Parking charge - permit on show but not in bay

On 8th September 2017 I visited a solicitor with the threatening letters to gain legal advice as I was scared and very stressed, and he declared that if I had the money and wanted this over and done with, the easiest route would be to offer £524.35 without accepting liability... I by no means was at fault and this was simply to get the cases over and done with as soon as possible as I was very stressed which was affecting my work and personal life.
This offer was quickly rejected by Gladstones, who proposed a new value of £770 if paid in full that day.

You cannot refer at all, in court or at WS stage, to discussions about settlement, if (as I expect) Gladstones marked their 'offer' with the words WITHOUT PREJUDICE.

OK, no 'WITHOUT PREJUDICE' in the subject line or heading?

Out of interest, what email address is used for Gladstones, as this will help newbies?

Can I still use this as evidence of them rejecting my offer? I think I put this in my defence as I wasn't aware of this, does this look bad on me?

No you can't refer to it, at all, and so if it was mentioned in your defence just let that drop (negotiations to settle are not going to win you the case anyway). You might mention your own offer, made but that's all. The solicitor doesn't sounds like they helped you one iota. Don't you think they should have explained WP offers to you, so you knew not to refer to them in court papers? I do. Waste of time, I hope it was just free advice!

I would remove this (below) which lends nothing to a WS, and have more about what happened and why you aren't liable:

The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.

I paid £120 took so much evidence and he refused to look at any of it as I didn't have the original PCNs so told me to make an offer! Waste of money and my time - wish I'd have found this forum sooner!

OUCH!!

Hmmmm....add that to your 'costs schedule' and mention now in the WS (without referring to G's WP offer) that fighting this has cost you £120 for solicitor's advice! Include a copy of the invoice & proof that you paid the solicitor. If you win at the hearing, ask for this cost awarded back to you due to the claimant's unreasonableness throughout.

I now refer to the Saeed Vs Plustrade Case on page XX which concerned a dispute over the alteration of a lease which allowed cars to be parked on an estate car park. The finding here was that the substantial reduction in the car parking spaces available under the lease would be a case of derogation from grant. This was contrary to good faith, unreasonable conduct which was detrimental to the residents at the location, and charges for parking and removal of bays without providing alternative parking, could not be upheld as reasonable by the court. [STRIKE]void the lease[/STRIKE]. The Defendant avers that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease, and removing 18 visitors bays was unworkable, unfair and forced drivers to park elsewhere, since no alternative provision was offered.

Just a suggestion above, as Saeed v Plustrade is on all fours with your case and I wanted to see you use the phrase 'derogation from grant'.

You could even explain what it means (a party can't take away with one hand what was already given on the other hand) and you should go on to say that this goes against the requirements for:

- fair dealing
- prominence and
- transparency

as set out in the Consumer Rights Act 2015.

The facts are I wasn't in a visitor bay, but tucked away in a non-marked area as 18 visitor bays were not in use due to construction.

You were forced out of visitors bays as they had been removed (JUST LIKE IN SAEED!!).


- and how about a page from the ParkingEye v Beavis case, where the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

- and the Supreme Court Judges in Beavis also said at 107 ''in our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute''. But in this case, you undoubtedly had rights to park in what were meant to be visitor bays, they just were removed and no others were marked/defined (as they should have been). That's not your fault and you can't be fined for using alternative areas onsite whilst the building work continued.

- and how about citing the “Red Hand Rule”, as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated: “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”. I think that transcript is hosted on the BMPA website and if it's not, you can ask them for it.

- Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''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.'' Use their own CoP against them, and remember 'signs' in terms of parking rules include lines/bay markings, or lack of them, not just the boards of words.

- Any court MUST consider the fairness of a term, where it is not 'prominent and transparent' (which it was not in this case). Unfair terms here include the penalty fines themselves and also the added 'costs' bolted onto this claim from thin air; these are unfair and breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA).

Have this up your sleeve in a skeleton argument before the hearing:

- The CRA was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.

- This legislation requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not). Examples of terms that may be unfair under the Consumer Rights Act include: charges hidden in small print; added costs not specified prominently and clearly in the contract, and disproportionate default charges.

- The CRA (at para 71 - have it printed out in case the Judge reckons he/she doesn't have to consider fairness) sets out the duty of court to consider fairness of a consumer contract term: ''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.

- Say that the Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair'. Print that out and include it in your evidence with your WS.

Yes, sorry it wasn't transparent!