Court claim issued - No Marked Bays, Confusing Signage

nosferatu1001

Show us the ws here in text form. I don't follow links to drop box etc.

Vielwerth

As requested. see draft below:

the Defendant, , DOB , and reside at

and it is admitted that I was the driver of the vehicle on the day of this event.

Save as specifically admitted in this statement the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to
the Claimant for the sum claimed, or any amount at all, for the following reasons:

Preliminary matters:

1. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear
particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).

2. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is
nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is
required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges” 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', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way.

The Claimant has not complied with the pre-court protocol. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged
contract was nor anything which could be considered a fair exchange of information. The defendant
contacted the claimant requesting information on the parking charges in the form of a Part 18 request .
The claimant has not responded. The defendant therefore asks that the court orders the case to be
struck out for want of a detailed course of action and/or for the claim as having no prospect of success.
I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no
reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings

3. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and 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.

3.a.- On the 20th September 2016 another relevant poorly pleaded private parking charge claim by
Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing
due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and
‘providing no facts that could give rise to any apparent claim in law’

3.b. -On the 19th August 2016 District Judge 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.

4. Link Parking LTD is a member of the accredited trade association, the "International Parking
Community" (IPC), membership of which allows a private parking company access to the DVLA database so that they may determine keeper details. The directors of the IPC are Will Hurley and John Davies.
These Directors have now filed this claim because they are also the directors of Gladstones Solicitors,
solicitors to the claimant. It is submitted that this chain of events is founded upon a conflict of interest
and operates in breach of the CPUTRs and is contrary to good faith.

5. The Defendant would also like to point out that the Claimant's solicitors, Gladstones Solicitors, have
failed to abide by Practice Direction for Pre-Action Conduct (paras 13-16), by failing to respond to my
letter sent in response to their Letter Before Claim within the deadline stipulated in my letter (14 days),
taking just over 4 weeks to arrive.

In further support of there being a want of cause of action:

6. The claimant insists that an enforceable contract has been created due to signage at the site in
question. The signage is confusing and contradictory, and therefore an enforceable contract does not
and has not existed. The problems with this signage are detailed below.

6.a - At the site in question, there are two sets of terms and conditions.

6.a.1 - One set of signage (referred to henceforth as the new signs) insists on two conditions being
fulfilled in order to forgo the charge of £100 for parking. Namely that a permit must be displayed,

AND

the vehicle must be parked in an allocated bay.

The signage is clearly newer and cleaner, suggesting it has been put up well after the other set described below.

6.a.2 - The other set of T&C signage (referred to henceforth as the old signs) insists on 1 of three
conditions being fulfilled to avoid the same charge described in 1.a.1. The one condition of interest is:

"Parking is permitted for: Vehicles fully displaying a valid pay-and-display ticket and parked fully within the confines of a marked bay."

The signage is clearly older and dirtier, suggesting it has been put up well before the new set described
above.

6.b. - There is no indication whatsoever which set of terms and conditions is supposed to take
precedence.

6.c. - Signage of both sets of T&C signage look identical from a distance, even in clear weather and good lighting. The Defendant believes a reasonable person would not, on initial inspection, realise that there are two sets of T&Cs.

7. The new T&C signage refers to the need for both conditions to be fulfilled to avoid a charge. This is
impossible, as there are no marked allocated bays onsite.

The parking area is comprised of mud and gravel, and is, as of 20/05/2017, undeveloped waste ground,
with no paint or other markings to define where these alluded to bays are.

8. The old T&C signage, specifically the section listed in 1.a.2, states the ability to pay and display a
ticket. Thus inferring the existence of such a provision (i.e. ticket machines, payment devices, etc). There is no such provision and the Claimant will not be able to prove this.

8.a - There are no visible details on how or where to obtain a valid pay and display ticket.

8.b - The same argument from 7. also applies, in that there are no bays onsite for any vehicle to park in
(the requirement for which is stipulated in 6.a.2)

8c. When requested in the Defendant's initial appeal to Link Parking LTD (dated 19/11/2016), the
Claimants were unable to provide any evidence of there being pay-and-display provision onsite.

9. The defendant has email evidence showing that Horizon Properties intended for there to be a grace
period before penalties were to be issued. The PCN was issued (06/11/16) well before this grace period
was over (16/11/16), and through some failure of Horizon Properties, this warning was only given after
the deadline had passed.

10. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence, specifically with regards with the standard of signage set as precedent by that case. The 'Beavis' sign is clear and distinctive, and specifically shows in a large contrasting font the "parking charge" to be paid as consideration. In contrast, the signage provided by Link Parking LTD contains the section relating to the "parking charge" in what can only be considered as a wholly inadequate size of font. The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. The Defendant submits that this cannot be considered to be the case with the signage used by Link Parking here in an attempt to create a contract.

11. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would
be the only proper claimant. They are not the lawful occupiers of the land. Strict proof is required of a
chain of contracts leading from the landowner to this Claimant, to allow them the right to form
contracts and to sue in their name. Link Parking LTD has so far failed to demonstrate their legal standing to form a contract as of the date the original PCN was issued.

11.a - 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. The Defendant has 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.

12. It is further submitted that the claim amount, £164.56, is unsubstantiated and bogus. The signage at
the site in question refers to a total "parking charge" of £100, and yet the amount claimed is £64.56
extra on top of the charge amount referenced by the signage. The signage does refer to:

"Enforcement action may incur additional costs that will be added to the parking charge."

The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160 (as stipulated in the Letter Before
Claim from Gladstones Solicitors (01/03/2017) and then to £164.56 as stated in the Claim Form N1
issued 11/05/2017.

As per Link Parking Ltd -v- Cowles - Chippenham County Court 24-11- 2015 ref B5GF95H3, the judge in this case determined that this cannot be proved and that there is no evidence to justify an increased charged on top of what is stated on the signage onsite. It is submitted the amount of £164.56 is an attempt to inflate the claim.

13. It is submitted that (apart from properly incurred court fees) any added solicitors fees are simply
numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would
not be recoverable in any event.

14. The Defendant also disputes that the Claimant has incurred £50 solicitor costs. The Defendant has
the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged approx £160
debt.

15. The speculative claim brought is to my mind intended to intimidate a person who has no specific or
specialised knowledge regarding the law and the legal process. Research by me has indicated that Link
Parking LTD and their agent Gladstones Solicitors are serial offenders in this respect (see point 3.)

With the above, The Defendant feels it is clear that the signage the Claimant attempted to use to
enforce a contract is confusing and contradictory, and therefore inadequate to create a contract with
any motorist. As such, The Defendant is not liable for any sum or amount claimed by the Claimant. The Defendant therefore respectfully requests the court to strike out the claim as having no basis or
likelihood of success.

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

KeithP

Isn't that WS identical to your Defence?

Vielwerth

KeithP wrote: »

Isn't that WS identical to your Defence?

Mostly, yes. I saw the requirements for the WS on the Notice of Allocation and seemed to match. BMPA says it's a "Re-write of my Defence" but I'm not sure what should or shouldn't be rewritten. Should I be writing a whole new document?

Coupon-mad

The NEWBIES thread shows you in post #2 some examples of WS.

Strictly speaking it should be short, in the first person and no legal arguments, but enclosing all your evidence you intend to rely on for the defence (case transcripts, photos of the new and the old signs, a copy of the Beavis case sign as a comparison, etc.).

Vielwerth

Coupon-mad wrote: »

The NEWBIES thread shows you in post #2 some examples of WS.

Strictly speaking it should be short, in the first person and no legal arguments, but enclosing all your evidence you intend to rely on for the defence (case transcripts, photos of the new and the old signs, a copy of the Beavis case sign as a comparison, etc.).

I'll have a draft by this evening.

Vielwerth

Hi all,
Here is my first draft of the witness statement. Probably a poor effort, but I have been caught out by that old chestnut of things happening whilst one is on holiday (3 weeks in Japan if anybody is interested, was very nice).

I have to get this sent off by next week.

One thing I have always been uncertain about, and would appreciate someone experienced confirming: do I even have a case here? Yes, the signage is awful, but I can't help thinking the worst (probably a common sight for old hands at this game).

Anyway, here we go:

(Forgive any misspellings etc, will polish and correct before sending. The clarifications after all "See exhibit X" are merely reminders and will be removed in the final product)

---

I am the defendant in this matter, I am unrepresented, with no experience of court procedures. If I do not set out documents in the way that the claimant may do, I trust the court will excuse my inexperience.

In this witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. On the material day in question, 6 November 2016, it is admitted that I was the registered keeper and driver of the vehicle when the parking charge was issued by Link Parking.

2. The day the parking charge was issued was also the very first time I had ever entered/used this car park. Upon entering the car park, I noticed signage placed at various points around the car park, which I believed to be referring to purported terms and conditions for parking. It is not claimed, nor has it ever been claimed, that I did not see the signage.

3. After exiting my vehicle, I walked across the car park to inspect one of these signs. I was immediately confused, as the signage explicitly states that in order to park here, one must be in possession of a permit, and be parked within the confines of a marked bay. (See Exhibit 1) shot of New sign

4. I was confused because the "marked bays" alluded to by this sign was nowhere to be seen. At the time the parking charge was issued, the so-called car park was an undeveloped piece of waste ground, mostly comprised of gravel. (See Exhibit 2) wide shot of car park

5. As recently as 20 May 2017, this so-called car park is still undeveloped, with no marked bays in sight. (See Exhibit 3) Whiteshott of car park taken on date mentioned

6. Upon looking around the car park for the existence of these purported marked bays, I spotted another sign, mounted on the side of a decrepit-looking building. This sign looked visibly older (scuffed, dusty, dirty, etc) which piqued my interest. (See Exhibit 4) shot of old sign on side of building

7. I went over to inspect this sign. I was then further confused, as it was evident that this time was different from the first one that I had studied. This older sign stated clearly that one would be allowed to park here, if one purchased a pay and display ticket. (See Exhibit 5) shot of old sign

8. Upon learning of this information, I looked around the car park for the implied pay and display infrastructure, such as a ticket machine. Yet no such provision for pay-and-display existed. (See Exhibit 6) series of white shots of car park showing no pay and display provision

9. This deepened my confusion. It was evident that there were two sets of terms and conditions at this carpark. One insisted on parking within the confines of marked bays that didn't exist, while the other implied the availability of a pay and display system, which also didn't exist. There was also no indication as to which set of terms and conditions was to take precedence.

10. At this point I decided to enquire with my friend, Mr John X, who I was visiting on the day in question. Mr X was, at the time, a tenant of one of the flats to which this car park appeared to serve.

11. Upon entering Mr X's flat I made enquiries regarding the management of the top part to which he was unable to answer. However a mutual friend, Mr Jerry Y, who was also visiting on that day, confidently stated that the nonexistence of the bay markings rendered the terms and conditions and unenforcible. (See witness statements for Mr X and Mr Y)

12. I took this statement to be true in good faith, backed up by my own knowledge/confusion of the signage in the car park. Hence I left my car parked. Unfortunately, this resulted in a parking charge being issued by Link parking.

13. As per the procedure laid out by the parking charge document (which was stuck to my car windshield) I appealed to leak parking via an email on 19 November 2016. (See Exhibit 5) initial email appeal to LP

14. I received a response to my appeal from LP on 27 November 2016. My appeal was rejected, however I firmly believe that the particulars of my appeal were not considered or studied at all by LP and the rejection email I received was a standard form rejection, simply stating that my vehicle was not showing a valid permit. (See Exhibit 6) Rejection of appeal from LP

15. I took no further action at this point as I genuinely believe The lacklustre legal quality of the signage at the site meant that there was no enforceable contract. This resulted in me receiving a notice to keeper from LP on 30 December 2016, And then a letter before claim from LPs solicitors, Gladstones solicitors, on 1 March 2017. (See Exhibit 7 and Exhibit 8) notice to keeper/letter before claim

16. The letter before claim offered me an opportunity to correspond with Gladstones Solicitors, to acknowledge receipt of the letter and to give an account of the circumstances which led to a parking charge being issued. I of course took this opportunity to explain why I owed nothing and responded to the letter before claim with in the stipulated time limit of 14 days. (See Exhibit 9) response to LBC

17. My response requested that Gladstone solicitors reply within 14 days. Gladstones solicitors response took just over 4 weeks to arrive (arriving on 13 April 2017), breaching the pre-action court contact requirements. The letter is a rejection of my claim that I owe nothing(See Exhibit 10) their response to my response

18. Again, I believe that this letter (see Exhibit 10) is a standard form response by Gladstone solicitors, as there is no reference to any of the particulars I stipulated in my letter to them. For example, the letter from Gladstones states that their "client will reject any arguments that I did not see the sign". A rather redundant statement as my letter to them clearly states that I did see the sign(age) and that I would be not denying that any way (see Exhibit 9). I am therefore led to believe that my letter was not considered or studied in the slightest, and was in the claimants/Gladstones solicitors eyes, merely worthy of an automatic response

19. As a result, I received a claim form from the County court business centre, issued on 11 May 2017. The particulars of claim stated within are extremely lacking in detail, merely stating that I "incurred the parking charges on 06/11/2016 for breaching the terms of parking...". As I obviously required more detail in order to file a suitable defence I sent a part 18 request to LP for further and better particulars on 24 May 2017. I also requested any documentation and relevant contracts between LP and the landowner in order to establish LPs legitimacy issue parking charges. (See Exhibit 11 and Exhibit 12) part 18 request/Proof of posting

20. This request was not responded to, and at the time of writing I have received no correspondence at all from LP regarding this request.

21. I believe that the circumstances and associated evidence shows that it is impossible for any user of the car park in question to meet the terms and conditions stipulated by either set of signage, namely it is impossible to park in a marked bay when such a marked bay does not exist. Henceforth, any contract purported to exist by LP does not.

22. I also believe that LP have shown themselves to be less than responsible for putting up signage outright implying the existence of a pay and display provision, and yet failing to provide such a provision (E.g. a ticket machine), or alternatively changing the sign to one that would better match the circumstances of the car park. A sign which LP clearly have available seeing as that same signage is also installed at the car park in question.

23. I believe the lacklustre responses (see points #14 and #18) I received to my appeal/correspondence to the claimant and their representatives, and the vague Particulars of Claim, shows that this entire affair is by design merely to scare me into paying an inflated parking charge.

24. As a result of this entire affair, I have felt extremely anxious and rather upset that I should be pursued in this way by an organisation that doesn't even appear to read any correspondence I send. I have been given the impression that this affair will, regardless of any action I take, be concluded at a court hearing; a concept which gives me no small amount of stress, due to me never having set foot in a courthouse before and having no experience or knowledge of proper procedure. Or indeed, any legal matters whatsoever.

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

Coupon-mad

One thing I have always been uncertain about, and would appreciate someone experienced confirming: do I even have a case here? Yes, the signage is awful, but I can't help thinking the worst (probably a common sight for old hands at this game).

Yes you do.

Two sets of signs can and should be enough to convince a decent Judge that there was no unambiguous contract, and if not, hey, no biggie, you would just pay and could still argue against the added-on random sums because the parking sum was *only* £100 and not the inflated sum they are chasing.

Like this one from 2015 v Link, with two different sets of signs:

http://parking-prankster.blogspot.co.uk/2015/11/link-parking-v-cowles-another-big-win.html

which has the classic line:

''Mr Gardner stated there were two signs visible in the distance in a picture which showed Mr Cowles car. DJ Asplin stated that although on the face of it the might be the same, they were too far away to read and might be adverts for car boot sales for all he knew.''

and this sounds like your experience, wandering round the car park with 2 sets of signs:

''...when he parked he turned left, passed 4 of the 'rogue' signs which had been there for along time, were sturdy metal and were affixed to permanent structures like buildings and poles, and went into his work building. There was no reason to believe these were not the parking conditions in operation, or for him to wander round the car park looking for other terms and conditions. The Link Parking signs, in contrast, were at the other end of the car park, were made of flimsy material and attached to temporary link fencing. He had not really noticed them or felt the need to go and investigate them before this whole event happened.''

On #13 you have 'windshield' (a USA word) and 'leak Parking'.

Change to:

'windscreen' and Link Parking

and here:

The lacklustre legal quality of the signage

would be better as:

The ambiguity of two different sets of signage and no marked bays

and

Henceforth, any contract purported to exist by LP does not.

...might be better with 'therefore' instead of henceforth.




I love your use of words, it's long (maybe needs shortening) but not boring to read. Quite flowery; it sounds like one of my student offspring's personal statements for University where they lay it on thick that the subject: ''piqued my interest''!

Marktheshark

Take a prepared and proofed list of your expenses to court including loss of earnings.

KeithP

Vielwerth wrote: »

7. I went over to inspect this sign. I was then further confused, as it was evident that this time was different from the first one that I had studied. This older sign stated clearly that one would be allowed to park here, if one purchased a pay and display ticket. (See Exhibit 5) shot of old sign

...evident that this time was different...

should be ...evident that this sign was different...