Claim Form from County Court and No LBA from Gladstones

Coupon-mad

Remove these, no GPEOL has no legs and the cases quoted are pre-Beavis & too old:

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.


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.

fellsider

Is this getting there?

WITNESS STATEMENT
1. 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. There are other named drivers entitled to drive this vehicle (Exhibit

5. The claimant has produced no evidence I was the driver and I have stated that I am not the only driver of this vehicle and cannot be presumed
to be the driver in the absence of any evidence. (Exhibit )

6. 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. (Exhibit )

7 If this Claimant chooses not to use the statute they therefore cannot hold a keeper
liable nor is there any presumption in law that allows them to recover a charge from
me. The Claimant is put to prove on what lawful basis they think they can hold me
liable

8. On the date and time in question I was not in xxxx.

9. I have evidenced that I made a purchase from xxx in xxx on this date .(Exhibit )

10. I made a phone call from home in xxx at xxxx which would make it
physically impossible for me to have driven from xxx in 30 minutes. (Exhibit )

11. I also sent an email , with attachments, from my home pc at 15.58. 12 Minutes after
the alleged offence! (Exhibit )

12. 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.

13. 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.

14. 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.

15. 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.

16. 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)

17. 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.

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

19. 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)





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

21. 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.


22, .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.

23. 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.


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

25. 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, when they were not. (Exhibit K)

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

27. 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.

28 , 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)

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

30. 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.

31. 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.


32. 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.


33. 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.

34. 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.

35. The Particulars of Claim are incompetent in disclosing no cause of action.


36. 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.’


37. 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.

38. 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).

39. 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.

40. 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

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




42 ,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.

43. 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.


44. 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.
45. 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.

46. 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.



47. 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)

end

Coupon-mad

Yes that's better even though it includes legal arguments.

I've just replied to you on pepipoo as I like lamilad's suggestions on wording and would like more pics and info about the NTK, which appears to be a non-POFA one according to the front page alone:

http://forums.pepipoo.com/index.php?showtopic=112205&st=0&gopid=1265933&#entry1265933

fellsider

Thanks for your patience Coupon-Mad. I'll continue there if that;s ok.
I'm well on with my amendments now. I'll post the rear of the NTK. Oh and thanks for picking up my calling it a pcn. I think it should flow a little better now.

fellsider

Many thanks for all your help. My case was today and I won.

Coupon-mad

fellsider wrote: »

Many thanks for all your help. My case was today and I won.

Hooray! We want a full court report please when you've calmed down!! :T:T

The_Deep

What a waste of everyones' time. OP should complain to the SRA.

fellsider

Here is my "report" on today.

It was not a bad experience. The judge, although formal, as you'd expect was very easy to talk to.
I was lucky in that the claimant's solicitor was not at all arrogant or defensive. She was really very pleasant! I was in there no more than 25 minutes!

When I got to court it was not busy as Bury court closes on Friday and moves to Bolton.
There were 6 cases listed for 2 judges.
The case before me was also against ES Enforcements through Gladstones and I chatted to him.
He went in first and came out less than 5 minutes later. I don’t think he won.

When I went in I was surprised it was in the full court with the judge in isolation on the bench.

The judge asked me if I was xxxx and I said yes. He already knew the solicitor as I think she’d just won the previous case to me against Es.
He asked her to open and she said the case rested on the fact that I was presumed to be the driver and that I had failed to pay and display a valid parking ticket in the windscreen despite clear and prominent signage.
As I had chosen not to to name the driver I was still liable as by using my car it implied permission was given to accept all the terms of the contract. and asked to judge to award in their favour.

The judge then asked me clarify the main reasons I disputed the claim saying I didn’t need to read my statement as he’d read it.
I began by saying that I was not the driver and did not know who the driver was. I had provided proof that I was elsewhere at the time.
The signage was inadequate in any case.
The claim form was deficient in the particulars of claim and I could not defend it.
I had not received a letter before claim and that my request for information was not only ignored but treated as an appeal.

The judge then asked questions about why I thought the signage was deficient.
I explained that much of the signage had gone up after the date of the incident and referred him to clear dated photos which showed that the signs they claimed were there on the date from their Google aerial view were only put up 14 days after.
The judge said although the photos clearly showed this, it did not alter the fact that in the photo on the NTK there was a large and prominent sign saying "Have you paid and displayed" which the driver, whoever that may have been, could not have failed to have seen.

However the signs with the terms and conditions were, he agreed, put up so high as to be difficult to read and the payment figure was not prominent. So they did not comply.

He moved onto the claim form which brought up some interesting points.
He said that it was not uncommon for online claims from Northampton to give such little information In the particulars of claim and that letters I had been sent such as the notice to keeper detailed the claim and as I had it as an exhibit I could reasonable be expected to know what the claimant was claiming for.

He said he was concerned about the lack of response to my request for information and noted I had included proof of posting in the bundle. He said this was not unusual for these companies to ignore them. (He did not comment on why they had sent a letter of rejected appeal instead)

He then asked me to confirm that I had not received a LBC and mentioned that I was not under any kind of oath in this court.
He was also quite concerned that I had not received a LBC and as Gladstones had provided no proof that it had been sent he had no reason to disbelieve me that I had not received one.
He said then that this did not comply but would rather now move onto why I thought I was not liable as the RK.
I referred him to the exhibits proving my whereabouts and that I could not have been the driver.

He asked the solicitor if she had them and she agreed and said again that as I had chosen not to to name the driver I was still liable as by using my car it implied permission was given to accept all the terms of the contract.

The judge asked me about how many people used the car and why anyone else would use it.
How many were on the insurance and how many others were likely to drive it

The claimants solicitor again said that although I had provided evidence that I was not the driver at the time they relied on the fact that I was liable as the RK. As I had chosen not to name the driver.
The judge looked at me and I repeated that I was not the driver and really did not know who it was.

I then referred the judge and solicitor to my exhibits of the Popla 15 Keeper Liability and the Excel v Lamoureux case and he said that although the Lamoureux case wasn’t binding
(and I’m sorry but I don’t recall exactly why, but I believe it was something to do with either the kind of court or the type/relevance of the judge presiding the case.)
In any case he saw no reason to dispute it’s valid judgement and agreed with it.

I was then asked if I’d like to say anything else.

I asked why, if there were so many photos taken of the car, was a ticket not affixed and a photo taken of this for evidence.
The judge said that he wondered why as well and it was not unusual for these companies to do this so as to go after the rk and this company in particular was well known for this. From this I took that he had come across ES previously.

He commented that I had a very comprehensive and well laid out bundle and all the information was easily accessible.

In summing up he said there was no point arguing any other possibly valid points as he was confident the claim was defective as it had not followed the correct protocol, but he didn’t elaborate on that, and the case was dismissed.

Coupon-mad

In summing up he said there was no point arguing any other possibly valid points as he was confident the claim was defective as it had not followed the correct protocol, but he didn’t elaborate on that,

That's odd at the end! But it seems Lamilad's case transcript was worth the cost he paid for it if it is helping to persuade judges, as we all hoped it would.

Brilliant stuff!

fellsider

At the end I think I was so surprised it was over so quickly that the wording he used may not have been exactly that. The gist, on reflection, I think what he meant, that as the LBA NTK etc was not right it was sufficient to dismiss. I think that he would also have dismissed on the grounds of keeper liability or even at a push that some of the signs were not clear enough. I'm not sure and when I get the judgement I'll understand a little better