Court Date vs Horizon and Gladstones

chad888

Followed all of the path so far in the sticky thread, i have my court date next month.

The Parking Charges (2 of them) were recieved 17 months ago in a Horizon car park for quite a large over stay. Gladstones have filed the small courts claim against me and I am off next month. I will attach the defence used in the claims pack below this post.

I've had a minor issue, as i mention below...when i had previously parked there the entrance sign was obscured by a bush and there were 4 signs only in the whole shopping centre car park with parking info on. They must have recently had a big surge in profits because theyve cut down the tree blocking the sign, added a new electronic sign which flashes the time you have to leave by and your registration, and a load more signs. My defence was going to rely on the poor, obscured and scarce signage but this has recently been addressed by them and i have no proof.... how do i approach this??

Also, with 2 weeks left to file evidence to the court and opponent, i still havent recieved anything from Gladstones to counter with my defence. What do i do about that?

In the sticky it gives a list of evidence needed to supply to the court and claimant:

(a) a copy of the Beavis case sign as a comparison to show how awful the small print sign was in yours case I have this

(b) photos proving the scarce and illegible small print signs in your case, a view showing the lack of entrance signs, etc. I have a picture of the entrance sign (a sign on the other side of the road as you come off a roundabout entrance. A minor issue, they recently added a hell of a lot more signs, from there being around 4 in the whole car park to about 16

(c) a video of how it looks from a car is good evidence! You can get a passenger to hold a camera or phone and record the lack of signs seen to the point of parking I have this but they have recently added an electronic sign that flashes up your registration and time allowed until as you enter.

(d) a copy of Schedule 4 of the POFA - there is a link to it in post #1 above. The Judge will NOT have this to hand & is unlikely to be familiar with it. This is only applicable if you are defending as keeper. i have got

(e) a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability' if defending as keeper. Where can i find this
(f) a copy of your lease or tenancy agreement if this is an 'own space' or 'block of flats' dispute where YOU have primacy of contract. Don't need

(g) the case transcripts that support your argument (get them from the Parking Prankster's case law page), e.g. if arguing prohibitive 'forbidding parking' signs which offer no contract a driver can accept, you need PCM v Bull; if arguing that this is a residential space where the tenant/leaseholder has already been granted (impliedly or explicitly) the right to park or unload you need Jopson v Home Guard (a persuasive Appeal case heard by a Senior Circuit Judge) and PACE v Mr N, etc. What cases are available as won that were against a parking company charging for just over staying in a shopping center car park???

(h) the IPC or BPA Code of practice, where it supports your case (e.g. the grace periods section 13 of the CoP in a BPA few minutes' 'overstay' claim). where can i find this?

(i) a Pay & Display ticket if you have it in such a case, e.g. if arguing it was displayed. DO NOT ARGUE 'no loss'! Not needed

chad888

My defence

IN THE COUNTY COURT

CLAIM NUMBER:
BETWEEN:
HORIZON PARKING LTD (Claimant)
-and-
(Defendant)


1. It is acknowledged that the defendant, , residing at is the registered keeper of the vehicle.

2. The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver.
b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage. Further, the Notice to Keeper (postal 'PCN') failed to give the statutory warning to the registered keeper about the '28 day period' which is mandatory wording as prescribed in paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012. Consequently, the Claimant is unable to rely on the 'keeper liability' provisions of the POFA.

3. It is denied that any "parking charges/damages and indemnity costs if applicable" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety. The dates of the alleged incidents are 27/11/2015 and 09/12/2015 as per the particulars of claim which is up to 14 months ago.
I am perplexed as to why the Claimant waited until now to bring proceedings, and even more perplexed that the amount claimed includes “interest” dating back to the date of the alleged incident.

4. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, registration, location, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.
The claim also states "parking charges/damages and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'.
Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way.
Therefore, 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.
5. 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 checking for a true cause of action.
HMCTS 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.
I believe 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.
I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

6. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on 24/12/2016.
a) Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Horizon Parking LTD, and no proof has been provided.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) The Claimant is put to 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. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

7. In the pre court stage the Claimant’s solicitor did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the “charge amount” of 240 pounds has been calculated and justified.
d) Any form of possible negotiation or ADR offered.

8. I suggest 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.

9. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers.
This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

11. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, this appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
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.

12. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

13. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) A In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

14. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a ‘local’ recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges of £50 to the original £70 with no evidence of how this extra charge has been calculated. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
a) Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
b) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an
alleged £100 debt.
d) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) The Claimant described the charge of £50.00 "legal fees" not "contractual costs".
CPR 27.14 does not permit these to be recovered in the Small Claims Court.

15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.


16. I request 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''.
On the 19th August 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed to do, and the court confirmed the claim will now be struck out.

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

Lamilad

My defence was going to rely on the poor, obscured and scarce signage but this has recently been addressed by them and i have no proof.... how do i approach this??

Doesn't matter what the signage is like now, only how it was at the time. Doesn't matter that you don't have proof (why would you) the burden of proof lies with the claimant to prove their case especially the signs they used at the time to 'create' the contract. You will describe the signs as you saw them on the day in your WS, and when signed with a statement of truth this becomes evidence which the claimant has to disprove. They will need to produce time stamped photos on the signs in place on or around the material time.

You can also use google street view to 'go back in time' and check the signs in place around that time.

(e) a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability' if defending as keeper. Where can i find this

Google 'popla annual report 2015' it's on pages 12 & 13. [make sure it's the 2015 report]

(h) the IPC or BPA Code of practice, where it supports your case (e.g. the grace periods section 13 of the CoP in a BPA few minutes' 'overstay' claim). where can i find this?

Google is your friend... Type in IPC [or BPA] code of practice