PCN confusion

Coupon-mad

Search the forum for 'Gladstones incoherent' to find defences written recently.

I also posted an answer here earlier which gives this poster two links showing actual defences written out by me and by bargepole in a format that is recommended:

https://forums.moneysavingexpert.com/discussion/comment/71450401#Comment_71450401

Look at the two links and the defences as written, and do the suggested board search for 'Gladstones incoherent'. You will have lots to copy from. You can do this, others do, and no-one has done it before!

lovelylouca

Hi Coupon-Mad and thanks for those links. Can you explain to me at what point a claim can be struck out by the court? I read this on the Prankster's blog: http://parking-prankster.blogspot.co.uk/2016/10/horizon-parking-youve-been-gladstoned.html


and the wording of the Particulars of Claim are exactly the same as the one I have received. Is there a chance that my case can be struck out by the court now that I've Acknowledged Service?


Actually starting to enjoy the research if I'm honest... :-)

Coupon-mad

Not yet it won't be struck out, it's too early yet. That comes once it has been allocated to your local court, who will be looking to allocate a hearing date later on unless a Judge there gets to look at it and decides to agree with you that the PoC are woeful!

You must defend first, stating everything you wish to rely on, like you will see on the other G's defences which invariably end by citing the recent 'incoherent PoC' strike out by one local Judge and asking your local court to do the same.

We have never (in 2016) yet seen an MSE forum-defended case go to a hearing v Gladstones because the ones we had earlier this year went very quiet after defence or DQ stage. No hearings so no losses.

For an idea of what happens when, read (and re-read later, when needed) bargepole's summary that he has just updated to make sure people do not drop the ball later:

https://forums.moneysavingexpert.com/discussion/5546325

You can see this through. Glad you are finding it enjoyable research, so do we, that's why we are here - to beat the scam and to work our best towards change!

lovelylouca

Here's the first draft of my defence. I'd be really grateful for any comments. I need to send off on Monday. Should I include mitigating circumstances in my defence? I parked when it was dark, rendering the poor signage impossible to read. I don't have evidence of the time of parking though.

I'm extremely grateful for suggested amendments and/or additions:
Preliminary matters.

1. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimant are known to be a serial issuer 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:

1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant
3. The Claimant has not complied with the pre-court protocol.
(1) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
(2) 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 was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.

On the basis of the above, we request the court strike out the claim for want of a cause of action.
___________________________________________________________________________

DEFENCE STATEMENT
___________________________________________________________________________


I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. I am the registered keeper of the vehicle in question, no. [INSERT]. The Claim relates to an alleged debt arising from the vehicle having been parked in XXX on XXX.

2. The Claimant is a member of the Accredited Operators Scheme, in which they agree to abide by the Independent Parking Committee’s Code of Practice, but they have fallen short of their obligation to this Code on several points.

3. The Claimant did not display clear signs within the site that were capable of being read and/or form a contract. Signs are raised high up, with small text, which is difficult to read and was surrounded by For Sale and To Let signs. The area was also poorly lit. As such the signage did not meet the Independent Parking Committee Code of Practice.

4. The Claim is for a contract to supply “parking services”. However, the Defendant denies that any such services have been supplied or a contract to provide these services existed. In fact this sign is a “forbidding” one.

5. The Claimant might argue that the Supreme Court’s decision with Parking Eye v. Beavis is applicable. The Defendant will state that this case is different, in that the location was not a retail park or any type of car park and if the driver on the date of the event was considered to infringe on the land, then only the Landowner can pursue a case under a claim for trespass, not this Claimant and as the Parking Eye v. Beavis 2015 confirmed, such a matter would be limited to the Landowner themselves in claiming a nominal sum.

6. Following an unsuccessful appeal to the Claimant, I researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. My research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. As such, the Claimant does not come to this matter with clean hands and leaves registered keepers with no options other than to pay or face court action.


7. In addition to the original ‘parking charge’, believed to be £100, for which liability is denied, the Claimant’s legal representatives, Gladstones Solicitors, have artificially inflated the value of the Claim by adding various ‘Indemnity Costs’ of £XX which I submit have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.


8. The Claimant has not complied with the pre-Court protocol. The Particulars of Claim contain no details and fails to ascertain a cause of action, which would enable the Defendant to prepare a specific case and be considered a fair exchange of information.

9. As an unrepresented litigant-in-person, I request that the Court permits me to amend or supplement this defence, as may be required, following a more comprehensive disclosure of the Claimant’s evidence.

10. The Defendant therefore, respectfully asks that the Court orders the claim to be dismissed, for want of a detailed cause of action and that, as having no prospect of success, would thereby be deemed a misuse of Court time.

11. The Court is invited to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.


I believe the facts stated in this Defence Statement are true.

pappa_golf

did you go back and get photos , or even look on google streetview , judges like nice clear photos

Coupon-mad

I appealed, before I visited this site, and committed the error of identifying myself as the driver. I appealed on the basis that the signage was lost within a cluster of 10 For Sale/To Let signs and was in a poorly lit area. The sign is also placed at approx 8ft above ground level. The photographic evidence they provide shows the lack of visibility.

You need to say the above in this defence. You've already said who was driving so your main defence point is going to be that the signs were unclear and hidden, with the £100 'charge' completely unknown.

Should I include mitigating circumstances in my defence? I parked when it was dark, rendering the poor signage impossible to read. I don't have evidence of the time of parking though.

Parking in the dark and the signs being hidden, obscured, unlit and unreadable is not 'mitigating circs', it's your main fact.

I would add something about predatory tactics, which is against the IPC CoP and contrary to good faith. Seems that the ticketer was waiting for cars to park there, knowing the signs are not prominent (you will be using the Beavis case sign in your later evidence as a comparison with 'clear signs, brief terms, with the parking charge in the largest font').

If the hotel is literally right there, I would also add basic facts such as you were a genuine patron of xxxxx hotel and whatever the 'designated parking are' was, it was not made clear by the hotel and nor were the signs & lines clear. It was not marked as a no-stopping area, no yellow hatched lines, etc. It looked acceptable to ark where you did. Simple as that.

Say all of that to get the Judge to see you as the honest party and them as the predators. Here is who you might meet:

http://parking-prankster.blogspot.co.uk/2016/11/pcmuk-youve-been-gladstoned-no-evidence.html

Later, their own evidence will show the timings, the ticketer person took photos in the dark so that will all come out at any hearing. You don't have to and can't prove that but you can say that. Your defence seems to cover the bases you need, for someone who has already admitted they were the driver so no POFA argument open to you.

lovelylouca

Thank you Coupon Mad. I've added a few paragraphs at the start and also quoted another Case in reference to "forbidding signage" and therefore not contractual.

In terms of the predatory nature - I parked at night but the ticket was timed 1pm and the photographs show my car parked at this time - in daylight. I was so convinced that my car was parked correctly that I didn't even park it in the hotel car park in the morning once spaces had become available. (I've added this to my defence). How do I evidence their predatory nature do you suggest?



I'm still trying to get photographs from the hotel to indicate the low levels of light at nighttime

Coupon-mad

How do I evidence their predatory nature do you suggest?

I think you should just allege it at this stage, that their employee was ticketing in the knowledge that hotel guests were parking there, genuine patrons of the hotel were convinced that they were parked correctly due to the lack of prominent signs.

You don't need photos yet; your evidence comes later on.

lovelylouca

I'm trying to pull together my WS in respect of this case and have read the Small Claim? section in the Newbies thread. I've spent all day on this so far and haven't got past the recommended opening and closing statements. (Blaming my muddle headedness on pharyngitis!)

Would you say my case would be a factual based or legally based one? What should I include in the WS? I've struggled to find examples - if anyone can signpost me? I haven't received the Claimant's WS yet and Wednesday is the deadline. I'd be grateful for any advice as to what I should include in my bundle. So far I have photographs showing poor signage both in daytime and evening settings, the letter before claim, my letter to Glad Stones requesting a copy of their contract (which was ignored).

Can't wait for this to be over!

lovelylouca

Hi helpful souls. Following my approaching desperate post yesterday, I dosed up on ibuprofen and tea and constructed this WS into the wee small hours. I'd be so grateful for any feedback on this - I thank spaceman8 for their efforts as I was able to cite and use sections from their winning case earlier this year.

Thanks in advance!

Still no WS from GS = BS!

WITNESS STATEMENT
1. I, XXX of XXX am the Defendant in this claim. The facts in this statement come from my own personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

A short summary of what took place:

I was a guest at the XXX hotel on XX Street in Slough on date in 2016.
On returning from a day out with my two young children at 8.30pm, I discovered that the hotel car park was full and instead chose to park beyond the barrier off-road where three other cars were parked. There were no road markings, hatchings or anything visible to suggest I couldn’t park there. I parked in good faith.
When I returned to my car the following day after I had checked out of the hotel I discovered the “parking charge notice” attached to my windscreen. I then sought out any signage warning me that I was in a “restricted area” and found a sign 10ft above the ground and nestled amongst a dozen For Sale and To Let signs.

1. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

2. (Exhibits 1 & 2 – Aerial photograph supplied by hotel). The hotel car park is accessed by a barrier and there is nothing on the road beyond to suggest that parking is not allowed here or that it is private land. Indeed, there are cars parked there on any given day as in this photograph taken after my alleged contravention and on the Google Maps image from August 2016.

3. (Exhibit 3–PCM photos Exhibit 4 – PCM signage). The claimant has based their claim upon the following supporting evidence

4. (Exhibit 5- IPC code of conduct- positioning & sizing, Exhibit 6 – Signage at night). The claim cannot be acceptable, as the signage does not comply with many facets of its own code of conduct. The signage is very small, 10 feet up, hidden amongst a dozen For Sale and To Let signs, small font and not on the driver’s side. The area is poorly lit. This cannot be read when driving in, let alone agreeing to a £100 charge. The sign does not comply with the IPC code of conduct on both positioning & sizing. Indeed the offer of a £100 charge is written in such small writing that it is practically unreadable even when standing underneath the sign.

6. (Exhibit 5- Parking Eye vs BEAVIS transcript point 190 and Exhibit 6 - PCM vs BULL) There is no consideration flowing between the parties, as PCM are offering nothing, it is a prohibitive sign, (if it can be read) with a cross through the ‘P’. As there is no offer, there can be no contract. The only possible claim would be under the tort of trespass, however the Beavis case reiterated that a parking company not in possession of title of the land cannot claim under tort, only the landowner could. The costs would be based upon any loss or damage. In the absence of ‘agreement of the charge’ by virtue of contract, in the Beavis case, the Supreme Court Judge held that ParkingEye would have had no right to the parking charge. There is an absence of agreement on the charge as the signs are forbidding.

7. (Exhibit 7 – Sign offering a contract). A clear marked sign is shown by this sign offering a contract.

8. (Exhibit 8 – Letter from Defendant requesting evidence of right to operate on the land in question) Despite being requested to do so, The Claimant has not complied with pre action protocols and has given no evidence to show that they can operate contract parking at the site or indeed, that they are the landowner. This has hindered my efforts to prepare my defence.

9. (Exhibit 8 – Particulars of Claim) Particulars of claim are inadequate and don’t show any explanation of claim of any sort. There is no explanation of how increased costs have been incurred. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

10. The Court is invited to dismiss this Claim, and to allow my wasted costs. I firmly believe that the incoherent particulars of claim, lack of evidence, and complete disregard to own code of conduct and cause of stress to myself is wholly unreasonable.


I believe the facts stated in this Defence Statement are true.