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Emailing Witness Statenend and Evidence to Court & Claimant
Oli_8
post Wed, 31 Jul 2019 - 10:49
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Hi,

I live in flats in Centenuary Quay in Southampton. I rent privately through A2Dominion and the land is owned by Alexander Faulkner/Crest Nicholson. A while back the management company hired One Parking Solutions to manage the parking bays underneath the flats. We have designated bays and now we have permits. One day my permit slid to the side of my dash on my car and you couldn't see 100% of it. I was issued a £60 fine.

I thought a fine in my own spot was ridiculius so I went through POPLA. They rejected my appeal. In hindsight I wasn't very thorough and assumed this case was trivial. I then went to my management company who told me they could cancel the fine. As POPLA has already denied my appeal they told me they could not cancle the fine in this case. However, I wasn't notified of this.

I then recieved a letter from Gladstones Solicitors asking for £160 for the fine. They also said I could dispute the fine, so I sent a long reply with the followinf arguments:

1) No evidence of Landowner Authority
2) The Charge is not a genuine pre-estimate of loss
3) Keeper Liability Requirements and the Protection of Freedom Act
4) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
5) No Contract was entered into between One Parking Solution Ltd and the Driver or Registered keeper
6) A permit was displayed.

I'll attach it.

My tenancy agreement has a parking section that states:

"Not to park any vehicle other than a currently taxed and adequately insured
private motor vehicle or motorcycle on the Landlord’s property and such
parking must be within designated parking areas. If you have an allocated
parking space you are not permitted to park any where other than your
allocated parking space
Vehicles are parked entirely at the owner’s risk and the Landlord does not
accept liability for any damage caused to the vehicle, or by the vehicle to
property or persons.
Not to park any vehicles in excess of a UK Maximum Gross Weight of 3.5
tonnes on Landlord land.
Not to park or store caravans, trailers, boats or mobile homes on Landlord
land; not to park such vehicles where it is likely they will cause a nuisance or
annoyance.
You agree that the Landlord shall be entitled to remove from the Landlord’s
property and/or dispose of any vehicle belonging to the tenant which in the
Landlord’s opinion is unroadworthy and/or unsafe and/or is not displaying a
current and valid tax disc or any vehicle parked in breach of this Tenancy
Agreement and the Landlord shall be entitled to recover the costs of such
removal from you."

There is no mention of any permits in my tenancy agreement.

They have replied to my arguments and are still threatening court. I will attach that too.

I used one of those legal help sites (justanswer) where I've paid a fiver for a solicitor. They told me it would be small claims court so on top of the £160 I'd only be liable for fees of around £100 which makes me want to argue it in court if need be. However she says she can't see my argument. My argument is that I pay rent and park in my space and shouldn't have to be worried about £60 fines everytime the wind blows my permit to the side of my dashboard.

I really don't want to give in to these bullies and wonder what more I can do? I've seen the advice: "Write to the building management company, advising them that they are "jointly and severally liable" for the actions of their agents, the private ticketing company, and that any further actions by them would be regarded as harassment under the terms of The Protection from Harassment Act 1997." But I don't own my flat so don't really want to be too confrontational with the management company.

Any and all help is appreciated!

This post has been edited by Oli_8: Wed, 31 Jul 2019 - 10:50
Attached File(s)
Attached File  03960447.DOC ( 95.5K ) Number of downloads: 153
Attached File  My_argument.doc ( 21.15K ) Number of downloads: 122
 
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post Wed, 31 Jul 2019 - 10:49
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nosferatu1001
post Thu, 20 Feb 2020 - 10:10
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Your WS doesnot *argue*. It provides facts
"My lease states at... that I have an unfettered right to park one vehicle...." is a fact
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ManxRed
post Thu, 20 Feb 2020 - 10:39
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QUOTE (nosferatu1001 @ Thu, 20 Feb 2020 - 10:10) *
Your WS doesnot *argue*. It provides facts
"My lease states at... that I have an unfettered right to park one vehicle...." is a fact


Supported by document INITIALS/00X = a copy of the relevant portion of your lease as evidence.


--------------------
Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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Oli_8
post Thu, 20 Feb 2020 - 18:43
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Any glaring errors in my last post? I feel like I have mentioned evidence and why it matters.
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nosferatu1001
post Fri, 21 Feb 2020 - 07:44
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Yes - I said that your WS must not make arguments
It does
So, it cant do.
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Oli_8
post Fri, 21 Feb 2020 - 10:28
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Okay. I have introduced evidence along with why it is important. Ive stated facts. Ive tried to avoid any arguments. 4 and 9 may still have tones of argument, but it is a fact that third parties dont have any rights to trespass upon my space as its my land by way of my lease and it is fact that they breach POFA sched 4 and I stated why, so I think those two are ok.

Exhibits

OR01 – Defendants Tenancy Agreement.
OR02 – Confirmation email of allocated parking space.
OR03 – Conversation with fellow residents about erroneous parking charges.
OR04 – Email to Crest Nicholson developers and Councillor Warwick Payne about One Parking Solution’s practices.
OR05 – Jopson v Homeguard B9GF0A9E [2016]
OR06 – Pace v Mr N [2016] C6GF14F0 [2016]
OR07 – K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011
OR08 – Link Parking v Ms P C7GF50J7 [2016]
OR09 – Protection of Freedoms Act 2012 - SCHEDULE 4

Witness statement

I am XXX, defendant in this matter and deny liability for the entirety of the claim.
1. I am an unrepresented consumer who has never attended the county court before.

2. The claim relates to an alleged debt for a parking charge given on XXX for not displaying a valid permit.

3. My car was parked in my allocated bay (130) in our secure underground carpark at my residence at Centenary Quay, Woolston. The car park requires a private fob to access the parking gates, which only residents have. I was confused when I first found the notice on my windscreen claiming that I owed £60 for not displaying a permit as I was parked in my correct space, which my lease grants me rights to. I rely on my tenancy agreement (OR01 /1) which states “There is use of an allocated parking bay”. On page 10 (OR01/10) my tenancy agreements states the terms of parking:
“Not to park any vehicle other than a currently taxed and adequately insured private motor vehicle or motorcycle on the Landlord’s property and such parking must be within designated parking areas. If you have an allocated parking space you are not permitted to park any where other than your allocated parking space.
Vehicles are parked entirely at the owner’s risk and the Landlord does not accept liability for any damage caused to the vehicle, or by the vehicle to property or persons.
Not to park any vehicles in excess of a UK Maximum Gross Weight of 3.5 tonnes on Landlord land.
Not to park or store caravans, trailers, boats or mobile homes on Landlord land; not to park such vehicles where it is likely they will cause a nuisance or
annoyance.
You agree that the Landlord shall be entitled to remove from the Landlord’s property and/or dispose of any vehicle belonging to the tenant which in the Landlord’s opinion is unroadworthy and/or unsafe and/or is not displaying a current and valid tax disc or any vehicle parked in breach of this Tenancy Agreement and the Landlord shall be entitled to recover the costs of such removal from you".

4. The specific space in question has been further confirmed in an email (Exhibit OR002) which states that 130 is my allocated space. It is also stated on page 5 the Tenancy Agreement (OR01/5) that the Landlord shall permit the Tenant to have quiet enjoyment of Property without interruption by himself or his Agent. There is no reason for my landlord or any third party to trespass upon my parking space.

5. I contacted One Parking Solution to appeal the ticket assuming there was a mistake. They demanded payment or appeal through POPLA. I appealed and was rejected.

6. Between XXX and XXX I spoke to fellow residents in our residents' Facebook group (Exhibit OR03), many of who have had similar issues. I was informed that If I speak to the site manager for Centenary Quay that they can cancel the charges for situations like mine. I spoke to the manager who informed me that charges are not meant for residents in their own spots and when this happens he can cancel the charge and that he would take care of it for me.

7. Then roughly a year later, in June of 2019, I received a letter from Gladstones Solicitors claiming I owed £160 to One Parking Solution for an outstanding parking charge and additional costs. I went to the site manager who said that because I submitted my details to POPLA, One Parking Solution refused to cancel the charge. On XXX I emailed an appeal to Gladstones Solicitors which was again rejected. I also emailed the site developer Crest Nicholson along with Councillor Warwick Payne from Southampton city council who informed me I was not the first person that week to contact him about One Parking Solution’s practices (Exhibit OR04).

8. I rely on multiple cases similar to mine. In Jopson v Homeguard B9GF0A9E [2016], Pace v Mr N [2016] C6GF14F0 [2016], K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011 and Link Parking v Ms P C7GF50J7 [2016] (Exhibits OR05, OR06, OR07, OR08) it was found that the parking company could not override the tenant's right to park by requiring a permit to park. If this gives the resident the unfettered right to park then this cannot be altered later, for instance by requiring a permit to park.

9. It is admitted that I was the authorised registered keeper of the vehicle in question at the time of the alleged incident. But I was not the driver of the vehicle so have no knowledge of the events or signage terms on the date in question and the Claimant did not identify the driver. The Claimant must thus rely upon the Protection of Freedoms Act 2012 ("POFA") Schedule 4 (OR09) to pursue any parking charge. POFA states in 1 (1) This Schedule applies where—
(a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land
POFA states in 2 (1) “relevant obligation” means—
(a)an obligation arising under the terms of a relevant contract; or
(b)an obligation arising, in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking the vehicle on the relevant land;
The claimant is in breach of POFA Schedule 4 as there is no relevant obligation. The driver did not enter into any agreement. No consideration flowed between the two parties and no contract was established. The driver was authorised to park in my bay by my lease, and as such did not need to enter a contract with a third party. Furthermore, POFA 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance.
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Oli_8
post Mon, 24 Feb 2020 - 16:12
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I would like to email my Witness Statement and evidence to the court and the claimaint in my case. I will also bring physical copies on the day of court, signed where appropriate. I put the doc and pdf files in a zip folder to email to the county court in question and the claimant.

However, I noticed in the court rules it says:

Civil Procedure Rules Practice Direction 5B and Family Practice Direction 6A – (Electronic Communication & Filing of Documents) and www.justice.gov.uk/guidance/courts-and-tribunals/courts/emailing/court-email-guidance.htm

In particular please ensure compliance with the following:

The total size of the email must not exceed 10Mb
Statement of witnesses must not exceed 10 pages or the 10Mb limited.
Trial Bundles must not be filed by email
Attachments must not be split between more than one email
The total size of the email including attachments and copies for service (where appropriate) must not exceed 25 sheets of A4 paper when printed double sided.
Items relating to Insolvency cannot be filed by email


All of the above is okay, except the the 25 sheet paper limit. I have a few examples of case law that alone exceed 25 pages that is included as evidence. Have others emailed their WS and evidence to the court and how did you avoid the limit in question?

Thanks
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nosferatu1001
post Mon, 24 Feb 2020 - 16:16
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No. PEople take it into the court printed out, in a nice folder.
You also cant email the claimant unless you have their express permission.
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Oli_8
post Mon, 24 Feb 2020 - 17:20
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QUOTE (nosferatu1001 @ Mon, 24 Feb 2020 - 16:16) *
No. PEople take it into the court printed out, in a nice folder.
You also cant email the claimant unless you have their express permission.


I need the court and claimant to have copies of my witness statement and evidence before the day of court though? So 3 copies of everything, 1 for me, 1 for the court, 1 for the claimant. I know to bring in my copies on the day, are you saying post the other 2 copies to the court/claimant instead of email?

When I say claimant I mean their solicitors, and theyve sent me multiple emails from before the small claim up to sending me the N180 questionaire.

This post has been edited by Oli_8: Mon, 24 Feb 2020 - 17:22
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nosferatu1001
post Mon, 24 Feb 2020 - 17:28
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Yes I am aware the court needs to have it before. You HAND DELIVER it to thecourt BY the deadline. Your court should be nearby, so this should not be a problem. Noone ever emails it to the court.

If they served the N180 on you via email, then you can take that as tacit permissipo nto serve documents back on them *unless* they expressly disallowed it. Only you know this.
Is there a real thread this orphan question should belong to? One case, one thread.
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Oli_8
post Mon, 24 Feb 2020 - 18:11
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So emailing my claimant with the evidence and WS is okay then? And then just hand in physical copies to the court and keep one copy for me. Is that right?

This could be merged into:

http://forums.pepipoo.com/index.php?showto...p;#entry1551965



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nosferatu1001
post Tue, 25 Feb 2020 - 07:32
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1) Hand deliver to court
2) Email to claimant, keep proof of this, IF and ONLY IF they have
a) served you documents via email
b) NOT expressly disallowed you to serve them by email;
c) note this is STILL not *structly* in adherence to the CPRs, which requiers explicit permission, but it would be tricky for them to complain given they emailed you!
3) Yes of course yo uneed your own copy.
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Oli_8
post Wed, 26 Feb 2020 - 15:47
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Thanks, I have submitted it in the dropbox at the courts as instructed by their front desk. And emailed to the claimant. The claimant has sent me their WS which also looks like a skeleton argument. Can I post it here to see which way is best to argue it on the day?
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nosferatu1001
post Wed, 26 Feb 2020 - 16:32
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Yes, but I also bet it is a template, full of mistakes, and you should be loking here AND on the MSE forum to see what else has been said. Saves us doing the same thing over and over.
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Oli_8
post Thu, 27 Feb 2020 - 10:44
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I will search on here and elsewhere online for rebuttals, I've attached their argument (I had to copy a pdf to a word doc so the format isnt the prettiest).

It looks like the crux of the argument comes down to their point:

The Defendant’s right to park
24. Without concession, the Defendant has not provided any evidence to support their alleged right
to park. My Company has been instructed to manage the Relevant Land and without concession
the Defendant has failed to prove otherwise.

However, I have provided evidence in my defense and witness statement that includes my lease that says I have use of an allocated bay and an email confirming the bay number.

The rest of their argument isn't relevant or falls apart as I have unfettered rights to park in my spot, right?
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nosferatu1001
post Thu, 27 Feb 2020 - 13:06
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Yes but they didnt see your WS until now, and the defence isnt evidence, so it isnt totally unfair to say that. Unless you provided t before of course


You will still need to show how it isnt relevant. You need ot make it clear they may have been instructed but
- they didnt check the principal could actually instruct them
- they knew there would be leases, and didnt do ANY diligence to check their instruction was lawful

For exampel at minimum - they shoudl have obtained copies of the leases for themselves before taking the instruction.

This post has been edited by nosferatu1001: Thu, 27 Feb 2020 - 13:07
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Oli_8
post Thu, 27 Feb 2020 - 13:42
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Its even worse than not checking, my site manager instructed them to cancel the charge and they refused and pursued me anyway!
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nosferatu1001
post Thu, 27 Feb 2020 - 13:45
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Which is another on you can prove? That the principal instructed them to cancel?

If they witter on about Parking Eye v Beavis then ask how the principal instructing htem to cancel doesnt immediatley remove any concept of a commercial justificaiton, meaning this is undoubtedly a penalty? Not that there was a justificaiton anyway....
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Oli_8
post Thu, 27 Feb 2020 - 14:00
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It is mentioned in my witness statement but to prove it I would need to get a written statement from my site manager. Even assuming he is willing to do so, which I doubt as it's his bosses who have a contract with the parking company, is it too late to submit? Today was the deadline for my witness statement and evidence.
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nosferatu1001
post Fri, 28 Feb 2020 - 13:13
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Yes, of course you want to prove it. ANYTHING yo uput in your WS you should be loking to prove it if it is in your gift.

Thats the point of a WS, really.

Look, its up to you. Get the proof, or dont. Send the proof in, or dont. But you can wor-k out that one method is more persuasive in court than jhust saying "I was told it would be cancelled".
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