Parking Ticket - Overstayed 6mins

presc

Hi again.

I just received allocation letter from the court. The hearing will take place in September, but they asked me to send the WS by early July (I got around two weeks to prepare it). I drafted up the first version of my WS, would really appreciate if someone could give me any pointers as to where to take it next. I included some questions in there too (marked with red).

Why would they go to court with this? I've read online some other cases, and they seem to me more complicated than this one. My mum overstayed within the grace periods. Their COP clearly states you have 10mins after ticket expiration to leave the area. They can't comply with their own COP, so we did nothing wrong. Am I missing something? Shouldn't that be the one and only argument in this case? Can they possibly say something against it?

Couple of questions that keep rattling in my head, to which I can't seem to find answers on the forums:
Some people say that they didn't receive WS from Gladstones. From what I read, it's good for me, especially if they submit it late or don't send it at all to the court, but nonetheless I still need to submit WS to the court and send a copy to Gladstones?

I went over the POFA, mainly Schedule 4, but nothing really stood out as useful in my case. Only the part about double recovery, which I included in my WS draft. Would anyone who is more familiar with the whole POFA know if there is anything I could pick up on? Did I miss something?

I'm going have to read some more about the Skeleton argument, but from what understand so far, I can send it over later to court after reading WS from Gladstones (if they send it).

If my defence or WS does not mention charging them (if we win), can I still mention in at the hearing to recover up to £95 and for the miles and parking? Also, currently my mum does not work, so I imagine she won't be able to recover the £95 for the lost earnings? Since I would be the Lay Rep, and I will need a day off my work to come to the court, would I be able to recover it? From claimants point of view, I'm not really "needed" there, so I guess they won't take my loss of earnings into account?



Here's my first draft of the witness statement.

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WITNESS STATEMENT

I XXXXX of XXXX am the Defendant in this case.

The exhibits which the defendant intends to rely upon are as follows:

Ex. 1. Defence statement
Ex. 2. Excerpt from The Lay Representatives (Rights of Audience) Order 1999 on Lay Representatives. (not sure if necessary in WS?)
Ex. 3. Copy of Parking Charge Notice demonstrating times the PCN was issued.
Ex. 4. Copy of pay and display ticket demonstrating time that was paid for and expiry time.
Ex. 5. Excerpt from IPC Code of Practice on Grace Periods (v.5 1 October 2016 – effective at the time of issuing the Parking Charge Notice).
Ex. 6. Copy of Claim Form from Claimant demonstrating alleged breach of terms of parking.
Ex. 7. XXXXX demonstrating that Gladstones are the behind the IPC Code of Practice. – can’t seem to find proof of this, other than:http://www.parkingcowboys.co.uk/independent-parking-committee/
Ex. 8. Image of Signage on the parking (only the small print stuff, don’t have image from the actual machine – not sure if changes anything?)
Ex. 9. Copy of the appeal made to claimant.
Ex. 10. Proof of postage of the appeal (I sent it through Paypal postage, the first one was a tracked letter).
Ex. 11. Cope of the second appeal sent to the claimant.
Ex. 12. Proof of postage of the appeal to the claimant (1st class letter).
Ex. 13. Excerpt from Interpretation Act 1987.
Ex. 14. SOMETHING ABOUT ROBO CLAIMS – whats the best to reference? Other forums? Is there an official article etc?
Ex. 15. Gladstones are known for the similar case. Again, not sure what's best to point to this. Would something like this hold any value in the court? : http://parking-prankster.blogspot.co.uk/2017/06/bad-day-for-gladstones.html
Ex. 16. Copy of letters with increased costs including Notice to Keeper, “Demand for Payment” and Letter Before Claim. – should these be as separate points?[/COLORS]
Ex. 17. Excerpt from Protections of Freedoms Act 2012, Schedule 4, Section 4, points 5 and 6.


1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. It is admitted that the defendant, XXXX, residing at XXXXXX is the registered keeper of the vehicle, and was the driver at the time.

4. The Parking Charge Notice (ex. 3) was issued 6mins after the expiry time of the ticket (ex. 4), which is within the Grace Periods (ex. 5).

5. Signage on the parking site does not state lack of Grace Periods on the land (ex. 8).

6. The claimant’s solicitors – Gladstones, are the bodies behind the IPC Code of Practice, which means they should be well aware of the Grace Periods on the land. Omission of their own code of practice suggests at an automated debt collection.

7. The claim form sent by the claimant which gives no detailed explanation of alleged breach of contract seems to strengthens defendant’s belief that the form was auto-generated as an aggressive form of debt collection.

8. Gladstones are known for similar practices (ex. 15).

9. Defendant made appeals on two occasions (ex. 9, 11), trying to resolve the situation prior coming to court to save time and money of all parties.

10. Defendant believes the appeals were received by the claimant, but simply ignored based on the Interpretation Act 1987 (ex. 10,12,13).

11. It is not believed that the Claimant has incurred additional costs, be it legal or debt collector’s costs, or even their unlawful 4% fixed sum surcharge for payments.

12. Under POFA 2012 (ex.17), a registered keeper can only be held liable for the sum in any compliant ‘Notice to Keeper’. This depends upon the Claimant fully complying with the statute, including ‘adequate notice’ of the parking charge and prescribed documents served in time / with mandatory wording. It is submitted that the claimant has failed on all counts.



Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief: XXXX

Coupon-mad

Why would they go to court with this?

Because this is a robo-claim, and there has been/will be no scrutiny of facts until closer to a hearing. At this stage they won't have read the facts, so there's no realisation that they have no case.

They might then frantically try to ring your Mum (if they can find her number) to persuade her to 'settle' for say £100 or £50...what that normally signals is that they are likely to discontinue before the hearing.

It may well happen in your case, because they have no case! Tell Mum - don't settle! An offer is NO OFFER worth considering.

You can't use the POFA if the defendant has admitted to being the driver, which the above WS admits.

Some people say that they didn't receive WS from Gladstones. From what I read, it's good for me, especially if they submit it late or don't send it at all to the court, but nonetheless I still need to submit WS to the court and send a copy to Gladstones?

Yes, Mum's signed/dated WS. You are not a witness. You are a lay rep. No need for an interpreter.

I'm going have to read some more about the Skeleton argument, but from what understand so far, I can send it over later to court after reading WS from Gladstones (if they send it).

Yes that's right. A skeleton argument summarises the legal issues in the defence, you don't have to submit one but you can, to assist the court. You should also submit your costs schedule (example is in post #2 of the NEWBIES thread) to the solicitors and the court, not later than a couple of days before the hearing - it can accompany the skeleton. Keep proof of emailing it to the other side; a printed/time/date copy received by you, copy your own email in so that sending & receipt of that email can be proved as best you can.

And take a copy of everything with you on the day, ideally in triplicate, to hand out to assist the court to follow your Mum's evidence.

Excerpt from The Lay Representatives (Rights of Audience) Order 1999 on Lay Representatives. (not sure if necessary in WS?)

Not needed, just rock up with it. Also see the posts about questioning at the start, the Rights of Audience (RoA) of the other side, and using the BMPA app from the court before you go in, to find out if their solicitor's agent is exempt (able to speak) or not! A case can be quashed on the spot of the rep who rocks up has no RoA. Happens a LOT but it's for you to raise it with the Judge.

The only way you would get YOUR loss of leave/earnings would be to point out to the Judge that the claim has been vexatious and wholly unreasonable, from the outset, due to the Grace Periods requirement, and due to any other shenanigans, like a late WS, the claimant not showing up and not sending a person with RoA, etc. You'd then state that the claim had no prospects of success, and press home your costs by asking the Judge for 'additional costs' (see the example costs argument by LoadsofChildren123, linked in the NEWBIES thread).

presc

Thank you CM! I am just getting started on reading about the cost schedule, RoA and the questioning at the beginning. Meanwhile, Gladstones have sent us this letter (by email):

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IN THE Truro County Court And Family Court

CLAIM NO: XXXXXXX


Es Parking Enforcement Limited
(Claimant)

-and-

XXXXXXX

(Defendant)

__________________________

REPLY TO DEFENCE
__________________________

1. The Defence does not contain paragraph numbers, therefore sub-headings are used to distinguish elements of the Defence.

Appealed but no reply

2. It is neither admitted nor denied that the Defendant tried to locate a parking attendant for the Claimant Company.

3. It is denied that the Defendant appealed the parking charge notice. Without prejudice to that denial the Defendant is required to provide full particulars thereof. The parking charge notice was issued to the Defendant’s vehicle as it was parked on XXXXXXXXXX exceeding the length of stay paid for. The Defendant admits to exceeding the length of stay.

Defendant attempted to contact the Claimant

4. It is denied that the Defendant attempted to contact the Claimant after the Notice to Keeper was issued. Without prejudice to that denial the Defendant is required to provide full particulars thereof.

No cause of action

5. The Claimant avers that the Parking Charge Notice was issued as the vehicle was parked on XXXXXXXXXX exceeding the length of stay paid for. The signs on XXXXXX are clear and unambiguous; “a valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen.” The Defendant’s pay and display ticket was no longer valid as soon as the time had expired. In remaining parked not in accordance with the sign, the Defendant agreed to the Claimant’s charge of £100.00.

No authority

6. It is denied the Claimant has no authority to pursue the charge against the Defendnat. As the contract is between the Claimant and the Defendant, the Claimant 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.

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

1. “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.
2. 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”

Particulars of Claim are vague

8. It is denied the Particulars of Claim are too vague to respond too. 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, 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.

9. 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.


STATEMENT OF TRUTH

The Claimant believes that the facts stated in this Reply to Defence are true. I am duly authorised by the Claimant to sign this statement.

Full name: Helen CXXX Position or office held: Solicitor

Signed

Gladstones Solicitors, on behalf of the Claimant

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From what I understand, Gladstones have finally actually looked at our 'case' and they are trying to desperately come up with points that could scare us away somehow, most of the points they wrote are vague, and they can't prove them. We do have proof of postage for the appeals. Point 5 states that the signs were clear that she needed a valid ticket, which she didn't have as it was expired, but there was no mention about the grace periods in their reply.
I don't understand point 7.1 and 2 at all and how this is relevant to our case.
Do they have any point the judge could actually treat as valid and stronger than what we have? Did they say anything I should keep in mind when writing the WS, or going to the court hearing?

presc

Hi,

Just writing my final WS now, I'm just worried that Coupon-mad mentioned I can't use POFA if defendant admits to being the driver, however POFA reads:
"(1)This Schedule applies where—
(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and

(b)those charges have not been paid in full."

I believe that both of these are true (my mum is still the keeper of the vehicle) and the charges were not paid, so I would imagine I can use this. Did I miss something? I don't completely understand why I can't use POFA, and I was hoping I can mention the double recovery in case if we lose.

Quentin

POFA is used when the driver's details has not been revealed


Your #52 does admit the defendant is both keeper and driver!!

presc

Thank you for the info.

So I guess that if we do end up losing the case, we will have to pay all the charges, as there is nothing to limit them (like "double recovery" from POFA would)?

Coupon-mad

presc wrote: »

Thank you for the info.

So I guess that if we do end up losing the case, we will have to pay all the charges, as there is nothing to limit them (like "double recovery" from POFA would)?

No. Small claims court rules limit it. If a person loses they'd pay about £150 - £175 all told, for a single PCN, as long as they argued well as to why the added 'costs' are a steaming pile of crap! Why do you think this will lose?

The Defendant admits to exceeding the length of stay.

Really? Did the defendant admit that? Did the defendant admit who was driving?

And are they right that no appeal was sent? I have no time to go back over the thread to check.

presc

Did we admit to exceeding the length of stay? I guess that's a yes.

I followed the guide on #49:

I would defend this as driver if I were her. Not get tied up in knots as 'keeper' in this case.

That's what I put up in the original defence, as it would explain how we know about the grace periods.
Should I be worried?


They're certainly not right about no appeal being sent. We did try to contact them through post twice. Once with Signed For and once with 1st class. I have proof for both (photo of the letters and proof of postage).


Other than that, I managed to find a lot of proof to support my arguments, however, I still can't figure out how it's best to prove that Gladstones are a "bad" company and that they do it regularly. Would blog posts on Parking Prankster be enough? I also don't want to file a lot of pages, as I've read a case where someone had ~90 pages or so, was extremely well prepared, and the judge just didn't bother to go through the pages.

Quentin

Previously you posted that the signed for letter truly never arrived (according to the tracking). So that is a non starter

Do you have a separate cert of posting for the second letter sent first class? Was it the letter in the newbies FAQ rather than "appeal"?

Don't forget the DPA questions you will have asked if you sent that letter and can prove you did

presc

Yes, that's true. The first letter never arrived, according to the tracking. I was hoping that I could still mention it in court and hope that they can't prove that they indeed didn't receive it. I guess that's not really an option?

I have a receipt from post office for the second letter and I guess it was the letter from the newbies FAQ.

DPA questions? I guess I need to look this one up still...

Small claims court rules limit it.

(the costs they can recover)
I can't seem to find any actual law document to back this up.

The best I managed to find is:
"any claim which has a financial value of not more than £10,000 subject to the special provisions about claims for personal injuries and housing disrepair claims;"
(https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27)