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  • FIRST POST
    • AOneVS
    • By AOneVS 6th Jan 17, 10:57 AM
    • 41Posts
    • 22Thanks
    AOneVS
    Gladstones CCC - UKCPM
    • #1
    • 6th Jan 17, 10:57 AM
    Gladstones CCC - UKCPM 6th Jan 17 at 10:57 AM
    Hi all, I've got a thread running on PePiPoo (same username), but thought a fresh set of eyes might help regarding my situation. Two heads are better than one, so to speak.

    I received a county court claim form from Gladstones last week. I've acknowledged the claim online and have created a draft defence. Here's some background:

    Car was parked in a visitors space on the estate I live and was ticketed by UK Car Park Management LTD at 9:43pm on 6th March.
    The reason for the ticket was given as Overstay.

    No sign was available in the visitors parking area. There are signs on the entrance and around the estate. Signs have since been updated to include wording about the visitors spaces:

    VEHICLES PARKED ARE ALLOWED TO STAY FOR A MAXIMUM 4 HOURS AND NOT RETURN FOR 4 HOURS. APPLIES 00:00 to 08:00

    The signs also have the BPA Approved Operator logo on, when the BPA have stated they're only corporate members'. Parking control started by UKCPM sometime in 2013, apparently to stop residents using the visitors spaces. I moved into the estate in 2015.

    The lease states: "Not to use the Visitors Parking Spaces other than for the temporary parking of vehicles belonging to visitors attending at the Property."

    Notice to Keeper was received, dated 7th April. Incorrectly ignored. I mistakenly thought there was little point in appealing to the IPC/IAS and their kangaroo court!

    Many DRP letters received and ignored.

    Letter Before Claim from Gladstones received on 14th November with scant detail and a request to pay £139.

    County court claim form received on 30th December. Acknowledged on MCOL. Part 18 request emailed yesterday.

    Particulars of Claim:
    The driver of vehicle registration ******* (the 'Vehicle') incurred the parking charge(s) on 06/03/2016 for breaching the terms of parking on the land at The Grange xxxx

    The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle. AND THE CLAIMENT CLAIMS £139 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £7.96 pursuant to s69 of the Count Courts Act 1984 at 8% pa, continuing to Judgement at 0p per day.

    Amount claimed: 146.96
    Court fee: 25.00
    Legal representative's costs: 50.00
    Total amount: 221.96

    Here's my draft defence:

    BETWEEN:

    UK CAR PARK MANAGEMENT LIMITED

    -and-

    XXX
    ________________________

    DEFENCE STATEMENT
    ________________________

    1) It is admitted that the Defendant is the registered keeper of the vehicle in question.

    2) The Particulars of the Claim submitted to the Defendant provide no statement to the nature of the claim and the Defendant does not believe these particulars to be compliant with Civil Procedure Rules 16.4 nor Practice Direction 16 7.3-7.5 inhibiting the ability of the Defendant to provide a comprehensive and conclusive defence.

    3) The Defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in an allocated leasehold residential parking space at the home address of the Defendant.

    4) The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

    a) The Claimant has failed to provide strict proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred in the Lease.

    b) Alternatively, even if a contract could be established, the provision requiring payment of £139.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015.

    5) The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur action).

    6) The Defendant has no liability as they are the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

    a) The driver has not been evidenced on any occasion.

    b) There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4.

    7) The Particulars of Claim do not give any reasons why the Claimant requires a payment other than it results from the ‘Parking Rules’ on the signage. It is a forbidding sign that cannot create a contract. In the cases of B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L it was demonstrated that forbidding signage at residential parking spaces did not create a contract.

    8) The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. Instead a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

    a) The vehicle was parked on land in accordance with the terms of the Lease.

    9) In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’

    10) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and interests of the landowner. Strict compliance with the BPA(CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

    a) In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other ‘legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question’. The true test was held to be ‘whether the impugned provision is a secondary obligation which imposes detriment on the contract-breaker out of all proportion to any legitimate interest […..] in enforcement of the primary obligation’

    b) There can be no ‘legitimate interest’ in penalising residents or their visitors for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using allocated parking spaces.

    11) The exact question regarding terms in a lease was tested recently at Oxford County Court, JOPSON v HOME GUARD SERVICES, Appeal case number B9GF0A9E on 29/9/2016. I will include the transcript of that case at any hearing.

    a) The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

    12) The Defendant also relies upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14FO 16/9/2016, where District Judge Coonan dismissed the claim and refused leave to appeal, having found that a third party parking firm cannot unilaterally alter the terms of the tenancy agreement.

    13) The Defendant disputes that the Claimant has incurred solicitors costs of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.

    14) 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. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

    15) I believe the term 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 have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    16) I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

    17) It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

    18) I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

    I believe the facts stated in this Defence Statement are true.


    Could anything be added or taken out to make this as strong a defence as possible?

    Thanks in advance
Page 3
    • AOneVS
    • By AOneVS 2nd Mar 17, 5:09 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Update
    It's been a while. It's been good to read of some of the successes people have had. This year has got off to a good start, let's hope it continues

    I received a letter from the local court today, saying that it will be heard by a Deputy District Judge. No date given.

    Regarding the SAR sent to UKCPM, it has now gone way past the 40 days they had to reply. Will this help in this case, or be more suited to a counterclaim. Is it worth complaining to the ICP now?
    • IamEmanresu
    • By IamEmanresu 2nd Mar 17, 5:39 PM
    • 1,137 Posts
    • 2,052 Thanks
    IamEmanresu
    Regarding the SAR sent to UKCPM, it has now gone way past the 40 days
    Did you include the £10?

    Did you send it to the address on the ICO website?

    Have you reminded them they had 40 days and the 40 days are up?

    If yes to all three then raise a complaint with the ICO.
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.
    • AOneVS
    • By AOneVS 2nd Mar 17, 6:23 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Cheque for £10 sent with the SAR to UKCPM. Not specifically to the data controller but included instruction to send to their data controller.

    I had an email from UKCPM on another matter and asked if they were dealing with the SAR. They responded that it was in hand. I asked again 2 weeks later and no response.

    I haven't wasted any more time on them. Surely they shouldn't need reminding of their obligation?
    Last edited by AOneVS; 02-03-2017 at 7:39 PM.
    • AOneVS
    • By AOneVS 8th Mar 17, 11:09 AM
    • 41 Posts
    • 22 Thanks
    AOneVS
    I've just been spending some time collating the various bits of evidence I can submit with my WS. Still no date from the court.

    Does this sound like a good place to start:

    1. Image of Beavis sign
    2. Photos of the parking area, showing when it had no sign and when the sign was added in September.
    3. Close up of the sign showing the visitor parking terms and BPA logo (version 1, September 2016), visitor parking terms and IPC logo (version 2 from Janurary 2017).
    4. Photos of sign at entrance, showing it is illegible from car.
    5. Email chain from me to BPA regarding incorrect logo on signage.
    5. Copy of POFA Schedule 4 paragraph 8.
    6. Copy of Henry Greenslade's wording from Popla Annual Report 2015.

    Should I include a copy of the lease? Does this have to be in full?

    My defence had a boatload of case law references, do I need to include a copy of each of those?

    On the SAR, I sent a chaser email to UKCPM last week. It's the 2nd time they haven't responded. The SAR was originally submitted on 11th Jan by post, 56 days ago! Just read this on the Parking Prankster -

    http://parking-prankster.blogspot.co.uk/2017/03/ukpc-lose-in-court-fail-to-respond-to.html

    Would this have any bearing on my case?

    Thanks in advance!
    • safarmuk
    • By safarmuk 8th Mar 17, 11:12 AM
    • 254 Posts
    • 445 Thanks
    safarmuk
    Out of interest have they cashed the cheque?
    • AOneVS
    • By AOneVS 8th Mar 17, 11:18 AM
    • 41 Posts
    • 22 Thanks
    AOneVS
    I've checked and the cheque they have hasn't been cashed.
    • Coupon-mad
    • By Coupon-mad 8th Mar 17, 1:03 PM
    • 45,245 Posts
    • 57,905 Thanks
    Coupon-mad
    Should I include a copy of the lease? Does this have to be in full?
    Take the full lease to the hearing but with your Witness Statement you could file single pages/screenshots.

    My defence had a boatload of case law references, do I need to include a copy of each of those?
    A full transcript of each case (if the Prankster has all the case law on his website) needs to be with you at the hearing in your bundle. But in any case, we recommend you email the other side your WS and evidence so you could send them transcript attachment at no printing costs, except the cost for your bundle and the Court's own WS version (in a numbered evidence & WS file all printed out, hand delivered, get a receipt).
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • AOneVS
    • By AOneVS 8th Mar 17, 1:50 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    I've just been in touch with the ICO and they recommended I send a 'non response to sar' letter by recorded delivery to UKCPM. If they fail to respond to that within 14 days, then I can complain to the ICO.

    Just got today's post, I now have a hearing date! End of May. Estimated 90 mins <--- we'll see about that
    Last edited by AOneVS; 08-03-2017 at 7:18 PM.
    • Coupon-mad
    • By Coupon-mad 8th Mar 17, 2:08 PM
    • 45,245 Posts
    • 57,905 Thanks
    Coupon-mad
    Good, and pop that in with your evidence as well.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • AOneVS
    • By AOneVS 9th Mar 17, 12:44 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Witness Statement - 1st draft
    My first go at writing the witness statement. At the moment I think it lacks some bite.

    I’ll use this as a template for the header - http://childlawadvice.org.uk/wp-content/uploads/Witness-Statement.jpg

    Witness Statement of Defendant

    1. My name is XXXXXXXXXX. I live at XXXXXX I am the defendant in this matter. I make this statement from my own knowledge and personal experience.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed

    3. I am the registered keeper of a vehicle with the registration mark of XXXXX.

    4. I received a Notice to Driver on **th ******** 2016. The vehicle was parked on a private estate within the terms of the lease. No sign was visible in the parking area.

    5. I received a notice to keeper dated **th ******** 2016 for PCN number xxxxxx (dated **th ******** 2016).

    6. At the time I did not respond to any of the above as I had done some research online into the IAS (Independent Appeals Service). My research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. This set-up is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. This claimant's Solicitors appear to pay little regard to the 'overriding objective' within pre-court protocols, issuing incoherent copy & paste claims with no due diligence.

    7. I received a letter dated the **th ********* 2016 from Gladstones (Exhibit…) regarding the outstanding PCN, number xxxxxxxxxcx (above)

    8. I received a letter dated **th ********** 2016 from Gladstones with Particulars of Claim enclosed. (Exhibit…)

    9. On the **th ******** 2017 I submitted a Part 18 request for further and better particulars to Gladstones via email (Exhibit…). This has not been responded to.

    10. On the 11th January 2017 I submitted my initial defense so as to comply with the time constraints.

    11. I filed my directions questionnaire on the County Court business Centre (CCBC) and Gladstones on the 2nd February 2017 and received a certificate of posting (Exhibit…).

    12. On the **th ******** 2017 I receive Notice of Allocation to the Small Claims Track.

    I believe that the facts stated in this witness statement are true
    • AOneVS
    • By AOneVS 10th Mar 17, 10:46 AM
    • 41 Posts
    • 22 Thanks
    AOneVS
    I've added some additional detail to my witness statement:

    Witness Statement of Defendant

    1. My name is XXXXXXXXXX. I live at XXXXXX I am the defendant in this matter. I make this statement from my own knowledge and personal experience.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed

    3. I am the leaseholder at XXXXXX as of **th ******** 2015. (Exhibit...)

    4. I am the registered keeper of a vehicle with the registration mark of XXXXX.

    5. I received a Notice to Driver on **th ******** 2016. The vehicle was parked on a private estate within the terms of the lease.

    6. No sign was present in the parking area. (Exhibit...)

    7. No terms mentioning vistor parking on the sign at the entrance to XXXXXX. (Exhibit...)

    8. All signs around the estate showed the BPA Approved Operator logo. (Exhibit...) The BPA confirmed that the Claimant was not an Approved Operator (Exhibit...) They have been an IPC Approved Operator since 1st October 2015.

    9. I received a Notice to Keeper dated **th ******** 2016 for PCN number xxxxxx (dated **th ******** 2016).

    10. At the time I did not respond to any of the above as I had done some research online into the IAS (Independent Appeals Service). My research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. This set-up is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. This claimant's Solicitors appear to pay little regard to the 'overriding objective' within pre-court protocols, issuing incoherent copy & paste claims with no due diligence.

    11. I received a Letter Before Claim dated the **th ********* 2016 from Gladstones (Exhibit…) regarding the outstanding PCN, number xxxxxx (above)

    12. I received a letter dated **th ********** 2016 from Gladstones with Particulars of Claim enclosed. (Exhibit…)

    13. On the **th ******** 2017 I submitted a Part 18 request for further and better particulars to Gladstones via email (Exhibit…). This has not been responded to.

    14. On the **th ******** 2017 I submitted an Subject Access Request to the Claimant requesting any data held about me. (Exhibit...)

    15. On the **th ******** 2017 I submitted my initial defense so as to comply with the time constraints.

    16. I filed my directions questionnaire on the County Court business Centre (CCBC) and Gladstones on the **nd ******** 2017 and received a certificate of posting (Exhibit…).

    17. On the **th ******** 2017 I received a Notice of Allocation to the Small Claims Track.

    18. On the **th ******** 2017 I sent a letter to the Claimant requesting a response to the Subject Access Request as the 40 day deadline had passed. (Exhibit...)

    I believe that the facts stated in this witness statement are true
    Getting there, but still lacks some teeth
    • Coupon-mad
    • By Coupon-mad 10th Mar 17, 12:56 PM
    • 45,245 Posts
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    Coupon-mad
    The WS doesn't need teeth. A skeleton argument has teeth and legal arguments and can follow (or be taken to court) once you've seen the whites of their eye in their WS.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • AOneVS
    • By AOneVS 10th Mar 17, 7:12 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    How does that witness statement look? I'll add in a reference to Beavis sign and any response I get to the SAR. The deadline for this is the middle of May, which seems ages away!
    • AOneVS
    • By AOneVS 11th Mar 17, 11:57 AM
    • 41 Posts
    • 22 Thanks
    AOneVS
    This feels like a game of poker, in that I'm waiting for them to reveal their hand Is it better to submit the witness statement early and spend some time on the skeleton argument? Is it likely Gladstones\CPM will wait until around May before submitting theirs??

    Knowledge is power. Can anything be gleaned from the judge that's been assigned to this? Deputy District Judge Harvey.
    • safarmuk
    • By safarmuk 11th Mar 17, 12:30 PM
    • 254 Posts
    • 445 Thanks
    safarmuk
    Just googled - perhaps best not bring up canoes if it's the same DDJ and if you are lucky he might bring some olive focaccia to break the ice.
    • AOneVS
    • By AOneVS 12th Mar 17, 11:38 AM
    • 41 Posts
    • 22 Thanks
    AOneVS
    Is it worth adding a copy of the insurance certificate that shows me as the main driver plus one additional driver?

    Regarding photos used as exhibits, should they be printed on a single page and should exif data or timestamp be included?

    Any feedback on the WS as it stands?

    Thanks
    Last edited by AOneVS; 12-03-2017 at 4:30 PM. Reason: Additional question
    • Coupon-mad
    • By Coupon-mad 12th Mar 17, 6:57 PM
    • 45,245 Posts
    • 57,905 Thanks
    Coupon-mad
    I would include the insurance that shows 2 drivers (at least)...bear in mind you can also authorise anyone else with fully comp insurance to drive your car. WS looks fine, put it in (file to the claimant as well, with evidence to both them and the court) then it's their move!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Loadsofchildren123
    • By Loadsofchildren123 12th Mar 17, 8:11 PM
    • 639 Posts
    • 968 Thanks
    Loadsofchildren123
    don't serve it early, you don't want to give them a heads up on your case
    • AOneVS
    • By AOneVS 12th Mar 17, 8:33 PM
    • 41 Posts
    • 22 Thanks
    AOneVS
    I hear what you're saying LoadsofChildren. They have until the 23rd March to pay the court fee, which is the same date they have to respond to the SAR chaser. Do you think I wait and see if they pay first?
    • Coupon-mad
    • By Coupon-mad 12th Mar 17, 11:11 PM
    • 45,245 Posts
    • 57,905 Thanks
    Coupon-mad
    Yes, depending on the stated date by which you have to file your WS (often 'not later than 14 days before the hearing' but I've seen different versions, depends on the Judge).
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

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