Link Parking & Gladstones Court Claim Defence

Cassys2008

Hi
I had a PCN on my car issued by Link Parking on 25 Sept 2016 which I immediately challenged by email but it was refused - email received from them 17 October 2017. They then issue a notice to keeper dated November 2016 and on 13 April I had a claim letter from Gladstones. This was dated 7 April and was sent second class. I responded to them on 21 April by email and post - asking for more details which was originally requested in my original challenge of the claim. However, they did not respond or acknowledge and on 29 April I received a Small Claim Court notice - this is dated 26 April 2017.

I am going to challenge the parking notice anyway and completing the MCOL form online. I am starting by acknowledging the service
Jurisdiction of the court
- this also ask if I am contesting the jurisdiction of the court in this case. I understand that a claim has to be brought within a certain time limit and if not, then a defence can be build around contesting jurisdiction of the court - I think it is 6 months in England. Given that the parking notice was issued in Sept 2016 and the Claim was registered with the Courts more than 6 months later, do I have grounds to contest the jurisdiction here?

Preparing my defence
I am preparing this now and will share with you to comment on shortly.

Thank you

System

I think it is 6 months in England.

6 years for contract issues. 6 months for criminal but it's not.

Link usually have an issue with their signs so if you can get pics of those, it will help. Was this a residential site?

Cassys2008

Yes, it was in a residential area. I went to visit a friend there on a Sunday and did not see any signs when we parked the car. In fact, we parked where she was told visitors can park when she bought the flat. We have asked Link Parking to confirm when the signs were put up there but they have ignored that question!
I have a photo of the sign but can't upload it on here. What should I be looking for on it?

Coupon-mad

You can link to the picture in tinypic or dropbox, etc. Break the link by changing http to hxxp.

System

In fact, we parked where she was told visitors can park when she bought the flat.

Ask the friend to get the lease out. There may be covenants covering using the common areas (visitor parking) unless you parked on space that the friend owned or had easements to.

The lease is the key document here but don't expect Link to do anything other than lie.

Cassys2008

Hi - Apologies for delay in sending you my draft "defence statement". I have been away with work and did not have a lot of time to draft it! But as the Claim Form was issued on 26 April 2017, it is deemed to be served on 1 May 2017 and i now only have a few days to submit my defence!


My friend has looked at her contract and it does not mention anything specific about parking. But it does contain a clause which allows visitors to use communal space (this is like a generic clause).
I have tried again to attach a photo of the sign but no luck...(despite following the advice above) . The sign is as expected - it does not detail the charge in a prominent way and is placed at a height of about 6ft from the pavement. It also does not state the location on it.









Anyway, here is my draft statement which is based on the precedents seen on this Forum (in particular the main "Must Read message for all Newbies") . Your comments very much appreciated.



In the County Court Business Centre
Claim Number XXX
Between:
Link Parking Limited v XXX


Defence Statement

A) It is admitted that the defendant, XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle.


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.

C) I assert that I am not liable to the Claimant for the sum claimed, that I do not owe the Claimant any indemnity costs and any debt is denied in its entirety, for the following reasons:
1. The Claimant has not complied with pre-action protocol, under the Practice Direction as a compliant ‘Letter before County Court Claim’ was not issued despite the Defendant's requests for further information.
a. It contained very little information and merely referred to the "PCN Number", Date of charge, Location and Charge Amount of £160; and requesting payment before 14 days. No further information was provided about the claim, with no contravention or photographs.
b. The letter was dated 7 April 2017 and posted 2nd class. The letter was delivered by the Post Office on 13 April 2017 before the Easter week end, which left us with only 4 working days to consult on the matter with the relevant authorities or seek legal counsel.
c. I responded on 21 April 2017 requesting further information and a breakdown of the costs by email and 1st class post but no acknowledgement or response received from Gladstones Solicitors Limited. Instead, on 26 April 2017 Gladstones Solicitors Limited issued a Claim Form in the County Court Business Centre.
d. This is a known speculative serial litigant, issuing a large number of identical 'draft particulars'. 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.
2. The Claim Form issued on the 26 April 2017 by Gladstones Solicitors Limited was not correctly filed under The Practice Direction.
a. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. It only contained the following information:

• The defendant's name and address
• The Vehicle Registration Number.
• The date of the alleged parking incident (time not provided)
• The location of where the alleged parking incident occurred
• High level outstanding amount and break down of costs.

It does not detail or provide the following:

• Proof or confirmation of the driver at the time of the alleged incident. In fact the Particulars of Claim state that "The Defendant was driving the Vehicle and/ or is the keeper of the Vehicle". It is not clear under what basis the Claim is being made against me here.
• Proof of the vehicle being there at the alleged time.
• How long or proof that the car was actually parked at the said location by the Defendant
• Proof that any signs detailing parking restrictions were clearly visible at the time that the car was parked at the stated location (i.e. they were not covered or out of view)
• The vehicle type and colour.
• Detailed information on why the charge arose – i.e. basis for the claim.
• Explanation of the charges and what exactly it relates to. This claim merely states: “parking charges/ damages and indemnity costs if applicable” which does not give any 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'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.
• They have stated they are seeking interest but provide no details on the period this relates to (the defendant clearly told the Claimant that the debt was denied. The Defendant is not therefore liable for the Claimant’s delay in bringing a claim).
  
  
  
  b. The Claim Form was signed by Jxx Wxx Axx as the Claimant's Legal Representative with no further information provided.

3. The claimant has not issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

4. There can be no 'presumption' by the claimant that the keeper was the driver. Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained; there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. Neither the signs, nor the Notice to Keeper, mentioned a possible £240.55 for outstanding debt and damages.
It should be noted that there are severe inconsistencies with the amount claimed by Link Parking Limited in this case in each correspondence received from them directly or by their legal representative, Gladstones Solicitors Limited.

5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
 
6. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(b) Non-existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(c) It is believed the signage was not lit or visible, 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 in requiring a huge inflated sum as 'compensation' from an authorised party using the premises as intended.
(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.
It is denied that there was "any relevant obligation" or "relevant contract" relating to any single parking event.

7. BPA CoP breaches - this distinguishes this case from the Beavis case:
(a) the signs were not compliant in terms of the font size, lighting or positioning.
(b) the sum pursued exceeds £100.
(c) there is/was no compliant landowner contract.

8. No standing - this distinguishes this case from the Beavis case:
It is believed Link Parking do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

9. No legitimate interest - this distinguishes this case from the Beavis case:
The Claimant has no legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

10. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

11. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirms that the penalty rule is still engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge'. In the Beavis case, the £85 charge was held to be allowable to act as a disincentive in that case only, based upon very specific and unique facts in a 'complex' case involving the existence of a specific legitimate interest from the landowners regarding turnover of parking spaces and very clear, brief and prominent signs. In fact, the Supreme Court Judges observed that it would be unfair if drivers were to be penalised for parking slightly out of bay lines when causing no obstruction (this was specifically mentioned at the hearing and was clearly not something they would have allowed). Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)'.
12. The claimant has added unrecoverable sums to the original parking charge. If the ‘Jxx Wxxx Axx' (Claimant’s Legal Representative)’ is an employee then the Defendant suggests he/she is remunerated and the particulars of claim dated 26 April 2017 are templates, so it is not credible that £50 ‘legal costs’ were incurred. I deny the Claimant is entitled to any interest whatsoever.
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant and Legal Representative has:
(a) failed to disclose any cause of action in the incorrectly filed Claim Form issued on 26 April 2017 (b) failed to respond fully to an email from the Defendant dated 9 October 2017 appealing the original Parking Charge Notice, requesting further information and details of the claim.
(c) failed to respond to a letter from the Defendant sent by post and email to Gladstones Solicitors dated 21 April 2017 requesting further information and details of the claim. .


The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I believe the facts contained in this Defence Statement are true.


Signed:
NAME


[FONT="&amp]DATE



[/FONT]

System

But it does contain a clause which allows visitors to use communal space (this is like a generic clause).

You should get that in (with a copy of the relevant page) close to the top as an alternative to 6 or before it. You will be asserting as visitor to a leaseholder you were using the communal area in line with the lease requirements and that the signs cannot offer consideration as you already had the right to be there.

Cassys2008

Thank you so much IamEmanresu! I will add the extract from the lease agreement as well to my defence statement.
I will keep you posted on the outcome.

Coupon-mad

Keep us posted not just on the final outcome, but come back here earlier, at the stage when you get a hearing date and need help with your WS and evidence. These stages are explained in post #2 of the NEWBIES thread, about court defences and WS/evidence, the lot.

Cassys2008

Hi - I have received the following from Gladstones Solicitors by email:


"We act for the Claimant and have notified the Court of our Client’s intention to proceed with the claim.

Please find attached a copy of our Client’s completed Directions Questionnaire, which will be filed with the court upon their request. You will note we intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing

This request is sought simply because the matter is in our Client’s opinion relatively straightforward and the costs incurred by both parties for attending an oral hearing would be disproportionate.

You will note our Client has elected not to mediate. Its decision is not meant to be in any way obstructive and is based purely on experience, as mediation has rarely proven beneficial in these types of cases. Notwithstanding this, our Client would be happy to listen to any genuine payment proposals that you wish to put forward. "


They had two attachments
- N180 stating that they don't want oral representations ; and
- N180 Special directions which read
"

REQUEST FOR SPECIAL DIRECTION

We kindly request that the Court send the N159 form (attached) to the Defendant for their consideration and, upon the Defendant consenting to the case being heard on the papers alone, the Judge makes the following direction;





“The matter will be considered on paperwork without a hearing. The parties attendance is not required and the Judge will determine the matter based upon the documents and evidence supplied and any written representations received.”


I assume that I now need to wait for the court to send me the form N159 and then decide if I want an oral representation. Is this a better option ? I can always ask the court to be heard near me , right?


Thank you for your help.

Cassys2008

PS: It is interesting that Gladstones has signed the form N180 as "GS" only.