Claim Form from County Court and No LBA from Gladstones

fellsider

Just an update.
I have received a date for my court hearing in March at my local court.
If Gladstones pay their £25 court fee then it looks like I may be having a day out!
Thanks to all who've helped me I've no concerns and will make sure that my statement and evidence is well prepared and sent off in time.
I notice that ES Enforcements have been quite active lately at my local court and wondered how I could find out their outcomes. Is this possible?

Coupon-mad

You could go and watch one, if you follow the daily lists:

http://www.bmpa.eu/court.html

Might be depressing though, if the defendant is a clueless victim with a weak defence. But it will show you how the land lies with your local Judges.

Other than that, the Parking Prankster reports those he hears about but we never hear about them all of course.

fellsider

One more question.
The date that Gladstones had to pay their court fee has now passed.
If they have not paid ( ever an optimist) do I get any notification?
If I hear nothing do I assume that the case will proceed and prepare everything to send in time for 14 days before court?

Coupon-mad

You can ring your court and ask if the hearing fee has been paid, or not.

If I hear nothing do I assume that the case will proceed and prepare everything to send in time for 14 days before court?

Yes, if you have been given a date by which to submit your WS and documents, comply with it anyway.

fellsider

If the hearing fee has not been paid on time do Gladstones get extra time or is the case automatically struck out? I think I understand that a 'stay' might be given but unfortunately I'm not sure what this means exactly.

fellsider

Well The time has come to start collating all my evidence for the witness statement. Gladstones did indeed pay the court fee in time and it looks like I'll be having a day in court. Once I've put it all together I'll be grateful for all advice, pointers and comments for the final draft.

Coupon-mad

fellsider wrote: »

Well The time has come to start collating all my evidence for the witness statement. Gladstones did indeed pay the court fee in time and it looks like I'll be having a day in court. Once I've put it all together I'll be grateful for all advice, pointers and comments for the final draft.

Good. Keep the faith.

fellsider

Just a couple of questions.
1. I have studied others witness statements and I understand the format, although of course there are variations to suit my case.
2. Does it matter how long it is?
3. Would my defence statement also be used or does all the information from that need to be in the Witness statement?
4. Do I attach all correspondence to the WS? when I send it in to court and Gladstones within the 14 days ie claim form, PN, DQs etc. or do I just send my evidence ie photos, pofa etc
5. Lastly if I mention a court case do I have to provide a transcript/ruling of this in my evidence?
Thanks once again!

Coupon-mad

Discussed on pepipoo yesterday here:

http://forums.pepipoo.com/index.php?showtopic=112127&st=0

HTH

fellsider

Hi there. I have almost prepared the bones of a WS and would be grateful for comments and suggestion. As it isn't the final draft there may be a couple of typos which will of course be addressed.
Many thanks

WITNESS STATEMENT

1. I am an unrepresented consumer who has never attended the county court
before.

2. On the xxxx2016 I received a parking charge notice xxxx (Exhibit A )
asking for payment of £100 for failing to pay and display a valid parking ticket

3. It is admitted that the I was the authorised registered keeper of the vehicle in
question at the time of the alleged incident. but I was not the driver of the vehicle
so have no knowledge of the events, or signage terms on the date in
question and the Claimant did not identify the driver

4. I have no liability, as I am the Keeper of the vehicle and the Claimant must rely
upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold
me responsible for the driver’s alleged breach.

5. The claimant also failed to state that the creditor does not know both the name of
the driver and a current address for service for the driver.

6. I also point out to the presiding judge that the claimant has not supplied any
evidence at all that the alleged contravention ever occurred. The only
photograph shown, or indeed ever seen by me, despite a request for more
detailed evidence, on the original pnr shows only the rear view of a parked car.
There is no evidence to prove that a ticket was not paid and displayed.

7. No warning that charges might apply were given upon entering the site. On the
date in question. Indeed signs were only affixed between 26-29 xx (EX B, C) Dated
Photos B and C clearly show no signs at the only entrance , on the 26h. (C, D) Shows
signs having been affixed on the 29th. There is only one sign that a driver might see
after leaving the car IF they exited walking one way.( EX D) Given that there are many
exits from this car park it is unreasonable to assume that a driver would exit only one
way and so see this sign.

8. The warning signs above the ticket machine are so high up that only a person of
above average height would be able to read. (Ex E)

9. The signage was inadequate to form a contract with the motorist because It is barely
legible, making it difficult to read. Part E, Schedule 1 of the Code of Practice of the
Independent Parking Committee (of which ES is a member), clearly states that “Text
should be of such a size and in a font that can be easily read by a motorist having
regard to the likely position of the motorist in relation to the sign.” As can be seen from
the attached photographic evidence (ex E) this is not the case.

10. The sign fails because it must state what the ANPR data will be used for. This is an
ICO breach.

9. The ticket machine only specifies that a ticket should be displayed in the windscreen.
(Exhibit F) As this machine does not issue adhesive tickets it is usual to secure the
ticket on a visor in full view behind a thin elastic band. This ensures that a ticket is in
full view and can not blow away. (Exhibit G, H)





10. On the xxxx 2016 I wrote to the claimant asking for further details (Exhibit I)
The Claimant did not respond to my request.

11. Withholding any relevant photos of the car, particularly the full view of rhe
windscreen and the signage terms, despite being asked for by the myself at the
outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the
pre action protocol.


12, . As Gladstones are a firm of solicitors whose Directors also run the IPC Trade
Body and deal with private parking issues every single day of the week there can
be no excuse for these omissions.

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

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


14. On the xx I received a letter rejecting an appeal which I did not make. (Ex
J)

14. On thexxx I received a further and misleading demand which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a local recovery agent which suggested to me that they would be calling round like bailiffs adding further unexplained charges of £25 to the 3100 with no evidence of how this extra charge has been calculated. No figure for additional charges was agreed no could it have formed part of the ‘alleged’ contract because no such indemnity costs were quantified on the signs Terms cannot be bolted on later with figures plucked out of thin air, as if they wee incorporated into the small print, whe they were not. (Exhibit K)

15. The driver did not enter into any agreement . No consideration flowed between the two parties and no contract was established.

16. I deny that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions been properly displayed.

17 , On the xxx I received a Claim Form from CCBC. I did not receive a letter before
Claim or even a final demand indicating that litigation was imminent. (Exhibit L)

18. The Claimant has not complied with the pre-court protocol. as No Letter of Claim or
initial information was sent to the me

19. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that the Claim was issued by
their own Solicitors so they clearly had legal advice before issuing proceedings.

20. PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOL Steps before
issuing a claim at court
6.Where there is a relevant pre-action protocol, the parties should comply with that
protocol before commencing proceedings. Where there is no relevant pre-action
protocol, the parties should exchange correspondence and information to comply with
the objectives in paragraph 3, bearing in mind that compliance should be
proportionate. The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter
should include the basis on which the claim is made, a summary of the facts, what the
claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time - 14 days in a straight forward
case and no more than 3 months in a very complex one. The reply should include
confirmation as to whether the claim is accepted and, if it is not accepted, the reasons
why, together with an explanation as to which facts and parts of the claim are disputed
and whether the defendant is making a counterclaim as well as providing details of
any counterclaim; and
(c) the parties disclosing key documents relevant to the issues in dispute.


21. The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.

2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim.
The Claimant has therefore disclosed no cause of action.


22. The Particulars of Claim contains no details and fails to establish a cause of action which would enable me prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.
23. The Particulars of Claim are incompetent in disclosing no cause of action.

24. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’


25. On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were deficient and failed to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be struck
out.

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

27. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

28. I also dispute that the Claimant has incurred £50 solicitors costs to pursue an alleged
£100 debt, the costs of which are in any case not recoverable

29. the claimant described the charge of £50 as ‘legal fees’ not ‘contractual costs’ CPR 30.14 does not permit these to be recoverable in the Small Claims Court

30. The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

31. I assert that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”

32. I submit that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.

33. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £150.

34. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.


35. ES Parking Enforcements are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.

36. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

37. . The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

38. ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name.

39. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive.

40. I also refer the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.


41. I would like to point out that as this car park does not offer a free parking period the ParkingEye v Beavis and Wardley case does not apply (ParkingEye v Cargius case)






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