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  • FIRST POST
    • WBM
    • By WBM 16th Dec 17, 6:21 PM
    • 35Posts
    • 18Thanks
    WBM
    Gladstones County Court Claim Form
    • #1
    • 16th Dec 17, 6:21 PM
    Gladstones County Court Claim Form 16th Dec 17 at 6:21 PM
    Hi All,

    I am new on this forum but was wondering if you guys are able to help. Reading a lot of posts I see that this is a strong community willing to help people .

    I have received a County court claim form from Gladstones and I was wondering if you can help me with my defence.

    To give you a background on what happened; My car was parked on a street in front of a barber shop that was closed on a Saturday at around 10pm in 2016. There was a small sign on the wall that said 'Permit holders only Contract to Park'.

    I previously received a letter before claim and requested to provide information based on guidance from 'loadsofchildren' for a different case (thread called Solicitor Letter Response?). I just slightly tweaked it to fit my scenario better.

    Gladstone replied showing me a photograph of my parked car, the parking sign which looks quite small and there are other advertisement signs near it which are bigger than the parking sign (I'm not sure how to attach images on here otherwise would show you).

    They did not provide information for:
    1) whether they are pursuing me as the driver or keeper
    2) whether they are relying on the provisions of Schedule 4 of POFA 2012
    3) what the details of the claim are in regards to for how long the car was parked for and how the monies being claimed arose.
    5. a copy of the contract with the landowner
    6. a copy of any alleged contract with the driver
    7. a plan showing where any signs were displayed
    8. details of the signs displayed (size of sign, size of font, height at which displayed)
    9. If they have added anything on to the original charge, ask them what that represents and how it has been calculated.

    They are relying on Beavis and VCS v HM Revenue to show the contracting party need not show they have the right to do what they have promised.

    The parking charge on the sign says £90 however the amount claimed is £328.30, court fee £35, Legal representative costs £50 so total £413.30.

    I am going go onto the moneyclaim website and click on the defend option based on the thread Court Claim Procedure (updated October 2016).

    If there is any tips anyone can give regarding the defence i will really appreciate it .
Page 2
    • WBM
    • By WBM 30th Dec 17, 2:25 AM
    • 35 Posts
    • 18 Thanks
    WBM
    Apologies I just saw it! That's my bad I was searching for UKCPM and couldn't find anything with that name in my post. Sorry the reason I wasn't correcting the PCC name was based on the numerous posts about people saying take down the information that they were putting up so you cannot be identified by the solicitors (I wasn't sure to what extent this was to), also I didn't realise it was an important factor for the defence itself since it matched what you were saying about both PCCs.

    However, as you're all saying that identifying the PPC is not a concern I apologies for confusing matters. The Parking company is WY Parking Enforcement Limited.

    I have incorporated mainly what you said, added the bits you advised and removed the section about Keeper (previous section 5).

    I have listed the defence below:

    IN THE COUNTY COURT BUSINESS CENTRE
    CLAIM No. DXXXXXXX
    BETWEEN
    WY Parking Enforcement Limited (CLAIMANT)

    -and-

    xxxxx xxxxxxxx (DEFENDANT)

    ________

    DEFENCE
    ________

    1. The Defendant denies that the Claimant is entitled to the relief claimed, or any amount at all.

    Preliminary
    2. The Claimant 'WYPE' has failed to comply with the requirements of Civil Procedure Rule 16.4. Its sparse Particulars do not disclose any cause of action which could give rise to a claim, and their single-page Letter Before Claim was no more than an aggressive demand, designed to intimidate and mislead the defendant, rather than narrow the issues or provide any specific detail.

    2.1. Despite the Defendant requesting this information in pre-action communication, this Claimant has failed to set out the basis of the claim - trespass or contractual breach? It has not specified how the sum sought represents any fee, charge, costs or damages incurred - nor evidenced that any contract existed or was breached - hence the Defendant is having to attempt to cover all possibilities, with no fair opportunity to make an informed response.

    2.1.1. The Claimant's solicitors merely sent a photograph of the car and a very small, illegible WYPE sign with much larger advertisement signs near it, and no other details, copies of letters, facts or evidence.

    2.1.2. The Particulars of Claim (POC) fail to meet the requirements of Practice Direction 16 7.5. The POC are incoherent, make no sense, and do not disclose any legally recognisable claim against the Defendant.

    2.1.3. The POC contain no facts and are not clear and concise as required by CPR 16.4 (a). The Claimants are serial issuers of generic claims like this 'roboclaim’ given away in this case by typical, generic lack of detail. The Claimant has repeated the date 15/10/2016 (as if there were two charges on the same day, which is denied), cannot say if it is pursuing the Defendant as keeper or driver, and has not elaborated on the alleged 'breach of terms'. The Claimant claims an unsubstantiated £300 for ''Parking Charges/Damages'' despite the fact parking charges cannot be claimed as damages except by a landowner as a remedy for trespass, and cites ''indemnity costs if applicable'' whatever that is supposed to mean, bearing in mind the Claimant previously alleged this was about a single £90 charge.

    2.1.4. Practice Direction 3A refering Civil Procedure Rule 3.4 illustrates this:
    ‘1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
    - those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
    - those which are incoherent and make no sense,
    - those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.'


    ParkingEye Ltd v Beavis is distinguished
    3. ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim, due to the completely different facts, including but not limited to:
    i) There was no parking licence or offer, no consideration flowed and there was no contract capable of being breached.
    ii) The Claimant did not follow the effectively binding IPC Code of Practice.
    iii) The sum claimed is extortionate, and the predatory business model is punitive unconscionable.
    iv) The Claimant has no standing or authority from the landowner.
    v) There is no comparable legitimate interest or commercial justification to disengage the penalty rule.


    Background - no contract
    4. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. The vehicle is insured and more than one driver is permitted to use it.

    4.1. In the sparse information provided to the Defendant, the car appears to be parked on public highway adjacent to shops, not in any private car park.

    4.2. No indication was provided as evidence to support the Claimant's contractual authority to operate at this specific location. The Defendant avers that the business model utilised at this site is predatory, punitive, unauthorised by the landowner and operates contrary to the IPC Code of Practice.

    4.3 It is averred that the Claimant is not the landowner and therefore lacks any cause of action. If it is alleged that a trespass had occurred then the remedy available for that tort (which is denied) is in the gift of the landowner alone, to seek damages.

    4.4 It was confirmed by the Supreme Court that ParkingEye Ltd could only recover the £85 parking charge which more than covered all costs of the automated business model of a parking firm and was heavily weighted for profit. It was held that a parking firm not in possession could not recover any sum at all in damages, but the Supreme Court were willing to impose a penalty as allowable only in the unique context of that particular retail site of commercial value. In that case, the signs were 'very prominent' and clear - both upon entry to the site and throughout - with the parking charge in the largest lettering with a free parking licence being offered and accepted under contract, giving rise to a sum being payable by patrons who overstayed.

    4.4.1. Conversely, in the present case there was no agreed contract. It is apparent to the Defendant that a driver would not have had a fair chance to read the very small terms on a sign at this location, where advertising posters and large lettering on the shop-front boards (none of which require a driver to stop and read them) completely dwarf the Claimant's sign.

    4.4.2. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print. There are no signs adjacent to the kerb and no prominent terms facing a driver when parking, to alert them to any contract. This location fails to meet the “Red Hand Rule”, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

    4.5 It is the Defendant's belief that even if the WYPE sign was considered readable from a car parking at the kerbside at the material time, the terms are prohibitive. The wording is at best - if readable and prominent - capable of forming a contract with permit-holders only, because all others are forbidden to park and threatened with an unrecoverable penalty. Unlike in the Beavis case where a free licence to park was offered, then breached, in this case no consideration, no contractual parking licence (nor any offer at all of anything of value to a driver) was extended to non-permit holders.


    The sum claimed is a penalty - an attempt at 'triple recovery'
    5. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has been inflated from £90 to over £300. This appears to be an attempt at more than 'triple recovery', which the POFA specifically disallows.

    5.1. Schedule 4 of the POFA, Paragraph 4(5), states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (a document which the Defendant avers was never received, but cannot have exceeded £90, if the Claimant is relying upon the sign in the photograph provided). The clear intention of Parliament was that parking charges on private land be capped at the (already inflated to include profit) sum on the Notices, with double or triple recovery being specifically disallowed.

    5.2. The Defendant has the reasonable belief that the Claimant has not incurred such exorbitant costs to pursue an alleged £90 debt. Notwithstanding the Defendant's belief, the costs are in any case not recoverable. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and nor were such sums specified in prominent lettering on any sign at the point of the driver parking. It is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.


    Wholly unreasonable and vexatious claim
    6. It is submitted that the conduct of the Claimant in operating a predatory model with what appears to be deliberately scarce signage, then intimidating the Defendant with misleading threats in the pre-action stage before pursuing this claim, is wholly unreasonable and vexatious.

    6.1. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs on an indemnity basis, pursuant to Civil Procedure Rule 27.14(2)(g).

    7. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    8. In the alternative, when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Signed:

    Date:
    • Coupon-mad
    • By Coupon-mad 30th Dec 17, 2:53 PM
    • 63,841 Posts
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    Coupon-mad
    I have incorporated mainly what you said, added the bits you advised and removed the section about Keeper (previous section 5).
    Haha, OK, as it's WYPE I would actually add point #5 right back in.

    WYPE are not renowned for POFA compliance or anything much else good that we've ever seen on forums.

    I recall they had a website that called their charges a 'penalty' and only gave people seven days to appeal, when they were in the BPA supposedly working within a CoP that banned the penalty word, and required 28 days for appeals.
    Last edited by Coupon-mad; 31-12-2017 at 10:59 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
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    • WBM
    • By WBM 31st Dec 17, 8:55 PM
    • 35 Posts
    • 18 Thanks
    WBM
    I think I will add point 5 back in. Also I added another fact to point 4.1 regarding details about the time of the parking which was 10pm and that the shops appear to be closed both which may support point 3 regarding comparable legitimate interest or commercial justification to the Beavis case.

    4.1. In the sparse information provided to the Defendant, the car appears to be parked at 22:07 on public highway adjacent to closed shops, not in any private car park.

    So the final draft is below, Happy New Years!

    IN THE COUNTY COURT BUSINESS CENTRE
    CLAIM No. DXXXXXXX
    BETWEEN
    WY Parking Enforcement Limited (CLAIMANT)

    -and-

    xxxxx xxxxxxxx (DEFENDANT)

    ________

    DEFENCE
    ________

    1. The Defendant denies that the Claimant is entitled to the relief claimed, or any amount at all.

    Preliminary
    2. The Claimant 'WYPE' has failed to comply with the requirements of Civil Procedure Rule 16.4. Its sparse Particulars do not disclose any cause of action which could give rise to a claim, and their single-page Letter Before Claim was no more than an aggressive demand, designed to intimidate and mislead the defendant, rather than narrow the issues or provide any specific detail.

    2.1. Despite the Defendant requesting this information in pre-action communication, this Claimant has failed to set out the basis of the claim - trespass or contractual breach? It has not specified how the sum sought represents any fee, charge, costs or damages incurred - nor evidenced that any contract existed or was breached - hence the Defendant is having to attempt to cover all possibilities, with no fair opportunity to make an informed response.

    2.1.1. The Claimant's solicitors merely sent a photograph of the car and a very small, illegible WYPE sign with much larger advertisement signs near it, and no other details, copies of letters, facts or evidence.

    2.1.2. The Particulars of Claim (POC) fail to meet the requirements of Practice Direction 16 7.5. The POC are incoherent, make no sense, and do not disclose any legally recognisable claim against the Defendant.

    2.1.3. The POC contain no facts and are not clear and concise as required by CPR 16.4 (a). The Claimants are serial issuers of generic claims like this 'roboclaim’ given away in this case by typical, generic lack of detail. The Claimant has repeated the date 10/09/2016 (as if there were two charges on the same day, which is denied), cannot say if it is pursuing the Defendant as keeper or driver, and has not elaborated on the alleged 'breach of terms'. The Claimant claims an unsubstantiated £300 for ''Parking Charges/Damages'' despite the fact parking charges cannot be claimed as damages except by a landowner as a remedy for trespass, and cites ''indemnity costs if applicable'' whatever that is supposed to mean, bearing in mind the Claimant previously alleged this was about a single £90 charge.

    2.1.4. Practice Direction 3A refering Civil Procedure Rule 3.4 illustrates this:
    ‘1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
    - those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
    - those which are incoherent and make no sense,
    - those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.'


    ParkingEye Ltd v Beavis is distinguished
    3. ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim, due to the completely different facts, including but not limited to:
    i) There was no parking licence or offer, no consideration flowed and there was no contract capable of being breached.
    ii) The Claimant did not follow the effectively binding IPC Code of Practice.
    iii) The sum claimed is extortionate, and the predatory business model is punitive unconscionable.
    iv) The Claimant has no standing or authority from the landowner.
    v) There is no comparable legitimate interest or commercial justification to disengage the penalty rule.


    Background - no contract
    4. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. The vehicle is insured and more than one driver is permitted to use it.

    4.1. In the sparse information provided to the Defendant, the car appears to be parked at 22:07 on public highway adjacent to closed shops, not in any private car park.

    4.2. No indication was provided as evidence to support the Claimant's contractual authority to operate at this specific location. The Defendant avers that the business model utilised at this site is predatory, punitive, unauthorised by the landowner and operates contrary to the IPC Code of Practice.

    4.3 It is averred that the Claimant is not the landowner and therefore lacks any cause of action. If it is alleged that a trespass had occurred then the remedy available for that tort (which is denied) is in the gift of the landowner alone, to seek damages.

    4.4 It was confirmed by the Supreme Court that ParkingEye Ltd could only recover the £85 parking charge which more than covered all costs of the automated business model of a parking firm and was heavily weighted for profit. It was held that a parking firm not in possession could not recover any sum at all in damages, but the Supreme Court were willing to impose a penalty as allowable only in the unique context of that particular retail site of commercial value. In that case, the signs were 'very prominent' and clear - both upon entry to the site and throughout - with the parking charge in the largest lettering with a free parking licence being offered and accepted under contract, giving rise to a sum being payable by patrons who overstayed.

    4.4.1. Conversely, in the present case there was no agreed contract. It is apparent to the Defendant that a driver would not have had a fair chance to read the very small terms on a sign at this location, where advertising posters and large lettering on the shop-front boards (none of which require a driver to stop and read them) completely dwarf the Claimant's sign.

    4.4.2. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print. There are no signs adjacent to the kerb and no prominent terms facing a driver when parking, to alert them to any contract. This location fails to meet the “Red Hand Rule”, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

    4.5 It is the Defendant's belief that even if the WYPE sign was considered readable from a car parking at the kerbside at the material time, the terms are prohibitive. The wording is at best - if readable and prominent - capable of forming a contract with permit-holders only, because all others are forbidden to park and threatened with an unrecoverable penalty. Unlike in the Beavis case where a free licence to park was offered, then breached, in this case no consideration, no contractual parking licence (nor any offer at all of anything of value to a driver) was extended to non-permit holders.

    Absence of 'registered keeper liability'
    5. The Claimant has provided no evidence (in pre-action correspondence or otherwise) to identify the driver. The balance of probabilities is not tipped in the Claimant's favour, given the fact that more than one person drives this car. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("the POFA").

    5.1 If seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, the Claimant must demonstrate that:
    5.1.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
    5.1.2. that this Claimant has established itself as the offeror and creditor; and
    5.1.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.

    5.2. To the extent that the Claimant may seek to allege that any such presumption do exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of the POFA, which makes no such provision.


    The sum claimed is a penalty - an attempt at 'triple recovery'
    6. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has been inflated from £90 to over £300. This appears to be an attempt at more than 'triple recovery', which the POFA specifically disallows.

    6.1. Schedule 4 of the POFA, Paragraph 4(5), states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (a document which the Defendant avers was never received, but cannot have exceeded £90, if the Claimant is relying upon the sign in the photograph provided). The clear intention of Parliament was that parking charges on private land be capped at the (already inflated to include profit) sum on the Notices, with double or triple recovery being specifically disallowed.

    6.2. The Defendant has the reasonable belief that the Claimant has not incurred such exorbitant costs to pursue an alleged £90 debt. Notwithstanding the Defendant's belief, the costs are in any case not recoverable. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and nor were such sums specified in prominent lettering on any sign at the point of the driver parking. It is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.


    Wholly unreasonable and vexatious claim
    7. It is submitted that the conduct of the Claimant in operating a predatory model with what appears to be deliberately scarce signage, then intimidating the Defendant with misleading threats in the pre-action stage before pursuing this claim, is wholly unreasonable and vexatious.

    7.1. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs on an indemnity basis, pursuant to Civil Procedure Rule 27.14(2)(g).

    8. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    9. In the alternative, when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Signed:

    Date:
    • Coupon-mad
    • By Coupon-mad 31st Dec 17, 11:00 PM
    • 63,841 Posts
    • 76,499 Thanks
    Coupon-mad
    Yes go for it - hope it works for you - Happy New Year!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • WBM
    • By WBM 1st Jan 18, 11:26 PM
    • 35 Posts
    • 18 Thanks
    WBM
    Hi Coupon-Mad,

    I have emailed my defence and I wanted to thank you for all your help and support! I really appreciate it! Hopefully Gladstones will pull out from going to court (fingers crossed) and this can finally end.

    Thanks again
    • Coupon-mad
    • By Coupon-mad 3rd Jan 18, 12:06 AM
    • 63,841 Posts
    • 76,499 Thanks
    Coupon-mad
    It doesn't happen that quickly, and a defence is not your only job. This process doesn't just stop this early on.

    Please don't come back asking about Gladstones tedious letter & N159, spare us, read this:

    http://forums.moneysavingexpert.com/showthread.php?p=73579695#post73579695

    See you at WS stage in the Spring, not at DQ stage which never needs discussion, as it's fully covered in the NEWBIES thread.
    Last edited by Coupon-mad; 03-01-2018 at 12:12 AM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • WBM
    • By WBM 17th Apr 18, 8:59 PM
    • 35 Posts
    • 18 Thanks
    WBM
    Wow Coupon-mad you really called it!

    I have received a letter from the court saying my court date is on the 5th of June. I was reading the Newbie thread and would like to list what I need to do now, if you don't mind having a look and correcting me where I might be going astray please.

    I know I will need to send my witness statement 2 weeks prior to the trial date. Although, is the witness statement the exact thing I already sent? I.e. the piece we wrote above, so I would just need to send that again?

    So all in all I will be including a copy of:
    1) The Witness Statement.
    2) a copy of Schedule 4 of the POFA.
    3) a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability'.
    4) a copy of the Beavis case sign as a comparison to show how awful the small print sign was in my case.
    5) I was looking to include pictures that Gladstones sent me showing my car parked there and how small the sign looks surrounded by other larger signs.

    Is there anything else that I would need to get or send? Do I need to print out the actual full Beavis case?

    Any help would be really appreciated thank again!
    • KeithP
    • By KeithP 17th Apr 18, 9:19 PM
    • 10,600 Posts
    • 10,987 Thanks
    KeithP
    You need to write your Witness Statement.
    The 'piece' you wrote before, in post #23, was your Defence.

    You need to now re-read post #2 of the NEWBIES FAQ sticky thread were there is a lot of guidance on what a Witness Statement should be.
    .
    • WBM
    • By WBM 22nd Apr 18, 10:00 PM
    • 35 Posts
    • 18 Thanks
    WBM
    Hi KeithP, thank you for your response. I have been looking at the witness statements in the newbie thread they look like the defence statements to me just state that they are a witness statement and aren't really in sections just one point after another. Other than that I can't tell the difference between the defence and witness statement...I must be missing something.

    I see in one of the pepipoo posts that a witness statement is ...''all they are wanting is a statement from a witness (you) plus anyone else that can support what you said in your original defence.'

    As I am defending as the keeper of the vehicle is there a difference since im not really saying more than what has already been said?

    If you don't mind please pointing me to the right direction so then I can draft up my witness statement incorporating the differences.
    • Redx
    • By Redx 22nd Apr 18, 10:07 PM
    • 19,875 Posts
    • 25,177 Thanks
    Redx
    a defence puts the legal arguments and points in why the defendant is not liable for the charge and may point out deficiencies in the claimants POC etc - so from a legal standpoint

    a witness statement , from a first party, is not a repeat of the defence points , its telling a story as to how the defendant perceives the case, it may be telling a story on what happened , or other issues that are not legal points as such, but have a bearing on the case

    for example , a driver might talk about how dark it was, how no signs were seen , how the pay and display terminal was faulty, how they could not contact anyone , what the bay marking were like (or not) , so stating about events on the day etc

    as different as chalk and cheese , and certainly not a rehash of the defence

    the defendant is a witness , even if not present , as they are presenting their take on the matter , any third party witnesses may also make statements , ideally supporting the defendants case, on what they witnessed etc

    its obvious that a keeper cannot make a WS as if they were the driver, but a keeper may have been WITH the driver on the day, or been told about it, or visited the site since and have their own view on "what happened on the day in question" (without blabbing)

    a WS may also mention stuff that is in the claimants WS (AND EVIDENCE) that wasnt in the POC

    my advice ?

    read the linked witness statements in the NEWBIES FAQ sticky thread , post #2

    then find and read between 10 and 20 ongoing court case threads that have a WS being discussed and honed and try to find one you can adapt

    this is a self help forum, we tell you what to do and why , you go find , research , draft , and post for further critique

    how you can think a defence and a WS are the same item is beyond me though

    good luck
    Last edited by Redx; 22-04-2018 at 10:11 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 23rd Apr 18, 12:13 AM
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    Coupon-mad
    The main differences, as Redx says, are this is in the first person and it accompanies & explains the relevance of your evidence.
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    • WBM
    • By WBM 23rd Apr 18, 12:23 AM
    • 35 Posts
    • 18 Thanks
    WBM
    I see.. okay thanks guys! I'll read more and try to create my witness statement and will post it here for critique.
    Last edited by WBM; 23-04-2018 at 12:57 PM. Reason: Error
    • nosferatu1001
    • By nosferatu1001 23rd Apr 18, 9:37 AM
    • 3,921 Posts
    • 4,716 Thanks
    nosferatu1001
    EDIT YOUR POST!
    Do not talk about the identity of the Driver, for crying out loud thats clear in every thread.
    • WBM
    • By WBM 29th Apr 18, 10:40 PM
    • 35 Posts
    • 18 Thanks
    WBM
    Hi Guys,

    Here is my first draft of my witness statement. If you can please critique it so I can improve upon it.

    Thank you!


    IN THE COUNTY COURT - Claim No.:

    Between

    WY Parking Enforcement Limited (Claimant)

    -and-

    *********** (Defendant)
    ____________________________
    WITNESS STATEMENT
    __________________________

    I, ************ of **************************************** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

    1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

    3. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from two years ago, it is impossible to expect a keeper to recall who might have been driving.

    4. The Claimant has not proved that Defendant was the driver at the time of the supposed event therefore the Defendant puts the Claimant to strict proof that any contract can exist between the Claimant and Defendant.

    5. At the time in 2016, the insurance had full comprehensive cover so any other person such as a family member could have driven the vehicle at the time, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

    6. There was no requirement upon me as keeper to respond to what appeared to be junk mail, in 2016. No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

    7. I have researched and discovered that WY Parking Enforcement Limited (WYPE Ltd) are issuing robo-claims for archive 'parking charges' in their thousands.

    8. This unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report WYPE Ltd to the Information Commissioner for misuse of my data, obtained from the DVLA in 2016.

    9. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for a period of time then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £413.30 including the legal insult of interest, for what was apparently an unproven £90 charge, allegedly incurred by another party, if incurred at all.

    10. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.

    11. The claimant has failed to properly respond to my request made on 08/06/17 by royal mail postal service, requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner!!!8217;s behalf. My request was not actioned appropriately (I received 4 questionable colour photos of the car park & the original PCN only, without further information).

    12. The Claimant is stating that they had a legitimate interest to set the charge. However, the time of the alleged contravention was 10pm on a Saturday as is shown from the pictures provided by the Claimant. There is no legitimate interest that is being protected as there are no businesses operating at the parking area at that time, so it is unclear what legitimate interest is being protected at that time.

    13. The Claimant is also double charging for the same alleged contravention, as in their Letter Before Claim they have listed the same PCN Number on the same date with two separate charge amounts of £150 each. The Claim Form then is claiming 8% on a £300 charge. This is clearly an attempt at dishonestly doubling their claim.

    14. The pictures that the Claimant has provided themselves shows that the parking sign is shrouded by the larger signs around it. Additionally, the sign itself is so small in size that it would be impossible to read it to be able to agree to its terms.

    I believe that the facts stated in this Witness Statement are true.



    Signed xxxxxxxxxxxxxxxx


    !!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!! !8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8 230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!823 0;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230; !!!65533;
    !!!65533;!!!8230;. (add name and sign)
    !!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!! !8230;!!!8230;!!!8230;
    (add Date)
    Last edited by WBM; 30-04-2018 at 8:54 PM. Reason: Error
    • KeithP
    • By KeithP 29th Apr 18, 11:10 PM
    • 10,600 Posts
    • 10,987 Thanks
    KeithP
    There are two paragraphs numbered 2. and 3.

    The second para 2. seems to be a bit of a muddle.

    Perhaps it should look like:
    2. The Claimant has not proved that Defendant was the driver at the time of the supposed event therefore the Defendant puts the Claimant to strict proof that any contract can exist between the Claimant and Defendant.
    You don't appear to have explained why no Keeper Liability exists.
    Last edited by KeithP; 29-04-2018 at 11:26 PM.
    .
    • WBM
    • By WBM 30th Apr 18, 8:55 PM
    • 35 Posts
    • 18 Thanks
    WBM
    Hey Keith, thank you for your comment I have amended the post. regarding the Keeper liability I am already stating this in my defence, would I need to say it again in my witness statement?
    • KeithP
    • By KeithP 30th Apr 18, 9:11 PM
    • 10,600 Posts
    • 10,987 Thanks
    KeithP
    Regarding the Keeper liability I am already stating this in my defence, would I need to say it again in my witness statement?
    Originally posted by WBM
    In your Defence you state:
    5.1 If seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, the Claimant must demonstrate that:
    5.1.1. there was a !!!8216;relevant obligation!!!8217; either by way of a breach of contract, trespass or other tort; and
    5.1.2. that this Claimant has established itself as the offeror and creditor; and
    5.1.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.
    Maybe your Witness Statement should explain how the Claimant has failed to meet those obligations.

    I have not re-read the rest of your thread, but for example if the NtK arrived with you too late to hold the keeper liable then perhaps you should say so and quote which para of POFA Sch4 they have missed. Another example, if the wording is non-compliant then perhaps that should be spelled out in your WS.

    But then again, it is for them to prove their case, not for you to disprove it.
    Maybe wait for others to comment.
    Last edited by KeithP; 30-04-2018 at 9:14 PM.
    .
    • WBM
    • By WBM 7th May 18, 7:09 PM
    • 35 Posts
    • 18 Thanks
    WBM
    Hi Guys,

    I have added to the witness statement. Can someone please help me review it as I will need to send it off soon. My court date is the 5th of June. Thanks in advance!


    IN THE COUNTY COURT - Claim No.:

    Between

    WY Parking Enforcement Limited (Claimant)

    -and-

    *********** (Defendant)
    ____________________________
    WITNESS STATEMENT
    __________________________

    I, ************ of **************************************** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

    1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

    3. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from two years ago, it is impossible to expect a keeper to recall who might have been driving.

    4. I have no liability, as I am the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 Schedule 4. (Exhibit A) in order to hold me responsible for the driver!!!8217;s alleged breach. Schedule 4 relies upon not just a Notice To Keeper being served but these pre-requisites which are absent from the evidence:
    a) A relevant contract (with the driver, i.e. there MUST be a contract capable of being read and agreed, from clear signs)
    b) A relevant obligation giving rise to a parking charge (i.e. there MUST be evidence that the driver had a clear obligation and didn't comply with it and so a charge arose)
    c) Adequate notice of the parking charge itself (the actual charge must be in large lettering on clear signs as shown in (Exhibit B)

    5. PoFA Schedule 4 (S4): 9.2(f) states !!!8220;the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid!!!8221;
    a) This makes it absolutely clear that if the claimant fails to meet any one of the
    conditions under S4 !!!8211; no matter how minor or trivial that failing is !!!8211; then the act cannot be relied upon to invoke keeper liability.
    b) I submit that the claimant!!!8217;s Notice to Keeper (NTK) does not comply with PoFA S4, 9.2 (d), (e) and (f).

    6. PoFA 2012 was enacted to provide private parking company!!!8217;s (PPC!!!8217;s) a legal process for them to follow which would allow them to transfer liability for parking contraventions on private land from the driver to the keeper, if the driver was not known, and the keeper did not provide the driver details when invited to do so by the PPC. (d) The claimant, through their own deliberate action chooses not to comply with PoFA. They cannot dispense with the statute then still ask the court to allow them to invoke keeper liability as if they had complied with it. If the court allowed this to happen then it would mean there was no need to enact PoFA in the first place.
    (e) I enclose PoFA 2012 S4, (Exhibit A) as evidence to support these points.

    7. I submit that there is no reasonable presumption in law that the keeper was the driver. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, 'There is no reasonable presumption in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort'(2015).!!!8221; I enclose this statement from the POPLA annual report 2015 as (Exhibit C).
    8. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton. The Judge was critical of the claimant!!!8217;s attempts to hold the keeper liable without being able to rely on PoFA. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated !!!8220;I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012!!!8221;. I enclose the transcript of the judgement in this case as (Exhibit D).

    9. At the time in 2016, the insurance had full comprehensive cover so any other person such as a family member could have driven the vehicle at the time, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

    10. I have researched and discovered that WY Parking Enforcement Limited (WYPE Ltd) are issuing robo-claims for archive 'parking charges' in their thousands.

    11. This unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report WYPE Ltd to the Information Commissioner for misuse of my data, obtained from the DVLA in 2016.

    12. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for a period of time then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £413.30 including the legal insult of interest, for what was apparently an unproven £90 charge, allegedly incurred by another party, if incurred at all.

    13. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.

    14. The claimant has failed to properly respond to my request made on 08/06/17 by royal mail postal service, requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner!!!8217;s behalf. My request was not actioned appropriately (I received 4 questionable colour photos of the car park & the original PCN only, without further information).


    15. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service has identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

    16. I also dispute that the Claimant has incurred £50 Legal representative!!!8217;s costs to pursue an alleged £90 debt, the costs of which are in any case not recoverable.

    17. The claimant described the charge of £50 as !!!8216;legal fees!!!8217; not !!!8216;contractual costs!!!8217;, CPR.14 does not permit these to be recoverable in the Small Claims Court.

    18. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £90 to over £300.

    19. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    20. WY Parking Enforcement Ltd is not the lawful occupier of the land. I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.

    21. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

    22. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

    23. I would like to point out that according to their parking sign this parking area does not offer a free parking period, so the ParkingEye v Beavis does not apply in this case.

    24. The Claimant is stating that they had a legitimate interest to set the charge. However, the time of the alleged contravention was 10pm on a Saturday as is shown from the pictures provided by the Claimant. There is no legitimate interest that is being protected as there are no businesses operating at the parking area at that time, so it is unclear what legitimate interest is being protected at that time.

    25. The Claimant has also duplicated the claim and is charging for the same alleged contravention. In the Claimant!!!8217;s Letter Before Claim they have listed the same PCN Number on the same date with two separate charge amounts of £150 each. The Claim Form then is claiming 8% on a £300 charge. This is clearly an attempt at dishonestly duplicating their claim.

    26. The pictures that the Claimant has provided themselves shows that the parking sign is shrouded by the larger signs around it. Additionally, the sign itself is so small in size that it would be impossible to read it to be able to agree to its terms.

    I believe that the facts stated in this Witness Statement are true.



    Signed xxxxxxxxxxxxxxxx
    • Coupon-mad
    • By Coupon-mad 7th May 18, 11:56 PM
    • 63,841 Posts
    • 76,499 Thanks
    Coupon-mad
    £413.30 and 'over £300' are very different sums, and your WS mentions both. Which is right?

    10. I have researched and discovered that WY Parking Enforcement Limited (WYPE Ltd) are issuing robo-claims for archive 'parking charges' in their thousands.
    Not sure they even issue that many PCNs per month, let alone that many claims per annum! A few dozen, claims, max, IMHO.

    Remove anything in your WS that is just restating your defence, surely a lot of what you say there is in your defence already? You can just write at the start: 'my defence is repeated' and then carry on. That should cut it down.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • WBM
    • By WBM 8th May 18, 7:03 AM
    • 35 Posts
    • 18 Thanks
    WBM
    Hey Coupon-mad

    The £300 is the pcn charge. The £413.30 is the total cost including interest, their legal fees and the court cost etc..

    Sorry when you say state 'My defence is repeated ' would that mean everything i say in my defence i also want to use in my witness statement. Although i tried to remove things that were in my defence other than the keepers liability but elaborated on it more. Do you think i should remove it?

    I'll tale your points on regarding the amount of PCNs they issue and remove it. Does everything else look fine?

    Thanks for your help.
    Last edited by WBM; 08-05-2018 at 7:53 AM.
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