Do I have a case or shall I just pay it? Galdstone letter

Fruitcake

hopsfield wrote: »

so i have now received Witness statement from the Claimant...

Please redact it and post it up for the experts to throw rotten fruit at (metaphorically of course.)

Loadsofchildren123

I'll try and post my CPR/strikeout letter tomorrow. The forum decided it didn't like my work computer/network having previously accepted posts.

hopsfield

Here it IS ....

____________________________________
WITNESS STATEMENT OF xxxxx
____________________________________
I, xxxxxx , OF SIP xxx WILL SAY AS FOLLOWS:

1. I am the Employee of the Claimant Company (‘my Company’) and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

2. Exhibited to this Witness Statement at ‘GSL1’ are following documents which my Company wishes to rely upon;
i) The Agreement authorising my Company to manage parking on the relevant land (as
described therein and hereinafter referred to as ‘the Relevant Land’)
ii) The Sign (i.e. the Contract)
iii) The Site Plan
iv) Notices
v) Photographs of the incident
vi) Letter Before Claim

3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant
Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the
Schedule below are details of the parking charge;
[a schedule showing PCN No, Date, Location and discretion – “No Ticket Displayed”]

The Defence
4. It is the Defendant’s obligation pursuant to the contract (the Sign) to ensure that the ticket is displayed. As evident from the photographs they didn’t display their ticket in accordance with the terms.

5. It is an integral part of the parking scheme that a valid ticket is displayed as otherwise the
scheme would be unmanageable. If my Company were to waive one charge on the basis put
forward in the Defence it would open the floodgates to the waiver of many more charges,
making the parking management process that has been put in place entirely redundant.

6. The Defendant alleges that they did not enter into a contract with my Company and therefore can not be liable for the parking charge. However, my Company relies on the case of ParkingEye v Beavis 2015. In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein.

7. The signs on the Land are clear and unambiguous. By parking in the manner in which they did, the charge was properly incurred.

8. Further, the Defendant alleges that’s my Company has no authority to enforce the charges against them. However, as the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Relevant Land on behalf of the Landowner.

9. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186
1. “The Upper Tribunal’s reasoning on this part of the case was that since VCS did not have
the right under its contract with the car park owner to grant a licence to park, it could not
have contracted with the motorist to grant such a right. In my judgment there is a serious
flaw in this reasoning.
2. The flaw in the reasoning is that it confuses the making of a contract with the power to
perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.
If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock
market it is commonplace for traders to sell short; in other words to sell shares that they
do not own in the hope of buying them later at a lower price. In order to perform the
contract the trader will have to acquire the required number of shares after the contract of
sale is made. Moreover, in some cases a contracting party may not only be able to
contract to confer rights over property that he does not own, but may also be able to
perform the contract without acquiring any such right. Thus in Bruton v London and
Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held
to have validly granted a tenancy of the land to a residential occupier. The tenancy would
not have been binding on the landowner, but bound the two contracting parties in
precisely the same way as it would have done if the grantor had had an interest in the
land. Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract. Having the power to
enter into a contract does not, of course, mean that VCS necessarily did enter into a
contract with the motorist to permit parking”

10. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. In the case of ParkingEye v Beavis 2015 it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is not, therefore, excessive.

11. The recent decision of the Supreme Court also made it clear that the charges are not penal nor do they have to be reflective of the parking operator’s loss. Furthermore, they are they are entitled to be at a level that provides a deterrent effect.

12. Finally, the Defendant believes that the Particulars of Claim are too vague to respond to. The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the
Defendant to be aware of what the claim relates to; namely:-
i) The date of the charge;
ii) The vehicle registration number;
iii) The Parking Charge Notice number;
iv) The amount outstanding;
v) That is relates to parking charges; and
vi) That it is debt.

13. Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge which is the subject of this claim.

The Current Debt
14. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.
15. In view of the Defendant not paying the charge the matter was passed to my Company’s legal representatives, Gladstones Solicitors Ltd. The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

After that the is
1) GSL 1 - Parking enforcement agreement with a list of all of their parking spots
2) single sign (showing T&C) - http://i.imgur.com/yJcGOuE.png
3) a overall plan showing the location of sign around the carpark
4)NTK,
5)my letter asking for more details (after NTK)
6)pics showing my car
7)LBC

Thats it.

Coupon-mad

Doesn't sound like they have much evidence and you can stick with your facts, pointing out that the sign doesn't make any offer to those not able to 'pay by phone in advance' caused only by a glitch in their OWN system.

In the absence of a clear offer and consideration flowing between both parties, there is no contract. it was reconfirmed in ParkingEye v Beavis that the fact of the contract, offered in clear terms and seen and 'agreed' (apparently) with Mr Beavis, gave them a right 'which they otherwise would not have had' and that a PPC not in possession would NOT be able to sue under tort (trespass) which remains in the gift of a landowner only. Nothing new there but it was reconfirmed and at best, their argument is you were a trespasser for those 40 mins.

Pay by the Phone app was used (use it ever day at work) but for some reason the payment on that day hasnt gone through. When realized (as no conformation email sent) - payed for the whole day parking again straight away. Unfortunately this was over 40min after already got the ticket.

Just reminding everyone of your situation. And that you are arguing this as keeper, citing POFA non-compliance too:

Under POFA 2012, a registered keeper can only be held liable for the sum in any compliant ‘Notice to Keeper’. This depends upon the Claimant fully complying with the statute, including ‘adequate notice’ of the parking charge and prescribed documents served in time / with mandatory wording. It is submitted that the claimant has failed on all counts.

Familiarise yourself again with the relevant para 8 or 9 in Sch4!

hopsfield

Thanks, been going through this back and forward.
So because none of the signs does mention what to do in case of a glitch therefore no contract and therefore trespassing? do I understand this correctly?

I've been wondering, is this against Para 8 and 9 in Sch 4?

The notice must—
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

In my NTK it only says: " The charged was issued in Great Jackson street, Manchester at 10:47:00"
- It does not say for how long (period of parking)
- the actual location name (from their agreement proof) is "Great Jackson Street Car Park" not just "Great Jackson Street"
Is there any point pursuing this route?
Also under Schedule 4 anyd NTK must be accompanied by any evidence prescribed in para 10.
- I have never got any evidence from SIP, but not sure what counts as evidence. I never got any photos of the car parked with the notice - and this was one of their evidence supplied to court

Thanks

Coupon-mad

So because none of the signs does mention what to do in case of a glitch therefore no contract and therefore trespassing? do I understand this correctly?

The 'no contract to pay £xxx' argument also includes the fact the signs are in tiny font/wordy and cluttered, compared to the clear & prominent large lettering in the Beavis case. For example, the phone number/app and tariff might be in larger lettering but how clear was the £100? Buried in small print? Never accepted, then.

Did the signs actually say you had to pay within a time period? No breach then, because you DID pay by app while parked, when you noticed their app had failed.

Also 'Frustration of contract' applies as you said this:

Pay by the Phone app was used (use it ever day at work) but for some reason the payment on that day hasnt gone through. When realized (as no conformation email sent) - payed for the whole day parking again straight away. Unfortunately this was over 40min after already got the ticket.

Did you file case law re frustration of contract (Jolley v Carmel, etc?) with your WS? If not, you can summarise a skeleton argument now in response to their WS, and include case law to support your initial defence (file to the court and the claimant's solicitors).

Shout if you need the case law, it's the ones mentioned in the example 'machine failure' defence written by bargepole for a female poster, as linked under 'small claim?' in the NEWBIES thread - and I have those cases which you may find hard to track down on t'internet.

- I have never got any evidence from SIP, but not sure what counts as evidence. I never got any photos of the car parked with the notice - and this was one of their evidence supplied to court

Nice! That goes into your skeleton argument then.

ALso you can include stuff about distance contracts (search Google for 'Parking Prankster Cancellation Distance contract breach information').

In my NTK it only says: " The charged was issued in Great Jackson street, Manchester at 10:47:00"
- It does not say for how long (period of parking)
- the actual location name (from their agreement proof) is "Great Jackson Street Car Park" not just "Great Jackson Street"
Is there any point pursuing this route?

Yes you can be pedantic because the statute is clear on what MUST be stated (some Judges would dismiss this so don't hang your hat on it, and of course the POFA only applies if you defend as keeper with no admitted driver known).

Also under Schedule 4 anyd NTK must be accompanied by any evidence prescribed in para 10.

N/A. There is no new statute arising that requires certain evidence under para 10 - it's one for the future, if the Govt amend the law.

hopsfield

Thanks Coupon-mad, still in process of gathering it all together. Will post it here soon.
Quick question thou - is it better to take my skeleton argument with me to court on the day or sent it by post few days before?
Also the Claimant had to pay a £25 fee by last week. Is there a way of checking if the hearing fee has been paid and are there any consequences for the Claimant for missing it?

Thanks

Coupon-mad

is it better to take my skeleton argument with me to court on the day or sent it by post few days before?

Both.

You can ring the court to find out if the hearing fee is paid.

hopsfield

Right here's my first draft of skeleton argument. Please comment as I'm not sure if this is the correct form - I'm repeating a lot of my WS here - is that right?

Between
SIP (Claimant)
-and-
(Defendant)
____________________________
Skeleton Argument
__________________________
I, am the defendant in this case.
My original defence forms the basis of my legal arguments but having not received the claimants bundle until the xx of January I now wish make the following additional points:
First the Claimants witness statement.

Re point #3 in the Claimant's bundle
This is a distance contract. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and paying by the App, after the car is so parked. Therefore it was not possible for the driver to “display ticket”
The address provided by the Defendant is missing post code as well as full car park name. This just proves Claimant’s solicitors are yet again a serial issuer of generic claims, with no due diligence, no scrutiny of details nor even checking for a true cause of action.

Re point #4 in the Claimant's bundle
The claimant wrongly assumes “Defendant’s obligation pursuant to the contract (the Sign) to ensure that the ticket is displayed”. The Claimant has produced no evidence of who was driving. Under POFA 2012, there is no presumption in law as to who parked a vehicle on private land, nor does there exist any obligation for a keeper to name the driver.
This is a distance contract. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and paying by the App, after the car is so parked. Therefore it was not possible for the driver to “display ticket”

Re point #5 in the Claimant's bundle
The Claimant admits that if the company would “were to waive one charge on the basis put forward in the Defence it would open the floodgates to the waiver of many more charges”. This means the Claimant won’t admit being in wrong purely because it would mean more cases like this would have to be dismissed.

Re point #6 in the Claimant's bundle
The Claimants relay on ParkingEye v Beavis 2015 case stating that “valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein”. However the Defendant would like to point out a clear difference between the sign in ParkingEye v Beavis and the sign used by the Claimant. For example the ‘parking charge in the sum of a 100’ is in much smaller font and hardly visible. The “Important Notice” is blurry and not visible at all.

Re point #7 in the Claimant's bundle
There is no clear signage whatsoever from the Claimant on the driveway to the carpark . Please refer to the clear and distinct signage used in ParkingEye Ltd v Beavis [2015] UKSC 67 where the Supreme Court held that full compliance with the Trade Body Code of Practice was a pre-requisite for properly obtaining DVLA data and was 'effectively regulation'

The signage at this location also breaches the Code of Practice signage requirements for 'Text Size' and 'Contrast and illumination' 'repeater Signs' and 'Other Signs' and no term on any signs set a time limit within which drivers using the App must have ensured a confirmation email was received. The other signs have densely packed text, limited white space and the onerous terms are buried in small print (the tariffs being in far larger font than the parking charge 'penalty').

The sign also doesn’t make any offer to those not able to ‘pay in advance’ caused by a glitch in paying system.
The Claimant would like to point out that a ticket was purchased via the “Pay by Phone” App for the day in question but for some reason the payment on that day did not go through which appears to have been a fault in the system. In any event, this has not at any point been evidenced to be any fault of the driver. When the driver, who was by then off-site, realised the App had not worked (as no confirmation email was received) the driver used the App again and paid for the whole day (12hrs) parking again straight away, the same day, whilst the car was parked.

Re point #8 in the Claimant's bundle
Again, the claimant wrongly assumes “the contract is between my Company and the Defendant” yet they have produced no evidence as to who parked the vehicle. Under POFA 2012, there is no presumption in law as to who parked a vehicle on private land, nor does there exist any obligation for a keeper to name the driver.
I rely upon the words of barrister and parking expert Lead Adjudicator for PATAS and POPLA, Henry Michael Greenslade, where he clarified in the POPLA Annual Report 2015 in a heading: 'Understanding Keeper Liability' (of which I have included a copy in my document bundle) that a private parking operator must never presume that a keeper is the driver. That is the reason that Schedule 4 of the POFA was enacted at the behest of the British Parking Association, when clamping firms like Excel were no longer allowed to use wheel-clamps. The quid pro quo was to give parking firms a statute under which they can operate if they wish to recover charges from registered keepers.
This Claimant chooses not to use the statute and therefore cannot hold a keeper liable nor is there any presumption in law that allows them to recover a charge from me. It is beyond my comprehension on what lawful basis this Claimant thinks they can hold me liable, since the criminal case of Elliott v Loake has no application on private land and turned on forensic evidence of the driver, not assumption.

Re #9 in the Claimant's bundle –
[I got nothing here- any help?]

Re #10 and #11 in the Claimant's bundle
The Claimant relays on ParkingEye v Beavis 2015 case and calls “The charge is not, therefore, excessive “ however unlike Beavis, this situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a tariff for parking being purchased in good faith and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.
In a similar County Court case about a pay and display car park ParkingEye v Cargius in December 2014, DDJ Mahy dismissed the claim, holding that the charge of £100 far exceeded the applicable tariff cost alleged to be due. Beavis-style ''Commercial justification'' did not apply because the car park generated substantial revenue from tariffs. Therefore it was not necessary to charge large amounts for transgressions to make management commercially viable and there was no other legitimate interest saving the charge from falling foul of the penalty rule, which the Beavis case judgment confirmed is 'engaged' in parking ticket cases and that each case must be considered on its facts. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view. At 47 in the Court of Appeal Judgment it was held:
''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” “
At the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''
At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated 'complex' cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''
This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''
The Defendant would also like to point out that after receiving NTK the Claimant has refused to supply any evidence and stated that no further correspondence is required. This suggest that the Claimant is not genuinely interested in resolving this issue but only interested in collecting a penalty charge.

Re #12 in the Claimant's bundle
The Claimant has failed to file enough information in the Particulars of Claim to establish a cause of action that enables the Defendant to prepare a specific defence, i.e for Trespass, a Contractual ‘unpaid fees’ or a Breach of Contract. The Defendant is therefore forced to cover all three possible grounds for the claim. This has caused significant distress and denies the Defendant fair chance to defend the claim in an informed way. The claim merely states: ‘parking charges and indemnity costs if applicable’ which does not give any indication of on what basis the claim is brought. Nor are any clear times / dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description ‘parking charges’ and ‘indemnity costs’.
The Claimant’s statement “The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim.” – is an obvious excuse not to provide a clear and sufficient level of information.
Under
Practice Directions PART 16
16.4
(1) Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies;
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);
(c) if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and his grounds for claiming them;
(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
(e) such other matters as may be set out in a practice direction.
(2) If the claimant is seeking interest he must –
(a) state whether he is doing so –
(i) under the terms of a contract;
(ii) under an enactment and if so which; or
(iii) on some other basis and if so what that basis is; and
(b) if the claim is for a specified amount of money, state –
(i) the percentage rate at which interest is claimed;
(ii) the date from which it is claimed;
(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv) the total amount of interest claimed to the date of calculation; and
(v) the daily rate at which interest accrues after that date.
(Part 22 requires particulars of claim to be verified by a statement of truth)

Re #13 in the Claimant's bundle
The Claimants Letter Before Claim was not in compliance with the Practice Direction. The letter was very threatening, demanding money and threatening court action rather than explaining what it was. The fact that the Claimant has missed a lot of information required by the Practice Direction could be easily taken as a scam. No evidence was supplied as well no explanation how the additional £50 accrued.

Re #14 in the Claimant's bundle
Again, the claimant wrongly assumes Defendant was the driver.
Re #15 in the Claimant's bundle
Under POFA 2012, a registered keeper can only be held liable for the sum in any compliant ‘Notice to Keeper’. This depends upon the Claimant fully complying with the statute, including ‘adequate notice’ of the parking charge and prescribed documents served in time / with mandatory wording. It is submitted that the claimant has failed on all counts.
[Should I add that there is additional £50 added once – with no explanation and later on (on Court Claim form)there is another £50 –legal representative. Could this means I’ve been charged twice?]
Claimants Exhibit GSL1
i)
The full name and address including post code for this car park was never given to the Defendant. It is only now I can see the full detail of the car park location.
ii)
The Sign is a printout not an actual photo, therefore no proof it’s actually install on site. The sign also breaches the Code of Practice signage requirements for 'Text Size' and 'Contrast and illumination' 'repeater Signs' and 'Other Signs' and no term on any signs set a time limit within which drivers using the App must have ensured a confirmation email was received. The other signs have densely packed text, limited white space and the onerous terms are buried in small print (the tariffs being in far larger font than the parking charge 'penalty').

Please refer to the clear and distinct signage used in ParkingEye Ltd v Beavis [2015] UKSC 67 where the Supreme Court held that full compliance with the Trade Body Code of Practice was a pre-requisite for properly obtaining DVLA data and was 'effectively regulation'

The sign also doesn’t make any offer to those not able to ‘pay in advance’ caused by a glitch in paying system.

iii) Site Plan
Site Plan does not show where the Terms and Condition sign is located. It’s also showing incorrect information regarding the locations of signs. Doesn’t represent actual site therefore inadmissible as evidence. Please refer to my Exhibit 2a,2b,2c and 2d photographs for the actual signs located at the entrance on site.
iv)
NTK
This Notice to Keeper lacks some basic information ie:
• Is charge based on damages for breach of contract
• Is your charge based on a contractually agreed sum for the provision of parking?
• If the charge is based on a contractually agreed sum for the provision of parking, there is no valid VAT invoice for this 'service'.
• The Claimant has not provided any copy of the signs that can evidence were on site and which you contend formed a contract with the driver on that occasion, as well as all photographs taken of this vehicle.
• There is no time length of how long the vehicle was park for
This also breaches the BPA code of practice (Ex.11) Para 22.12 – “If you reject an appeal you must: -tell the motorist how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website […]”
FINAL REMINDER
The amount of charge has risen to £125 without any explanation why and how it was calculated. Again there is no full address of the Car Park. With the lack of any proof and refusal of any communication this letter could be easily taken as a scam and act of extorting money from people in extremely threatening and malicious manner.
v) Photographs
Photos are irrelevant as this is a distance contract. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and paying by the App, after the car is so parked. Therefore it was not possible for the driver to “display ticket”
vi) LBC
This letter is not in compliance with Practice Directions. The LBC is lacking basic required information as well as no explanation regarding the additional £50 or any evidence to support their claim.

Thank you for any comments

Coupon-mad

Re #10 and #11 in the Claimant's bundle
The Claimant [STRIKE]relays[/STRIKE] relies on ParkingEye v Beavis

Re #9 in the Claimant's bundle –
[I got nothing here- any help?]

Remind us what para 9 of their WS said?