Defence help. Gladstone taking me to court for a parking charge.

Coupon-mad

feel like I may get into trouble if a solicitor tried to pass me documents last minute

Nah! Let any papers flutter to the floor if they try to foist stuff on you and if they 'offer' to have a chat in a side room or ask you what the main points of your defence are, tell them any chat can be in front of the Judge.

Coupon-mad

mark.taylor wrote: »

I just won a case against Gladstone. They didn't turn up in the court and the Judge ruled against them. They will try to threaten until the last week. Try to go though the sign, agreement between the parking operator and the Land owner. I hope you will find some clue. In my case I found that the Parking operator were not strictly following the agreement they have with the land owner. Ask for the agreement between the operator and land owner and see if there are any points which can invalidate their claim. Good luck.

Yay Mark! :T

Can you please update your thread?

https://forums.moneysavingexpert.com/discussion/5509051

Newbies find it useful if you can spell out what happened in the week before and at the hearing...did the Judge still expect you to explain your defence, which court was it, who was the Judge...?

The Parking Prankster would be interested in blogging this, I bet - claim number is useful.

Pugnator

Britton wrote: »

In regards to my case, the car park continues to deteriorate; there is smashed glass in places and the whole lower floor was unlit the last couple of times, would it be worth putting that stuff in?

No. The judge is not interested in the state of the car park. Only in the facts of the case.

Britton

mark.taylor wrote: »

I just won a case against Gladstone. They didn't turn up in the court and the Judge ruled against them. They will try to threaten until the last week. Try to go though the sign, agreement between the parking operator and the Land owner. I hope you will find some clue. In my case I found that the Parking operator were not strictly following the agreement they have with the land owner. Ask for the agreement between the operator and land owner and see if there are any points which can invalidate their claim. Good luck.

Good to know, cheers!

Another query is how do I prove that there are no signs stating that any photographs will be taken or cctv is in operation to counter if they are to provide pictures of people driving my vehicle? The only thing I've seen and it wasn't there long, was "smile you are on camera" wrote on a piece of cardboard. :rotfl:

Redx

you put them to strict proof of showing you and the judge the signs in place on the day

ie:- its their job to prove there were signs and what they said at the time , on the day , so if you query it, they will have to show the judge or could lose if they dont

Britton

Ive recieved gladstones witness statement, via e-mail and on the 13th when my court date is 24th so clearly not within the 14 day period?

No pictures of anyone driving just photos of a car that could be anywhere not displaying a pass/ticket. Copy of letters sent to me and an image if the sign they use it the car park. Lots of assumptions and talk of registered keeper and mentions of Beavis from them. Claiming that there is no pass from the gym and that contract wi agreed with gym was to display, as you can imagine i didnt sign a contract or was given clear instructions re: terms of using the car park!

I feel there are 3/4 points i can use on in court to defend this as there are so many holes in it, if there were pics of the driver on that day this wouldn't be in question! Wish id have thrown more pics of the car park in my witness syatement to refer to!

Ive never said gladstones could contact me via e-mail, could this be something i bring up? Also that it weren't on time?!

Coupon-mad

You can respond to that WS by submitting a skeleton argument picking holes in it and throwing in more pics of the car park. A skeleton doesn't have to be filed and doesn't have to be 'in' within 14 days of the hearing so you can just run with it and hit what you want to hit now.

Head it up skeleton argument like here (it goes to the court and the other side, with appended exhibits and you can include a draft costs schedule):

https://forums.moneysavingexpert.com/discussion/comment/72047642#Comment_72047642

Also, as important last minute ammo, see this post:

https://forums.moneysavingexpert.com/discussion/comment/72097115#Comment_72097115

Shows you how to set out a costs schedule and also, links you to info from the Parking Prankster about questioning the other side's rep's 'Right of Audience' using case law and the Law Gazette. Do not be scared to raise it as a preliminary matter at the hearing, as soon as you all sit down. If the Judge agrees, the rep cannot speak and you could then suggest the claim can just be struck out, due to the claimant's failure to attend! Worth a try, get your head around that as well.

And get a skeleton argument filed this week. You could always put a covering sentence stating that this is as a result of the Claimant unfairly attempting to re-plead their sparse case in a late-served WS received within 11 days of the hearing, in a standard tactic by this Solicitor to disadvantage unrepresented consumers. Object to the late WS and explain why it has forced you to file this Skeleton and photos and mention how distressing this ongoing harassment and misleading/late filing has been, bearing in mind the defendant works/has a busy life etc. and should be entitled not to be suddenly faced with an unreasonable re-pleaded case this late.

Britton

Wow, thanks! Had a pretty intense job interview/assessment day today so I'll have a better look at the information you have provided tomorrow. I was reading lamilad on the other site earlier and gained confidence from this around balance of probabilities and the fact there is no concrete evidence to reasonable sway a judge (imo anyway, the pictures show nothing apart from an asence of a pass/ticket etc!)

Coupon-mad

You are at the EXACT same stage as KimmyHrunt:

https://forums.moneysavingexpert.com/discussion/5543463

I really encourage you both to rebut the WS the claimant has filed, by bunging in a decent skeleton argument appending evidence you may need to add and tearing apart and rebutting the things they say that you disagree with.

Show us first.

Britton

This is the WS I recieved, i've put it on here as I'm struggling with all the POFA stuff and thought that a trained eye would spot the holes in this straight away?!

Also there is one bit that I feel is just a blatent attempt at confusing a lay person such as my self; from this I feel like going down a "i'm a lay person and this is ludicrus" kind of path, especially with the last bit where they've talked about spending time doing other things :mad: which angers me as i'm in a profession where i support people with substance misuse issues and not in the busness of taking advantage of normal people (with far better things to do!!!:mad:)

Number 5 re; displaying the pass. It's from a gym, not contract or terms of use were explained, a piece of paper was given years ago with no instructions etc discussed, just seems like sweeping assumptions to me.

Another point I have in my mind, to me the driver is 50/50, me or the wife, the balance of probabilities is 51%, what actual evidence have they given to make a convincingly educated guess to give them more than a 50/50 chance? Would it be a risk vocalising it this way? Thought about using the analogy of my wife is currently pregnant and the constant guessing of the sex, who can offer a more than 50/50 insight with assumptions and nothingness?! (the pictures supplied are of my car with no pass, can't even see what part the car park is in etc, if there were cctv pictures etc of driver on this day it would be resolved, again would it be worth pointing this out?)

Sorry for all the questions, feeling in a state of confusion/frustration/mania!


WS
1.I am an 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)Notices
iv)Photographs of the incident

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;
PCN NUMBER
DATE OF CHARGE
LOCATION
DESCRIPTION
55014001
(date)
(Location)
No Ticket Displayed
The Defence
4.The Defendant parked on the Relevant Land without displaying a valid parking ticket or permit. In accordance with the terms on the signs, by parking in this manner he accepted my Company’s charge.

5. My Company doesn’t dispute the Defendant was issued with a permit, however as evident from the photographs this was not properly on display at the time of the incident. The Defendant was aware of the terms when they obtained a permit. A condition of use of the permit is that it must
be on display in the windscreen.

6.The Defendant states the claim does not provide suffic
ient details. 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.
7.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 Letter Before Claim contained:
-
i)The date of the charge;
ii)The Parking Charge Notice Number;
iii)The location of the charge;
iv)The amount outstanding;
v)The Claimant; and
vi)That the balance relates to unpaid parking charge.
If there has been any minor deviation from the Civil Procedure Rules then it is (or would be) within the tolerances provided therein whereby the court is required to interpret any provision having regard to the ‘overriding objective’, namely to deal with matters in a just, proportionate and cost-
effective way (rules .1.1 and 1.2)

8.The Defendant claims my Company did not serve the
Notice to Keeper in accordance with the Protection of Freedoms Act 2012 (‘The Act’). The relevant Notice was sent to the Defendant in accordance with the Act and
the Registered Keeper (the Defendant) failed to nominate who was driving the vehicle prior to these proceedings (which is required under the Act (paragraph 5(2)).

9. The Defendant states he did not enter into a contract with my Company. 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.

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

11.The Defendant alleges he was not the driver.
The Criminal Case of Elliott v Loake 1983 Crim LR 36
held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. The Court is therefore invited
to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

12.In the alternative, if the Court is not able to infer that the Defendant was, in fact, the driver then the Defendant is pursued as the Registered Keeper of the vehicle pursuant
to Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 (‘the Act’) which states:
“The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.”

13.The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.

14. The Defendant disputes the amount of the charge. 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.

15. 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.

16.The Defendant states my Company has no standing to bring a claim. 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.

17.Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186
“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.
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”

The Current Debt
18.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.

19.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).