Hearing next month, need help with my witness statement/ skeleton argument pls

[jackmarak]

Hello everyone! Hope you are well!

Below are the three fundamental arguments against the claimant. Starting with the contract never being breached because I never left the site. After several attempts to contact the claimant and explain myself, I was unsuccessful and therefore had to attempt to contact the landlord of the building. After making contact with the landlord of the building, I learned that the claimant had no authority to be enforcing parking rules on his land. During this conversation and later confirmed with an email / witness statement, permission was granted by the landlord for my parking on this land.

Contract wasn't breached

The IPC Code of Practice says on this argument:

2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.”

2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code

Pictures taken on site show where I was stood and where the vehicle was parked. Sign doesn’t explain what ‘leaving the premises’ means.
Standing around the corner to the side of the building, is what I believe fairly to be ‘on the premises’.
Even with this fact, there cannot be a contract to breach if the claimant doesn’t have permission to enforce parking restrictions on the land.

Permission was granted

After trying to contact the claimant via phone, email, LinkedIn, letter. I was unable to have a conversation with anyone at the company.
The phone number is automated, the LinkedIn account deleted the post I commented on.
I got a template reply for the letter i.e. “We have looked at your appeal and have rejected it” (Didn’t reply to my demands to not process my data further).I also explained in my letter that I would not be liable for any additional costs from beyond the date of the letter (10/01/2017).

At wits end, I contacted the leasing company of the building and requested the information of the landlord.
I was given the phone number of Mr B.W (The landlord), he explained to me that his own vehicles had been ticketed in the past.
He also explained that they do not have permission to be enforcing parking restrictions on his land.
He has emailed me a statement to grant me permission for parking on the site. He has also formatted this statement for the court and has signed this document.

No authority

Section B.1.1 of the IPC Code of Practice outlines to operators:

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the “Creditor” within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions

The landlord has stated that the claimant does not have permission to enforce restrictions on his land.

Can the claimant provide a contract/permission with the landlord to show they are able to enforce rules on this land?
Given the response from the landlord, this would seem impossible.
There was also no leaseholder at the time (meaning the contract/permission would have to come directly from the landlord) although the leaseholder contract would be invalid regardless.

Contacting the claimant and 3^rd parties

I have emailed the claimant three times (19/01/2017, 31/01/2017 & 10/02/2017) to explain they do not have permission to enforce parking rules on this land.
I demanded my personal information was processed no further. I left them a contact number and urged them to contact me.
The email address can be found on LinkedIn/ their website (enquiries@espel.uk).

I emailed ZZPS (first debt collectors that were involved) Twice (10/02/2017 & 15/02/2017).
I explained that the claimant did not have permission to enforce parking rules on this land.
I also demanded my personal information was processed no further. The first reply seemed automated.
They just explained that they believed their client followed the correct procedures.

After a phone call with ZZPS, I was advised that if the landlord contacted them, they could sort it out.
I was advised by the landlord that when he contacted ZZPS, they said he would have to get in touch with the claimant.
We do not have the contact details for the claimant.

After another phone call to ZZPS,
I explained what the landlord had told me and they advised that I could make a request for the claimants contact details.
So I did exactly this by sending another email.
They replied to my email and advised they would request the contact details from the claimant and would reply to me when they get a response.
I never got a response.

I forwarded the email chain to Wright Hassall. They replied and asked for my name and address.
At this point I just felt like we were going around in circles.

I am no longer contacted by Wright Hassall or ZZPS.
The court claim was generated by another company called Gladstone’s Solicitors.
It would seem the claimant is actively avoiding me and want to bully me into paying up.
I decided to ignore Gladstone’s until it got to the court stage.
Simply because I was just going around in circles.


EDIT: I Am now attending this hearing at the end of the month! (June 2018)
The claimant has a contract with an old tenant which isn't worth the paper it is written on per IPC Code.

[jaguarsuk]

If the landlord has provided that statement then I doubt you'll have a hearing, they would be fools to go to court to try to enforce a contract where they don't have permission to conduct business on that land.

Your Witness Statement should be a simple account of the facts, that you appealed, you tried to trying to contact them regarding the contract not being breached, that you contacting the landlord referencing his statement, the details of trying to contact them to advise them they had no authority to ticket, they ignored you and asking their claim be dismissed and costs awarded to you.

Do a schedule of costs to include the time you have spent on research, writing letters and filling in court documents, costs of any calls made or postage, cost of day off work if you are having it off unpaid.

They will likely discontinue.

[jackmarak]

Thank you very much for your reply.

Just to be clear:

1. Does the schedule of costs go in the witness statement? If so, how do I word it? Maybe something like "In the event the defendant wins this case, I would like to include the following costs..."

2. If it does go to a paper hearing (I am not present) Must I still provide a skeleton argument? When would I need to do this by?

I've poured quite a bit of time into this. The court nearly struck it out once already because the particulars of the claim failed to comply with CPR 16.4 and PD 16.

Hopefully I can win this.

Kind regards,
Jack.

[jaguarsuk]

However, does the landlord employ a management company to collect service charges and generally upkeep the property?

If they do then it it could be them whom has given permission and then the parking company would be acting lawfully. It’s unlikely they just go around throwing up their signs anywhere they feel like.

In that instance they would go to court to prove they had authority.

[jackmarak]

I'm not sure, I would have to ring and ask the landlord.
If this was the case, would the landlord not overrule any contract regardless?

[jackmarak]

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the “Creditor”

I don't know if I'm reading that right but would that not mean they would still need written permission from the landlord?

[jaguarsuk]

I'm not sure, I would have to ring and ask the landlord.
If this was the case, would the landlord not overrule any contract regardless?

He may, but he would be required to have contacted them at some point to tell them or instructed on taking up their services that they shouldn't impose parking restrictions enforced by a private company.

If he has not done that prior to you getting the tickets and the managing agent have employed them on his behalf to enforce parking restrictions they do have lawful authority to ticket you.

I don't know if I'm reading that right but would that not mean they would still need written permission from the landlord?

If he has employed a managing agent then effectively they are the landlord as they are working on his behalf, so can issue his authority.

[jackmarak]

Thank you for the reply.

I will have to get in touch with him about this one.
Would a leasing company be able to act as a managing company?

If the landlord isn't able to say that he didn't give them permission to enforce rules.
Does he still have the power to give me permission to park on his land?

Kind regards,
Jack.

[jaguarsuk]

Would a leasing company be able to act as a managing company?

If the landlord isn't able to say that he didn't give them permission to enforce rules.
Does he still have the power to give me permission to park on his land?

Yes anyone can be a managing agent, he could employ me or you.

Yes he can, but not retrospectively.

[jackmarak]

Hi,

Another update:

I have spoken with the landlord and he has explained they do not have a management company.
They do everything for themselves.

It would literally be impossible for them to produce a contract in court to show they were legally enforcing parking restrictions.

It's a ball ache I have to write this witness statement.
I feel like I should ring Gladstones and explain that they will not be able to prove their client are legally able to enforce parking restrictions.
But I feel it's gone too far and that their word for cancelling the claim would not be enough and I might end up in court without a witness statement.....

Should I just write my witness statement and send it off?
Surely when I serve the papers on them and the court, they cannot possibly move forward with it.

Kind regards,
Jack.

[jaguarsuk]

Hi,

Another update:

I have spoken with the landlord and he has explained they do not have a management company.
They do everything for themselves.

It would literally be impossible for them to produce a contract in court to show they were legally enforcing parking restrictions.

It's a ball ache I have to write this witness statement.
I feel like I should ring Gladstones and explain that they will not be able to prove their client are legally able to enforce parking restrictions.
But I feel it's gone too far and that their word for cancelling the claim would not be enough and I might end up in court without a witness statement.....

Should I just write my witness statement and send it off?
Surely when I serve the papers on them and the court, they cannot possibly move forward with it.

Kind regards,
Jack.

Hi Jack

Yes compile a Witness Statement and your evidence, serve this to the court and the Claimant.

My advice would be to send a covering letter with serving them along the lines of:

Dear Sirs

Re: Them -v- You - <<CLAIM NO>>

I write regarding the above matter in the <<NAME>> County Court..

Enclosed is a copy of my Witness Statement and accompanying evidence by way of service upon you and I confirm that the same has been filed with the court.

I would like to draw your attention to the Witness Statement of landlord of the car park in which this ticket was wrongly issued whom has never entered into a contract to allow your client to operate on his property. As such your client does not have the lawful right to issue parking charge notices there.

I advise that it is my intention to enter a schedule of costs (copy enclosed) for a Litigant in Person calculated as per CPR 46.5 (4)(b) and the relevant Practice Direction to the court in due course and should the judge find in my favour at the hearing ask they award those costs to me.

I confirm that should you file a Notice of discontinuance with the court it is not my intention to pursue your client for my costs of and occasioned in dealing with this matter.

Yours sincerely



<<YOUR NAME>>
Enc.

Now you don't have to say the last paragraph if you don't want, but if they discontinued you would be poorly advised to risk filing an application for costs at £255 and risk losing then them getting a hefty costs judgement against you.

The chances are that if you after winning the hearing you'll get a no or a fraction of what you actual costs are, but you still ask if you win at the hearing. Don't ask, don't get!

The purpose is that you're saying I think I have got you beat, but here's a cheap way out of it for you.

Send them a schedule of costs with the Witness Statement. Basically it's like an invoice where you itemise the number of hours it's taken you to do research, collect witness statements from others, write letters, fill in court forms and write documents like the defence/witness statement. Then you calculate at £19 per hour the cost of all those hours work. Then add cost of postage at whatever it's cost you and if you have to take unpaid time off work to attend the hearing the number of hours you'd have worked that day at your hourly rate or £19 per hour (which ever is the lesser).

If they don't discontinue you'll need to send that schedule to the court 2 working days before the hearing.

[jackmarak]

Hi,

That's a massive help, thank you!

I think the cover letter is a great addition. I just want them off my back now really.

Really get's the 'Are you sure you want to do this' message across subtly.

My schedule for costs will be letters and research really, that's it.


Thanks again.

Kind regards,
Jack.

[jackmarak]

Hi again,

I have received the oppositions witness statement.

Included is a sort of contract that says they are able to enforce parking rules.
However, it isn't from the landlord and is a company owner at that site (Looks like a previous Tenant).

1. The date of the contract is a year and a half before the incident.
2. The building was vacant at the time the incident took place.

The contract says "This agreement is for an initial period of one year and thereafter is subject to termination in accordance with the terms and conditions overleaf" ( I can't see the T&Cs overleaf).

Baring in mind, the landlord has written a statement to say the following (For me):

I am allowed to park there.
There were no tenants there at that time.

I have also challenged in my statement that the claimant produces a statement/contract from the landlord to say they can enforce parking rules there on the date the incident took place.

Would the court take that into consideration?
Can a contract live on (without permission of the landlord) when the tenant does not reside there anymore?

Any help would be great.
Kind regards,
Jack.

[jaguarsuk]

The tenant unless their lease stated otherwise never had the right to contract with the parking company for parking enforcement.

Only the landlord can do that unless he conveys via a tenancy agreement to a tenant or other contract with a managing agent his responsibility.

Assuming the lease with the tenant did not convey his responsibility the contract they have sent you isn't worth the paper it has been written on.

What is more, if you are successful any ticket they have ever issued there was done wrongly and anyone in receipt of a parking fine from them there could make a claim against them in the small claims court.

I would ask the landlord if he'll give you a copy of the tenancy agreement of the previous tenant to prove that they could not legally contract with the parking company on his behalf.

If he does, copy it then file it with a supplementary witness statement to the court and serve the claimant.

[jackmarak]

Ah man, I already served my witness statement.

It's looking like this will go to court now and it might not get sorted on the day.
Just annoying they can't just ring the landlord and ask him the question but hey ho.

Feel like I've pestered this landlord enough, would feel a bit cheeky asking for a copy of this tenancy agreement.
With the information supplied, would the court not ask for this tenancy agreement themselves?

Surely the dates of the contact vs the dates mentioned by the landlord, the date of the incident would raise questions as to if it was valid anyway?
Plus they haven't mentioned any CCTV and the pictures they have provided doesn't cover the area where I was stood either.

Kind regards,
Jack.