Part 18 Gladstones/Millennium Swansea

Quick question as I'm accusing Millennium of a criminal offence:
Do they really need planning/advertisement consent for small signs on private land? They do not obstruct the public view (can hardly see them, of course!)

Thank you so much!

STATEMENT OF DEFENCE

1. I, XXX XXX, am the Defendant in this matter. I was the authorised registered keeper of the vehicle registration XXXXXX on XX/X/2015. I deny liability for the entirety of the claim. I deny that the Claimant can have incurred £50 of solicitors’ costs or that these are recoverable.

2. As this Claim is likely to be a generic “roboclaim” as previously discussed, the Defendant is therein described as “driver and/or keeper.” As POFA requirements were not met and no attempt at a compliant Notice to Keeper was sent as per the Act, the Defendant can but assume the Claimant will make its case based on (1) their unlawful assertion that “the keeper is assumed to be the driver unless proved otherwise” and incorrectly use the criminal case Elliot v Loake 1983 Crim LR 36 to argue this point. The Particulars of Claim do not mention a contract, instead refer to the driver “breaching the terms of the parking on the land;” however with no more specific details, and as only a landowner can claim damages for trespass, the Defendant can but assume the Claimant will make its case by asserting (2) the driver entered into a contract with the Claimant, which the Defendant also denies.

3. I reserve the right to amend my defence if the particulars are at some stage brought forward and show otherwise. Again, it is denied that the driver had any contract, and that even if they did, that the keeper has any responsibility for contracts the driver may or may have not made.
 
LEGALITY OF CLAIM

Claimant’s rights to bring a Claim

4. No evidence has been provided that the Claimant has sufficient interest in the land at XXX, Swansea, nor that there is an agreement from the land owner granting any rights whatsoever to the Claimant, nor that there any terms within this agreement which entitle the Claimant to attempt to levy any parking charges, nor or that the Claimant has rights to bring a claim on its own behalf. The Claimant is put to full proof of this.

5. No evidence has been provided that the Claimant has locus standi to bring this claim: it was not identified on the signage, nor the notice to driver, and the Defendant has reason to believe that it is not named in the parking contract

6. No evidence has been provided that “Millennium Parking Services,” identified in the signage, has any legal personality and is therefore capable of entering into any contract

7. As no landowner contract has been provided the Defendant is unable to assess the contractual right of the Claimant to pursue these proceedings. The Defendant reserves the right address this in court as she has reason to believe the Claimant's parking contract did not authorise them to issue a parking charge notice in the first place

Claimant’s breaches of legislation

8. No evidence has been provided that the signs themselves meet the requirements of planning law; failing to apply for advertisement or planning consent is a criminal offence#

9. Millennium Parking Services breached many aspects of the British Parking Association’s Code of Practice, which is mandatory for members, and in Parking Eye Limited v Beavis 2015 UKSC 67, on which the Claimant’s solicitor will no doubt intend to rely, it was held that compliance with the Code of Practice is paramount to the enforceability of any contract

10. The Claimant is in breach of Consumer Rights, including but not limited to breaches of the Consumer Rights Act 2015 which requires transparency (s.68) and defines unfair terms (s.62) regarding disproportionate sums

11. The Claimant is attempting to recover an unjustifiable inflated sum, breaching the Protection of Freedoms Act 2012

12. Pursuant to the doctrine of ex dolo malo non oritor actio, the Claimant is not to rely on illegal or immoral acts in order to profit from them.

LIABILITY AS DRIVER

13. The Claimant has asserted that the Defendant, as keeper of the vehicle, is presumed to be the driver unless proven otherwise, and claims that Elliot v Loake 1983 Crim LR 36 sets a precedent for this. The Defendant believes Gladstones solicitors are attempting to deliberately mislead vehicle owners in citing this case:

13.1. This case does not provide that any presumption can or should be made, nor that it is for the Defendant to rebut it. A claim is for the Claimant to prove and there is no reverse burden of proof in respect to parking charges
13.2. In Elliot v Loake there was irrefutable evidence of the driver’s identity including forensic evidence and this criminal case has been dismissed by Judges in cases brought by Gladstones Solicitors. (evidence for this?)
13.3. Parking on Private Lands Appeal (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that: “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.” (POPLA annual review 2015)

14. The Claimant may assert that the driver was acting as the keeper’s agent
14.1 This would render Schedule 4 of the Protection of Freedoms Act redundant
14.2 If true, a keeper could then be held accountable for all unlawful acts committed by a driver which is nonsensical

15.The Defendant has no liability as keeper of the vehicle, whether or not a valid contract was formed between the Claimant and the driver. In any event it is denied that there was any such contract. 

LIABILITY PURSUANT TO AN ALLEGED CONTRACT

16. It is denied that the driver entered into a contract with the Claimant, Millennium Door and Event LTD, or with Millennium Parking Services, who name appears on the inconspicuous signage at the site.

17. The signage at this site is wholly insufficient to form any contract. The Claimant is not even identified on the signage

18. It is also in breach of the specific and mandatory requirements of the British Parking Association Code of Practice to which Millennium Parking Services was required to adhere at the time of this alleged incident

19. The responsibility for signage does not lie with the driver to look for it, but for the Claimant to ensure signage was so obvious that any reasonable driver would have seen it, understood it, and been able to read it; a driver cannot consent to and then breach an unknown contract
19.1. Terms offered must be clear and unambiguous. The signage displayed was in fact too small for the driver to even notice, cluttered and illegible
19.2. The day of the alleged incident the signage was obscured by foliage
19.3. If the signage does make an offer, it is for “short stay parking” with no legible specifics as to how long this is
19.4. There was no warning sign at the entrance to the land referring to terms and conditions, a further mandatory requirement

20. Millennium Parking Service’s intention was not to offer a genuine contract to park. The wording on the (obscured) signage is forbidding: “warning private property 24 hour car park management permit holders and short stay only,” and aims to deter unauthorized parking by attempting to enforce a penalty. This is contrary to the Consumer Rights Act of 2015

21. The parking charges sought are not a genuine pre-estimate of loss, but an extravagant penalty, and therefore unenforceable. In the Beavis case, the Supreme Court was only prepared to accept a charge of £85 sufficient to act as a disincentive. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge of £125 to the Defendant is clearly extravagant and disproportionate to the Claimant’s interest and in fact comprises non-contractual elements

22. There is a long precedent of very similar cases dismissed due to poor signage on which the Defendant will rely

23. The Claimant’s solicitors may attempt to use Parking Eye Limited v Beavis 2015 UKSC 67. The Defendant maintains that this case in fact supports her defence and intends to use it:
23.1. This case was not based on breach of contract, and the Defendant accepted that there was a contract formed by the clear and prominently displayed signage.
23.2. The Claimant had complied with the Code of Practice of the British Parking Association; this case held that strict compliance with the code of practice is expected of a Claimant seeking to enforce a parking charge

24. No evidence has been provided that the driver breached the terms on the inconspicuous signage: the vehicle was photographed at 11:07 and 11:16 on the day in question, is the “short stay parking" the Claimant alleges to offer for less than 9 minutes?
(NOTE – the notice to driver says time issued 11:15, observed 11:04 to 11:14, I am merely saying there is no evidence of this…)
 
BREACHES OF CPR
(still working on this section)
The Defendant holds that the Claimant has behaved unreasonably in both pre-action and post-action conduct

BPA BREACHES
(Still working on this section)

LIABILITY AS KEEPER

The Defendant recognises that there is a provision in law under Schedule 4 of the Protection of Freedoms Act of 2012 to recover unpaid parking charges from the vehicle’s keeper, if all the conditions set out in paragraphs 5,6,11 and 12 are met.
As the Claimant did not comply with the requirements of this Act at all, and no valid “Notice to Keeper” was ever sent from the Claimant, nor Millennium Parking Services, thus there is no legal basis for the keeper to be held accountable under this Act.

I believe the facts stated in this Defence are true

Last couple of sections of defence I hadn't finished before are now below.
I would be very grateful for any feedback on this bit or the stuff above!
Thank you so much

BREACHES OF CPR
25. The Defendant believes that the Claimant has behaved unreasonably in both pre-action and post-action conduct. Records of the Defendant’s correspondence with the Claimant’s solicitor will be produced for the court.
26. The Letter Before Claim (LBC) of 01/09/2016 did not comply with the Practice Direction on Pre-Action Conduct and Protocols, providing scant information and not giving the basis of the claim, summary of the facts nor how the amount of money has been calculated as per paragraphs 6 (a) and 6 (b). Neither was Alternative Dispute Resolution offered as per paragraph 3, although the Defendant proposed this.
27. When the Defendant asked for more information in a prompt email response to Gladstones solicitors 13/9/2017, she was told the LBC was compliant and “I am unsure as to what more you require to recall the incident of a parking charge.” The Defendant responded 25/9/17 specifically asking for basic details such as basis of claim (breach of contract, trespass?) and summary of facts. No response was made for over 5 months until 07/04/17, when these details were still not provided. The Defendant’s final request was made 25/04/17, to which she received no reply.
28. The Claimant is obliged to explain their case in sufficient detail for the intended defendant to be able to understand it and to respond to it and the requirements of the Practice Direction are neither voluntary nor a guide. The Practice Direction is part of the CPR and it binding on parties to litigation. Paragraphs 13-16 make it clear that parties are expected to comply with the obligations and the court will punish those who do not. The Claimant’s behaviour has in fact denied the parties the possibility of any real attempt to resolve matters without resorting to Court.
29. The Particulars of Claim are incoherent (which the Claimant and/or its solicitors know, because other near-identical claims issued by its solicitors have been struck out in other County Courts). They disclose no cause of action and contain no detail whatsoever which allow the Defendant to understand and deal properly with the Claim, including filing an appropriate Defence (instead of having to account for all possibilities). This is a serious and significant breach of CPR part 16.4.
30. The Particulars of Claim have now been requested as a formal Part 18 request; no reply has yet been made.

BPA BREACHES
31. As Millennium Parking Services were a member of the British Parking Assocation (BPA)’s Approved Operated Scheme (AOS) at the relevant time, they were bound by its Code of Practice (CoP). This CoP is not a voluntary document and compliance with it is paramount. The Supreme Court in Beavis held that compliance to the CoP is essential for a Claimant seeking to enforce a parking charge.
32. Despite its obligations to observe the CoP, the Claimant was (and is) in breach of a number of important aspects, including but not limited to:
32.1 The Claimant did not allow grace periods required by the BPA, who deem the “grace period should be at least 15 minutes beyond the time their permitted parking period expired” (Section A)
32.2 The Claimant has not made drivers aware of terms and conditions “from the start” (Section B18)
32.3. The Claimant did not place any entrance signs, let alone the standard form of mandatory entrance sign the BPA requires (Section B18)
32.4. Signs were not conspicuous and legible, easy to see, read or understand (Section B18)
32.5. The charge was not shown clearly and fully to driver on signs (it cannot even be seen in a photograph taken in front of the sign) (Section B19)
32.6. Parking charge is “punitive and unreasonable” (Section B 19)
32.7. No Parking On Private Land Appeal (POPLA) was offered (Section B22)
32.8. The Claimant illustrates a distinct lack of knowledge and understanding of its legal obligations, legislation and guidance in all areas (Section A)