Horizon/Gladstone court claim

Hi IamEmanresu, Umkomaas,

Thanks for your frank, and possibly alarming, responses.

Surely if one can be defended, the same basis of defense is applicable to all? It appears defenses are built around mistakes that Horizon or Gladstone have made, and so these mistakes are likely to have been made on all PCNs and court claims?

Regards,

I have read the Newbies sticky and have drafted a response letter to Gladstone, modified from Coupon-mad’s robust suggested letter (linked in the sticky).

I will also be submitting a Part 18/Subject Access request to Horizon and will start to build a defence to any subsequent Court Claim. I will use a template letter from BMPA for the request.

I have a few queries before I send my response to Gladstone and would appreciate any feedback provided.

Paragraphs numbered for easy reference. Numbers will be removed before sending.
Draft letter begin
Dear Sirs/Madam,

Re: Horizon Parking Limited

References
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX

1. I note your letter before claim dated XXXXXX.

2. I deny that I owe any debt to your client, Horizon Parking Limited.

3. I intend to defend any claim and I invite you to advise your client to withdraw at this early stage, before costs are incurred in defending a claim against me as registered keeper. I believe any claim by Horizon Parking Limited is baseless and misconceived and is bound to fail.

4. Due to local knowledge and having inspected the signs at the location before responding to your letter, I am aware that whilst your client's signage is displayed at the material location, the terms are illegible from a driving seat. The signage is, therefore, incapable of creating any contractual liability on the part of any driver, as any purported contractual terms are void for uncertainty.

5. Further, your client has adduced no evidence whatsoever as to the identities of the drivers at the material times. There was, of course, no requirement in law for me to respond to the NTKs in question, so any suggestion of failure on my part will be robustly defended. Indeed I view the continued - increasingly threatening - demands as harassment. Had Horizon Parking Limited evidenced the driver(s) in their NTKs, I would have passed the purported 'PCNs' to those drivers, since these are not matters for which a registered keeper can be held liable in law. This position is entirely due to the choice of your client when drawing up a Notice to Keeper (NTK) document which does not in any way attempt to use nor rely upon the rights they might otherwise have been able to claim, under the Protection of Freedoms Act (the POFA) Schedule 4.

6. You have listed separate 'parking charge notices' in which the facts seem to be fairly identical but all of the NTKs are matters for an identified driver only. I am not liable and cannot be lawfully assumed to have been the driver on each or any occasion. Should you attempt to rely upon the cases of Elliott v Loake (irrelevant criminal case) and or Combined Parking Solutions v AJH Films (irrelevant employee/employer commercial liability issue), you should be aware and fairly warned now, to advise your client that these have never been reported as persuasive or even applicable to any robustly-defended private parking case.

7. Your client needs to be aware of several recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, including Excel v Mr C C8DP37F1 Stockport 31/10/2016, and Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. Further, Excel v Lamoureux at Skipton C3DP56Q5 involved three unreasonable claims in which DJ Skalskyj-Reynolds examined the Parking Operator's NTK and found that it did not comply with the POFA. The claimant was warned not to bring further baseless non-POFA cases to that Court and were forced to discontinue the final vexatious claim.

8. In addition, 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" (POPLA Annual Report 2015). All AOS members with the British Parking Association (including your client) adhere to POPLA requirements and have been furnished with copies of all POPLA Annual Reports to date so there is no lawful excuse for proceeding against a registered keeper when an operator chooses not to use the POFA.

9. In each demand, your client has added in costs/administrative charges which are not defined in any contractual document. It is my belief that your client's additional costs are arbitrary and unsubstantiated and are an attempt at double recovery, which cannot be supported on the small claims track. Should your client attempt to rely upon another commonly trotted-out case in these baseless robo-claims for parking operators, namely Chaplair Ltd vs Kumari [2015] this can easily be distinguished from this matter, since that was an irrelevant decision about contractual fees set in lease terms, not 'costs' fabricated by a parking firm who already make a significant profit from paid 'PCNs' as was found in ParkingEye Ltd v Beavis [2015], where I would remind you that the parking firm were only entitled to claim for the £85 charge itself. This sum was held to be more than sufficient to cover the very minimal cost of operating a generic ANPR camera 'enforcement regime' with a few template letters generated automatically.

10. Since the POFA also states that the only sum that can be claimed from a registered keeper (subject to full compliance with Schedule 4) is the sum stated on the NTK itself - not allowing double recovery - it is clear that it is neither within the intentions of Parliament, nor was it held by the Supreme Court, that any parking firm can add further costs dressed up as 'damages' or loss, over and above the artificially high/already inflated parking charge sum itself.

11. If your client will not withdraw, then I ask for your response to the matters above and for the following documents:

i. The contract (or chain of contracts) between your client and the site landowner - not a site agent or other non-landholder - giving your client authority to carry out parking management and on what terms;

ii. Any and all photographs taken of my car on the material dates;

iii. A copy of any document your client asserts sets out the terms of the alleged contract between it and a driver (this may be the same as iv below);

iv. A copy of the signs on display and a dated plan of where in the car park they were displayed on those dates;

v. A map showing the boundary within the site, purportedly operated by Britannia Parking Group Ltd., as opposed to the other parking operators also operating at this location.

12. These are core documents, central to your client’s claim. As such, they are documents which are required to have been produced at an early stage (regardless of whether or not I asked for them) in this pre-action phase, pursuant to paragraph 6 of the Practice Direction – Pre-Action Conduct. I would have expected at the very least, that the contract requested under iii above should have been appended to the Letter Before Claim. I am requesting these documents because I clearly require them in order to be able to prepare a proper defence to any Claim and/or a meaningful POPLA appeal, as is my entitlement. The CPR clearly anticipate an early exchange of information, as per paragraph 6 of the Practice Direction – Pre-Action Conduct, Rule 16 and Practice Direction 16 – any failure to produce the information I have asked for will be nothing other than a deliberate attempt to frustrate my ability to defend the claim and a failure to comply with pre-action obligations.

13. Any failure by you/your client, to enter into meaningful dialogue in order to avoid unnecessary litigation will mean that you will have denied me the opportunity to “take stock” pursuant to paragraph 12 of the Practice Direction, or to enter into discussions with you pursuant to paragraph 13. I will seek the sanctions provided for by paragraph 15 of the Practice Direction.

14. It is noted that you have stated inexplicably, that you do not consider that this matter is suitable for Alternative Dispute Resolution (ADR). However, I disagree. Not only is ADR a requirement at this stage under the pre-action protocol but I also wish to draw your attention to the EU ADR Directive of 21 May 2013 and The Alternative Dispute Resolution for Consumer Disputes Regulations 2015.

15. Private parking tickets issued by AOS members are always suited to the ADR of an independent appeals service. As Horizon Parking Limited is a member of British Parking Association, should your client refuse to withdraw I hereby make the reasonable request that this dispute is resolved out of court by of Parking on Private Land Appeals (POPLA) and to minimise costs, the claimant should issue one POPLA code for one of the Parking Charge Notices and agree to place the other disputed “charges” on hold whilst this process is completed.

16. I would remind you that POPLA is very clearly a reasonable resolution out of court and since on your website you state that: 'the solicitors at SCS Law have vast experience of civil litigation, debt recovery and enforcement, which provides {...} a highly specialised and expert service' it should not even be remotely necessary for me to have to draw your attention to the overriding objective within the Civil Procedure Rules, enabling parties to deal with cases justly and at proportionate cost, saving expense for both sides in resolving a dispute. I protest at your suggestion that you can deny me my right to ADR. POPLA codes can be issued at any time, not just in the first 28 day arbitrary deadline (imposed in the interests of parking operators only, creating a significant imbalance in the rights of consumers). It may interest you to know that POPLA codes have been produced by parking operators many months/years after parking events, by order of the Courts and if your client refuses to withdraw I am formally asking for a POPLA code now and will make the same reasonable request of the CCBC when serving my Directions Questionnaire in due course.

17. Should your client deny my right to ADR and proceed despite being unable to invoke 'keeper liability' in law, I will consider the action to be indicative of wholly unreasonable and vexatious conduct in litigation. I will draw to the court’s attention to the issues, will claim my costs and will cite unreasonable conduct pursuant to Rule 27.14(2)(g).

18. Finally, since there is clear evidence that this proposed claim has no prospects of success and if pursued, will have been wrongly brought, I am advised that your client has breached the terms of the Data Protection Act by misusing my data to mislead me about liability.

19. Your client has accessed my keeper details from the DVLA on more than one occasion and despite having no information as to the driver on each occasion, it continued under an unreasonable and unlawful assumption to pursue me instead, when it had no right to do so. Whilst obtaining DVLA data to enquire who was driving is allowed under the KADOE rules, that data must not be further used for any purpose outside the basis upon which it was provided by the DVLA. Your client has stepped outside the DVLA provision of my data by continuing to cause me significant distress by harassing me, the registered keeper. There can be no doubt whatsoever that a Letter before Claim sent blindly to a person with no legal liability is likely to cause enormous distress and I confirm that this is the case.

20. I require you and your client to cease and desist. To be clear, I decline any invitation to name the driver and this is my lawful right. There the matter must end, because Horiaon Parking Limited have no lawful excuse to use my DVLA data beyond the very basic cause, of enquiring as to the driver's identity. A line must now be drawn under this exchange.

21. Should this matter proceed then I put you on notice that I will make a counterclaim for damages in respect of such Data Protection Act (DPA) breaches, in respect of each and every individual PCN/DVLA data request. I understand that there is case law which supports a damages award of £750 for each breach (so a total of £3,000 in this case as a counterclaim). I believe I am entitled to claim an award of aggravated damages because your client must have been aware of the provisions of, and its duties pursuant to, the DPA and the limitations as to the use of the data they extracted under the KADOE. They are indisputably aware that they were operating a business model which gives them no rights whatsoever to claim against a registered keeper and I require them to withdraw immediately.

22. I expect a substantive response with the documents and POPLA code (or confirmation of cancellation of all PCNs) within 14 days of this letter.

Yours faithfully,
Draft letter end

My queries

In 4, As these PCNs were issued in 2014, I don’t know for certain what signage was up at the time. I have checked the signs currently on the site and believe they do not comply. Is it reasonable to assume from the current signage that the signage at the time of PCN issue were non compliant?

In 5. As these PCNs are from 2014, I cannot say for sure how the NTKs were worded or even that they were received. Should the wording of 5 be amended to reflect this or is the currnt wording generic enough to allow for gaps in memory due to the historic nature of the PCNs. I'm guessing historic PCNs must be resurrected all the time?

7. I have omitted reference and the hyperlink to the transcript. Should I state that the transcript will form part of my defence in court?

8. This paragraph seemed good as is, until the “using POFA” at the end. My understanding is that POFA has to be complied with, not used?

14. To be omitted (Gladstone have not stated this)

16. To be omitted (not relevant). Possibly add pertinent points to paragraph 15. Something like “I bring to your attention that POPLA codes can be issued at any time, not just in the first 28 day arbitrary deadline (imposed in the interests of parking operators only, creating a significant imbalance in the rights of consumers). It may interest you to know that POPLA codes have been produced by parking operators many months/years after parking events, by order of the Courts and if your client refuses to withdraw I am formally asking for a POPLA code now and will make the same reasonable request of the CCBC when serving my Directions Questionnaire in due course.”

Thanks

Bumping this as planing to send this evening