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PCn ... Appeal IAS... Court Letter
10020132
post Thu, 11 Oct 2018 - 01:01
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Hi
I got a Parking charge notice (PCN) on 3rd March 2018 from PCM Management Ltd and I appealed it. I received their response after 28 days in which the rejected my appeal and gave me the option to go to IAS. I appealed to IAS with all the points like no contract was formed, poor signage etc. and told them that I received the response after 28 days which even invalidates my appeal anyway. And they wrote to me saying that they have spoken to PCM and are agreeing to consider my appeal even though its out of time appeal. This was in May 2018

Since then, I never heard anything back from either of them. Now, I received court papers from Gladstone solicitors saying that I need to pay them 261 pounds because I failed to pay earlier.

I tried logging in to my IAS account which I couldn't login saying my password is incorrect even though the password was saved in google chrome. After resetting the password million times, I managed to login and my appeal does not even show up in my appeals. I wrote to IAS about it but they are not replying either

What should I do? PLease help !!!
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10020132
post Fri, 16 Nov 2018 - 12:03
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Thanks alot for your quick responses
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10020132
post Sun, 11 Aug 2019 - 23:54
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Hi
I am here again. So the progress is that we have a court hearing now in September. I was going to represent my wife. But due to some reason we both can't make it to the hearing now as we have to travel abroad. So,my question is that which of these is best option for us.


A) I write a letter to court explaining the witness statement along with proofs and send a copy to other party's solicitor as well

B) Try and renegotiate with other party

I am not even sure if option A even exists or not. Can someone please guide me

Thanks in advance
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ostell
post Mon, 12 Aug 2019 - 07:42
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Yes you can ask for a paper only hearing. Not good for the defendant as it gives the claimant free reign to say what they want. The judge will use the witness statement and defence to decide. Has the witness statement and evidence been submitted yet? Is the defendant not available on her own for court? It's not the large room yo see on TV, more like a small office in the court building.
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nosferatu1001
post Mon, 12 Aug 2019 - 12:18
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Indeed, are you BOTH travelling? Was this date for travel not on your DQ? If it is a work trip for exmaple you can ASK if the court will accommodate, but you will need to be prepared to explain why you hadt for example booked the time off already.
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10020132
post Mon, 12 Aug 2019 - 14:44
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QUOTE (ostell @ Mon, 12 Aug 2019 - 07:42) *
Yes you can ask for a paper only hearing. Not good for the defendant as it gives the claimant free reign to say what they want. The judge will use the witness statement and defence to decide. Has the witness statement and evidence been submitted yet? Is the defendant not available on her own for court? It's not the large room yo see on TV, more like a small office in the court building.

I see. Witness statement was submitted earlier but they said anything can be submitted upto 2 weeks before the hearing as well. So i was thinking to submit a new one, elaborating more on the previous one along with evidence

QUOTE (nosferatu1001 @ Mon, 12 Aug 2019 - 12:18) *
Indeed, are you BOTH travelling? Was this date for travel not on your DQ? If it is a work trip for exmaple you can ASK if the court will accommodate, but you will need to be prepared to explain why you hadt for example booked the time off already.

It's just me who is travelling but she can't speak proper English and she doesn't know much about how to deal with these things. She is just a house wife. It was not planned before because my immigration status was stuck for a year and half. But I just got it sorted now and free to move. Thats why.

So what would be the best course of action for me?
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nosferatu1001
post Tue, 13 Aug 2019 - 06:58
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Wait, so when you submitted your original WS you didnt exhibit any evidence? Normally this is done at the same time, unless the court ordered something different.

Well thebest course of action is to be there - also dont say "just a housewife" on here, else SRM will have your balls. I mean it.

You can ask for a hearing on papers, you do that about 10 days before. Expect your chances of winning to go down, as theyre free to basically do what they like at that point, and you wont be able to counter anything. You MUST I would suggets create a skeleton arugment, which destroys their claim using their own witnessstatement against them - which I also presume you have.

This post has been edited by nosferatu1001: Tue, 13 Aug 2019 - 06:58
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10020132
post Tue, 13 Aug 2019 - 20:19
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QUOTE (nosferatu1001 @ Tue, 13 Aug 2019 - 06:58) *
Wait, so when you submitted your original WS you didnt exhibit any evidence? Normally this is done at the same time, unless the court ordered something different.

Well thebest course of action is to be there - also dont say "just a housewife" on here, else SRM will have your balls. I mean it.

You can ask for a hearing on papers, you do that about 10 days before. Expect your chances of winning to go down, as theyre free to basically do what they like at that point, and you wont be able to counter anything. You MUST I would suggets create a skeleton arugment, which destroys their claim using their own witnessstatement against them - which I also presume you have.

I submitted my original witness statement as mentioned above but didn't submit any evidence as I didn't know that I had to as this is the first time I have experiencing this situation. I cannot be there due to travel but yes I can request for paper hearing. Interestingly, I have not received anything from the other solicitors or anything. I even wrote a letter to them asking for it but no replied. It was a signed for delivery and I have proof of it.
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nosferatu1001
post Wed, 14 Aug 2019 - 10:45
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So you did no research on any other thread....which tells you explicitly to submit evidence at the same time.
You are of course a novice, same aas erveryone here, but reading other threads is imperative.

What was the deadline for you to recieve docs? DId you call the court to see i THEY have a copy of the other sides WS? IF not, why not? You need to chase up...
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10020132
post Wed, 14 Aug 2019 - 14:06
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QUOTE (nosferatu1001 @ Wed, 14 Aug 2019 - 10:45) *
So you did no research on any other thread....which tells you explicitly to submit evidence at the same time.
You are of course a novice, same aas erveryone here, but reading other threads is imperative.

What was the deadline for you to recieve docs? DId you call the court to see i THEY have a copy of the other sides WS? IF not, why not? You need to chase up...


Thanks for understanding my situation. I am indeed a novice. I did read other threads here and MSE as well but didn't realise that I needed to send the evidence. Even when I wrote my WS few posts above no one told me to back it up with evidence. The deadline set by court to receive each others documents is 21 August (2 weeks before the hearing)
I was hoping that they might send it last minute. But even when I asked this question that I have not received any thing from other party, someone replied that this is in your favour now so I thought to keep mum as he never advised me to chase up.

I really appreciate your help and would be grateful if you can guide me what is best going forward. I will contact the court tomorrow to check with them
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nosferatu1001
post Wed, 14 Aug 2019 - 15:09
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It is explicit on *every* thread that the WS references your evidence, and both are sent at the same time. ITs stricky to miss.

SO you wouldnt have anything yet. ANd you still have time to send in WS WITH REF t othe evidence.

Theyre going to send it last minute. You chase the *court* because while you dont have to warn the claimant, you can let the court know theyre being rubbish and that works in your favour.
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ManxRed
post Wed, 14 Aug 2019 - 15:14
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Are you getting confused between the Defence and the Witness Statement? I can't see an example WS above.

The Defence is what you sent in within 33 days of the issue date of the claim and is a brief set of points outlining the legal argument as to why you don't owe them any money.

The WS is sent in usually around two weeks prior to the hearing date, and contains an outline of what happened; e.g. the vehicle was parked up at this location on this date, there were no signs, or the signs were not illuminated, or whatever (Exhibits A1 - A10 photos), I received this letter in the post on this date (exhibit B), I responded with this letter on this date (Exhibit C), and so on.

The exhibits being the evidence (copies of photos, letters, lease documents, whatever).


--------------------
Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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10020132
post Wed, 14 Aug 2019 - 18:42
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QUOTE (nosferatu1001 @ Wed, 14 Aug 2019 - 15:09) *
It is explicit on *every* thread that the WS references your evidence, and both are sent at the same time. ITs stricky to miss.

SO you wouldnt have anything yet. ANd you still have time to send in WS WITH REF t othe evidence.

Theyre going to send it last minute. You chase the *court* because while you dont have to warn the claimant, you can let the court know theyre being rubbish and that works in your favour.

Then it's my bad. I didn't see it then. I know I am not that smart in these things. I will call the court tomorrow and see what they say and will update you

QUOTE (ManxRed @ Wed, 14 Aug 2019 - 15:14) *
Are you getting confused between the Defence and the Witness Statement? I can't see an example WS above.

The Defence is what you sent in within 33 days of the issue date of the claim and is a brief set of points outlining the legal argument as to why you don't owe them any money.

The WS is sent in usually around two weeks prior to the hearing date, and contains an outline of what happened; e.g. the vehicle was parked up at this location on this date, there were no signs, or the signs were not illuminated, or whatever (Exhibits A1 - A10 photos), I received this letter in the post on this date (exhibit B), I responded with this letter on this date (Exhibit C), and so on.

The exhibits being the evidence (copies of photos, letters, lease documents, whatever).

Spot on. Yes I confused WS with defence. I must be preparing to write this now and upload it ASAP so that I can seek your guidance on it as well. Once, I would have spoken to court then it will be easier to frame everything up. Thanks a lot for the help so far. And I hope you will guide me through this process. Will definitely update
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nosferatu1001
post Thu, 15 Aug 2019 - 07:57
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No point speaking to court if the edeadline to exchange WS has not yet passed

The only reason to talk to the court is IF the date had passed, and you did NOT have the claimants bundle (WS plus evidence), you check that the court *also* hasnt received it - because then you know the claimant hasnt sent it out and is in breach of their order.

So, no, dont call the court. WRite the WS and exhibit your evidence. A WS is easy - it is the *story* of what happened.
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10020132
post Thu, 15 Aug 2019 - 15:16
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QUOTE (nosferatu1001 @ Thu, 15 Aug 2019 - 07:57) *
No point speaking to court if the edeadline to exchange WS has not yet passed

The only reason to talk to the court is IF the date had passed, and you did NOT have the claimants bundle (WS plus evidence), you check that the court *also* hasnt received it - because then you know the claimant hasnt sent it out and is in breach of their order.

So, no, dont call the court. WRite the WS and exhibit your evidence. A WS is easy - it is the *story* of what happened.

Perfect. I tried calling the court today but couldn't get hold of any one. I know the deadline has not passed as the hearing is on 6th September so 23 August would be deadline
I will type the WS tonight and post it over here and will really appreciate your suggestions on it
Thanks in advance. Really appreciate it
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nosferatu1001
post Thu, 15 Aug 2019 - 16:06
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Im really busy tomorrow, so try to get as many eyes as possible. Whole weekend I will be away
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10020132
post Fri, 16 Aug 2019 - 04:15
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This car is a hire car and the contract is in (Mrs. XYZ) name. XYZ can't be the driver as she does only have a provisional license and does not even know how to drive.

On 1st March 2018, the defendant was tge occupant in the car to pick up something from a relative who lives in these flats where this parking is situated. It was a snowing heavily. XYZ was with a 2 year old son and couple of months old daughter. She went to the lift to 5th floor to pick the item up. In the meantime, the driver verbally asked the concerage guy (who attends parking as well) if I can wait here in my car and he said its fine and hence the driver was waiting in the car. She picked the item up from the relative and when she was coming back, the lift got broken and she called the driver that the lift is broken and she was stuck in it on the 5th floor. So, the driver went to the conceirage and told him the situation and he said dont worry he will sort it out. In the meantime, fire alarm of something building started and the concierge guy went to attend that as first priority. And he asked the driver to go the lift on 5th floor by stairs and calm XYZ down and I will be there in sometime. The driver went to the 5th floor and was checking onto XYZ as she was with a2 year old son and 2 months old girl as well.
With the fire alarm, the manager who resides in the adjacent building, came down to see if everything is okay and he saw the car and took the photographs and everything and left a note on the car that I will get a pcn very soon for parking in a place where its not allowed. When the lift opened while being on 5th floor and we took the stairs with the children to come down to find this out. I spoke to the attendant and he said that I will convey to the manager to not forward. I even called the manager next day in morning but he told me that he has already forwarded it to the company.
And then I received the invoice from the hire company for fine redirection and later on the PCN. The PCN is invalid as it doesn't meet the requirements set out in my defence. I appealed the PCN and I received the response after 30 days, which I think in itself is another violation as it should be decided within 28 days. . It gave me the right to appeal to IAS and when I tried appealing to IAS, they said that I cant appeal as its out of 21 days. When I told them that I just received it now, then they emailed me later to say that PCM is happy to entertain my appeal admitting that they decided it late and I submitted my appeal to which they never responded so I just assumed that my appeal is pending. They were bound to decide on the appeal within 28 days as well but they didn't which takes away my right of independent appeal

The basis on which I appealed was

1) Poor signage - as there is no signage at the entrance and even the signs which are inside in parking are too small to read and have no lighting at all. I even attached the picture which I am attaching here as well and this is one of the pictures from evidence of PCN keeping in mind that the weather on this particular night was terrible and it was snowing heavily.
2) 2) Extenuating Circumstances as explained above and child being stuck in the lift and was allowed to stop in the area by the attendant
3) 3) No signs or road markings to indicate that parking not allowed


QUOTE (nosferatu1001 @ Thu, 15 Aug 2019 - 16:06) *
Im really busy tomorrow, so try to get as many eyes as possible. Whole weekend I will be away

I really appreciate your advice and effort. I have written something. I will try to edit and improve it further over the weekend but if you can guide me if I am in the right direction?

Also if you can please confirm if I need to include points from my defence into witness statement or not?

Also, how can I phrase to the court about not being able to attend while maintaining the respect of the court?
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nosferatu1001
post Fri, 16 Aug 2019 - 07:58
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You need to - MUST - use paragraph numbers.

What other witness statements have you found to copy the LAYOUT from? They also give you an idea of the best way to concisely write your story.
For example beuign a provisional licence holder by definition means they COULD HAVE been the driver, so it doesnt help you at all

If you are not attending you have to let them know ahead of the time - not jsut in your WS. This MUST be a separate notice. You can do it 8 days before, telling the claimant as well. You say at the last minute as it helps you to not give the claimant too much notice - otherwise they may send in a "revised" witness statement that tells yet more lies.

You do NOT repeat the defence. Defnce = arguments, WS = the facts. What you CAN do is use your defence to inform what you include in your WS - so you include in your WS the facts that support your defence. If you state youre not liable becaseu X happened then you better talk about X - and include evidence of X - in your WS!
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10020132
post Fri, 16 Aug 2019 - 20:00
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QUOTE (nosferatu1001 @ Fri, 16 Aug 2019 - 07:58) *
You need to - MUST - use paragraph numbers.

What other witness statements have you found to copy the LAYOUT from? They also give you an idea of the best way to concisely write your story.
For example beuign a provisional licence holder by definition means they COULD HAVE been the driver, so it doesnt help you at all

If you are not attending you have to let them know ahead of the time - not jsut in your WS. This MUST be a separate notice. You can do it 8 days before, telling the claimant as well. You say at the last minute as it helps you to not give the claimant too much notice - otherwise they may send in a "revised" witness statement that tells yet more lies.

You do NOT repeat the defence. Defnce = arguments, WS = the facts. What you CAN do is use your defence to inform what you include in your WS - so you include in your WS the facts that support your defence. If you state youre not liable becaseu X happened then you better talk about X - and include evidence of X - in your WS!

Perfect. I will follow your advice and re write it over the weekend and will seek your advice again. Thanks ever so much for your help and support especially your time in busy schedule
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10020132
post Mon, 19 Aug 2019 - 02:57
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1. On XX March 2018, I, Mrs. XXX XXX, was the occupant in the car at the mentioned location of PCN. I was not the driver. In fact, I can't be the driver as I do not even possess a full driving license (Exhibit 0). Neither I have an insurance on this car nor the car has any "L-plates" as can be seen in the photographs. So, the onus of proving the identity of the driver lies on the Claimant to see if any contract between driver and claimant can exist. And I have no obligation to name the driver to the private parking firm. 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).
2. On XX March 2018, I was the occupant in the car to pick up something from a relative who lives in one of these block of flats where this parking is situated. It was a night with a spell extreme winter with significant snowfall. (Exhibit 2) This extreme weather can be confirmed by the photographic evidence of PCN as well (Exhibit 3). I had a 3 year old son and couple of months old daughter with me. Due, to extreme weather, the driver asked the concierge (who is a representative of the Parking company at that place) if he can leave the car on the pavement as are here for a short while and he allowed it. Still, he was waiting inside the car though.
3. I went to the 5th Floor to pick the item up and on the way back the lift broke. I was with my young kids trapped inside the lift. I was in a state of shock. I called the emergency help as well as the driver of the car to seek help. At this point, the driver went to the concierge to inform them about the unfortunate and unexpected situation. Afterwards, he came up the stairs to comfort me.
4. In the meantime, fire alarm of the adjacent building went off. Due to that, manager of the building came out to make sure everything is okay when he found out the car unattended because the driver was outside the broken lift due to unforeseen situation. He took the pictures of the car to forward to the parking firm without knowing about the verbal agreement between the driver and the concierge. In my opinion, he acted harshly as he didn't even take extreme weather into account.
5. Couple of weeks later, I received the fine redirection invoice from the hire company, followed by the PCN. I think the PCN in itself in invalid because:
a) The Claimant never gave the defendant a copy of Hire Agreement which is a mandatory document required under 13 (2)(b) of Protection of Freedoms Act (POFA) 2012 Schedule 4 if they want to recover the unpaid parking fine from the hirer
b) The Claimant never gave the defendant a copy of statement of liability signed by the hirer under hire agreement which is another mandatory document required under 13 (2)© of Protection of Freedoms Act (POFA) 2012 Schedule 4 if they want to recover the unpaid parking fine from the hirer
c) Signage at the parking site was poor and inadequate. There are no signs to the entrance of the parking area. The signs, even on OPPOSITE side of the road, at the alleged event we high up, UNLIT at night (Exhibit 3) & impossible to read. Even more importantly, in such extreme weather and unprecedented snow, it would have been impossible for ANY driver to see the supposed signs. The photograph taken by PCM proves that the sign can not be read at night even with the flash of his camera.
d) Furthermore, I would want to refer the Court to the persuasive case of PACE Recovery and Storage v Lengyel C7GF6E3R in which District Judge Iyer cocluded as parking required a permit and as the driver did not and could not have the permit, the contract in any case failed by doctrine of impossibility. This would mean no contract would be in place and the driver would be trespasser. Since the claim did not argue trespass, it has no standing.
e) The claimant has submitted no grace period, and a contract to park by conduct can not be formed unless there is a grace period to discover, read and understand and accept the contract. in the case of Excel v Mr Cutts (2011) 1SE02795 Deputy District Judge Lateef agrees "...it is, in my view, not enough for him to merely physically enter the site. Instead the defendant has to see the offer so he can choose whether or not to accept it and thereby enter a contractual relationship"
f) Nowhere in the signage does it mention that if the terms are breached, then there is 100 GBP penalty for it. So, there is no penalty mentioned for the offenders. (Exhibit 5)
6. I would also want to know why the Claimant has not included Witness Statement from PCM's manager who took the photographs that night or the concierge. As if that had been included, it would have verified my claim.
7. Based on the reasoning mentioned above, I filed the internal appeal within the stipulated time. The outcome of the appeal was unlawful because
a) According to the response to appeal, the rejected my appeal the next working day of me filing the appeal which in itself is humanly not possible because they were required to verify my side of the claim after carefully considering the evidence provided and especially communicating with the concierge (who are their representative at site) of that building to check if they allowed it. And, if they have actually checked with the concierge department, I would request the court to see the evidence of it as I think it has not been done by following the rules rather it has been rejected without due diligence.
b) I never received the response to appeal within 28 days as required. The proof of which is given in paragraph 7. This in itself invalidates the rejection of appeal. I would request the court to ask for proof of postage of appeal refusal to confirm when it was actually done.

8. Even after that, I approached the Independent Appeal Service (IAS) to file an external review over my appeal (Exhibit 4). At first, they refused to accept it saying that it was out of time but when I told them that I think it has been issued back dated, so said they will confirm the Claimant. After confirming with the complainant, they accepted my appeal for review which in turn means that the rejection of appeal becomes invalid as it is past 28 days deadline. Furthermore, they never responded to IAS and my right of appeal was classed as valid by IAS, hence I believed the case ended there since that appeal needed to be decided within 28 days, otherwise the claimant looses with the binding decision and I thought it was over. And this raises doubt as to why they never included this appeal with IAS in their witness statement.











Thanks for your help so far and I do appreciate your help in future. Can you please guide if its fine now?

I will be correcting exhibit numbers, grammar and spelling mistakes though. But is there anything else that I need to add to it?
Also, I have received WS from Claimant. I tried defending those points as well

Also anything about the excess charges I haven't repeated here because they are already in my defence. Will that be fine?
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Sheffield Dave
post Mon, 19 Aug 2019 - 06:43
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A witness statement should just include a list of what the witness saw / did etc (plus attached evidence); it shouldn't include arguments such as 5(d). Arguments come later. Also for example in 5©, where you say "in such extreme weather and unprecedented snow, it would have been impossible for ANY driver to see the supposed signs" - again that's argument. It is sufficient in the witness statement for the witness to say that it was bad weather and that they (the witness) personally didn't/couldn't see the signs (assuming that's true).
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