Take action or pay up?

tea_queen

Ok, here's where I'm at with those additions so far - if nothing else the numbering is hopefully better, although those additions around the 4-6 mark may not be correctly placed:


I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. It is admitted that Defendant is the owner of ### and that she was the driver at the relevant times.
2. The Defendant, is unable to admit or deny the precise times she was parked in stated 99p store Car Park as she has no recollection of this. The Claimant is put to proof of the same.
3. The Defendant denies that she can have entered into any contract with the Claimant to pay a parking charge because:

3.1 The Claimant failed to display satisfactory signage by which the Defendant can have known about and accepted any “parking charge” that applied to the aforementioned car park. Signage was place in unsuitable locations such that it was not sufficiently drawn to the driver’s attention and/or that it would not have been noticed by the driver (e.g. hidden behind parked cars in unmaintained areas, high up on poles and at pedestrian-entry viewpoints only) and without appropriate lighting to highlight said signage in these particular locations.
3.2 There was no appropriate lighting to highlight said signage in these particular locations in low light conditions (as it was at the time the Defendant parked).
3.3 The claimant failed to provide adequate notice of the terms of any contract, and therefore made no contractual offer to drivers, within the available signage to drivers in the following ways:

i. By displayed signage which was contradictory and which gave no clear information about any charges that can be incurred, e.g. one sign quotes parking as being “for Patrons whilst on the premises only”, but indicated no charge when the relevant retail store was closed.
ii. By displaying signage in which the only mention of the potential charge for parking was lost in the small print.

3.4 The signage failed to comply with the requirements of the Claimant’s AOS Code of Practice, compliance with which is a compulsory term of the Claimant’s AOS membership.

4. The Claimant is in breach of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, whereby signage displayed on the Land/ Site requires planning/advertising consent. The signs are an “Advertisement” under the definition in the Regulations.
5. Furthermore, the Claimant does not have advertisement consent for its sign at the site according to Local City Council Planning Department Records, which is a criminal offence in line with Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. Accordingly, pursuant to the doctrine Ex Dolo Malo Non Oritur Actio, the Claimant cannot rely on its wrongdoing on which to found and bring a claim against the Defendant. This in turn, also breaches the Consumer Rights Act 2015
6. The Claimant failed to provide the full detail of the circumstances in which it is claimed the charge arose – at the time of writing this Defence, the Claimant has failed to provide evidence of the signage in question to show how the charge was brought to the attention of the driver.
7. Here, the charge was not incorporated into the contract because the signage was not placed in easily viewable locations around the site as previously noted, could not be viewed before parking the car, and details of the “parking charge” were hidden amongst the fine print of the signage, making it difficult for a driver to review the “contract”. Therefore, there was no contract formed because the Claimant had no authority to enter into any contract with the driver, made no offer capable of acceptance, and there was no acceptance of any terms by the driver. The Defendant denies that the driver would have agreed to pay the original demand of £100 had the terms and conditions of the contract been properly displayed and legible. No consideration flowed from either the Claimant or the Defendant.
8. Alternatively, even if there was a contract, the provision requiring payment of £160 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 (the applicability of which was upheld in the Beavis case), clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; and (c) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years.
9. Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph(e) of the Regulations being a term ‘requiring any consumer who fails to fulfil his obligations to pay a disproportionately high sum in compensation”. The term was not individually negotiated and causes a significant imbalance in the parties’ respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose.
10. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
11. For the avoidance of doubt, the Defendant puts the Claimant to full proof of the entirety of its claim.
12. The Defendant disputes that the Claimant has incurred ‘Legal representative’s costs’ of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action. The Defendant submits these ‘costs’ are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.
13. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
14. The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the significant detriment as an unrepresented Defendant.
15. The Defendant suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. This continued harassment for a sum of money which is escalating, yet is not the Defendant’s liability, is causing significant alarm and distress and in that respect is on all fours with the case of Ferguson v British Gas, which also turned upon unreasonable contact from debt collectors regarding a debt not properly established in law, or owed at all.
16. The Defendant request’s the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

As an unrepresented litigant-in-person, I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case. It is difficult to defend a claim in an appropriate manner which has been so incoherently and briefly pleaded, in breach of the CPR Rule 16.4 and Practice Direction 16, paragraph 7.3.
I believe the statements in this defence are true to the best of my knowledge and that as the Defendant, I am not liable for the sum claimed, nor any sum at all. The court is invited to strike out the claim as having no prospect of success.

Loadsofchildren123

sorry tea-queen, just caught up. Do you want me to go through this quickly or have you already sent it?

Loadsofchildren123

tea_queen wrote: »

Ok, here's where I'm at with those additions so far - if nothing else the numbering is hopefully better, although those additions around the 4-6 mark may not be correctly placed:


I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. It is admitted that Defendant is the owner of ### and that she was the driver at the relevant times.
2. The Defendant, is unable to admit or deny the precise times she was parked in stated 99p store Car Park as she has no recollection of this. The Claimant is put to proof of the same.
3. The Defendant denies that she can have entered into any contract with the Claimant to pay a parking charge because:

3.1 The Claimant failed to display satisfactory signage by which the Defendant can have known about and accepted any “parking charge” that applied to the aforementioned car park. Signage was place in unsuitable locations such that it was not sufficiently drawn to the driver’s attention and/or that it would not have been noticed by the driver (e.g. hidden behind parked cars in unmaintained areas, high up on poles and at pedestrian-entry viewpoints only) and without appropriate lighting to highlight said signage in these particular locations.repeats what's in 3.2
3.2 There was no appropriate lighting to highlight said signage in these particular locations in low light conditions (as it was at the time the Defendant parked).
3.3 The claimant failed to provide adequate notice of the terms of any contract, and therefore made no contractual offer to drivers, within the available signage to drivers in the following ways:

i. By displayed signage which was contradictory and which gave no clear information about any charges that can be incurred, e.g. one sign quotes parking as being “for Patrons whilst on the premises only”, but indicated no charge when the relevant retail store was closed.
ii. By displaying signage in which the only mention of the potential charge for parking was lost in the small print.

3.4 The signage failed to comply with the requirements of the Claimant’s AOS Code of Practice, compliance with which is a compulsory term of the Claimant’s AOS membership.

4. The Claimant is in breach of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, whereby signage displayed on the Land/ Site requires planning/advertising consent. The signs are an “Advertisement” under the definition in the Regulations.
5. Furthermore, the Claimant does not have advertisement consent for its sign at the site according to Local City Council Planning Department Records, which is a criminal offence in line with Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. Accordingly, pursuant to the doctrine Ex Dolo Malo Non Oritur Actio, the Claimant cannot rely on its wrongdoing on which to found and bring a claim against the Defendant. This in turn, also breaches the Consumer Rights Act 2015
6. The Claimant failed to provide the full detail of the circumstances in which it is claimed the charge arose – at the time of writing this Defence, the Claimant has failed to provide evidence of the signage in question to show how the charge was brought to the attention of the driver.
7. Here, the charge was not incorporated into the contract because the signage was not placed in easily viewable locations around the site as previously noted, could not be viewed before parking the car, and details of the “parking charge” were hidden amongst the fine print of the signage, making it difficult for a driver to review the “contract”.


I'd make this a new para Therefore, there was no contract formed because the Claimant had no authority to enter into any contract with the driver, made no offer capable of acceptance, and there was no acceptance of any terms by the driver. The Defendant denies that the driver would have agreed to pay the original demand of £100 had the terms and conditions of the contract been properly displayed and legible. No consideration flowed from either the Claimant or the Defendant.
8. Alternatively, even if there was a contract, the provision requiring payment of £160 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 (the applicability of which was upheld in the Beavis case), clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; and (c) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years.
9. Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph(e) of the Regulations being a term ‘requiring any consumer who fails to fulfil his obligations to pay a disproportionately high sum in compensation”. The term was not individually negotiated and causes a significant imbalance in the parties’ respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose. You should be referring instead here to the breaches of the Consumer Rights Act 2015 and to the schedule to that Act - it's very similar. Pinch the wording from my post above. If it's too late, it doesn't matter, you can correct this in your WS or your Skeleton with the new legislation. The 2015 Act replaced these Regulations. I'd sya something like "Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to S.62 of the Consumer Rights Act 2015, as defined and set out in Schedule 2 (paragraphs 2, 6 and 10) to the Act. The fact that the signs are contradictory and unclear is also a breach of S.68 of the same Act."
10. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
11. For the avoidance of doubt, the Defendant puts the Claimant to full proof of the entirety of its claim.
12. The Defendant disputes that the Claimant has incurred ‘Legal representative’s costs’ of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action. The Defendant submits these ‘costs’ are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.
13. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
14. The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the significant detriment as an unrepresented Defendant.
15. The Defendant suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. This continued harassment for a sum of money which is escalating, yet is not the Defendant’s liability, is causing significant alarm and distress and in that respect is on all fours with the case of Ferguson v British Gas, which also turned upon unreasonable contact from debt collectors regarding a debt not properly established in law, or owed at all.
16. The Defendant request’s the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

As an unrepresented litigant-in-person, I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case. It is difficult to defend a claim in an appropriate manner which has been so incoherently and briefly pleaded, in breach of the CPR Rule 16.4 and Practice Direction 16, paragraph 7.3.
I believe the statements in this defence are true to the best of my knowledge and that as the Defendant, I am not liable for the sum claimed, nor any sum at all. The court is invited to strike out the claim as having no prospect of success.

It doesn't matter if you've already sent this in. The only thing you need to do is in your WS or Skeleton, point out that you hadn't appreciated that the 1999 Regs had been incorporated into and replaced by the 2015 Act and the C is in breach of that in the following respects ......

tea_queen

Hi, so current update on this, I received confirmation of receipt from the court, who forwarded it on to Gladstones as you know. I've since received an email from Gladstones direct with a copy of the Directions Questionnaire and special directions they intend to file with the court to proceed however the email does also state they're willing to accept any genuine payment proposals that I may wish to put forward - is this normal for them the say at this stage, or is this just their way of trying to avoid court now? I haven't replied to them and I'm not certain whether I should avoid talking to them directly at this stage now?
(Am I right in thinking if Gladstones had filed the claim it would appear on the MCOL website? If so I'm having trouble logging in at the moment to check)

On the plus, I randomly came across a non-blurry photo of the signage yesterday, so here's what the sign actually said - I find it encouraging that even now, knowing what I'm looking for, I actually struggle to find the charges on there!

http://tinypic.com/r/2djpdom/9

http://tinypic.com/r/166yiq9/9

Redx

GLADSTONES always use these smoke and mirror tactics , so already covered in post #2 of the NEWBIES thread and BARGEPOLE talks about this too

tea_queen

Thanks RedX, I've read through Bargepole's Court Claim Procedure (linked from newbie thread) so I was expecting all of the mediation/ special directions to come through and know how to proceed in terms of my paperwork (in theory!), I just didn't expect Gladstones to contact me with this direct? I thought that would come through with the court papers, as I've not received anything from them yet, other than the confirmation letter saying my defense was being sent on, but if it's normal and I'm just interpreting that section incorrectly then that's fine

Coupon-mad

I've since received an email from Gladstones direct with a copy of the Directions Questionnaire and special directions they intend to file with the court to proceed however the email does also state they're willing to accept any genuine payment proposals that I may wish to put forward - is this normal for them the say at this stage.

Yes - they always do this - search 'Gladstones straightforward' and read Jack Basta's thread, or the one by Gin and Milk. Both of which show how to deal with the suggestion that the case is dealt with 'on the papers' (nope).

tea_queen

Hi All, thanks for your help so far. I received my court date of 18th August, so I am working on my Witness Statement and Court Bundle to send over by the 4th (approaching far too quickly!).

I have started working on this and will share it once it's in a better state (I'm currently pulling bits and pieces together from different forum posts etc.) however in the meantime, can anyone confirm that I have the details of what to include correct please?

Witness Statement - I have detailed the PCN dates, letter correspondence back and forth, up until the Letter before Claim received - this seems a little like overkill given how many letters went back and forth, however it does indicate the mixed messages received. I have also included that the parking company requested the £60/ £100 each time - not sure if this is relevant, to me it shows that they're just after the money and have no real claim, but I'm not sure if I'm just wasting time and paper.

Skeleton argument - the legal bits (signage, case links etc) - I have found myself slightly heading into this territory within the witness statement - do the two statements have to be separate or can it be mixed into one large witness statement?

Additional evidence - is it worth me including a copy of the PCN and every letter sent from both sides? I'm happy to do it but again seems excessive and I don't want to bore the judge to the point (s)he supports the other side!

Costs - I've read these are to be presented on the day, so I presume they do not need to feature within the index of the pack?

Thanks for your continuing help

Coupon-mad

do the two statements have to be separate or can it be mixed into one large witness statement?

Depends who you ask - there is no hard & fast rule but better to be separate, as the WS is meant to be just that, a signed statement of facts.

Additional evidence - is it worth me including a copy of the PCN and every letter sent from both sides? I'm happy to do it but again seems excessive and I don't want to bore the judge to the point (s)he supports the other side!

No, not sure why letters would be evidence? Except your appeal and efforts to resolve the dispute, if they don't shoot your defence in the foot. Evidence is better to be photos of signs, compared to a pic of the Beavis case sign, and case law, transcripts of cases won on similar points, etc.

tea_queen

Thanks Coupon-mad Here's a link to my witness statement so far, and the photo evidence (much the same as previously shown) referenced within it - hopefully I'm on the right track although I have a feeling there may be lots of amends to make! Skeleton statement to follow at the weekend. Thanks for any advice you (or anyone else) can offer:

https://we.tl/19MLKO1AfN