IAS APPEAL....feedback appreciated

Southernsoftie_jo

I understood that in the witness statement/evidence produced at court you couldn’t add to what was in the defence already submitted.

So I wasn’t sure if it was ok to include a reference to a case I hadn’t already mentioned.

But I may have misunderstood this!

Umkomaas

Stick it in. It's very germane to private parking matters, and the most compelling on lower courts. If the Judge won't accept it, you won't be deported or sent to the gallows!

Southernsoftie_jo

A few queries about what I supply to the court in advance...

Do I submit my file of evidence in advance made of originals and take copies with me on the day, or vise versa?

Am I including literally EVERY letter in my file (Gladstones and I exchanged A LOT of letters where they just copied their files back to me)?

I refer to IPC Code of Conduct in WS. Do I print entire 33 page document for my file or just the relevant pages?

Thanks all!

KeithP

Send copies, take originals on the day.

Umkomaas

I refer to IPC Code of Conduct in WS. Do I print entire 33 page document for my file or just the relevant pages?

Relevant pages.

Southernsoftie_jo

The date is looming for me to submit my WS ahead of my day in court against Gladrags. I have toiled over this WS, and am grateful for the work done by others which I have borrowed in places.

Am now looking for feedback please on my first draft to present to the forum!


1. Sequence Of Events

1.1 I am XXXX and I am the Defendant in this matter. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience.

1.2 Due to the sparseness of the particulars, and non-compliance of the Claimant with the Pre-Action Protocols, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

1.3 On the material date I was not driving the vehicle but was at my home address. The PCN arrived by post XXXX. It took some time to identify where this PCN had arisen from as there was no address or postcode relating to where the ticket was issued, other than XXXX'. A search on Google and Google maps did not reveal the location of XXXX

1.4 Having subsequently identified the location of where the PCN was issued, I made my first site visit to the area in question. I noted while on this visit a lack of signage indicating that having crossed over a mini-roundabout, I had now entered a private road. The vehicle would have passed two of the Claimant’s signs on that day, one perpendicular to the driver's line of vision (of which half was missing), and one similarly badly damaged and approximately 7 foot high (see photo evidence of Sign A, Sign B and site map on pages XX).

1.5 The vehicle was parked some distance from a third sign, 'Sign C' which, being the first visible and legible sign available to be observed by any driver, inferred that only the land beyond this sign was controlled by the Claimant. See page XX.

1.6 The PCN states that the charge is for 'Not Displaying a Valid Permit' and that the Claimant is 'Operating in accordance with the Independent Parking Committee's Code of Practice'. At no point did the vehicle pass a sign which fully met the requirements of the IPC. Photographic evidence supplied indicates inadequacy of the signage in establishing a contract and in meeting IPC standards (pages XX).

1.7. I appealed the PCN, outlining my reasons and this was duly rejected with a generic letter. The Claimant's response to my appeal stated 'All signage states the terms and conditions of parking within the restricted area.' The photographic evidence supplied by myself from my first site visit shows this not to be the case, and that the 'restricted area' was not clearly defined to motorists.

1.8 A further formal demand letter for payment from the Claimant was sent on XXXX for a ‘parking charge notice’ for the charge of £100.00 with no breakdown of the costs, with a threat that an overdue charge would ‘increase to £149.00 in the first instance of further action’.

1.9 Following this I began to receive letters approximately every 2 weeks for 2 months from Debt Recovery Plus Ltd acting on behalf of the Claimant, demanding an infłated fee of £160 which became increasingly threatening. Their final letter dated XXXX referenced unpaid court judgements affecting my ability to obtain credit, and even my employability. (See communication section in evidence file, pages XX.)

1.10 No correspondence was received until their agents, Gladstones Solicitors (a well-known serial litigant and ‘roboclaimer’), sent a letter on XXXX demanding money and threatening court action. I began researching my case and was advised not to correspond with Gladstones Solicitors at this point. They subsequently issued a Letter Before Claim on XXXX which was not compliant with the Pre-Action Protocol.

1.11 My reply to their Letter Before Claim dated XXXX (see page XX) outlined how they had failed to comply with the Pre-action Protocol and I made some clear requests for further information. Their vague response to my letter was dated XXXX and failed to address most of the points in my letter. Further letters were exchanged in the coming months, where the Claimant persistently ignored most of the points raised in my response to their Letter Before Claim.

1.12. On the XXXX a Claim Form from the County Court Business Centre was issued instructing me that Gladstones Solictors were issuing proceedings against me on behalf of the Claimant for parking ‘in breach of the terms of parking stipulated on the signage at XXXX with an outline of alleged costs.

1.12.1 The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as they fail to specify exactly how terms were allegedly breached.

1.14. On XXXX I submitted my defence and later declined mediation as I did not feel the Independent Appeals Service could be considered ‘independent’ as it is owned and operated by William Hurley and John Davies, also the owners of Gladstones Solictors who had already been instructed by the Claimant to issue court proceedings against me. This represents a clear conflict of interest.

1.15 A further site visit was made by myself more recently on XXXX which revealed a major upgrade by the Claimant to their signage, since this PCN was issued. The damaged signs had been removed/replaced and new signs had been erected, which clearly indicated that XXXX was private land.

1.15.1 Photographic evidence (see page XX) shows a highly visible sign stating 'Private Road' which is placed at the entrance of the site, just as a driver turns off the mini-roundabout. The location, text size and placement of this sign makes it unequivocal that this road is private land. This sign had not yet been installed on XXXX . There were also clear repeater signs stating 'Private Road' at the site - there is no doubt if a driver visited this area today that the land is private, following the recent sign upgrade.

2. No Contract Exists

2.1 The Claimant is put to strict 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, unless specifically authorised by the principal. I hold the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim. The Claimant has failed to offer any evidence as per my request that they have authority to bring this claim, as required by the IPC Code of Conduct Section B clause 1.1.

2.2 I understand from correspondence with the Claimant that their case relies upon the signage at the site constituting a ‘contract’ between myself as keeper and the Claimant, as per ParkingEye vs Beavis. The ‘breach of terms’ on the Particulars Of Claim presumably refers to the supposed ‘contract’ formed by this signage.

2.3 If the Claimant is relying on a purported contract flowing from signs at the location, such terms were not prominent thus failing Lord Denning's 'red hand rule'. Any signs were not 'adequate notice' for the requirement of a permit or the claimed parking charge and no contract existed such for it to be possible for terms to have been breached. I cannot be seen, as keeper to have entered into a contract to display a permit when the signage was fundamentally inadequate and motorists are not adequately made aware of any terms.

2.4 Images supplied by the Claimant indicate the vehicle was parked in a designated 'Visitor's Bay'. The only reference to parking terms for visitors on the signage is such that Visitors should not stay longer than 24 hours, nor return within 24 hours. This term was not breached and the Claimant has no evidence to suggest that this was the case.

2.4.1 I understand from previous communications with the Claimant that the supposed breach of terms relates to failure to display a permit. By definition a 'visitor' would not hold a permit of their own therefore cannot be held to account for not displaying one. The requirement to display a permit relates to vehicles parked in marked bays, which this vehicle was not. The Claimant's case is therefore nonsensical when their own signage does not explicitly state a Visitor should obtain a permit.

3. Inadequate Signage

3.1 A key factor in ‘ParkingEye vs Beavis’ was that the relevant signs were ‘large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature’ and ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here.

3.2 In 'Vine v London Borough of Waltham Forest’ the Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen.

3.3 A key factor in ‘ParkingEye vs Beavis’ was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice.

3.4 In this case the signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International Parking Community (IPC). Indeed the IPC Code of Conduct (Section B, 2.1) states 'It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge'.

3.4.1 The IPC state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. At the time the PCN was issued there was no signage at the actual entrance to the site in question (see photo number 3 page XX)

3.4.2 The upgrade of signage by the Claimant would indicate that they were fully aware that their previous signs were inadequate and were incapable of forming a contract secondary to their damaged nature and poor placement/text size, hence their replacement.

3.4.3 The IPC state that text on signage ‘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.’ The text on the signage, particularly that which refers to any ‘contractual terms’ and a ‘parking charge’ is very small. This, coupled with the fact that Sign B (see photographs and site map) is mounted at least 7ft off the ground and badly damaged makes it very hard for any motorist to even notice plus impossible to read from a vehicle.

3.4.4 The IPC state that signage that is intended to form the basis of a contract should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. It was more-or-less impossible to observe any signage at this site whilst driving as Sign A is at a 90 degree angle to a driver's vision and is completely broken in half; Sign B is also damaged and mounted on a pole at least 7ft high.

4. Consumer Rights

4.1 If a contract were deemed to exist between myself and the Claimant it would, under the terms of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 be defined as a ‘distance contract’. As ‘distance contract’ is defined as ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.

4.2 As a ‘distance contract’, the signage at the site does not carry the information required by the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, specifically on the right to cancel required by paragraph (l) of Schedule 2.

4.3 As the signage does not carry the information required as specified in 4.2 (above) I have the right to cancel the contract as specified by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13) clause 31 ‘Cancellation period extended for breach of information requirement’.

5 Additional Costs

5.1 The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, 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.

5.2 The Particulars of Claim include £50 for ‘legal representatives costs’ yet all I have received from the Claimant’s solicitors are automated letters. The Claimant is put to strict proof that these ‘solicitors costs’ are justified.

5.3 These additional charges are not recoverable under POFA 2012 Schedule 4.

6 In summary, it is my position that the Claimant has no standing, or cause of action, to litigate in this matter. The Claimant's particulars disclose no legal basis for the sum claimed and the Court is invited to dismiss the claim in its entirety.



I believe the facts stated in this witness statement are true.

KeithP

In 1.6 you appear to be quoting from the PCN.
Does the PCN really say "the Independent Parking Committee's Code of Practice"?

The IPC changed their name in 2015 to The International Parking Community.

When was the alleged parking incident?

Southernsoftie_jo

The PCN relates to 2017

Yes, double checked, it says Independent Parking Committee!!! Their letter is so generic they must be using an old logo with the old name on.

Other than this being a bit comical, can/should I use this fact?!

Quentin

No mileage in that for you to use

Southernsoftie_jo

Can anyone else also offer a critique or any feedback on my WS please, before I need to submit it?

Many thanks!