Looks like I am going to court with Gladstones.

onearmbandit

Apologies for not updating this thread sooner.

I have received the new particulars of claim & 'explanation' of costs as requested by the Judge

Here is a quick summary of what Gladstones submitted (I will also add that they finally submitted pictures of my car - it does look incriminating because I am literally parked a metre away from their sign - they could not have positioned my vehicle better if they set it up themselves...gulp....)

Anyway - here is a quick summary of their new particulars & explanation of costs.

PARTICULARS OF CLAIM

Parties:
1. The claimant is a parking operator managing...........
2. The defendant was at all times the driver or........

The Contract:
3. the claimant installed signs (i.e. the contract) on the land taht set out its terms of parking. Copies of teh contract are attached.
4. The claimant entered into a contract wth the driver - a schedule is set out below (it just states PCN number, date of charge, location & description - i.e. not clearly displaying a valid permit)
5. The defandant is pursued as the driver............
6. As a result of the above teh driver was pursuant to the contract and issued with a PCN. The driver was obliged to pay the sum of £100 within 28 days. £100 IS AN AGREED CORE PRICE

The Breach:
7. In breach of the contract...the driver failed to pay the sum of £100......
8. In respect of the above, the claimant claims in total, the sum of £50 damages as a predetermined and nominal contribution to its actual losses

Particulars of loss
9. The claimant claims £100 as a debt & £50 damages (where did the £228 go??????????)

Claim for Interest:
10. under s.69 of the county court acts 1984 at a rate of 8% from the date of 28 days after the charge until the date of issue of claim (15th Dec) and continuing at a rate of 0.03 per day until judgement or earlier payment or alternatively at such rate that the court thinks fit.

Claim for Costs:
11. the claimant claims costs on contractual indemnity basis pursuant to CPR 44.5

And the claimant Claims:
1) the sum of £100 debt
2) Damages for the defendants breach of contract in the sum of £50 as set out above
3) Statutory interest as set out above
4) Costs on a contractual indemnity basis pursuant to CPR 44.5 together with fixed fees & costs of issuing

That's it.

I will post my new defence based on these new particulars shortly - I posted a version on pepipoo but I am unhappy with it. It was nice the judge demanded them do this but it has cost me more time in altering the defence but also it has taken away many points to argue although i will still point out that as solicitors who deal with PPC issues all the time means there can be no excuse for the particulars of claim they initially provided and this is an example of their disregard for pre-action protocol etc.

Anyway - I hope that helps people who are on their journey with this.

onearmbandit

Below is a copy of my new defence altered in view of the new particulars of claim submitted.


1. In accordance with paragraph 13 of the practice directions (“the court expects the parties to have complied with relevant pre-action protocol”) and 14a (“the court may decide that there has been a failure of compliance when a party has not provided sufficient information to enable the objectives in paragraph 3 to be met.” ) the defendant believes the claimant and associated solicitors failed to meet pre-court protocols as set out in the Ministry of Justice’s Practice Direction for the following reasons:

1 a) The originally submitted particulars of claim filed by the claimants solicitors failed to comply with Civil procedure rule 16.4 and practice direction 16 paragraphs 7.3 -7.5 as set out by the Ministry of Justice.

1 b) 6c of the Practice Direction states that steps in pre-action protocol should include “the parties disclosing key documents relevant to the issues in dispute”. In accordance with the Over-riding Objective and CPR 1.1(2) (a) & 31.14 the defendant wrote to the claimant’s solicitors on the 8/11/16 & 04/12/16 asking:

a) To provide a signage map including entrance signage
b) To provide a clear copy of the signage which is alleged to have formed a contract between defendant and claimant
c) A copy of the contract between the landowner and the claimant
d) The provision of any and all photographs taken at the time of the alleged incident which the defendant will rely on in court

The claimant’s solicitors did not respond to these requests & it was only after the request made by Judge Humphries of the county court Basildon were some of them met and adequate particulars of claim submitted. By willingly withholding relevant documents the claimants solicitors were in breach of their own SRA code as well as over-riding objective’ in the pre action protocol.

1 c) Paragraph 8 of the practice directions states that “litigation should be the last resort”.

The defendant would like it known that Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues each and every day. Therefore the defendant believes there can be no excuse for the pre-action conduct and originally submitted particulars of claim resulting in their abject failure to meet practice direction sections 3a (to understand each other’s position) 3c (trying to settle the issues without proceedings) and 3f (reduce the costs of resolving the dispute by unnecessarily engaging solicitors).

The defendant believes the claimant’s solicitors are serial abusers of the court process. The issuing of initially scant Particulars was typical of Gladstones “Cut and Paste” approach to proceedings, demonstrating disregard for the dignity of the court with little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives. I understand that HM Courts Service have identified over 1000 similar sparse claims by the claimant solicitors

Indeed, claims that were a virtual facsimile of the Particulars first submitted by the claimant were struck out without a hearing for failing to comply with CPR 16.4 & Practice Direction 16 paragraphs 7.3 – 7.4 by the District Judge Cross of St Albans County Court on 20 Sept. 2016 due to the Gladstones' template ''providing no facts that could give rise to any apparent claim in law''. Similarly, on the 27th July 2016 District Judge Anson, sitting at Preston County Court, ruled that the particulars of claim for a similar parking charge to which the defendant has been charged were inefficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. In this case the claimant was ordered to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

The poor exchanges of information by the claimant and associated solicitors are not only a direct breach of pre conduct protocols, which require all measures to be taken to resolve the issue, but by ignoring the defendants requests show their conduct to be unreasonable and incompatible with a party seeking a mediated resolution.

1 d) By not providing a period of parking on the PCN, which as stipulated in POFA schedule 4 paragraph 7 2(a) states that “ the notice must specify the period of parking which the period relates”. Therefore the Defendant believes that the Claimant has failed to fulfil the strict requirements of Schedule 4 of the POFA


2. It is denied that a contract exists between the defendant and the claimant for the following reasons:

2 a): No contract was entered by performance due to inadequate signage. The site contains no entrance signage that would have been seen by the driver – this is a stipulation of the IPC code of practice part E schedule 1 and is believed by the defendant to be an example of predatory tactics as stipulated in the IPC code of conduct 14.1. Furthermore, unlike in Beavis V Parking eye, which was dependant upon an un-denied contract formed by entrance signs as well as prominent signage with large lettering, the lettering of the charge claimed against the defendant is neither prominent or in sufficiently large font size to form a clear contract and as such does not comply with legislation for transparency as stipulated in the unfair terms of the consumer rights act 2015 which states that “A term is prominent if it is brought to the consumer's attention in such a way that a reasonably well-informed, observant and circumspect consumer would be aware of the term “.


This supports a legal principle in that when there is an unsigned agreement and an onerous clause then this clause must be bought to the attention of the trader. Indeed, this approach is inserted into the IPC Code of Practice where 'adequate notice of the parking charge' is mandatory. The defendant believes that the signs used by the claimant do not clearly mention the ‘onerous’ clause of the charge and contractual terms in accordance with this trite of law because it is hidden in smaller print underneath far larger lettering used to state that “parking is for valid permit holders”.

This approach to contract law which assesses the nature of the clause alongside the notice given was held in Thornton v Shoe Lane Parking Ltd where the respondent did not do what was necessary to draw a clause to the appellant’s attention.
Under Lord Denning's Red Hand Rule, the contractual terms and charge should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'.

A reasonable interpretation of the 'red hand rule' and the IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently in far larger lettering than that used by the claimant. In consideration of this, the Defendant denies that they would have agreed to pay the original demand of £100 and or agree to the alleged contract had the terms and conditions of the contract been properly displayed


2 b): No contract as the signage is forbidding: The PCN states that it was issued due to the defendant not “displaying a valid permit” whilst the wording on the signage that “parking is for those displaying a valid permit” makes it unqualifiedly clear that parking is authorised for permit holders. A fair interpretation can only conclude that non permit holders are not authorised to park. The terms on the sign do not make any offer of obtaining a valid permit to the defendant therefore there can be no contract considered to have been made because no offer to park has been made to unauthorised vehicles. An offer & subsequent agreement are the very essence of a legal contract. The paying of a parking charge by the driver of an unauthorised vehicle cannot be considered to be granting authorisation to park. Signage which only permits parking to authorised vehicles cannot be construed as offering a contract to unauthorised drivers by adding in terms which requires a driver to break the clear contractual requirement of the first term. In essence, the claimant is arguing that a contract has been formed by breaking one. This is legal nonsense.

This is a point recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims based upon their conclusion that the wording on the sign, very similar to that used in this claim, did not constitute a contract .

The defendant believes that the claimant has purposefully tried to evoke ambiguity with selective wording used on the signage. As per the unfair terms of the Consumer Rights Act 2015 it states that “where a term in a consumer contract is ambiguous and capable of being interpreted in different ways, the meaning that is most favourable to the consumer is to prevail . This is further supported by the ‘contra proferentum’ rule which also broadly states that “where there is doubt about the meaning of a contract the words will be construed against the person who put them forward”. It is clear from the wording on the signage used in this case that the terms with the largest font should apply.

No legally binding contract would mean a claim of trespass be made against unauthorised vehicles, a claim that can only be made by the landowner and one which the defendant would have also denied as the vehicle did not stop in a manner that can be considered to have been parked.

2 c): No contract formed due to the failure to provide adequate grace periods: The purpose of which is to provide sufficient time for an individual to read the terms of a contract and decide he they agree to them. Adequate grace periods range from 5 – 15 minutes.

2 d): Even if there was a contract it would be non-binding as the contract fails informational requirements for contracts laid down in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. Clause 13(1) of the act states that a contract is not binding on a consumer if the correct ...

2 e): The reasons for the charge issued by the claimant, as evidenced by the PCN and NTK, show this charge to be a penalty and not merely an invoice as would be expected as part of an agreed contract. Therefore, the alleged charge is not saved by the case law established in ParkingEye v Beavis [2015] UKSC 67 which confirmed that the penalty rule is engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case resulting from prominent lettering on the signs, which do not resemble this claim.

2 f) The claimant believes the defendant to be in breach of contract based on a contractually agreed sum for the provision of parking however the defendant has not been provided with a valid VAT invoice for this 'service'.

3. The defendant believes that the claimant engaged in predatory behaviour by not allowing any grace period.

3 a): As per the IPC Code of Practice 15 paragraphs 1 it made clear that drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site. I submit that 5 minutes isn’t sufficient time and so this requirement of the IPC code of conduct was breached. Furthermore, the defendant believes the claimant has also breached the IPC code of practice paragraph 14.1 by not allowing any grace period

3.b): The defendant believes that stopping a car for 5 minutes whilst asking for directions to a destination cannot be construed in any way as parking. Indeed, the definition of parking was clarified in a recent appeal case - Oxford County Court, JOPSON V HOME GUARD SERVICES, case number: B9GF0A9E - on 29.6.16 by Senior Circuit Judge, Charles Harris QC. The Judge drew a distinction between brief stopping for a 'minor vicissitude' and parking, which he defined as more long-term.

This echoes the view of Lord Neuberger in Moncrieff and Another v Jamieson and others: HL 17 Oct 2007 where at paragraph 123 Lord Neuberger held that to 'park vehicles' was 'to station them on a longer term basis' as opposed to 'the coming and going of motor vehicles along the way...[including]...the right to turn round such vehicles, and to station such vehicles for the purpose of loading and unloading (people and goods)...'

Therefore it is appealed that the conduct of the defendant was merely the normal action of coming and going while looking for a destination. Given the time elapsed, it is believed that the operation of Link Parking is one of several private parking entrapment sites notorious up and down the Country; what else can explain why there be a employee immediately available in such a place inadequately signed and not marked as a no-stopping zone? The parking attendant was clearly on site – why did they not politely ask me to move on or explain the rules of the car park which would surely be expected to avoid said predatory tactics.

It would appear that this is an example of the predatory situation that the Government announced it was taking steps to end. In a press release entitled 'New measures to protect consumers from debt claims' parking companies have been especially singled out in a promise to: ''assess the role of parking companies and examine how drivers are informed of fines...And the Department for Communities and Local Government will be taking further steps in due course to tackle poor practice by private parking companies.''

4) The defendant disputes the sum requested by the claimant

4 a): No sum payable to this Claimant was accepted nor even known about by the defendant as they were not given a fair opportunity to discover the onerous terms by which they would later be bound due to inadequate grace period given.

4 b): 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. In this case, £100 & not the £228.45 previously requested

It is important to note that after the judge requested an explanation of this sum, the claimant and their solicitors reduced this to £150 (plus a minimal amount of interest) omitting a £25 court fee & £50 legal representative fees. The defendant understands that such costs are not recoverable in small claims whilst the now requested £150, includes an additional cost of £50 for damages. No explanation has been given to explain what these damages are despite a request by Judge XXX to do so. In any case, as with the additional fees that have now been removed, £50 in damages cannot be claimed in a small claims court – qualified solicitors who are experienced in this area of law would know this.

The defendant believes the £100 ‘debt’, a sum which also hasn’t been broken down, will have included all nominal charges so no losses have occurred. Indeed, in the case of Parkingeye v Beavis (2015) a lesser sum of £85 was set high enough to cover the costs of the car park enforcement business model whilst also allowing for profit. Therefore the defendant believes the claimant to be making a clear attempt to extort money from the defendant by adding costs with no clear reason and as such, may be deemed to be an attempt at double recovery, which the POFA Schedule 4 specifically disallows. The protection of freedom act (5?) does not allow for more than the original charge to be collected.

5 The Claimant has no standing to bring this claim

5 a): The claimant has failed to establish their legal right to bring a claim against the defendant either as the landowner or the agent of the landowner by not providing a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication has been given as to the Claimants contractual authority to operate there or bring this claim as required by the Claimants Trade Association's Code of Practice B1.1 which says:

” 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…”


I believe the statements in this defence to be true

Lamilad

Ok firstly well done for all the work and research you've put into that, you've got some good, important points in there.

But it's far far too long for a defence - it reads more like a defence, WS and skeleton argument all rolled into one.

Your defence is simply a list of bullet points saying what you dispute about the claim e.g:

2. No contract due to inadequate signage
2.a There was no entrance sign at the site in question that could have been seen by the driver. [Also mention why this beaches CoP]
2.b The terms on the signage are forbidding. No offer to park is made to non permit holders. If there is no offer there can be no contract.
3. The signage does not comply with The unfair terms of the Consumer Rights Act 2015
........ and so on

Suggest you revise this down to bullet points, whilst still keeping all the points in there, then keep the additional detail for your WS and SA.

Coupon-mad

And as thy are pursuing you as driver, you can't rely on the POFA. It has no application for drivers.

Your main points are surely Grace Periods and predatory tactics (both breaches of the IPC CoP) and at WS stage you will be able to go into more detail.

onearmbandit

Lamilad - well now I am really bloody worried - it has to be submitted tomorrow!!! Jesus. I can't reduce that to bullet points in a few hours. Are you serious??? I thought this was what a defence should be like - that I throw everything in it??

For anyone following - learn from me. Bullet points!!!....and thank you for telling me!!!!!

Coupon mad - I will remove all POFA references. Thank you my darling as ever.

onearmbandit

I have worked so hard on taht by the way - I really can't tell you!

Lamilad

Lamilad - well now I am really bloody worried - it has to be submitted tomorrow!!! Jesus. I can't reduce that to bullet points in a few hours. Are you serious??? I thought this was what a defence should be like - that I throw everything in it??

I don't know what you are worried about. All you need to do is essentially keep the same defence but chop out some of the superfluous detail. It's 30 mins work. If you really don't have time to do it then submit as is, (without the pofa stuff).

For anyone following - learn from me. Bullet points!!!....and thank you for telling me!!!!!

"Thank you" for telling you what? If that's a 'dig' then it's ill advised on the forum that is trying to help you.

Also you might want to calm down with the multiple exclamation/ question marks. They generally have little impact on the regular posters on here other than to cause irritation.

For the record, Coupon Mad said in post #11:

You will already know from bargepole's post linked under 'Small Claim?'* in the NEWBIES thread

If, indeed, you have read Bargepole's link you'll recall it says:

Your Defence does not need to be War and Peace, but it must mention, however briefly, every point of fact and law that you intend to rely on

Coupon-mad

It will be fine, just submit something shorter!

onearmbandit

Many thanks

May I ask - can I use the an example case to support a point made in the defence or is that left to the skeleton argument?

For example, if I am saying that the car was not parked it was stopped - do I then use the Jopson case to support the definition of parking established in that case or is just making the point I am arguing enough for the defence whilst supporting it with a case is better left until the skeleton argument?

Cheers

Coupon-mad

To be honest anything goes in small claims - you can use the Jopson case to support a WS and/or your skeleton.