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  • FIRST POST
    • muleskinner
    • By muleskinner 10th Oct 17, 5:52 PM
    • 36Posts
    • 16Thanks
    muleskinner
    Help Requested With WS - Court Hearing vs Gladstones & PPM Ltd
    • #1
    • 10th Oct 17, 5:52 PM
    Help Requested With WS - Court Hearing vs Gladstones & PPM Ltd 10th Oct 17 at 5:52 PM
    UPDATE 10.12.17

    Court hearing set for 12th Feb. WS needs to be in by 2nd Jan (great timing) so I've started working on it now.

    I've posted my fourth (and hopefully final) draft WS at the end of this thread and would be really grateful for any input.

    Thanks in advance.

    ===

    Hi,

    So, it looks like I'm finally going to court to fight a PCN issued by Parking & Property Management Ltd. PCN issued to my wife so I'm basically fighting this on her behalf.

    PCN was issued for five minutes parking in a lay-by opposite a co-op where it had previously been permissible to park for a limited time (20 mins or so) if visiting same. Very poor forbidding signage and absolutely nothing to indicate change of restrictions.

    I've just received the DQ from Northampton as well as an email from Gladstones saying they are applying for 'Special Directions' to have it adjudicated 'papers only'. I know how to fill in the DQ but I couldn't find anything indicating how to respond to these 'Special Directions' - do I just write a covering letter saying I do not consent to this and want an oral hearing?

    Also I will want to attend court as my wife's 'lay representative' and I can't find any info on this anywhere. Do I need to make any kind of special application to do this?

    It seems the next step will be for me to write a witness statement and get evidence together. I would welcome any feedback/advice on this specific to my case. The defence I filed (prepared after much research here and elsewhere) is below.

    The 'particulars of claim' state:

    'The driver of the vehicle registration XXXXX incurred the parking charge(s) on XXXXX for breaching the terms of parking on the land at Kingston Mills Bradford-on-Avon. The defendant was driving the vehicle and/or is the keeper of the vehicle and the claimant claims £160 for parking charges/damages and indemnity costs if applicable, together with interest etc etc'

    I don't have any legal training but have been through the small claims process a few times before, winning two out of three of them!

    =====

    Summary of Defence

    I am XXX of 44 XXX, Defendant in this matter.

    On the 7th January 2017 I parked my car in a unmarked lay-by outside the co-op in Bradford-on-Avon for the purposes of buying groceries from the co-op and delivering a package to the Post Office there. Previous parking restrictions in this spot had always allowed short parking stays on co-op business.

    After less than five minutes inside the shop I noticed one of the Claimant’s operatives approach my vehicle. As it appeared he was about to issue a parking ticket I left the shop immediately and returned to my vehicle.

    I explained that I was unaware of any changes to parking restrictions and would remove my vehicle immediately. Despite this, and whilst in my presence, the Claimant’s operative took photographs of my vehicle and issued me with the Parking Control Notice (PCN) that is the subject of this claim.

    The claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which fully negates the Claimant’s case.

    1. A Contract Cannot Exist For Something That Is Forbidden
    The wording on the sign in question expressly forbids parking, therefore it cannot be considered an offer of parking on any terms. Consequently there is no contract and no ‘breach of terms’.

    2. The Signage Is Not of a Standard To Constitue A Contract
    The signage at the site was not of a standard to constitute a ‘contract’ between myself and the claimant. Without a contract there cannot be a ‘breach of terms’.

    3. Consumer Contracts Regulations 2013 and ‘Right Of Cancellation’ Applies
    If it was assumed a contract did exist it would be categorised as a ‘distance contract’ under Consumer Contracts Regulations. As such I would have had ‘right of cancellation’ from said contract.

    4. The Claimant Has No Standing to Bring a Case
    Despite being asked, the claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question.

    Particulars of Defence

    1. A Contract Cannot Exist For Something That Is Forbidden
    The wording on the sign in question forbids parking other than for disabled blue badge holders and co-op delivery vehicles. There is no meaningful ‘offer’ of parking for other vehicles and the original PCN and Notice To Keeper I was served with refer to the charge in question as being for ‘unauthorised parking’. Without an ‘offer’ or benefit to the consumer there cannot be a contract and simply being told not to do something does not constitue a contract.

    If the charge of £100 for 24 hours was a genuine ‘offer’ then I fail to see how my parking was ‘unauthorized’ (therefore invalidating the original PCN and Notice To Keeper’ I was sent) or how I have commited any ‘breach’ as stated on the particulars of claim. The Claimant’s position on this seems hopelessly muddled.

    There have been at least two other cases where it has been ruled that such ‘forbidding contracts’ cannot be enforced. For examples see ‘Parking Control Management v Bull, Lyndsay and Woolford’ (which refers to signage and wording almost identical to that used in this case) and in which the Judge found as follows:

    “If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

    The only difference with the signage in the above case and this particular case is that here certain vehicles (co-op delivery vehicles and disabled blue badge holders) are permitted to park. However, in ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ it was ruled that any contractual arrangement implied by such signage only applies to vehicles which are ‘authorised’ to park. From ‘ES Parking Enforcement v Ms A. Manchester’:

    ‘I do not find that “Terms of parking apply at all times” in any way invalidates my interpretation of the sign [that it is forbidding] because there are terms which apply to those that are authorised to park.’

    According to the claimant my vehicle was not ‘authorised’ to park as stated in the PCN and Notice To Keeper.

    Note also that in both these cases it was ruled that ‘ParkingEye vs Beavis’ did not apply as in that case there was an ‘offer’ of free parking for a limited period of time. From ‘Parking Control Management v Bull, Lyndsay and Woolford’:

    ‘In the Beavis case the scheme was categorised by the permission the ParkingEye gave Mr Beavis to be in the car park for a limited period of time. So whether you call it a contractual licence or whether you simply call it a contractual permission, as Lord Mance in the end did, that was the consideration and the consideration flowing the other way was Mr Beavis’s agreement to be bound by those terms.’

    2. The Signage Is Not of a Standard To Constitute A Contract
    The signage at the site was not of a standard to constitute a ‘contract’ between myself and the claimant. Without a contract there cannot be a ‘breach of terms’.

    Specifically, the signage at the site falls way short of the characteristics defined in the code of practice of the International Parking Community (IPC) (the industry body to which the Claimant subscribes) in the following ways:

    i) There are no signs at the entrance to the bay indicating one is entering private land

    ii) The bay is unmarked and undifferentiated from the public highway

    iii) The only PPM sign that is in place does not contain a large ‘P’ indicating parking restrictions

    iv) The sign is not in a position’ such that a driver of a vehicle is able to see it clearly upon entering the site or parking a vehicle within the site’.

    v) The sign is not ‘obvious to the motorist’ as it is a small sign containing small text on a post over seven feet high.

    vi) The IPC guidelines explicitly state that ‘Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.’ There was a recent change in restrictions here yet there were, and have never been, any such signs at the site.

    In addition to the above it should be noted that there is additional co-op branded signage at the site that does not mention any kind of charge for parking, this signage is considerably larger and more apparent than the PPM signage that is the subject of this claim.

    3. Consumer Contracts Regulations 2013 and ‘Right Of Cancellation’ Applies
    If , despite the above, it was deemed that a valid contract did exist it would be categorised as a ‘distance contract’ under Consumer Contracts Regulations. A ‘distance contract’ is defined as

    ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’

    This would clearly be defined as an organised service-provision scheme (for parking), the contract is concluded without the simultaneous physical presence of the trader and the consumer and there is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

    As such I would have had ‘right of cancellation’ from such a contract and my communicating to the PPM operative that I was not aware of this supposed ‘contractual arrangement’, followed by the immediate removal of my vehicle, should have been taken as a clear indication that I wanted to excersise this right. As this was done within five minutes of the contracts (supposed) acceptance this falls well within the guidelines set out in part 3 of The Consumer Contracts Regulations 2013.

    In any case it is perfectly reasonable to expect 5-10 minutes to understand and comprehend any potential contract. ‘ParkingEye v Beavis’ makes it clear that if a charge is not to be a penalty/unfair consumer charge, the driver must have ample time to be able to read and digest the contractual terms so that they can fairly agree to the terms

    Not also that the signage does not contain the information required by the Consumer Contracts Regulations 2013. As per clause 13(1), without this information any contract is not binding on the consumer.


    4. The Claimant Has No Standing to Bring a Case
    Despite being asked, the Claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question. The Claimant is put to strict proof as to on what terms they are permitted to operate by the landowner by disclosing the appropriate parts of their contract.

    5. Additional Costs
    There is no justification in the particulars of claim for the £60 of ‘damages and indemnity costs’, nor for the £50 ‘legal representatives costs’. Any communication I have received from the Claimant’s legal representatives has consisted of automated letters. The Claimant is put to strict proof as to the validity of these costs.
    Last edited by muleskinner; 10-12-2017 at 1:25 PM. Reason: Update
Page 1
    • Redx
    • By Redx 10th Oct 17, 5:59 PM
    • 16,895 Posts
    • 20,992 Thanks
    Redx
    • #2
    • 10th Oct 17, 5:59 PM
    • #2
    • 10th Oct 17, 5:59 PM
    the lay rep and mckenzie friend details have been posted on here numerous times, plus links to the relevant info issued on them as people have printed them out for the courts etc

    use the forum drop down search box and suitable search words to find the info

    I am sure than coupon-mad and umkomaas and others have posted the info many times before this year

    like this http://forums.moneysavingexpert.com/showthread.php?t=5678796

    also, the "special directions" has also been covered numerous times in various gladstone court claim threads and is also referenced in the NEWBIES FAQ sticky thread, in post #2 , the BARGEPOLE link is essential reading (hint)

    its alll on here if you look, I know as I have seen them all mentioned numerous times before

    ignore any advice prior to 2017
    Last edited by Redx; 10-10-2017 at 6:10 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Marktheshark
    • By Marktheshark 10th Oct 17, 6:08 PM
    • 5,691 Posts
    • 7,160 Thanks
    Marktheshark
    • #3
    • 10th Oct 17, 6:08 PM
    • #3
    • 10th Oct 17, 6:08 PM
    The introduction statement your defence are just about slam dunk for the court, full admittance you parked there and full admittance you were aware of a contract.

    I would not bother turning up if that is the defence.
    You need an urgent re-think, you need to make them prove the whole case start to finish and defend only as the keeper so you can pull pofa points as well.
    Brexit will become whatever they invent it to be.
    • muleskinner
    • By muleskinner 10th Oct 17, 6:18 PM
    • 36 Posts
    • 16 Thanks
    muleskinner
    • #4
    • 10th Oct 17, 6:18 PM
    • #4
    • 10th Oct 17, 6:18 PM
    The introduction statement your defence are just about slam dunk for the court, full admittance you parked there and full admittance you were aware of a contract.
    Originally posted by Marktheshark
    I don't see how? I am not denying I parked there, it's too late for that, but nowhere do I admit I was aware of their 'contract' (at least until they slapped the PCN on my vehicle)?
    • Redx
    • By Redx 10th Oct 17, 6:28 PM
    • 16,895 Posts
    • 20,992 Thanks
    Redx
    • #5
    • 10th Oct 17, 6:28 PM
    • #5
    • 10th Oct 17, 6:28 PM
    in which case you cannot use POFA2012 or NTK issues if the driver is known or admitted

    for lay rep info, check this thread I found using the drop down search

    http://forums.moneysavingexpert.com/showthread.php?t=5577928

    and BARGEPOLE definitely mentions the special directions in his walk through (I checked again)
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • yorkshirebloke
    • By yorkshirebloke 10th Oct 17, 6:29 PM
    • 11 Posts
    • 8 Thanks
    yorkshirebloke
    • #6
    • 10th Oct 17, 6:29 PM
    • #6
    • 10th Oct 17, 6:29 PM
    muleskinner, I can see from both angles - you've described the situation - a perfectly normal common-sense every day situation - to appeal to the human side of the judges - in other words you weren't taking the proverbial. Most normal people like you and me would try to 'reason' and show humanity. However I do kinda see Marktheshark's point of view. Opening with an admission that you parked on the land might not be a promising start. The rest of the defence in terms of no contract being in place, to me (albeit a newbie) seems bang on - especially the 'forbidden' part as I've seen this on a few websites and forums.
    With regards to how to continue, leave me out of that one as I'm quite the newbie around here - some other more experienced people will hopefully jump in. I'm following this one with interest though so please keep us in the loop :-)
    • muleskinner
    • By muleskinner 10th Oct 17, 6:39 PM
    • 36 Posts
    • 16 Thanks
    muleskinner
    • #7
    • 10th Oct 17, 6:39 PM
    • #7
    • 10th Oct 17, 6:39 PM
    Thanks - I have found the 'special directions' info. And from that link it seems I have nothing special to do to act as a lay rep other than turn up with the 'The Lay Representatives (Rights of Audience) Order 1999' (and make sure my wife is there as well)!
    • beamerguy
    • By beamerguy 10th Oct 17, 6:40 PM
    • 6,453 Posts
    • 8,259 Thanks
    beamerguy
    • #8
    • 10th Oct 17, 6:40 PM
    • #8
    • 10th Oct 17, 6:40 PM
    I don't see how? I am not denying I parked there, it's too late for that, but nowhere do I admit I was aware of their 'contract' (at least until they slapped the PCN on my vehicle)?
    Originally posted by muleskinner
    You know, Mark is right. Otherwise you will walk in blind
    and be slaughtered

    Let the experienced on here help you to re write .
    Whilst nobody here can guarantee a win, we can give you
    a better than average chance which is better than you
    are doing now

    We are on your side. If one of the experienced on here
    change something, you can rest assured it is good advice
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • muleskinner
    • By muleskinner 10th Oct 17, 6:44 PM
    • 36 Posts
    • 16 Thanks
    muleskinner
    • #9
    • 10th Oct 17, 6:44 PM
    • #9
    • 10th Oct 17, 6:44 PM
    muleskinner, I can see from both angles - you've described the situation - a perfectly normal common-sense every day situation - to appeal to the human side of the judges - in other words you weren't taking the proverbial.
    Originally posted by yorkshirebloke
    Yes, that's exactly it.

    In my limited experience of these matters when there are grey areas judges tend to take a 'common sense' view as to what is 'reasonable'. Therefore my aim was to show I acted as any reasonable person would in the first instance, but that there is no lawful basis for applying the 'parking charge' anyway.
    • beamerguy
    • By beamerguy 10th Oct 17, 6:57 PM
    • 6,453 Posts
    • 8,259 Thanks
    beamerguy
    Yes, that's exactly it.

    In my limited experience of these matters when there are grey areas judges tend to take a 'common sense' view as to what is 'reasonable'. Therefore my aim was to show I acted as any reasonable person would in the first instance, but that there is no lawful basis for applying the 'parking charge' anyway.
    Originally posted by muleskinner
    The problem you face is that there are judges around
    who simply do not understand the parking scam and
    common sense goes out of the window.
    This has been seen a lot on here

    I strongly suggest you take note of the experienced on here

    Sorry to say that what you say above is not going to help you
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • muleskinner
    • By muleskinner 10th Oct 17, 7:18 PM
    • 36 Posts
    • 16 Thanks
    muleskinner
    Let the experienced on here help you to re write .
    Whilst nobody here can guarantee a win, we can give you
    a better than average chance which is better than you
    are doing now
    Originally posted by beamerguy
    I'm all ears, believe me, otherwise I wouldn't have posted here in the first place!

    If I had admitted being aware of a contract prior to parking that would, clearly, be a big mistake. I don't see where I have done that so, if that is the case, I would be grateful if it could be pointed out.

    I also realise I shouldn't have admitted to being the driver but that ship, unfortunately, has sailed (given that I spoke directly to the guy who issued the PCN at the time).

    Any other input on changing tack when I reshape this into a witness statement is appreciated.
    • beamerguy
    • By beamerguy 10th Oct 17, 7:45 PM
    • 6,453 Posts
    • 8,259 Thanks
    beamerguy
    I'm all ears, believe me, otherwise I wouldn't have posted here in the first place!

    If I had admitted being aware of a contract prior to parking that would, clearly, be a big mistake. I don't see where I have done that so, if that is the case, I would be grateful if it could be pointed out.

    I also realise I shouldn't have admitted to being the driver but that ship, unfortunately, has sailed (given that I spoke directly to the guy who issued the PCN at the time).

    Any other input on changing tack when I reshape this into a witness statement is appreciated.
    Originally posted by muleskinner
    Great, so admitting to being the driver is no big deal, it's going
    to be the signs and landowner permission (if any) that is to be
    worked on.

    One saving grace is that it is Gladstones who are generally
    known as completely incompetent, not just here but to
    the courts as well.

    Have a read of the Parking Prankster about Gladstones.
    The Parking Prankster is not a joke, his blog is highly respected
    http://parking-prankster.blogspot.co.uk/search?q=gladstones

    There are a couple of great solicitors on this forum who offer
    advice for free plus ... brilliant forum members who can start
    to guide you on your path to winning
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • muleskinner
    • By muleskinner 10th Oct 17, 8:30 PM
    • 36 Posts
    • 16 Thanks
    muleskinner
    One saving grace is that it is Gladstones who are generally
    known as completely incompetent, not just here but to
    the courts as well.

    Have a read of the Parking Prankster about Gladstones.
    The Parking Prankster is not a joke, his blog is highly respected
    http://parking-prankster.blogspot.co.uk/search?q=gladstones
    Originally posted by beamerguy
    Thanks.

    I will read through the prankster posts on that link. I have already read his blog extensively, as well as info on similar cases on this site and others. The 'forbidding contract' cases I reference in the defence are from the prankster blog as is some of the wording relating to consumer contracts legislation.

    I guess I will work on my WS and post here when I have something, but the key points (as far as I'm aware) are...

    1. Forbidding Signage

    2. Inadequate Signage

    3. Consumer Contracts Legislation

    4. Landowner Permission

    As to (4) I have asked PPM for a copy of their contract with the landowner several times and so far they have refused to supply it. Presumably they have to supply it before the court date otherwise they will look pretty stupid?
    • nosferatu1001
    • By nosferatu1001 10th Oct 17, 9:15 PM
    • 1,136 Posts
    • 1,165 Thanks
    nosferatu1001
    A ws is a series of facts
    Not arguments
    Introduce arguments gently.
    • muleskinner
    • By muleskinner 11th Oct 17, 12:16 PM
    • 36 Posts
    • 16 Thanks
    muleskinner
    Here are some pics of the site for your viewing pleasure...

    I'll get a better pic of this one but this is the most prominent signage at the site. It is at least twice as large as the PPM one, co-op branded, and in a much, much larger font.

    No offer to park. No mention of charges. Nothing to look elsewhere for T&Cs.

    This notice has always been at the site and if you asked within the co-op if it was OK to park there for 15 mins or so whilst shopping you'd be told it wasn't a problem as you were there on co-op business. It was common practice for people to do this and had been for several years.



    Here is a pic I took of the site shortly after the PCN was issued. You can see the PPM notice on the post in the middle of the bay (just about). No signage at the entrance to the bay, no road markings and nothing to indicate a change of restrictions.



    Here's the pic PPM took of my vehicle. This doesn't really add anything other than showing there was another vehicle parked in front of the PPM notice at the time making it even harder to read (you'd pretty much have to stand in the roadway to read it).



    Here's the actual sign. I would class this as 'forbidding' as there is no meaningful offer to park. It's a prohibitory notice using lexical jiggery-pokery to dress itself up as a contract.



    Here the sign from PCM vs Bull which was ruled as 'forbidding'. The key wording is pretty much exactly the same.

    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 12:20 PM
    • 1,751 Posts
    • 2,852 Thanks
    Loadsofchildren123
    Are you sure that isn't public highway? Check with your local council.
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 12:22 PM
    • 1,751 Posts
    • 2,852 Thanks
    Loadsofchildren123
    BTW, the law isn't about common sense or reasonableness or morality. It's just about applying and interpreting what the law says. Please don't think otherwise, even though it's tempting. Don't look on the judge as a human in that respect, look on him as if he is a law book.
    • muleskinner
    • By muleskinner 11th Oct 17, 12:24 PM
    • 36 Posts
    • 16 Thanks
    muleskinner
    Are you sure that isn't public highway? Check with your local council.
    Originally posted by Loadsofchildren123
    It does look like it doesn't it? That's part of my argument.

    I don't actually know for sure, I just presumed no-one would be stupid and reckless enough to pursue private parking charges on a public highway but I'm probably just being naive there.

    I will try and find out - not entirely sure how to go about doing that but will check...
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 12:55 PM
    • 1,751 Posts
    • 2,852 Thanks
    Loadsofchildren123
    I just presumed no-one would be stupid and reckless enough to pursue private parking charges on a public highway
    They do. All the time. There's an active thread on here about Millennium doing just that which you can search for.


    Phone the Highways Department of your local council. They will be able to tell you what's public highway and what's privately owned.
    • muleskinner
    • By muleskinner 11th Oct 17, 1:45 PM
    • 36 Posts
    • 16 Thanks
    muleskinner
    Are you sure that isn't public highway? Check with your local council.
    Originally posted by Loadsofchildren123
    Checked - it's not part of the public highway unfortunately, though to all intents and purposes it looks like it.
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