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

hopsfield

Another Bump. Please I need some help with this. Also with the exhibits numbers - do i just write them in the corner of each pic or document?
Thanks

Coupon-mad

Ex. 3. Parking sign [STRIKE]by Private Eye in Beavis[/STRIKE] in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 to demonstrate clear signage.

Add several more exhibits:

http://theipc.info/resources/brandings/brandmedia_2_Code-of-Practice.pdf

Ex. 12 - The Independent Parking Committee Code of Practice (Schedule 1 - Signage)

http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf

Ex.13 - DG JUSTICE GUIDANCE DOCUMENT to facilitate the effective application of Directive 2011/83/EU on consumer rights

and

http://www.legislation.gov.uk/uksi/2013/3134/contents/made

Ex.14 - The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

and

https://www.dropbox.com/s/vzhid0lj603q0pf/Jolley_v_Carmel_Ltd_-.pdf?dl=0

Ex.15 - Jolley v Carmel Ltd [2000] 2 EGLR 154

and

http://nebula.wsimg.com/de2566ded6f0a611c309f1494800790b?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

Ex.16 - A0JD1405 - Transcript - ParkingEye v Cargius. (25 November 2014, Wrexham County Court).

and

http://www.bailii.org/uk/cases/UKSC/2015/67.html

Ex.17 - ParkingEye v Beavis Supreme court Judgment

and

http://nebula.wsimg.com/786250b4459554f3df68f9ff6667f5b3?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

Ex.18 - ParkingEye v Beavis - the earlier Court of Appeal Judgment

and

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

Ex.19 - The Consumer Rights Act 2015

and

http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/3

Ex.20 - The Consumer Protection from Unfair Trading Regulations 2008

Additions to #3:

3. It is admitted that the defendant, XXXX, residing at XXXXXX was the registered keeper of the vehicle at the time in question, but the claimant has not complied with the relevant law (Ex. 5) for 'keeper liability' in terms of the documents served and the requirements for there to be:

- adequate notice of the charge
- a relevant contract
- a relevant obligation

[STRIKE]the defendant does not admit he was the driver.[/STRIKE]

Add this somewhere near the start:

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, so any appeal would have been doomed to failure, as is proved by reports from hundreds of consumers who have not had patently unwarranted PCNs cancelled on appeal.

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. This set-up is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. This claimant's Solicitors appear to pay little regard to the 'overriding objective' within pre-court protocols, issuing incoherent copy & paste claims with no due diligence.

A solicitor from Gladstones is in the public domain as having admitted that they do not charge enough money to bother to comply with Practice Directions. Since their robo-claims usually cause frightened victims to pay, they cannot see the need:

http://parking-prankster.blogspot.co.uk/2017/01/brian-hargreaves-to-claim-back-costs.html

Helen Cook of Gladstones has been reliably quoted as stating: ‘‘We issue on a vast majority of claims, majority of which are not defended and therefore it is time consuming and not financially viable to send further particulars of claim.’’

Due to this conflict of interests, the Claimant does not come to this matter with clean hands and indeed SIP Parking moved from the British Parking Association Trade Body to the IPC in 2014, due to the fact they were losing most POPLA appeals and the IPC offered a questionable, anonymous 'appeal' service with results which appear to favour their members and put consumers to proof of matters which in a court, would rest squarely as the burden of the Claimant.

Gladstones later ambush Defendants prior to a hearing, by attempting to re-plead new particulars in their witness statement, often late. I wanted to draw their conduct to the court’s attention at this stage.

I have seen no details of the landowner contract, site signage map, evidence of the terms on those signs on the material day, contravention or PCN wording/dates and details, nor do I know whether I am defending against a matter of trespass or breach and I am having to guess from local knowledge, how the signs were worded and whether they were even capable of forming a contract.

4. There is no clear signage whatsoever from the Claimant on the driveway to the carpark (ex. 2a,2b,2c,2d). Please refer to (ex.3) a copy of the clear and distinct signage used in ParkingEye Ltd v Beavis [2015] UKSC 67 (Ex.17), 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'. By comparison, this Claimant breaches their 'IPC' Trade Body Code of Practice on signage (Ex.12) which sets this (effectively regulatory) standard regarding entrance signs:

a) Make it clear that the motorist is entering onto private land
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
c) Identify yourself (where you are a limited company. This should be by
reference to your full company name, your company number and the jurisdiction within which your company is registered).

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').

Further, the signs are not compliant with the Consumer Contract (Information, Cancellation, and Additional Charges) Regulations 2013 (CCR 2013) as appended at Ex.14, which indisputably apply to all consumer contracts requiring payments of a three figure sum or more. This statute includes paid-for parking spaces, as evidenced by page 9 of the applicable EU Guidance (Ex.13) where it states ''For example, renting a parking space...is subject to the Directive''.

A Parking Contract is a contract made at a distance because it is not made face to face between the two parties. Certainly any remote contracts concluded by an exchange of more than one single text message are covered by the CCR 2013 regulations (Ex.14). The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process).The regulations define an on-premises contract as:

“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

Thus a contract cannot be on-premises if it is a distance contract.

The regulations define a distance contract as:

“distance contract” means 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 is clearly an organised service-provision scheme (for parking)
• The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
• There is clearly the exclusive use of two means of distance communication (words on signage and use of a text payment App) up to and including the time at which the contract is concluded.

This is therefore a distance contract. None of the exemptions in regulation (6) apply. 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.

Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide inter alia, the required information listed in Schedule 2. As per 13(1) the contract is therefore not binding. Alternatively, if the contract is held to be on or off-premises (and it must be one of the three types of consumer contract) the information rules still apply and the contract is not binding on the consumer as per either 9(1) or 10(1).

So it is submitted that from the point of view of Schedule 4 of the POFA 2012 (Ex.5) and the relevant Consumer law (Ex.13 and Ex.14) and the IPC Code of Practice (Ex.12) the omission of any 'relevant contract' or 'relevant obligation' and/or 'adequate notice' of the onerous parking charge to bind a driver to pay over and above the tariff paid, the sum claimed is not recoverable.



5. The car park in question is one which the driver is completely familiar with and the daily charge is paid on every occasion. However, the “Pay by Phone” App is subject to occasional malfunctions and delays and sometimes it requires more than one attempt to pay and there is some delay before a confirmation email arrives.

On this occasion, a ticket was purchased via the “Pay by Phone” App for the day in question (ex.2e) 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 parking again straight away, the same day, whilst the car was parked.

There was no agreed contract or relevant obligation communicated via the App to pay £100 further charge under any circumstances. The driver acted in good faith to engage the App again as soon as they noticed the lack of confirmation email, making perfectly reasonable efforts to comply with the terms, and did.

I submit that the alleged contract, created by the Claimant’s signage, is voidable under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it became impossible for the driver to know the App had failed until they realised over half an hour after parking that no confirmation email had arrived. This was through no fault of the driver, was a delay over which the driver had no control and indeed was a situation that the driver took steps to rectify immediately.

In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154 (Ex.15) it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

The purchased ticket was valid for the whole of the rest of the day therefore this Claimant cannot have a genuine loss in revenue and cannot rely upon the wholly different and complex Beavis case to exempt them from that requirement and it is confidently argued that the charge asked for is disproportionate, punitive and unreasonable.

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 (Ex.17).

In a similar County Court case about a pay and display car park (Ex.16 - see paras 13 and 14 of the judgment) A0JD1405 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 (Ex.18) 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.” ‘’

And 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.''

Clearly a charge ‘out of all proportion’ to the advertised parking tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of a delayed tariff payment confirmation, due to an unexplained event such as an App failure or system error is unjustified and unfair.

The Consumer Rights Act 2015 (Ex.19) defines unfair terms:

- Schedule 2: 'Consumer contract terms which may be regarded as unfair':

’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

The Consumer Protection from Unfair Trading Regulations 2008 (Ex.20) support my position that this commercial practice of charging a penalty for their own App system flaws, failing to comply with the requirements for a distance contract and not operating a diligent and fair appeals and complaints system, renders this charge as unrecoverable due to unfair business practice:

’’Prohibition of unfair commercial practices’’: 3.—

(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
(4) A commercial practice is unfair if—
(a)it is a misleading action under the provisions of regulation 5;
(b)it is a misleading omission under the provisions of regulation 6

6(4)
(f)the following matters where they depart from the requirements of professional diligence—
(i)arrangements for payment,
(ii)arrangements for delivery,
(iii)arrangements for performance,
(iv)complaint handling policy;
(g)for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.''




Fling in all of the above, re-number your paragraphs so that every one is numbered (it will be much longer) and show us the resulting draft to finalise.

Also consider whether you would rather defend this as driver (if it was you) because the sort of things to be discussing, like the App failure, could tie a Defendant in knots if also having to refer to the driver in the third person.

Coupon-mad

You haven't got much time to get this in, have you? Show us the final draft.

Re the case law and Consumer laws, you need only print out the page mentioned in your defence, not the entire law (but do take full transcripts to court with you in case the Judge wants to see the full version). For your court, give them a nicely organised ring binder file in person, with the claim number and 'defence' written on the front and a simple front page index setting out which pages show what.

Also with the exhibits numbers - do i just write them in the corner of each pic or document?

Yes, then page numbers at the bottom once you are sure of your order of the file - then make a front page index.

The version for the Claimant does not have to be as neat - and can be emailed as attachments (keep a copy of the sent email in your own file to bring with you on the day, with copies of everything for yourself, in case the Claimant pretends they never got your WS and evidence).

hopsfield

Thanks Coupon-mad - this is some amazing work. Not sure how to thank you. I'm working on it as we speak. As for your question regarding - shall i focus on defending this claim from failed app (driver point of view) my view on this is: I have received some "random" letter demanding money with no proof or explanation. Therefore it looked like a scam to me - a specially after SIP ignoring my request for further details. Why would i reveal any personal information or explanations to someone like that?

hopsfield

I have included all your information but trying to read and fully understand every single statement suggested. Need to make sure I understand every single bit of it otherwise no point of adding it in as won't be able to explain it to the judge. But again thank you very much! I will post my finial draft tomorrow morning.

hopsfield

here it is

WITNESS STATEMENT

I XXXXX of XXXX am the Defendant in this case

The exhibits which the defendant intends to rely upon are as follows:

Ex. 1. Defence statement
Ex. 2a. Image of entrance to driveway of SIP car park
Ex. 2b. Image of parking sign 01 at entrance to driveway of SIP car park
Ex. 2c. Image of parking sign 02 at entrance to driveway of SIP car park
Ex. 2d. Image of parking sign 03 at entrance to driveway of SIP car park
Ex. 2e. Image of “pay by phone” sign at entrance to driveway of SIP car park
Ex. 3. Parking sign in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 to demonstrate clear signage.
Ex. 4. Copy of VAT Receipt for a duration of 12hrs parking at SIP car park
Ex. 5. Protection of Freedoms Act, 2014, schedule 4
Ex. 7a. Notice to Keeper Letter from Claimant to register keeper
Ex.7b. Letter from Defendant to Claimant – response to NTK
Ex.7c. Letter from Claimant to Defendant - reply to letter from Ex.7b.
Ex. 8. Excerpt from Barrister Henry Greenslade on ‘Keeper Liability’ POLPA annual report, 2015
Ex. 9 - LBC letter from Gladstones solicitors
Ex.10 Reply letter from the Defendant to Gladstones LBC letter
Ex. 11. Extract from BPA’s Code of Practice
Ex. 12 - The Independent Parking Committee Code of Practice (Schedule 1 - Signage)
Ex.13 - DG JUSTICE GUIDANCE DOCUMENT to facilitate the effective application of Directive 2011/83/EU on consumer rights
Ex.14 - The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
Ex.15 - Jolley v Carmel Ltd [2000] 2 EGLR 154
Ex.16 - A0JD1405 - Transcript - ParkingEye v Cargius. (25 November 2014, Wrexham County Court).
Ex.17 - ParkingEye v Beavis Supreme court Judgment
Ex.18 - ParkingEye v Beavis - the earlier Court of Appeal Judgment
Ex.19 - The Consumer Rights Act 2015
Ex.20 - The Consumer Protection from Unfair Trading Regulations 2008

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

2. 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

3. It is admitted that the defendant, XXXX, residing at XXXXXX was the registered keeper of the vehicle at the time in question, but the claimant has not complied with the relevant law (Ex. 5) for 'keeper liability' in terms of the documents served and the requirements for there to be:
- adequate notice of the charge
- a relevant contract
- a relevant obligation

4. There is no clear signage whatsoever from the Claimant on the driveway to the carpark (ex. 2a,2b,2c,2d). Please refer to (ex.3) a copy of the clear and distinct signage used in ParkingEye Ltd v Beavis [2015] UKSC 67 (Ex.17), 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'. By comparison, this Claimant breaches their 'IPC' Trade Body Code of Practice on signage (Ex.12) which sets this (effectively regulatory) standard regarding entrance signs:
a) Make it clear that the motorist is entering onto private land
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
c) Identify yourself (where you are a limited company. This should be by
reference to your full company name, your company number and the jurisdiction within which your company is registered).

5.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').

6. Further, the signs are not compliant with the Consumer Contract (Information, Cancellation, and Additional Charges) Regulations 2013 (CCR 2013) as appended at Ex.14, which indisputably apply to all consumer contracts requiring payments of a three figure sum or more. This statute includes paid-for parking spaces, as evidenced by page 9 of the applicable EU Guidance (Ex.13) where it states ''For example, renting a parking space...is subject to the Directive''.

7. A Parking Contract is a contract made at a distance because it is not made face to face between the two parties. Certainly any remote contracts concluded by an exchange of more than one single text message are covered by the CCR 2013 regulations (Ex.14). The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process).The regulations define an on-premises contract as:

“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

Thus a contract cannot be on-premises if it is a distance contract.

8. The regulations define a distance contract as:

“distance contract” means 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 is clearly an organised service-provision scheme (for parking)
• The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
• There is clearly the exclusive use of two means of distance communication (words on signage and use of a text payment App) up to and including the time at which the contract is concluded.

This is therefore a distance contract. None of the exemptions in regulation (6) apply. 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.

9. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide inter alia, the required information listed in Schedule 2. As per 13(1) the contract is therefore not binding. Alternatively, if the contract is held to be on or off-premises (and it must be one of the three types of consumer contract) the information rules still apply and the contract is not binding on the consumer as per either 9(1) or 10(1).

So it is submitted that from the point of view of Schedule 4 of the POFA 2012 (Ex.5) and the relevant Consumer law (Ex.13 and Ex.14) the omission of any 'relevant contract' or 'relevant obligation' and/or 'adequate notice' of the onerous parking charge to bind a driver to pay over and above the tariff paid, the sum claimed is not recoverable.

10. The car park in question is one which the driver is completely familiar with and the daily charge is paid on every occasion. However, the “Pay by Phone” App is subject to occasional malfunctions and delays and sometimes it requires more than one attempt to pay and there is some delay before a confirmation email arrives.

11. On this occasion, a ticket was purchased via the “Pay by Phone” App for the day in question (ex.2e) 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 parking again straight away, the same day, whilst the car was parked.

12. There was no agreed contract or relevant obligation communicated via the App to pay £100 further charge under any circumstances. The driver acted in good faith to engage the App again as soon as they noticed the lack of confirmation email, making perfectly reasonable efforts to comply with the terms, and did.

13. I submit that the alleged contract, created by the Claimant’s signage, is voidable under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 Ex, for the reason that it became impossible for the driver to know the App had failed until they realised over half an hour after parking that no confirmation email had arrived. This was through no fault of the driver, was a delay over which the driver had no control and indeed was a situation that the driver took steps to rectify immediately.

14. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154 (Ex.15) it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

15. The purchased ticket was valid for the whole of the rest of the day therefore this Claimant cannot have a genuine loss in revenue and cannot rely upon the wholly different and complex Beavis case to exempt them from that requirement and it is confidently argued that the charge asked for is disproportionate, punitive and unreasonable.

16. 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 (Ex.17).

17. In a similar County Court case about a pay and display car park (Ex.16 - see paras 13 and 14 of the judgment) A0JD1405 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.

18. 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 (Ex.18) 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.” ‘’

19. And 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… ''

20. 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.''

21. 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.''

22. Clearly a charge ‘out of all proportion’ to the advertised parking tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of a delayed tariff payment confirmation, due to an unexplained event such as an App failure or system error is unjustified and unfair.

23.The Consumer Rights Act 2015 (Ex.19) defines unfair terms:

- Schedule 2: 'Consumer contract terms which may be regarded as unfair':

’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

24.The Consumer Protection from Unfair Trading Regulations 2008 (Ex.20) support my position that this commercial practice of charging a penalty for their own App system flaws, failing to comply with the requirements for a distance contract and not operating a diligent and fair appeals and complaints system, renders this charge as unrecoverable due to unfair business practice:

’’Prohibition of unfair commercial practices’’: 3.—

(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
(4) A commercial practice is unfair if—
(a)it is a misleading action under the provisions of regulation 5;
(b)it is a misleading omission under the provisions of regulation 6

6(4)
(f)the following matters where they depart from the requirements of professional diligence—
(i)arrangements for payment,
(ii)arrangements for delivery,
(iii)arrangements for performance,
(iv)complaint handling policy;
(g)for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.''


25. It is not believed that the Claimant has incurred additional costs, be it legal or debt collector’s costs. The Claimant has given no indication of how long the vehicle was in the car park either (ex. 7a).

26. After receiving a Notice to Keeper (Ex.7a) The Defendant submitted a request for evidence and further explanations regarding this claim on 09/06/2016 (ex. 7b) which was refused by the Claimant on 23/06/2016 (ex. 7c). The Claimant stated that the Defendant “appeal” was not within the time frame of original PCN provided and therefore no further correspondence is required. T
This is a breach of Protection of Freedoms Act, 2014, schedule 4, Para 4-5 (Ex.5) – Right to claim unpaid parking charges from keeper of the vehicle. The Claimants letter 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 […]”

27. Following an unsuccessful appeal to the Claimant, The Defendant 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, so any appeal would have been doomed to failure, as is proved by reports from hundreds of consumers who have not had patently unwarranted PCNs cancelled on appeal.

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. This set-up is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the SRA Code of Conduct. This claimant's Solicitors appear to pay little regard to the 'overriding objective' within pre-court protocols, issuing incoherent copy & paste claims with no due diligence.

A solicitor from Gladstones is in the public domain as having admitted that they do not charge enough money to bother to comply with Practice Directions. Since their robo-claims usually cause frightened victims to pay, they cannot see the need.

Due to this conflict of interests, the Claimant does not come to this matter with clean hands and indeed SIP Parking moved from the British Parking Association Trade Body to the IPC in 2014, due to the fact they were losing most POPLA appeals and the IPC offered a questionable, anonymous 'appeal' service with results which appear to favour their members and put consumers to proof of matters which in a court, would rest squarely as the burden of the Claimant.

Gladstones later ambush Defendants prior to a hearing, by attempting to re-plead new particulars in their witness statement, often late. I wanted to draw their conduct to the court’s attention at this stage.

28. The Defendant has seen no details of the landowner contract, site signage map, evidence of the terms on those signs on the material day, contravention or PCN wording/dates and details, nor do I know whether I am defending against a matter of trespass or breach and I am having to guess from local knowledge, how the signs were worded and whether they were even capable of forming a contract.

29. The Defendant has received a LBC letter from Gladstones solicitors (Ex.9) on 19.09.2016 demanding £150 without any explanation. The Defendant has replied to Gladstones on 30.09.16 (Ex.10) to inform that the LBC letter was not in compliance with Practice Directions. The LBC was lacking basic required information as well as no explanation regarding the additional £50 or any evidence to support their claim.

30. No evidence has been supplied by this Claimant 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. In his 2015 Annual POPLA report, (ex. 8) Barrister Henry Greenslade, refers to ‘Keeper Liability’ where he states: ‘However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort’.

31. 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.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief: XXXX

hopsfield

Also sorry to be a pain but has anyone got working link to the

Jolley v Carmel Ltd [2000] 2 EGLR 154

cases, as the one given by Coupon-Mad doesn't work for me.

Coupon-mad

You won't find it online, it isn't generally available. Join-sign into dropbox and it should work?

What's your date for getting this in?

hopsfield

Hi Coupon-mad,
Its this Thursday. I would like to deliver my case to court tomorrow thou - don't want to leave it to the last minute then I will email the whole thing to Glads..
I've signed up for dropbox but when I click on your link it just takes me to my inbox but there is no files there...

Loadsofchildren123

http://www.parking-prankster.com/case-law.html


this link takes you to all the case law, it's great. Jolley is there. but look at Parking Control Management (UK) v Bull and Others - the sign in that case is the same as the sign in your case and the DJ held that it was insufficient to create a contract because it makes no offer (contracts existing of an offer, acceptance and consideration).