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  • FIRST POST
    • Birdo26
    • By Birdo26 11th Jul 17, 7:58 PM
    • 40Posts
    • 3Thanks
    Birdo26
    HX Car Park Management, Gladstones Letter Before Claim
    • #1
    • 11th Jul 17, 7:58 PM
    HX Car Park Management, Gladstones Letter Before Claim 11th Jul 17 at 7:58 PM
    Hi,

    Received a PCN from HX Car Park Management

    Spoke to the bowling who said cameras were only installed recently. Signs are not clear at all. But said they can't cancel them.

    Didn't reply to it which was a bit silly but now have received a letter before claim from Gladstones solicitors asking to pay £160 within 14 days.

    Had a search on here and found a reply so sent that by email which I hope is ok. Said not to admit who was driving which i made sure I didn't.

    Just want to know what I should do now and what is likely to happen next.

    Thanks
    Last edited by Birdo26; 11-07-2017 at 8:40 PM.
Page 5
    • Coupon-mad
    • By Coupon-mad 19th Nov 17, 9:37 PM
    • 51,650 Posts
    • 65,310 Thanks
    Coupon-mad
    Yes, do address it to the Judge, and make sure the claim number is on the top, maybe attach a photocopy of the order with the relevant part highlighted.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Birdo26
    • By Birdo26 21st Nov 17, 6:41 PM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Need to ring the courts tomorrow morning and find out whats happened. In the mean time I have this as a witness statement. Obviously need to attach photos ect. Please let me know what you think. Thanks


    In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

    1. The defendant has received no information from the Claimant stating facts around exactly what the alleged 'overstay' or underpayment was.

    2. The Claimant has not complied with the pre-court protocol, as the claimant has not provided any Particulars of Claim or initial information containing the facts to the defendant, so the defendant has no basis to file a full defence. In particular, the full details of the contract that it is alleged was broken have not been provided.

    3. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
    that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
    action Conduct process, especially bearing in mind that the Claim in being handled by Gladstones who are a firm of solicitors.

    4. As Gladstones are a firm of solicitors whose Directors also run the IPC Trade
    Body and deal with private parking issues every single day of the week there can
    be no excuse for these omissions.

    5. The defendant emailed the claimant on 11/07/2017 (Exhibit 1 – letter asking for details).

    The claimant did not respond.

    6. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this is a shared vehicle it is impossible to recall who might have been driving therefore puts HX to strict proof that any contract can exist between the Claimant and themselves.

    7. I rely upon the words of barrister and parking expert Lead Adjudicator for PATAS and
    POPLA, Henry Michael Greenslade, where he clarified in the POPLA Annual Report
    2015 in a heading: 'Understanding Keeper Liability') that a private parking operator must never presume that a keeper is the driver. (Exhibit 2 – Popla report).

    8. The signage was inadequate to form a contract with the motorist because it is barely
    legible, making it difficult to read. You would need to bend down right in front of it to able to read it. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which HX is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.” As can be seen from the attached photographic evidence (Exhibit 3) this is not the case. Please refer to (Exhibit 4) a copy of the clear and distinct signage used in Beavis v Parking Eye.

    9. The warning signs above and next to the ticket machine are so high up that only a person of above average height would be able to read and they are not visible as you enter into the carpark as they are obstructed by a large bush If you park in the area in the photo evidence you would not see the machine upon driving into the carpark.. (Exhibit 5 & 6 – photograph of machine and unclear signage)

    10. The small sign is not visible to anyone entering the carpark as it is obstructed by a large barrier (Exhibit 7).
    11. There are no warning signs upon entering the first carpark to state that such terms apply. A motorist could very easily be led to believe the whole car park is under same rules. (Exhibit 8)
    12. The defendant was a patron of MFA Fantasy bowl during the time of the alleged incident. (Exhibit 9).

    13. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

    14. On the 20th September 2016 another relevant poorly pleaded private parking
    charge claim by Gladstones was struck out by District Judge Cross of St Albans
    County Court without a hearing due to their ‘roboclaim’ particulars being
    incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give
    rise to any apparent claim in law.’

    15. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

    Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

    7.5 “Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.”

    16. The claimant described the charge of £50 as ‘legal fees’ not ‘contractual costs’ CPR
    .14 does not permit these to be recoverable in the Small Claims Court

    17. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be
    recovered from the keeper is the charge stated on the Notice to Keeper.

    18. HX Car Park Management are not the lawful occupier of the land. I have the
    reasonable belief that they do not have the authority to issue charges on this land in
    their own name and that they have no rights to bring this case.

    I believe that the facts stated in this Witness Statement are true.
    Last edited by Birdo26; 22-11-2017 at 9:08 AM.
    • Birdo26
    • By Birdo26 22nd Nov 17, 9:08 AM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Bumping this up as its fallen down overnight. Made some changes so will edit with a new one.
    • Birdo26
    • By Birdo26 22nd Nov 17, 9:31 AM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Spoke to the courts who said it can only be done by a formal application which costs £255 if I remember correctly.
    • Birdo26
    • By Birdo26 22nd Nov 17, 11:29 AM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Sending this off at middday. If anyone can look before then it would be much appreciated . Thanks
    • Birdo26
    • By Birdo26 5th Dec 17, 9:18 AM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Ok so got 2 days off work. It says I need to send any written comments on the other sides evidence. Cant find anything. Not sure what I should be writing or how to lay this out? Thanks
    • nosferatu1001
    • By nosferatu1001 5th Dec 17, 10:48 AM
    • 1,136 Posts
    • 1,164 Thanks
    nosferatu1001
    "IT" says? What exactly is "it"?
    Youre looking for a skeleton argument
    • Birdo26
    • By Birdo26 5th Dec 17, 11:46 AM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Yeah it was a letter I got with the court paperwork. It has the deadlines of what I need to do and when. I have Sent off a witness statement and this is the next bit.
    • nosferatu1001
    • By nosferatu1001 5th Dec 17, 2:23 PM
    • 1,136 Posts
    • 1,164 Thanks
    nosferatu1001
    It is unusla - did yu get their WS first then?
    Strictly with the CPRs there is no need to "rebut" their evidence as such, in advance. thats what the hearing is for.
    • Birdo26
    • By Birdo26 5th Dec 17, 6:20 PM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Yeah I have a copy of their witness statements. I have a hearing but its on papers which is why i need to do it this way.
    • Johnersh
    • By Johnersh 5th Dec 17, 9:12 PM
    • 730 Posts
    • 1,351 Thanks
    Johnersh
    Treat it like a skeleton argument. These are the points you'd make if you were attending court.

    So, numbered points, court headings etc. Then take apart the witness evidence. Restate your case and refer to any helpful court authority (name and citation). Stuff like Beavis doesn't need to be sent in, if referred to properly. County court decisions are not so easily obtainable, so if you can get them, supply them.
    • Birdo26
    • By Birdo26 5th Dec 17, 9:51 PM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Thank you, are there any good threads I can look at to get an idea of how to lay it out and what to say.
    • Umkomaas
    • By Umkomaas 5th Dec 17, 9:54 PM
    • 15,870 Posts
    • 24,595 Thanks
    Umkomaas
    Thank you, are there any good threads I can look at to get an idea of how to lay it out and what to say.
    Originally posted by Birdo26
    The most likely links will be in the NEWBIES FAQ sticky, post #2, which generally covers everything ‘small claim’ from LBC to the actual hearing.

    That’s your best starting point.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Birdo26
    • By Birdo26 6th Dec 17, 9:45 AM
    • 40 Posts
    • 3 Thanks
    Birdo26
    This is what I have so far. I'm a little unclear on point 3 and 4 if someone could explain them better to me? Also I'm not sure how relevant point 11 is and how to expand on it if so. Thanks

    1.The original PCN (E.2) posted by this Claimant states a Full Charge of £100.00 (£60.00 discounted) however the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at quadruple recovery:
    1. £161.072 Principal debt236.72
    2. £25 Court fee.
    3. £50 Legal fee.
    5. Outstanding balance to pay now £262.76.

    2. It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in this Claimant's undue haste to issue robo-claims in their thousands, scraping the barrel of archive cases to bring to court, under excuse of jumping on the bandwagon started by the (completely different and complex) case in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').

    3. The Claimant places reliance on its provision of signage at the site and upon the content of that signage. However, the Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage. At the time the driver allegedly parked at this location, it is contended that a criminal offence was being committed in order to artificially create the appearance of a contract.

    4. The commission of an illegal wrong being present at the time of a driver allegedly entering the contract means that the Claimant will not be able to enforce the contract. The illegality is central to the contract (the terms on the signs themselves) and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.

    5. The Claimant has omitted to obtain Planning Permissions or Advertising Consent from Southend Council & the present Landowner for the Signage or the ANPR Cameras. The Southend Planning Register does not show any such applications in its planning history.

    Exhibit 1 - Evidence from council website.

    6. It is contended that the signs are in place without consent and are therefore illegal advertisements. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display an advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.

    7. The Judge’s attention is also drawn to RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) 12 March 2015 (the RTA case) which whilst dealing with a different matter, covered at 34, the relevance of the public law principle going back well over 200 years, that no man should profit from his crime. It is submitted that this is particularly relevant in this action. In the RTA case, the Judge cited Lord Mansfield CJ to explain that:
    “The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and the defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it.''

    In this claim there has been a transgression of a law (the 2007 Regulations) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.

    Exhibit 2 – RTA Case.

    8. The Beavis case at 96, draws attention to the Code of Practice of the British Parking Association ('the BPA'). And at 111 the Judge helpfully comments that “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.” (Defendant’s emphasis of the key point).

    Exhibit 3 – Beavis Case.

    9. In any event, this Claimant fails to fulfil the requirements of CPR16.2 for particulars of claim in that they have neglected to set out any facts or state what it is they are claiming monies for. Their particulars of claim just state "parking charge notice of ********" and do not say whether the sum is due as a contractual sum, damages for breach of contract or money due for something else, such as a liability for a failure of duty of care or trespass under common law tort.

    10. It is contended that the signs that were in place at the location were unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract, as was found in many cases involving HX Car Park Management.
    11. The claimants map also shows the position of the ANPR Camera as incorrect as shown in exhibit XXX.
    Exhibit 4 – Photo showing incorrect position of ANPR Camera.

    12. The Claimant's evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle being parked. In order to demonstrate that the driver failed to register a numberplate, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.

    13. This is an ANPR site, where are the systems records showing no payment made on the date mentioned or supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle. There is a well-known history of the parking ticket machines at HX Car Park Management sites failing to record a VRN.

    14. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case.

    Exhibit 5 – Beavis Signage.


    15. The claimant cannot rely on Elliot v Loake ('EvL') to claim that the driver and the keeper can be 'assumed' to be the same, since this was a criminal case and referred to the owner, not the keeper. In any event, in EvL there was overwhelming forensic evidence from other sources that the defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption.

    16. The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:

    “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. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."

    Exhibit 6 – Popla Report.
    17. Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA, in this case because of the indisputable fact that the event pre-dated the law. This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

    18. It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.


    I believe that the facts stated in this Skeleton Defence are true.





    Signed :


    Dated :
    • Birdo26
    • By Birdo26 6th Dec 17, 10:22 AM
    • 40 Posts
    • 3 Thanks
    Birdo26
    Also do I send a copy to Gladstones as well as court? Thanks
    • nosferatu1001
    • By nosferatu1001 6th Dec 17, 12:56 PM
    • 1,136 Posts
    • 1,164 Thanks
    nosferatu1001
    No, you only send to the court, as the claim form clearly tells you
    This isnt a skeleton defence. No such thing. This is your ACTUAL defence.
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