insofar as the Defendant criticises the photographic evidence of the signage that is a matter of weight rather than admissibility. The Claimant relies upon its exhibited photographs, signage images, and site plan as evidence of the contractual terms in force at the material time and their location throughout the Site. The mere fact that one photograph may not allow every word on every sign to be read at full resolution does not establish that the terms were absent, ambiguous, or incapable of binding a motorist. Nor does the existence of more than one sign format, if that is established, assist the Defendant unless the Defendant can identify a material inconsistency going to the substance of the contractual terms. The Claimant’s position remains that the signage, read as a whole and as positioned at the Site, gave adequate notice of the parking restrictions and the parking charge payable upon breach. Criticism is not against "one photograph", but ALL submitted photographs. Furthermore, the claimants own photographs prove the fact that the provided site plan is inaccurate and misleading. It can therefore not be relied upon.

7. The Defendant’s position is misconceived with respect to keeper liability. The Claimant’s case is that the Defendant was identified as the Registered Keeper of the Vehicle and was afforded the opportunity to provide the full name and a serviceable address for the driver, should they contend that they were not the driver at the material time. The Defendant failed to do so. No legal requirement for the registered keeper to name a driver in private parking matter.

8. In the absence of any nomination of an alternative driver, and in circumstances where the Defendant has chosen not to identify the person said to have been driving, the Claimant is entitled to continue the claim against the Defendant as the person identified through the DVLA records as the keeper of the Vehicle. The Defendant cannot simply avoid liability by declining to identify the driver whilst at the same time asserting that they should not be pursued. "Alternative driver" suggests that a driver had initially been identified... Anyway, isn't this exact problem one of the very reasons that Schedule 4 of POFA was introduced in 2012? i.e. Parking firms could not bring any contractual claims against a keeper (only the driver) and keepers have no obligation to name a driver. POFA solved this exact problem for them!

9. The Claimant denies paragraphs 36 to 38 of the Defendant’s witness statement. I would not expect them to admit their WS is misleading, that it is highly improbable it was an oversight and that their behaviour constitutes Unreasonable Conduct.

10. The Defendant’s criticism is misconceived because it proceeds on a false premise, namely that the Claimant’s case depends upon statutory keeper liability under Schedule 4 to the Protection of Freedoms Act 2012. It does not. The Claimant is not relying upon PoFA, and has not pleaded the case on that basis. Accordingly, the Defendant’s repeated references to alleged “non-PoFA documents” do not assist them and do not render the claim incoherent or defective. Sorry... WHAT? The Claimant's case to pursue me as registered keeper does NOT depend upon Schedule 4 of POFA?

11. When paragraph 21 of the Claimant’s witness statement refers to the Defendant being pursued as the Registered Keeper, that is a statement of fact as to the capacity in which the Defendant was identified from the DVLA records and pursued in these proceedings. It is not a representation that the Claimant seeks to invoke statutory keeper liability under PoFA. There is therefore no contradiction between identifying the Defendant as the Registered Keeper and declining to rely upon PoFA as the legal basis of the claim. This is really where I am getting confused... If not for POFA, how else is the claimant seeking to pursue me as registered keeper?

12. The Claimant’s case remains a straightforward contractual one. The signage displayed at the Site constituted a unilateral offer to motorists using the land. By choosing to remain at the Site otherwise than in accordance with the clearly displayed terms and conditions, the motorist accepted those terms by conduct and became liable for the parking charge specified on the signage. The Defendant’s submissions regarding PoFA do not engage with that cause of action and are therefore beside the point. All fair points if making a claim against the driver... who potentially could have entered into a contract. However, there cannot be any contractual claim against me as keeper. What am I missing here???

13. The Claimant denies paragraphs 52 to 54 of the Defendant’s witness statement. These are my Unreasonable Conduct claims.

14. The Defendant’s allegation of unreasonable conduct is misconceived and unsupported. This is a claim allocated to the small claims track, where the general rule is that only limited costs are recoverable. The Court’s power to depart from that position arises only in the specific circumstances set out at CPR 27.14, including where a party has behaved unreasonably. Mere disagreement with the legal basis of the claim, or an assertion that the claim should fail, does not of itself amount to unreasonable conduct.

15. The Defendant’s complaint is founded on the mistaken premise that the Claimant was obliged to advance a case under Schedule 4 to the Protection of Freedoms Act 2012. That is incorrect. The Claimant is not relying on PoFA. The claim has been advanced as a contractual claim, and the Defendant’s repeated criticism of alleged PoFA non-compliance does not render the proceedings abusive, vexatious, or hopeless. Identifying the Defendant in the witness statement as the Registered Keeper is a statement of fact as to the person against whom proceedings have been brought; it is not, without more, an invocation of statutory keeper liability. Again, how are they expecting to pursue me as registered keeper on a contractual claim? Should they not know as specialist solicitors in this field, that there is no ground for this and they are waisting Court's time?

16. There is therefore nothing improper, misleading, or incoherent in the Claimant’s position. The Claimant’s case is that the signage at the Site formed a unilateral contract with motorists. By choosing to remain at the Site otherwise than in accordance with the terms and conditions displayed thereon, the motorist accepted those terms by conduct and became liable for the parking charge specified on the signage. The Defendant’s attempt to re-characterise the claim as a failed PoFA claim is simply a misdescription of the Claimant’s pleaded case.

Below is just a section of them disputing some of the costs…

Costs

The costs sought by the Defendant are opposed. The costs sought are exaggerated, excessive and disproportionate in view of the value of the claim.

17. The Defendant claims £95.00 on the basis that they allegedly need to take an entire day’s annual leave to attend the hearing. That is not agreed. The hearing has been listed with a time estimate of one hour. In those circumstances, it is not accepted that the Defendant reasonably requires a full day away from work, nor that any such loss has been evidenced. In any event, the relevant rule permits only a sum not exceeding £95 per day for loss of earnings or loss of leave due to attending a hearing or staying away from home for that purpose; it does not create an automatic entitlement to the maximum sum claimed. The burden remains on the Defendant to show that any such loss was actually and reasonably incurred.

18. The claimed sum of £XX for printing, paper and toner is not recoverable under CPR 27.14(2). Printing and document preparation are ordinary incidental costs of litigation and do not fall within the limited categories permitted on the small claims track. The Defendant has identified no rule entitling them to recover those sums, and the Court is respectfully invited to disallow that item in full.

19. The Defendant’s claim for travel is overstated and includes items which are plainly not recoverable. Under CPR 27.14(2)(d), only expenses reasonably incurred in travelling to and from a hearing are recoverable. That does not extend to travel for a site visit, nor to a journey said to have been undertaken to hand-deliver a witness statement to court. Those are matters undertaken voluntarily by the Defendant and fall outside the scope of the rule. Only reasonable travel to and from the hearing itself is potentially recoverable, and only if actually incurred. The Defendant’s attempt to aggregate three separate journeys into one claim is therefore misconceived.

20. The claim for £XXX for research, preparation, and drafting is wholly misconceived unless, and only unless, the Court first finds that the Claimant has behaved unreasonably within the meaning of CPR 27.14(2)(g). No such finding should be made. The Claimant’s conduct does not amount to unreasonable behaviour. The Claimant has merely pursued a properly issued small claim in the ordinary course, served evidence in support, and responded to the matters raised by the Defendant. The fact that the Defendant disagrees with the legal basis or merits of the claim does not begin to satisfy the threshold for unreasonable conduct. Accordingly, the Defendant’s claimed litigant in person costs are not recoverable and should be refused in full.

21. In particular, the Defendant’s repeated reliance on allegations of impropriety, vexation, or hopelessness is unfounded. The Claimant’s case has been advanced on a contractual basis. It is a recognised form of civil claim and has been pursued through the proper court process. Ordinary contested litigation does not amount to unreasonable conduct simply because one party says the other should lose on the facts of this case.

Coupon-mad

Your only difficulty will be if the judge decides to ask you "were you driving?"

JackR1

https://forums.moneysavingexpert.com/discussion/comment/81957726#Comment_81957726

Thanks a lot! Will look into those Skeleton Arguments further. I did come across that Elliott v Loake argument in my research for the WS… but that is an entirely case where the keeper was deemed to be the driver because of evidence, not just the simplification that "he was the keeper, therefore he must have been the driver…"

JackR1

https://forums.moneysavingexpert.com/discussion/comment/81957822#Comment_81957822

The answer I prepared for that is "Your honour, I am defending this strictly as the Registered Keeper. The Claimant has the burden of proof to identify the driver and they have failed to do so. I am under no legal obligation to identify the driver in a private parking matter".

However, with the Claimant now explicitly stating in their Skeleton Argument that they are not relying on POFA, I would amend my answer to:

"Your Honour, I am defending this claim strictly in my capacity as the registered keeper. The claimant has chosen not to rely on Schedule 4 of the Protection of Freedoms Act and has the burden of proving driver identity. I am under no legal obligation in a private parking matter to identify the driver, and I make no admission that I was the driver.”

Coupon-mad

That is reasonable. Most judges know that you don't have to name the driver, e.g. read the transcript of VCS v Edward.