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  • FIRST POST
    • muleskinner
    • By muleskinner 10th Oct 17, 5:52 PM
    • 38Posts
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    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 12.12.17

    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 fifth (and hopefully final) draft WS at the end of this thread and would be really grateful for any input. Thanks again for input thus far.

    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; Yesterday at 1:06 PM. Reason: Update
Page 2
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 2:16 PM
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    Loadsofchildren123
    Oh well, worth a shot. Who owns that layby then? Has the PPC got proper landowner authority?
    • Umkomaas
    • By Umkomaas 11th Oct 17, 2:19 PM
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    Umkomaas
    Virtually the same scam as Heath Parade. Do a Google search on ‘Parking Prankster Heath Parade’ and it will bring up loads of PP blogs about this particular scam, and give you plenty of ideas for defending this.
    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.
    • muleskinner
    • By muleskinner 11th Oct 17, 3:15 PM
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    muleskinner
    Oh well, worth a shot. Who owns that layby then? Has the PPC got proper landowner authority?
    Originally posted by Loadsofchildren123
    I think it must be owned by a company called Pentland Management who manage the whole development on that site. I don't know if the PPC has proper authority, I have asked for this but they have refused to supply anything claiming 'client confidentiality'. Presumably they will have to supply something before going to court otherwise they could be any joker putting up a sign!

    Virtually the same scam as Heath Parade. Do a Google search on ‘Parking Prankster Heath Parade’ and it will bring up loads of PP blogs about this particular scam, and give you plenty of ideas for defending this.
    Originally posted by Umkomaas
    Wow - you're right. It's an almost identical situation down to the 'loading bay' type sign and the guy waiting round the corner ready to pounce! Thanks!

    In the comments below that link someone says this - 'If someone is physically on site they are meant to ask you to move to mitigate any loss or parking charge'. Is this correct and is there a legal basis for this? I have read through the IPC code of practice(!) and don't remember anything to this effect.
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 3:32 PM
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    Loadsofchildren123
    There is a case that says that, off the top of my head not sure which one it is. One of the other regulars will know. Parking Prankster's blog contains two lists of case law which you could go through to find it as well.


    In that other case the driver parked, and left the site having had a chat with the attendant on his way out, and the t&cs said that drivers were to remain on the site. The court said the attendant should have said something - duty to mitigate loss etc. But the driver was able to say that the attendant had definitely seen him which you may not be able to do.
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 3:35 PM
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    Loadsofchildren123
    That old chestnut - commercial confidentiality. What a load of tosh.


    Write to them and say that the duty is on them to prove their case and they cannot hide behind confidentiality to avoid showing that they have locus standi to bring the claim. Even if there are parts of the contract which are commercially sensitive, this simply cannot apply to the entire document. Offer an undertaking not to show the contract to a third party or discuss it with any third party, not to copy it save for any court bundle/documents, and to return all copies in your possession straight after the matter is concluded. When they don't reply, chase them for an answer. Idiots.
    • muleskinner
    • By muleskinner 11th Oct 17, 3:51 PM
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    muleskinner
    In that other case the driver parked, and left the site having had a chat with the attendant on his way out, and the t&cs said that drivers were to remain on the site. The court said the attendant should have said something - duty to mitigate loss etc. But the driver was able to say that the attendant had definitely seen him which you may not be able to do.
    Originally posted by Loadsofchildren123
    The attendant would have seen me (aka my wife) as I was in the shop for less than five minutes before he slapped the PCN on my vehicle. I can't prove it but he must have been hiding around a corner when I pulled up. The timings on the PCN claim I was there for seven minutes but I was talking to him for at least two minutes before he slapped the PCN on and took the photos. Come to think of it, no photos have been provided showing me parked at the start of the period in question so they could well be exaggerating the length of time I was there anyway.
    • muleskinner
    • By muleskinner 11th Oct 17, 7:30 PM
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    muleskinner
    In that other case the driver parked, and left the site having had a chat with the attendant on his way out, and the t&cs said that drivers were to remain on the site. The court said the attendant should have said something - duty to mitigate loss etc. But the driver was able to say that the attendant had definitely seen him which you may not be able to do.
    Originally posted by Loadsofchildren123
    The only transcript I've been able to find similar to this is VCS vs Ibbotsen in which the judge castigates the PPC for this reason. It's not the reason the case gets struck out though, that's due to an inadequate contract with the landowner.

    It's a fascinating and hilarious read regardless, the PPC get a real bollocking!
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 7:35 PM
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    Loadsofchildren123
    I think Ibbotson is the one I was thinking of
    • muleskinner
    • By muleskinner 11th Oct 17, 8:51 PM
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    muleskinner
    Also that case was pre-Beavis I believe, post-Beavis the 'charge' no longer has to be a genuine pre-estimate of loss so does 'mitigation of loss' really apply anymore?
    • Loadsofchildren123
    • By Loadsofchildren123 12th Oct 17, 10:06 AM
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    Loadsofchildren123
    I'd have to read the case again, I just remembered the bit about the attendant watching the driver walk off site and saying nothing. You can use it as "obiter" - this is judicial comment which is not part of the actual judgment


    I think the duty to mitigate loss applies in every case, including where the penalty rule is disengaged. Worth arguing even if it's rejected. It's pretty shoddy behaviour and entrapment.


    I think you should find out who owns the land. It might not be that managing company, which may simply manage it (although they may have authority to bring in third parties such as PPCs). You can find out by getting the Official Copy Register Entries and Title Plan from Land Registry. They are very helpful if you phone them. They cost £3 each, these would be costs you'd be entitled to claim back.


    You definitely need to ask them for evidence of landowner authority.


    If you are defending as keeper, has POFA been complied with (you may already have answered this, sorry if you have)?
    • muleskinner
    • By muleskinner 12th Oct 17, 3:42 PM
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    muleskinner
    If you are defending as keeper, has POFA been complied with (you may already have answered this, sorry if you have)?
    Originally posted by Loadsofchildren123
    I'm defending as driver. I will see if I can find out the other info - thanks!
    • muleskinner
    • By muleskinner 18th Oct 17, 2:38 PM
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    muleskinner
    Well, this is interesting. According to the Land Registry the site isn't owned by Pentland Management but by Linden Homes.

    I'm guessing Linden contract out the management of the site to Pentland who, in turn, have contracted out the parking enforcement to PPM. I have anecdotal evidence (from someone who lives in flats on the site) that it was Pentland that contracted PPM.

    So I suppose PPM/Gladstards have to prove landowner authority all the way from Linden, via Pentland to themselves?

    Also I'm pleased to say that Google street view still has photos of the site from August 2016 so you can see there were no parking restrictions in place other than a sign that says simply 'loading only', thus confirming the restrictions had recently changed. I've screengrabbed these just in case!
    • muleskinner
    • By muleskinner 2nd Dec 17, 4:36 PM
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    • 18 Thanks
    muleskinner
    OK, so the scam machine rumbles on. I now have a hearing date set for the 12th Feb, WS and docs have to be in for the 2nd Jan.

    I have included my first draft WS below and would be extremely grateful for any feedback. I fear it is rather long-winded and also that I may be blurring the line between a simple statement of facts and presenting an argument, though it's difficult to separate the two.

    Any input would be very much appreciated.

    ======
    Witness Statement

    1. Sequence Of Events
    1.1 I am xxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

    1.2. This claim refers to a parking incident in an unmarked lay-by outside the co-op in Bradford-on-Avon. To all intents and purposes this bay appears either to be part of the public highway or to belong to the co-op (exhibit 1).

    1.3. Historically there have been no charges for parking in this bay. It has been marked simply ‘Loading Only’ (see exhibit 2 from August 2016) and co-op customers were always told it was permissible to park there for short periods if on co-op business.

    1.4. On the 7th January 2017 I parked my vehicle in said lay-by, as I was accustomed to do, for the purposes of buying groceries from the co-op and delivering a package to the Post Office there.

    1.5. After a period of time, which I estimate to be less than five minutes, I noticed a parking attendant (the Claimant’s representative) approach my vehicle with the clear intention of issuing some kind of ticket.

    1.6. I returned to my vehicle immediately and explained to the Claimant’s representative that I had no idea that I was violating any kind of parking restrictions and that I would remove my vehicle immediately if I was. The Claimant’s representative said that he would have to issue me with a Parking Charge Notice (PCN) and that I would have to remove my vehicle. I estimate this exchange to have lasted around two minutes.

    1.7. After this exchange the Claimant’s representative took pictures of my vehicle and issued me with a PCN (exhibit 3) that is the subject of this claim. The PCN states that the charge is for ‘unauthorised parking’ and that I ‘parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site’.

    1.8. On the 19th January 2017 I made an email appeal to the Claimant against the parking charge on the grounds that the signage at the site was inadequate, particularly given the recent change in parking restrictions. I never received a response to this appeal. (see exhibit 4)

    1.9. On around the 24th of February 2017 I received a ‘Notice to Keeper’ from the Claimant (exhibit 5) regarding the same ‘Unauthorised Parking’ charge. This notice states that the Claimant did not know who the driver of the vehicle was at the time of the parking incident and that they had obtained my details as keeper of the vehicle from the DVLA. Given the fact that I had admitted to being the driver of the vehicle in my appeal to the Claimant (to which I had yet to receive a response), and that a request for my personal information from the DVLA would have been unlawful under the circumstances, I presumed this communication to be an adminstrative error on behalf of the Claimant.

    1.10. I heard nothing further from the Claimant until 19th April 2017 when I received a letter from their agents, Gladstones Solicitors (a well-known serial litigant and ‘roboclaimer’), demanding money and threatening court action (exhibit 6). I responded with a letter to both the Claimant and Gladstones outlining why I felt I was I was not liable for the ‘parking charge’, requesting evidence of landowner authority to issue such a charge, and suggesting mediation via the Consumer Ombudsman. (exhibit 7)

    1.11. On 5th May 2017 I received a letter from the Claimant saying that they had instructed Gladstones to halt proceedings against me pending the outcome of a ‘non-standard appeal’ to the Independent Appeals Service (IAS). The Claimant also referred to ‘ParkingEye vs Beavis’ and ‘Vine vs Waltham’ as justification for the parking charge. (exhibit 8) The claimant refused to provide any evidence of landowner authority for issuing parking charges, citing ‘client confidentiality’.

    1.12. On 24th May 2017 I wrote to the Claimant explaining that I didn’t feel the IAS could be considered ‘independent’ as it is owned and operated by William Hurley and John Davies, also the owners of Gladstones Solictors who had already been instructed by the Claimant to issue court proceedings against me. As this represented a clear conflcit of interest I, again, suggested we seek mediation via the Consumer Ombudsman instead. (exhibit 9)

    1.13. A few weeks after this (the letter is not dated) I received a letter from The Claimant saying that they would not deal with any other mediation service other than the IAS.

    1.14. On 6th September 2017 I received a Claim Form from the County Court Business Centre instructing me that Gladstones Solictors were issuing proceedings against me on behalf of the Claimant. I never received a ‘Letter Before Claim’ or any other communication from the Claimant or Gladstones warning me that court action was forthcoming that post-dates their communication telling me that proceedings had been halted.

    2. Forbidding Signage

    2.1 I understand from correspondence with the Claimant that the Claimant’s case relies upon the signage at the site (exhibit 10) constituting a ‘contract’ between myself and the Claimant. The ‘breach of terms’ on the Particulars Of Claim presumably refers to the supposed ‘contract’ formed by this signage. I do not see how this signage can consitute a ‘contract’ between myself and the Claimant as it would have been impossible for me to derive any benefit from this ‘contract’ without breaching its terms.

    2.2 The signage and its wording at this site is almost exactly the same as the signage in the case of ‘Parking Control Management v Bull’ (exhibit 11) in which the Judge found that it was ‘impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway.’ and that therefore any charges made on the basis of said signage would be damages for trespass and must constitute reparations for actual loss.

    2.3 The signage at the site is also very similar to the signage in the cases of ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ in which it was ruled that, if any contractual arrangement could be implied by such signage, then it only applied to vehicles which were ‘authorised’ to park and therefore charges could not be made on a contractual basis for vehicles that were not ‘authorised’ to park. NOTE: I ONLY HAVE PRANSKSTER BLOG LINKS TO BACK THIS UP, NO TRANSCRIPTS, IS THIS OK?

    2.4 Both the PCN and Notice to Keeper I was issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. I cannot be seen to have entered into a contract for something I was not authorised to do.

    2.5 In ‘ParkingEye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. No such offer exists in this case and therefore there is no contractual basis for this charge. (DO I NEED TRANSCRIPT REFERENCE HERE?)

    3. Inadequate Signage

    3.1 Another key factor in ‘ParkingEye vs Beavis’ was that the relevant signage was clear and found to adhere to the standards laid out by relevant accredited parking operator’s code of practice. In this case the accredited parking operator is the Independent Parking Comittee (IPC) and the signage fails to adhere to their standards (exhibit 11) on numerous counts.

    3.2 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that I would not have passed any signage indicating I was entering private land.

    3.3 The IPC guidelines state that signage should include a very large ‘P’ to alert the motorist to the fact that said signage relates to parking restrictions. There is no large ‘P’, or even a small ‘P’ on the signage in this case.

    3.4 The IPC guidelines state that text on signage ‘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.’ The text on the signage, particularly that which refers to ‘contractual terms’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read.

    3.5 The IPC guidelines state that signage that is intented to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving as it is mounted on a pole at least 7ft high, and when another vehicle is already parked in front of the signage (as was the case here) it is literally impossible to read whilst parking.

    3.5 The IPC guidelines 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.’ The parking terms had recently changed here and yet there was not, nor had there ever been, additional signage informing visitors that a change of restrictions was in place.

    3.6 The most obvious signage at the site was not the signage installed by the Claimant, but a sign outside the Co-op in Co-op branded colours that states ‘This unloading bay is reserved for the sole use of Co-op deliveries only’. (exhibit 12) This signage was much larger than the Claimant’s signage and in a much clearer font, yet did not reference any kind of ‘contract’, ‘parking charge’ or parking terms displayed elsewhere. This signage implies that the ‘old’ restrictions were still in place and that the lay-by in question was owned by the Co-op.

    4. Consumer Rights

    4.1 The signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

    4.2 Event if a contract were deemed to exist between myself and the Claimant, the fact that I explained to the Claimant’s operative in no uncertain terms that I was unaware of any change in parking restrictions and my offer to remove my vehicle immediately to avoid any kind of ‘charge’ should be taken as a ‘clear statement setting out the decision to cancel the contract.’ as defined by the act in Part 3, 32, (3)a.

    5. Landowner Authority

    4.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have they authority to do this.

    6. Additional Costs

    5.1 The Particulars of Claim includes £60 over and above the original ‘parking charge’. I have no idea what these charges refer to as there appears to be no contractual basis for them, even if one were to take the Claimants somewhat far-fetched view as to what constitutes a ‘contract’ into account. The Claimant is put to strict proof that these additional charges are justified.

    5.2 The Particulars of Claim include £50 for ‘solicitors costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.
    Last edited by muleskinner; 02-12-2017 at 4:41 PM.
    • KeithP
    • By KeithP 2nd Dec 17, 5:08 PM
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    KeithP
    2.2... "impossible to construct out of this" ??

    4.1. do you believe you have the right to cancel under CCRs?
    I would suggest the if a contract was in place it was for provision of a service - provision of parking facilities.
    By parking it could be deemed that the service was being supplied therefore the opportunity to cancel has passed.
    Also it is not a distance or off premises sale either.
    All I'm saying here is that be sure the 'right to cancel' is applicable.
    .
    • muleskinner
    • By muleskinner 2nd Dec 17, 7:26 PM
    • 38 Posts
    • 18 Thanks
    muleskinner
    2.2... "impossible to construct out of this" ??
    Originally posted by KeithP
    Hi - thanks for input. I've quoted this verbatim from the transcript of the case - just double-checked it!

    4.1. do you believe you have the right to cancel under CCRs?
    I would suggest the if a contract was in place it was for provision of a service - provision of parking facilities.
    By parking it could be deemed that the service was being supplied therefore the opportunity to cancel has passed.
    Also it is not a distance or off premises sale either.
    All I'm saying here is that be sure the 'right to cancel' is applicable.
    Originally posted by KeithP
    I think there's an argument that this is a 'distance contract', I think this was from a case put forward by the prankster...

    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.


    Right of cancellation does also apply to service contracts, according to Which anyway, here's what they have to say about it...


    Your right to cancel You have 14 days from entering into a service contract in which you can cancel it.

    The trader shouldn’t start providing the service before the 14 day cancellation period has ended, unless you have requested this.

    If you request a service starts straightaway In this instance you will still have the right to cancel, but you must pay for the value of the service that is provided up to the point you cancel.

    For example, if you buy a service like gym membership and start using the gym and then change your mind within this 14 day time period, you will be refunded but could be charged for the amount of gym time you used.

    If the service is provided in full within 14 days The right to cancel can be lost during the cancellation period if the service is provided in full before the 14 days elapses.


    ...so if this is the case I should be liable for the amount of time I was parked. According to the signage the 'charge' is for a 24 hour period so I should be liable at the most for five minutes of that which works out to around 20p!
    Last edited by muleskinner; 02-12-2017 at 7:36 PM.
    • muleskinner
    • By muleskinner 5th Dec 17, 3:08 PM
    • 38 Posts
    • 18 Thanks
    muleskinner
    Witness Statement

    1. Sequence Of Events
    1.1 I am xxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

    1.2. This claim refers to a parking incident in an unmarked lay-by outside the co-op in Bradford-on-Avon. For all intents and purposes this bay appears either to be part of the public highway or to belong to the Co-op (exhibit 1).

    1.3. Historically there have been no parking restrictions in this bay. It has been marked simply ‘Loading Only’ (see exhibit 2 from August 2016) and Co-op customers were always told it was permissable to park there for short periods if on Co-op business.

    1.4. On the 7th January 2017 I parked my vehicle in said lay-by, as I was accustomed to do, for the purposes of buying groceries from the Co-op and delivering a package to the Post Office there. I did not see anything at the site to make me aware of any change in parking restrictions.

    1.5. After a period of time, which I estimate to be less than five minutes, I noticed a parking attendant (the Claimant’s representative) approach my vehicle with the clear intention of issuing some kind of ticket.

    1.6. I returned to my vehicle immediately and explained to the Claimant’s representative that I had no idea that I was violating any kind of parking restrictions and that I would remove my vehicle immediately if I was. The Claimant’s representative said that he would have to issue me with a Parking Charge Notice (PCN) and that I would have to remove my vehicle. I estimate this exchange to have lasted around two minutes.

    1.7. After this exchange the Claimant’s representative took pictures of my vehicle and issued me with a PCN (exhibit 3) that is the subject of this claim. The PCN states that the charge is for ‘unauthorised parking’ and that I ‘parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site’.

    1.8. On the 19th January 2017 I made an email appeal to the Claimant against the parking charge on the grounds that the signage at the site was inadequate, particularly given the recent change in parking restrictions. I never received a response to this appeal. (see exhibit 4)

    1.9. On around the 24th of February 2017 I received a ‘Notice to Keeper’ from the Claimant (exhibit 5) regarding the same ‘Unauthorised Parking’ charge. This notice states that the Claimant did not know who the driver of the vehicle was at the time of the parking incident and that they had obtained my details as keeper of the vehicle from the DVLA. Given the fact that I had admitted to being the driver of the vehicle in my appeal to the Claimant (to which I had yet to receive a response), and that a request for my personal information from the DVLA would have been unlawful under the circumstances, I presumed this communication to be an adminstrative error on behalf of the Claimant.

    1.10. I heard nothing further from the Claimant until 19th April 2017 when I received a letter from their agents, Gladstones Solicitors (a well-known serial litigant and ‘roboclaimer’), demanding money and threatening court action (exhibit 6). I responded with a letter to both the Claimant and Gladstones outlining why I felt I was I was not liable for the ‘parking charge’, requesting evidence of landowner authority to issue such a charge, and suggesting mediation via the Consumer Ombudsman. (exhibit 7)

    1.11. On 5th May 2017 I received a letter from the Claimant saying that they had instructed Gladstones to halt proceedings against me pending the outcome of a ‘non-standard appeal’ to the Independent Appeals Service (IAS). The Claimant also referred to ‘ParkingEye vs Beavis’ and ‘Vine vs Waltham’ as justification for the parking charge. (exhibit 8) The claimant refused to provide any evidence of landowner authority for issuing parking charges, citing ‘client confidentiality’.

    1.12. On 24th May 2017 I wrote to the Claimant explaining that I didn’t feel the IAS could be considered ‘independent’ as it is owned and operated by William Hurley and John Davies, also the owners of Gladstones Solictors who had already been instructed by the Claimant to issue court proceedings against me. As this represented a clear conflcit of interest I, again, suggested we seek mediation via the Consumer Ombudsman instead. (exhibit 9)

    1.13. A few weeks after this (the letter is not dated) I received a letter from The Claimant saying that they would not deal with any other mediation service other than the IAS.

    1.14. On 6th September 2017 I received a Claim Form from the County Court Business Centre instructing me that Gladstones Solictors were issuing proceedings against me on behalf of the Claimant. I never received a ‘Letter Before Claim’ or any other communication from the Claimant or Gladstones warning me that court action was forthcoming that post-dates their communication telling me that proceedings had been halted. I consider this unreasonable and a failure to comply with court protocol.

    2. No Contract Exists

    2.1 I understand from correspondence with the Claimant that the Claimant’s case relies upon the signage at the site (exhibit 10) constituting a ‘contract’ between myself and the Claimant as per ParkingEye vs Beavis. The ‘breach of terms’ on the Particulars Of Claim presumably refers to the supposed ‘contract’ formed by this signage.

    2.2 In ‘ParkingEye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. The ‘ParkingEye vs Beavis’ judgement has many references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.

    2.3 There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of
    free parking‘ and no conceivable way I could have benefitted from this alleged ‘contract’ without breaching its terms.

    2.4 The very act of entering into this alleged ‘contract’ (parking) constitues a breach of its terms, therefore making it impossible to perform.

    2.5 Both the PCN and Notice to Keeper I was issued by the Claimant state the reason for the disputed charge as being ‘Unauthorised Parking’. I cannot be seen to have entered into a contract for something I was not ‘authorised’ to do.

    2.6 The signage and its wording at this site is almost exactly the same as the signage in the case of
    ‘Parking Control Management v Bull’ (exhibit 11) in which the Judge found that it was ‘impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway.’ and that therefore any charges made on the basis of said signage would be damages for trespass and must constitute reparations for actual loss.

    2.7 The signage at the site is also very similar to the signage in the cases of ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ in which it was ruled that, if any contractual arrangement could be implied by such signage, then it only applied to vehicles which were ‘authorised’ to park and therefore charges could not be made on a contractual basis for vehicles that were not ‘authorised’ to park. NOTE: I ONLY HAVE PRANSKSTER BLOG LINKS TO BACK THIS UP, NO TRANSCRIPTS, IS THIS OK?

    3. Inadequate Signage

    3.1 A key factor in ‘ParkingEye vs Beavis’ was that the relevant signs were ‘large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature’ and ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here.

    3.2 In‘Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. In this case there was no sign adjacent to my vehicle, I had not passed any signs to park, and no signs in the vicinity could possibly be read from my vehicle.

    3.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

    3.4 In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The Independent Parking Comittee (IPC).

    3.4.1 The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There is no signage at the entrance to the site in question and one can see from the photographs that I would not have passed any signage indicating I was entering private land.

    3.4.2 The IPC guidelines state that signage should include a very large ‘P’ to alert the motorist to the fact that said signage relates to parking restrictions. There is no large ‘P’, or even a small ‘P’ on the signage in this case.

    3.4.3 The IPC guidelines state that text on signage ‘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.’ The text on the signage, particularly that which refers to ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 7ft off the ground, makes it very hard to read and impossible to read from a vehicle.

    3.4.4 The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It is more-or-less impossible to read this signage whilst driving as it is mounted on a pole at least 7ft high, and when another vehicle is already parked in front of the signage (as was the case here), it is literally impossible to read whilst parking.

    3.4.5 The IPC guidelines 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.’ The parking terms had recently changed here and yet there was not, nor had there ever been, additional signage informing visitors that a change of restrictions was in place.

    3.4.6 The IPC guidelines (14) state ‘You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance’. Given the timings involved, the balance of probability strongly suggests that the Claimant’s representative watched me park and leave my vehicle. Not to warn me that leaving my vehicle would potentially incur a parking charge, particularly when the parking restrictions had recently changed, in my opinion constitutes ‘predatory tactics’ and a neglect of their duty to mitigate loss.

    3.4.7 The IPC guidelines (15) state ‘Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.’ No specific time is given though (15.2) specifies a minimum period of ten minutes for leaving the site. I do not consider the time I was given (less than five minutes) adequate time to find, read and assess the signage on site, particularly given the confusing and contradictory nature of said signage (see 3.5). It is certainly not enough time to enter the Co-op, find a member of staff and ask for clarification on the parking restrictions.

    3.5 The most obvious signage at the site was not the signage installed by the Claimant, but a sign outside the Co-op in Co-op branded colours that states ‘This unloading bay is reserved for the sole use of Co-op deliveries only’. (exhibit 12) This signage was much larger than the Claimant’s signage and in a much clearer font, yet did not reference any kind of ‘contract’, ‘parking charge’ or parking terms displayed elsewhere. if anything, this signage implies that the ‘old’ restrictions were still in place and that the lay-by in question was owned by the Co-op.

    4. Consumer Rights

    4.1 The signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13), specifically on the right to cancel required by paragraph (l) of Schedule 2.

    4.2 Event if a contract were deemed to exist between myself and the Claimant, the fact that I explained to the Claimant’s operative in no uncertain terms that I was unaware of any change in parking restrictions and my offer to remove my vehicle immediately to avoid any kind of ‘charge’ should be taken as a ‘clear statement setting out the decision to cancel the contract.’ as defined by the act in Part 3, 32, (3)a.

    5. Landowner Authority

    4.1 Despite being asked, the Claimant has not provided any indication that they are authorised by the landowner to issue parking charges and carry out court proceedings on their behalf. The Claimant is put to strict proof that they have they authority to do this.

    6. Additional Costs
    5.1 The Particulars of Claim include £60 over and above the original ‘parking charge’. I have no idea what these charges refer to as there appears to be no contractual basis for them, even if one were to take the Claimants somewhat far-fetched view as to what constitutes a ‘contract’ into account. The Claimant is put to strict proof that these additional charges are justified.

    5.2 The Particulars of Claim include £50 for ‘solicitors costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.
    Last edited by muleskinner; 06-12-2017 at 8:15 AM.
    • muleskinner
    • By muleskinner 6th Dec 17, 8:13 AM
    • 38 Posts
    • 18 Thanks
    muleskinner
    Couple more small edits made to the above. Not reposting the entire thing!

    I'm hoping the lack of feedback means this is generally OK but I know the amount of traffic here means posts disappear from view pretty fast.
    • Herzlos
    • By Herzlos 6th Dec 17, 8:21 AM
    • 6,066 Posts
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    Herzlos
    I think the duty to mitigate loss applies in every case, including where the penalty rule is disengaged. Worth arguing even if it's rejected. It's pretty shoddy behaviour and entrapment.
    Originally posted by Loadsofchildren123
    You could argue that if it a genuine charge and not entrapment, that the warden should be asking for the money directly from the driver, and saving all the admin costs associated with DVLA lookup. I guess you could argue that if the warden was on site he should have made sure the driver agreed to the T&C before they wandered off.

    No other business model has someone watching a person doing something to bill them later on the basis of a sign they may or may not have read. It also kind of defeats the deterrent point.
    • Herzlos
    • By Herzlos 6th Dec 17, 8:23 AM
    • 6,066 Posts
    • 5,509 Thanks
    Herzlos
    I'd make a bigger deal out of "The PCN states that the charge is for ‘unauthorised parking’ and that I ‘parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site’" since it can't be both. It's either authorized or it's not.
    • KeithP
    • By KeithP 6th Dec 17, 12:58 PM
    • 4,734 Posts
    • 3,072 Thanks
    KeithP
    4.2. the first word should be "Even".
    .
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