Gladstones Letter of Claim

1. It is admitted that Defendant is the owner of the vehicle with registration XXXXXXX.
2. Defendant is unable to admit or deny the precise times he was parked on the land at Spaw Street Arches as he has no recollection of this. The Claimant is put to proof of the same.

3. Defendant has requested copies of all documents relating to this claim on 2 occasions but the claimant has not obliged. As Defendant has no recollection of the particulars relating to the claim, he is not able to admit or deny any charge in this matter.

Furthermore, as this information was not provided by the claimant, Defendant is unaware of the precise nature of this claim. Defendant does not know whether the claim is due to an overstay at the land, an invalid ticket, not displaying a ticket or perhaps parking outside of a designated bay.

4. As the claimant has unreasonably refused to provide any relevant documentation, Defendant has no way of knowing if the claimant has complied with Schedule 4, Protection of Freedoms Act 2012 and mounting a defense if the Claimant has not complied with this legislation.

5. Defendant had also requested any photo evidence or records showing that the vehicle was parked on the land at Spaw Street Arches on the relevant date but this request was ignored. Furthermore the Particulars of Claim do not contain the precise timings of the charge being incurred, Defendant believes this is because the claimant has no evidence to support this claim.

6. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

Defendant had requested details of ownership of the land before the claim was made but this request was also ignored by the claimant.

7. Alternatively, even if there was a contract, the provision requiring payment of £242.09 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate
of loss for the following reasons:

(a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay;
(b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant;
(c) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and
(d) the clause is specifically expressed to be a penalty on the Claimant's signs. - NEED TO CONFIRM THIS YET BUT SUSPECT IT MAY BE TRUE

7. Further and alternatively, the provision requiring payment of £242.09 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose.

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.