LBC received from Gladstones for UKCPM PPC

BillyMorgan009

How do I arrange a username change?

KeithP

Easiest way might be to hit the report button on one of your own posts and ask the MSE Forum Team to help with that.

BillyMorgan009

Afternoon


witness statements for claimant and defendant attached. Grateful of help of what I have left to do. countdown to Court a week today.


https://www.dropbox.com/s/gc0kojnrohtoq1m/Claimants%20witness%20statement%20v2.pdf?dl=0


https://www.dropbox.com/s/7hr60606ta43tu5/Witness%20statement%20v2%20defendant.pdf?dl=0

Coupon-mad

Bump for comments on Saturday, if anyone has time to take a look for the OP.

BillyMorgan009

The OP?...

beamerguy

BillyMorgan009 wrote: »

The OP?...

Billy, you are the OP = 'original poster'

BillyMorgan009

Aha! Yes indeed.

BillyMorgan009

Coupon-mad wrote: »

Bump for comments on Saturday, if anyone has time to take a look for the OP.

Any comments welcomed. :-)


links to both claimant and defendant witness statement via dropbox above.

Coupon-mad

Bump for comments on Sunday, if anyone has time to take a look for the OP.

[Deleted User]

Time for the skelly and a bit of legal argument. This document needs to be prepared in a similar way to the witness statement, but summarising the legal issues.

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The below is not comprehensive and is not intended to replace arguments of your own and/or be definitive. There may be matters relevant to your case that I am not aware of. Use it (or not) at your own discretion!
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The Court will note that both the Claimant and Defendant Parties rely upon the Supreme Court judgment in Parking Eye v Beavis, but it is important to note that they do so quite differently. The Claimant relies upon the case as a general proposition that parking charges are not penalties and that a contract may be established with the terms of a parking sign. The Defendant relies on the same case to aver that there was no contract of parking and refers the Court to Para 94 of the leading judgment from Lord Neuberger and Lord Sumption:

The £85 is described in the notice as a parking charge, but no one suggests that
that label is conclusive. In our view it was not, as a matter of contractual analysis, a
charge for the right to park, nor was it a charge for the right to overstay the two-hour
limit. Not only is the £85 payable upon certain breaches which may occur within the
two-hour free parking period, but there is no fixed period of time for which the
motorist is permitted to stay after the two hours have expired, for which the £85
could be regarded as consideration. The licence having been terminated under its
terms after two hours, the presence of the car would have constituted a trespass from
that point on. In the circumstances, the £85 can only be regarded as a charge for
contravening the terms of the contractual licence.

Put simply, the signage in this case "NO UNAUTHORISED PARKING" never offered any contractual licence to park from the outset. If the Defendant was not a permit holder he trespassed immediately. There are no terms within the signage permitting unauthorised vehicles to remain on the land for any period. There was no contractual agreement to park at all. It is the Defendant's case that the terms of the sign are not a general parking charge that all motorists can agree to pay to park at the site. This is a misinterpretation of the signage and, indeed, the established authority (The Court will note that ParkingEye v Beavis [2015] was heard some years after ParkingEye v Somerfield [2001] which the Defendant contends should not be followed).

It would have been easy to draft a contractual sign that did offer parking in general terms to all motorists, but exempting permit holders from having to pay a fee. The landowner elected not to do so. The signage is, accordingly, a prohibition. There was no contract agreed with the Defendant to park.

If, which is denied, there is a parking contract under which the Defendant is liable for parking charges to the Claimant and, further he is required to meet additional costs of the Claimant in the event of a loss on an indemnity basis, those charges must be proven. The Claimant has particularised no such losses. The Defendant asserts in the strictest terms that the signage relied upon by the Claimant includes no provision for liquidated damages or notional sums in respect of costs that could (and should) have been provided for by the contract if they are to be recovered. The Court will be invited to exclude entitlement to any such costs.

The Claimant appears to have led the Court to the Respondent's argument in Vine v London Borough of Waltham and, critically, NOT the ratio of the judgment from Roch LJ that provides as follows:

To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning. In this case the Recorder might have reached such a conclusion about the appellant's state of knowledge, but he did not do so. The Recorder made a clear finding of fact that the appellant did not see the sign. That finding is not surprising in view of the absence of any notice on the wall opposite the southern parking space and the appellant's distressed state, the reason why the appellant parked and left her car hurriedly. It was the appellant's evidence that she did not see the sign. There was never any suggestion that the appellant was other than a truthful witness.

The above (paragraph 19 of the judgment) is quite different from the general presumption that the Claimant invites the Court to make. It is for the Claimant to show that their signage is capable of forming a contract, of sufficient number to be seen, illuminated where the parking occurs at night and clear.