Urgent advice kindly requested - County Claim (Gladstone Solicitors)

Kamran

In case you've not been able to open the pdf scan of their WS, i've uploaded various screenshots below to make life easier (and just in case I've missed something):

muleskinner

Points 7 and 9 are their generic (and rather tenuous in my opinion) defences against the 'forbidding contract' argument.

Basically they are arguing that there was an 'offer to park' - that of £100 (or whatever) for the privilege, and your payment is 'consideration for parking services' rather than a charge for breach of contract. It's a normal car park - albeit a very expensive one.

In PCM vs Bull the Judge takes a very similar notice/argument and tears it apart. I would use his words as your first line of defence against those points.

Additionally, if they are offering 'parking services' then they have to have the landowner's permission to do so and they don't. Their contract with the landowner specifically tells them to offer parking to permit holders only.

Lastly, the terms of this 'parking contract' as they deem it cannot be considered 'reasonable' in any sense as they are specifically designed to deter people from taking them up. Does the sign tell you how long you get to park for your £100? probably not.

But the one that trumps them all is Vine vs Waltham which they quote out of context. You didn't see the signs (and you can prove it) therefore you are not bound by any contractual terms on them. Court of Appeal decision so should be binding on District Court.

Coupon-mad

Actions:
• What do I physically need to do before now and the court case?
• Print 2 copies and read Beavis case

Don't print the Beavis case out, if that's what you meant.

Prepare a Costs Schedule and email a copy to the claimant's solicitors Weds or Thurs, and drop a copy in for the court as well, in advance.

Take copies of your defence, WS and evidence and costs schedule (and proof of emailing it, the sent item) with you.

Read up on Rights of Audience. Read threads like this one, you could get the rep kicked out.

Kamran

Coupon-mad wrote: »

Don't print the Beavis case out, if that's what you meant.

Yes that's what I meant actually. I'll have a read of it, but why not print it out - am I essentially shooting myself in the foot if I do?

claxtome

2. The claimant states in point 4 of the witness statement that they rely on ParkingEye vs Beavis 2015, but have not included a transcript of this case. I have brought a copy with me and a copy for the benefit of the court. The claimant states that the case shows that a valid contract can be made by an offer in the form of the Ts & Cs set out on a sign. This is not disputed but is not the issue in this case – the crux of the matter is around inadequate signage that invalidates the claimant’s argument that a contract was formed.

They don't need to include a transcript of the case.
It would be a big document.
My suggestion is to print out just the relevant pages/bit for your argument (2 copies) if you want to.

Actions:
• What do I physically need to do before now and the court case?
• Print 2 copies and read Beavis case
• Put the video on the ipad and make sure the ipad is charged
• Re-read and better understand the cases referenced in my own witness statement, specifically, Vine -v- London Borough of Waltham Forest

Extra to what Coupon-mad suggested in post #74

I would print out just the relevant bits of the transcripts of any cases you rely on (2 copies) for the day.

You could also make what you have prepared into a Skeleton Argument (SA) - see NEWBIEs post for more details (Don't have to). I produced one for my '1 big car park' case.
If you go down this road I suggest sending out tomorrow to Claimant and court.

Coupon-mad

Kamran wrote: »

Yes that's what I meant actually. I'll have a read of it, but why not print it out - am I essentially shooting myself in the foot if I do?

Because you are not relying on Beavis, they are! Don't assist them by supplying their case law.

And because it's a Supreme Court decision and massive, and the Judge WILL be familiar with it.

Kamran

Coupon-mad wrote: »

Because you are not relying on Beavis, they are! Don't assist them by supplying their case law.

And because it's a Supreme Court decision and massive, and the Judge WILL be familiar with it.

makes sense! but what's the rebuttal to beavis?

muleskinner

Kamran wrote: »

makes sense! but what's the rebuttal to beavis?

I don't see why you need one tbh, Beavis is all about breach of contract and they are not suing you for that. What point regarding Beavis needs rebuttal?

The only point as I see it that might be worth making is that Beavis talks at length about the contract in question being reasonable because there is a meaningful 'offer' made to the motorist, that of two hours free parking. There is no such offer here so the 'contract' is nothing like Beavis and would have failed all the tests of 'reasonableness' the judges used in that case.

Here's a couple of paras from my WS that may help, ignore the exhibit refs but you can use the paragraph refs from Beavis.

In ‘ParkingEye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. The ‘ParkingEye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant. See examples at paragraphs 94 (exhibit 15), 107, 109, 112-113 (exhibit 17), 190 (exhibit 18), 199 (exhibit 19).

The parking contract in ‘ParkingEye vs Beavis’ case was judged to be ‘objectively reasonable’ partly because ‘motorists generally’ did accept it (para 100, 108 exhibit 17). The landowner wanted as many people as possible to use the car park in question so the contractual arrangements were designed to be attractive to the average motorist. This is the complete antithesis of the supposed ‘contract’ in this case which is designed to actively discourage motorists from parking at the site. The terms of this ‘contract‘are not ‘objectively reasonable’, but deliberately designed to be so heinous that no one in their right mind would agree to them. It follows that this is not a ‘contract’ at all but a prohibitory notice masquerading as such.

The_Deep

Also, PE was I to all intents and puposes the landowner, and the car park was a free car park for people shopping on the site.

Kamran

Thanks all for your comments. Is the below sufficient as a Skeleton Argument? Main additions in red.

XXX County Court
Case Number: XXX
Hearing date: XX Feb 2018

Defendant: XXX
Claimant: Parking & Property Management LTD / Gladstones Solicitors LTD


SKELETON ARGUMENT ON BEHALF OF DEFENDANT (XXX)

Summary
The defendant, XXX, asks the Court to dismiss this parking charge case because:
a. The signage on site was inadequate to form a contract
b. The claimant therefore does not have permission from the landowner to offer paid parking services

1. Firstly I would like to state that upon reviewing the claimant’s witness statement and supporting documents that it appears to be a copy-paste situation by the claimant where very little reference has been given to my case in particular. There are several points made in the witness statement that appear, to me, to be completely irrelevant – I will come to these in due course.

2. In ‘ParkingEye vs Beavis’, on which the Claimant relies to justify this charge, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. This is not relevant in the case at hand - the crux of the matter is around inadequate signage that invalidates the claimant’s argument that a contract was formed.

3. The claimant states in point 5 that the signs on the land are clear and unambiguous, which is laughable and I strongly disagree. The claimant is a member of the International Parking Community and by doing so agree to adhere to their standards. I refer the court to appendix 5 which is an example of a good sign according to the IPC, which demonstrates a legible font and size, very little clutter and a giant “P” to indicate that the notice refers to parking. I would then refer the court to Appendix 2 which shows the signage visible from ground level. The court can see that the sign is placed up high on a wall, with a tiny font size to the point that looking at this photograph, I can’t read what’s being said. This is another example as to why I deny that a contract was formed.

4. I refer the court to Appendix 4, the IPC code of practice which states that “Text 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.”

5. Furthermore, the £100 charge, which to me is a crucial element of a potential contract, is hidden away amongst small text, barely being visible on the scanned copy, let alone from ground level looking up at the sign placed high up on a side wall.

6. To summarise points 6-9 the claimant states that the £100 charge is in respect of “the provision of parking services”, rather than a charge for breach of contract. I refer the court to the agreement between the land owner and the claimant which, when referring to parking restrictions, states “Permit holders only at all times – no parking outside of predetermined parking areas regardless of permit status”. The claimant therefore does not have permission from the landowner to offer paid parking services.

7. In point 12 of their witness statement, the claimant states that they “do not dispute the defendant was issued with a permit” and also that “the defendant was aware of the terms when they obtained a permit”. This is an example of what I was referring to earlier when I said that the witness statement by the defence has been copy paste with little regard to the matter at hand. I am not a resident at the property and therefore clearly would never have received any permits for the land. I would ask the court to call upon the claimant to provide evidence that a permit had been issued to me.

8. The claimant states in point 13 that “the defendant has not provided any evidence to support their alleged right to park”. If the court could review appendix 2 – photographs taken by myself of the site, it is clear to me that without clear and adequate signage, the area looks to be land available for the public to park, free from any parking restrictions.

9. In points 14 and 15, the claimant rejects any argument that the sign was not visible and has enclosed a site plan of the sign locations. I would refer the court to appendix 2 once again, which shows photographs of the site, both at the entrance and inside, which demonstrate a lack of signage.

10. I also note that in point 15, the claimant has stated that the extract is a quote from Vine vs Waltham Forrest, 2000. The claimant did not include a transcript of this, but I have included this, for the benefit of the court. Having read through the case transcript, I see no such statement by the judge. The statement copy pasted by the claimant is a response to the case and not the judge’s own words. Ultimately, this Court of Appeal case was won by the motorist on the grounds that they did not see the signs and therefore could not be bound by the terms on them.

11. Furthermore, I refer the court to appendix 3, which is a video taken by myself and is a driver’s point of view inside a vehicle when entering the site and parking in the same spot. I’m happy to play this to you on the iPad I have brought with me. The video shows no clearly visible signage at all, and therefore I deny that any contract was ever in place. It is evident to me that the signage on site does not meet the International Parking Community (IPC) code of practice [Appendix 4] which states that “Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist”

12. I refer the court to the IPC code of practice once again which states that “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”

I believe that the facts stated in this Skeleton Argument are true.


XXX


Actions:
• Prepare cost schedule – total comes to £191.35, is that too much? I’ve assumed the max £95 for a day’s annual leave, but is it literally working out your take home monthly pay divided by 20? (assumed working days per month). Thanks!
• Tidy up the above points into a skeleton argument and share with the court and claimant on Thursday
• Print a copy of sent email to claimant re: cost schedule
• Read Vine vs Waltham Forrest in more detail
• Find my V5 Document!
• I’m not quite sure how to question the right of audience for their representative – do I just ask the judge on arrival into the court room?