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

Coupon-mad

.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

You said that the gym has opened new spaces and even used bays across the road at times, so does their evidence include a site map? Or any evidence pinpointing where the car was parked within the multi-storey (could it arguably not even be in a Gym bay)?

Britton

Coupon-mad wrote: »

You said that the gym has opened new spaces and even used bays across the road at times, so does their evidence include a site map? Or any evidence pinpointing where the car was parked within the multi-storey (could it arguably not even be in a Gym bay)?

No it includes nothing like that, the only pictures show a car that could be anywhere in the world but has nothing in the windscreen!

they've included;
The parking agreement between the parking company and the land owner, nothing from the gym or relationship between them.

example of the sign used in the car park, not an actual image from the car park or anything.

copies of letters sent to me,

The pictures are also time stamped, it's past 6 o'clock, in this area it is free parking in the town centre after this time, worth a mention?

Coupon-mad

The pictures are also time stamped, it's past 6 o'clock, in this area it is free parking in the town centre after this time, worth a mention?

Probably not IMHO. But the rest of what you said is all relevant to include in your WS. I would pull apart their WS, piece by piece and refer to it in your skeleton argument by paragraphs, for example:

(Head it up as shown in examples of court paperwork - like theirs! - with the Claim number etc. and the heading is SKELETON ARGUMENT'):


1. The Claimant misleads the court as to 'the Defence' in paragraph 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.''

2. In fact, I am defending as the registered keeper of the car. The driver could have been my wife as we are both gym members. The claimant has adduced no evidence of the identity of the driver and it is disingenuous (and unsupported by the applicable law) to assume the defendant was the driver. In fact, the balance of probabilities for this is no more than 50/50 and in support of this fact I append as Evidence #1, the Insurance Certificate for this vehicle showing two insured drivers.

3. A registered keeper is not liable for the actions of another driver except under the strict provisions of Schedule 4 of the Protection of Freedoms Act 2012 (the POFA), which is appended as Evidence #2.

4. It is argued that this Claimant has not evidenced a compliant Notice to Keeper (NTK) was served in accordance with paragraph 8 of the POFA. Nor have they shown any evidence that Gym members were under any 'relevant contract' or 'relevant obligation' to display a permit and/or in which bays/storeys within the car park that this applies, since the site has different rules for different bays and businesses.

5. Even if they did serve a compliant NTK, it is argued that this claimant has failed to evidence that there was 'adequate notice' of the parking charge in clear, prominent terms near the car.

6. The only thing 'evident from the photographs' referred to in this Claimant's paragraph 5 is that this car was parked somewhere in an unidentified car park one evening. The photos do not show any legible 'signs or lines' nor is the site itself identified, let alone the specific bay/whether it as a Gym space or not.

7. This Claimant's case appears to be based merely on the fact that I was the registered keeper at the material time, of a vehicle parked somewhere. Their evidence shows merely a 'stock' example of the sign they say was used in the car park they refer to. There are no images from the car park to show the terms in clear view of the car, with the £100 'parking charge' itself in large lettering, such that a driver would be 'bound to' have learned of the alleged contract.

8. With regard to the Claimant's paragraph 6, it is denied that the Claimant's solicitor's woefully sparse 'roboclaim cut & paste' Particulars of Claim meet the requirements of Practice Direction 16.7.5 as there is nothing which specifies the terms nor how they were allegedly breached.

9. Further, it is denied that an unwarranted parking charge, where the signage evidence falls this far short of evidence of a contract being agreed between the Claimant and a driver, is 'a debt'. This is a wholly misleading description of the sum claimed, liability for which is fully denied.

10. The Claimant misleads the Court as to the POFA, in their paragraph 8 (my bold):

....''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)).''

A registered keeper is under no such responsibility or obligation to name a driver to a private firm, even if the driver was known. Identifying a driver is categorically NOT 'required' under the POFA and there is no 'failure' in choosing not to respond; indeed parking firms are aware they are only entitled to enquire as to the identity of the driver and that a keeper does not have to respond at all and no adverse inference can be drawn.

11. In support of this I append as Evidence #3, Henry Greenslade's words as Lead Adjudicator in the POPLA (Parking on Private Land Appeals) Annual Report 2015 'Understanding Keeper Liability', which make it clear that a keeper is not required to name the driver and that in the absence of evidence of that party, the only way for a parking firm to hold a keeper liable is by full compliance with the POFA.

12. The Claimant's reliance upon the Beavis case is unfounded because the Supreme Court confirmed what was required 'in every case' is to establish firstly that a clear contract existed and was agreed (prominent signage) and that there was a legitimate interest in charging more than damages. Neither applies here; the signage evidence is nothing like the 'brief, clear' and 'parking charge sum in large lettering' signs all around the car park in the Beavis case.

13. Further, the 'legitimate interest' of the Gym is that their members can park. There can be no commercial justification for penalising Gym members for parking to use the Gym and indeed the Management have told members to ignore any private parking tickets issued as they do not support them.

14. Re the Claimant's point #10, There is no evidence that ''the signs on the Land are clear and unambiguous'' because they have failed to show any such evidence.

15. Re the Claimant's point #11, Elliott v Loake can be fully distinguished, being a criminal case where evidence of the driver was held to exist. Not so here.

etc., etc.,

Get that in (to court and to the Claimant) and the evidence appended.

Kind_Of_Irritated

Well done, you, but does anyone on here know what can be done if the Management Board and the Landlord refuse to let us have sight of the agreement between them and the PPC? :mad:

The one my case is concerned with seems more concerned to be pally with Sink Parking and Sadstones than they are about looking after a tenant.

Coupon-mad

They don't have to divulge the contract - but would have to at a court hearing, if the defendant raised it as a valid point of defence.

Kind_Of_Irritated

TY, CM. Should I mention it in my WS or skeleton argument, or can I just raise it on the day in court?

Coupon-mad

Never ambush on the day because your point will likely not be allowed; always mention every point of a legal/contract nature in the skeleton argument.

The WS is merely the facts & is likely to be shorter.

Kind_Of_Irritated

Yes, thought so. Btw, CM, I have messaged you at Pepipoo.

Britton

Thanks so much again CM! Going to drop this off at the court tomorrow. Starting to get a little anxious about the whole thing but kind of in a good way!

Coupon-mad

At least it will be done and dusted one way or the other, you will have fought this in the best way possible on points of law and principle, and most people here win! Take heart, deep breath!