Court claim - AM Parking via Gladstones

Alfie100

I have tried all weekend to upload this but I think I am going to have to type it out instead.

Alfie100

WILL SAY AS FOLLOWS:
I am the Company Director of the Claimant Company (‘my Company’) and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

Exhibited to this Witness Statement at ‘GSL1’ are following documents which my Company wishes to rely upon;
The agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as ‘the Relevent Land’)
The sign (i.e the contract
The Site Plan
Notices
Photographs of the incident
Correspondance from the landowner in relation to the defendant.

The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the contract (i.e. the sign). Set out in the Schedule below are details of the parking charge;
[FONT=&quot]PCN No: xxxxxx
Date: xx xxxxxxxx 2015
Location: xxxxxx
Description: Failure to display valid permit

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Alfie100

The Defendant incurred the parking charge for parking on the relevant land without displaying a permit. My Company doesn’t dispute the Defendant was issued with a permit, however as evident from the photographs this was not properly displayed at the time of the incident. The Defendant was aware of the terms when they obtained a permit. A condition of use of the permit is that it must be on display in the windscreen.


[FONT=&quot]My Company offered a management service to the resident. The residents indicated their acceptance of this service by displaying a valid permit. In view of the fact the Defendant claims to be a resident, but hasn’t received charges daily, it can be averred that they have displayed a permit on multiple occasions previously. In view of this, they accepted the charge.

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Alfie100

It is an integral part of the parking scheme that a valid permit is displayed as otherwise the scheme would be unmanageable. If my Company were to waive one charge on the basis put forward in the defence it would open the floodgates to the waiver of many more charges, making the parking management process that has been put in place entirely redundant.
The Defendant alleges that the Particulars of Claim are not compliant and therefore the claim cannot be defended. The Claim is issued via the County Court Business Centre, 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, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:-
The date of the charge
The vehicle reg
PCN number
The amount outstanding
That is relates to parking charges; and
That it is a debt.
[FONT=&quot]Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and Letter Before Claim. As such, the Defendant would have been aware of the charge which is the subject of this claim.

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Alfie100

The Defendant alleges that my Company have no authority to issue or enforce parking charges on the relevant land. As the contract is between my Company and the Defendant, my Company does have 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 & Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Companys authorisation to operate / manage the relevant land on behalf of the Landowner.

Lord Justice Lewison commented in VCS v HMRC

The Upper Tribunals reasoning on this part of the case was that since VCS did not have the right under 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.
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 such right. Thus in Bruton v London and Quadrant Housing Trust (2000) 1 AC 406 a housing trust with no interest in land held to have a 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.
This in my judgement 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.

Alfie100

The Defendant refers to herself as a leaseholder and the terms of the leas in relation to parking. However, please find annexed to the statement an email from the landowner, xxxx, who advise that the Defendant is a tenant and not a leaseholder. Therefore, these arguments do not apply nor are relevant to the charge incurred.
It is denied the signs are “prohibitive)”. The Defendant is not “prohibited” from parked, however if she chooses to do so with her permit she will be charged.
My Companys choice of legal representation is irrelevant to the Claim, the Defendant accepted the charge for parking on the land without a permit and therefore is liable to pay the same.
In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.
In view of the Defendant not paying the charge the matter was passed to my Companys legal representatives, Gladstone Solicitors Ltd. The debt has, as a result of this referral risen as my Companys staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Companys business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendants breach and as suck ask that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternately my Company does have right to costs pursuant to the sign (ie the contract)

Alfie100

Also attached are:

a handwritten contract i could have knocked up + T & C's
What looks like a black and white art work on A4 of a parking sign
Photo of my car made to look tiny to get a sign into the corner of the picture
Land registry site plan
email from landlord advising they asked AM to control parking on the land at xxx
Proof of tenancy
Copy of the PCN
Copies of solicitors demands
Lots of photos of the car

Coupon-mad

Sorry you got no replies to your last posts here two weeks ago, Alfie, I just found your posts when looking for something else.

Today I received their witness statements and to be totally honest I feel like giving up.

They have ripped my defence to shreds, have contacted the freeholder and have a signed statement from there. Photographs of my car all round including the inside except for the passenger floor which is probably where the permit was.

I thank you for all your help but am now resigning myself to paying it.

This person said the same, they thought G's had ripped their defence apart. How I laughed!:

https://forums.moneysavingexpert.com/discussion/comment/72813382#Comment_72813382

Then we showed them that the WS was a complete template pile of drivel and how to rebut it.

Their WS the usual exact same template rubbish spewed out in every Gladstones case, please look at the linked thread and click on the link to tidegu's thread as well (on the link above), to see that you have the same trashy, spewed out drivel as everyone else gets, and 99% here win!

It is denied the signs are “prohibitive)”. The Defendant is not “prohibited” from parked, however if she chooses to do so with her permit she will be charged.

Did you notice the typo? Hope it was theirs, not yours!

the court date was only sent to me in May and is set for 25th July. They are looking for just under £300

We hope you sent your own WS and evidence (your lease clauses, and any photos) to the court and to Gladstones too?

If not you ( or someone going there for you before 1.30pm) will have to hand deliver it tomorrow morning to the court, and email it to Gladstones. It worries me to read that you didn't show us YOUR WS to help with. You cannot rock up having not at least filed a Witness Statement (as explained in the NEWBIES thread post #2 where examples are shown).

Take your actual lease and your permit along to the hearing, as well and include scans of the relevant parts of it when delivering and emailing your WS.

YOU MUST SUBMIT A WS IN ADVANCE, YOU MUST, I HOPE YOU HAVE DONE, HAVING BEEN ON THE FORUM AND READ THE NEWBIES THREAD I HOPE YOU DIDN'T MISS READING WHAT TO DO WHEN. FOR YOU NOW THIS MUST BE TOMORROW BEFORE 1.30pm (BEFORE THE LOCAL COURT COUNTER CLOSES).

Do you know about challenging the Rights of Audience of the rep who rocks up on Tuesday? Have you read other people's wins? You do know you can text the BMPA from the waiting room to find out if the rep is exempt or not, and get them kicked out, if not? so they would not be able to speak - unless they are exempt (e.g. you can't challenge an employee of AM Parking, but often G's send a hired legal rep who is NOT allowed to do this, but it's up to you to tell the Judge).

Search the forum for 'audience' and prepare to give this your best shot.

At the very least, even if you lose the dispute, a £100 PCN does not morph to £300 even if the Judge thinks £100 was OK, that and the £50 court fee is ALL that *should* be ordered, as long as you turn up and defend and say that. If you duck the hearing (please don't, you can do this), you pay £300 by default and lose - don't be that person, the BMPA can help you by text on the day!

pappa_golf

witness statement signed by who?

Coupon-mad

pappa_golf wrote: »

witness statement signed by who?

What, AM Parking's one? Usually signed by their employee I think?

But then someone from Elms Legal (e.g. Marcus Cleave) rocks up, whose Rights of Audience can be checked with the BMPA and challenged.

To the OP, we do win these cases but you must file your WS, don't throw in the towel. If the other side or Judge ask why it was late then go for the 'I had no idea how the system works, I am unrepresented and inexperienced in court matters and I hope the Judge takes that into account and allows my evidence as the victim in this dispute, after all I did file a defence and WS and I am here now, having taken time off work, to speak in my defence in good faith'.

https://forums.moneysavingexpert.com/discussion/5587819

HTH, come back and talk to us. You can even claim for your costs for attending, if you win.