Court Case Gladstones next week, Court bundle finally received!

Lamilad

Shall i take along the duplicate letters I sent to gladrags then as proof, I didn't really want to thinking about it as my guy will likely get chased,

As Coupon Mad has already said

"Include the!proof!that you did give the driver's name and address already. And include the point in schedule 4 that says a keeper discharges liability if they give the name and serviceable address of the driver, before proceedings commence."!

You've already given them your guy's details so if they want to chase him they will... Although this rarely happens

teccom

Coupon-mad wrote: »

The POFA makes it clear that a keeper can certainly transfer liability to the driver 'before proceedings commence'. LBC stage is undoubtedly (''before claim'' gives it away) 'before proceedings!

You cannot be held legally liable if the driver's name and address was provided before proceedings. It is that simple.

Don't upload via MCOL if you are now dealing with the local court - I am confused - are you still dealing only with the CCBC?

Cannot find 'before proceedings commence' anywhere in the POFa and definitely not in Sect4 in fact it appears liability after a number of days is "transferred" and basically enforceable?

Sorry trying to find and highlight for both my WS and copy of PoFa for court

Umkomaas

teccom wrote: »

Cannot find 'before proceedings commence' anywhere in the POFa and definitely not in Sect4 in fact it appears liability after a number of days is "transferred" and basically enforceable?

Sorry trying to find and highlight for both my WS and copy of PoFa for court

5 (1) The first condition is that the creditor—
(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but
(b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.
(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

teccom

Umkomaas wrote: »

5 (1) The first condition is that the creditor—
(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but
(b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.
(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

Do you know how many times I read that, but can i take:-

All of Section 4 regds recovery from keeper is dependant upon conditions of Setction5, basically:-
sub item (1a) they can only enforce against RK if they could legally enforce against driver (i.e. contract/signs etc. etc.)

sub item (1b) they can only enforce against RK if they don't know driver, but THEY do

and

Sub item (2) line above (sub item 1(b)) ceases to apply after NTK (after 28days lieu) IF the creditor (PPC) began "proceedings", "proceedings" read as court action.

Will they argue "proceedings" is legal action, i.e. remitting the services of Gladrags and have I got my tiny brain around the above correctly mate!!?!

Coupon-mad

Will they argue "proceedings" is legal action,

They can argue what they like but a Judge will know what 'begins proceedings' means. It means issue a court claim, not the faffing and posturing before it.

All of Section 4 regds recovery from keeper is dependant upon conditions of Section 5

Yes. And dependant upon full compliance with paras 6, 7, and 8 or 9.

teccom

Okay first draft of my WS which I need to hand deliver tomorrow, should I add costs here or separate?

Any thoughts? (Personal/identifying details removed)

WITNESS STATEMENT OF
ME

I, NAME of ADDRESS WILL SAY AS FOLLOWS:-

1) I am the defendant in this matter.

2) The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

3) Exhibited to this Witness Statement are the following documents which I wish to rely upon;

i) Copy of letter to Claimants Legal Representatives with the name and address of driver before proceedings commenced.

ii) Picture of signs at time of alleged “parking event”.

4) I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

5) The Particulars of Claim did not disclose any reasonable grounds for bringing the claim and as such, were an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars failed to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also failed to describe how the amount claimed had been calculated.

6) As the Particulars of Claim (PoC) did not disclose any particulars of claim, I have waited for further information from the Claimant in form of Witness Statement to submit my own considered Witness Statement.

7) I received the Claimants Witness Statement by email only on the XYZ/05/17 at LATEhrs, this however was not within the timeframe directed by District Judge NAME of no later than fourteen days before hearing, therefore my defence Witness Statement is as prompt as possible given the Claimants lack of PoC.

8) The paragraph numbers mentioned below relate to the Witness Statement emailed by the Claimant’s legal representatives, Gladstones Solicitors Ltd:

9) Re #5 The Claimant submits that the Defendants defence was incorrect in claiming no reasonable grounds to bring the case were presented in the Claimants PoC, by virtue of the Defendants defence paragraphs 3 and further paragraphs within then defence in relation to signage.

i) Defence paragraph 3 states that the Claimant was subjected to “a barrage of letters”, and therefore surmises we were fully aware of PoC, this however is incorrect as the invoices and threatening letters that followed did not provide evidence of an offense but were constructed to intimidate the Defendant into paying an unsubstantiated charge.

ii) Comments regards signage, which would ultimately form the contract relied upon to conform with Schedule 4, Protections of Freedoms Act 2012 (PoF), are of particular note to the validity of the right to claim against Section 4 to the Registered Keeper of the vehicle, failures to adhere would deem the right to enforce against the driver and therefore the Registered Keeper, Section 5 (1)(a).

10) Re #8 The Claimant incorrectly accuses the Registered Keeper of failing “to identify the driver either adequately or at all”, which is incorrect as a letter was sent to the Claimants Legal Representatives upon receipt of Gladstones “Letter Before Claim” dated XYZ/11/16 within 14 days of receipt furnishing both the name and address of driver before proceedings commenced.

i) Therefore, the right to claim against the keeper of the vehicle, Schedule 4 PoF, Section 4 are not permissible as the condition Section 5 (b) is not met as they “did know” the name of the driver, and furthermore this condition does not cease to apply as per Section 5 (2) as the creditor “had not” began “proceedings to recover the unpaid parking charges from the keeper”, i.e. court claim at such time.

11) Re #11 The Claimant incorrectly states signage on the site entrances was clear and they furnish pictorial evidence in Witness Statement.

i) This however contradicts the pictorial evidence within the Defendants Witness Statement and chronological proof from Google maps “Streetview” when the pictures are compared which demonstrates since the “parking event(s)” that the signage has been changed, we would therefore request the Court disregards any pictorial evidence exhibited by the Claimant as unreliable.

12) Re #12 The Claimant observes Vine vs London Borough of Waltham Forrest (2000) as further argument, however as the Claimants pictures of signage are proven to have been relocated the Defendant would object to any comparison.

13) Re #14, #15 & #16 The Claimant admits his Company relies on the case of ParkingEye vs Beavis (2015), however this claim differentiates from the quoted case in a number of reasons, the following list is not-exhaustive: -

i) Keeper liability is not established.

ii) Inadequate signage.

iii) No breach of contract.

iv) Frustration of contract.

14) Re #18 The Claimant claims breach of contract for not paying the charge within 28 days, which “entitles the innocent party to damages as of right in addition to the parking charge incurred”.

i) There was no contract with the Registered Keeper therefore no guilty party.

ii) Schedule 4 PoF, Section 4 (5) does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued.

15) Re #19 The Claimant claims losses in both his Company’s staff time and material including Legal representational costs subject to the site signage (i.e. the contract).

i) The Defendant has the reasonable belief that the Claimant has not incurred any additional costs and it is put to strict proof that they have actually been incurred.

ii) Legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable

16) 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.

17) The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing Particulars of Claim lacking in usable detail or that do not disclose a clear cause of action is not only remiss but smacks of a “Cut and Paste” approach to the issuing of proceedings. I further submit that this demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives.

18) The Claimant is put to strict proof of all his assertions.

19) In the above circumstances, I respectfully ask that the court dismiss the claim.

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


Any thoughts?

Coupon-mad

Just typos:

'offense' is spelt wrong but is better described as a 'breach' (because it's not a criminal offence).

Schedule 4, Protections of Freedom Act 2012 (i.e. not 'Freedoms').

should I add costs here or separate?

I would do a separate costs explanation like LoadsofChildren123's lovely long version! You should be going for punitive costs because you DID furnish the name & address of the driver to transfer any liability, before proceedings began. You need to state clearly that the law protects you here, you are not liable and so the entire claim is vexatious and wholly unreasonable (use LoC123's words as far as poss).

teccom

Will have a go in the morning, thanks so much to everyone so far for your kind support.

So nice and sincere thank you.

System

Where is the reference to Jopson and an explanation that the driver was not parked but delivering?

They will throw CPS v AJH Films at you under the guise of vicarious liability as it was your staff on company business. So try something like

It is denied the vehicle was parked or there was an intent to create legal relations with the Claimant. The purpose of the visit to the site was to unload and deliver.

In Jopson v Homeguard at 20

Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moment for these purposes. Discussion in this area left the respondent in obvious difficulties, from which the attractive advocacy of Miss Fenwick was unable to rescue it.

It is put to the court there is no reasonable basis for penalising deliveries to sites as such penalties would interfere with the commercial life of the country.

I also have a personal preference for stripping out the accusations against Gladstones as it takes away from the facts of the matter - which is what the judge will decide on. So #17, #18 and#19 are a waste. I know on MSE you like to beat the to death with a tome but sometimes, shorter is better.

[Deleted User]

+1 for IamEmanresu I'm not a massive fan of the personal attack. It risks irritating the judiciary.

It is enough to start with the below, which is about as critical as a lawyer will ever get in a pleading:

Notwithstanding that the Claimant has professional representation, the Claimant's particulars of claim are embarrassing, lacking numeration and the specificity required of PoC as set out in CPR Part 16, which prejudices the Defendant's ability to prepare a detailed Defence.