HX Car Park Management, Gladstones Letter Before Claim

Birdo26

Thank you, are there any good threads I can look at to get an idea of how to lay it out and what to say.

Umkomaas

Birdo26 wrote: »

Thank you, are there any good threads I can look at to get an idea of how to lay it out and what to say.

The most likely links will be in the NEWBIES FAQ sticky, post #2, which generally covers everything ‘small claim’ from LBC to the actual hearing.

That’s your best starting point.

Birdo26

This is what I have so far. I'm a little unclear on point 3 and 4 if someone could explain them better to me? Also I'm not sure how relevant point 11 is and how to expand on it if so. Thanks

1.The original PCN (E.2) posted by this Claimant states a Full Charge of £100.00 (£60.00 discounted) however the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at quadruple recovery:
1. £161.072 Principal debt236.72
2. £25 Court fee.
3. £50 Legal fee.
5. Outstanding balance to pay now £262.76.

2. It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in this Claimant's undue haste to issue robo-claims in their thousands, scraping the barrel of archive cases to bring to court, under excuse of jumping on the bandwagon started by the (completely different and complex) case in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').

3. The Claimant places reliance on its provision of signage at the site and upon the content of that signage. However, the Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage. At the time the driver allegedly parked at this location, it is contended that a criminal offence was being committed in order to artificially create the appearance of a contract.

4. The commission of an illegal wrong being present at the time of a driver allegedly entering the contract means that the Claimant will not be able to enforce the contract. The illegality is central to the contract (the terms on the signs themselves) and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.

5. The Claimant has omitted to obtain Planning Permissions or Advertising Consent from Southend Council & the present Landowner for the Signage or the ANPR Cameras. The Southend Planning Register does not show any such applications in its planning history.

Exhibit 1 - Evidence from council website.

6. It is contended that the signs are in place without consent and are therefore illegal advertisements. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display an advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.

7. The Judge’s attention is also drawn to RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) 12 March 2015 (the RTA case) which whilst dealing with a different matter, covered at 34, the relevance of the public law principle going back well over 200 years, that no man should profit from his crime. It is submitted that this is particularly relevant in this action. In the RTA case, the Judge cited Lord Mansfield CJ to explain that:
“The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and the defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it.''

In this claim there has been a transgression of a law (the 2007 Regulations) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.

Exhibit 2 – RTA Case.

8. The Beavis case at 96, draws attention to the Code of Practice of the British Parking Association ('the BPA'). And at 111 the Judge helpfully comments that “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.” (Defendant’s emphasis of the key point).

Exhibit 3 – Beavis Case.

9. In any event, this Claimant fails to fulfil the requirements of CPR16.2 for particulars of claim in that they have neglected to set out any facts or state what it is they are claiming monies for. Their particulars of claim just state "parking charge notice of ********" and do not say whether the sum is due as a contractual sum, damages for breach of contract or money due for something else, such as a liability for a failure of duty of care or trespass under common law tort.

10. It is contended that the signs that were in place at the location were unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract, as was found in many cases involving HX Car Park Management.
11. The claimants map also shows the position of the ANPR Camera as incorrect as shown in exhibit XXX.
Exhibit 4 – Photo showing incorrect position of ANPR Camera.

12. The Claimant's evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle being parked. In order to demonstrate that the driver failed to register a numberplate, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.

13. This is an ANPR site, where are the systems records showing no payment made on the date mentioned or supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle. There is a well-known history of the parking ticket machines at HX Car Park Management sites failing to record a VRN.

14. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case.

Exhibit 5 – Beavis Signage.


15. The claimant cannot rely on Elliot v Loake ('EvL') to claim that the driver and the keeper can be 'assumed' to be the same, since this was a criminal case and referred to the owner, not the keeper. In any event, in EvL there was overwhelming forensic evidence from other sources that the defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption.

16. The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:

“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. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."

Exhibit 6 – Popla Report.
17. Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA, in this case because of the indisputable fact that the event pre-dated the law. This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

18. It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.


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





Signed :


Dated :

Birdo26

Also do I send a copy to Gladstones as well as court? Thanks

nosferatu1001

No, you only send to the court, as the claim form clearly tells you
This isnt a skeleton defence. No such thing. This is your ACTUAL defence.

Birdo26

Ok so a few letters to and fro over Christmas with the postal service being slow as usual I have managed to get a court date for an oral hearing.

From what I understand it says that 14 days before the hearing I need to submit any reports that i wish to rely on. Looking at some of the threads on here it says about a witness statement and a skeleton argument.

As I have already submitted these during the paper process I was going down, do I now need to re submit them or is there anything else I should be submitting?

Hope that makes sense. Thanks

Coupon-mad

I would resubmit them, and your evidence, just to be sure. In a nice ring-binder file for the court, if you didn't already, with a contents page, numbering of every page and every piece of evidence, and a 'costs schedule' (see NEWBIES thread).

Copy to the other side by email, or several emails if the attachments are large, and print out proof of sending.

Birdo26

Thanks, can i rebsubmit to the court by email or does it have to be done in a ringbinder?

nosferatu1001

Dont assume it will all get printed. You were told how best to do it, I would take that advice.

You want the court to have as easy a time as possible. a bit of effort on your part that helps the court, gets them on your side early on.

Birdo26

Ok thanks, will get it done tomrow. So it’s the defence, witness statement and skeleton argument.

Some of my evidence was screenshots of certain parts of the ioc code of practice I think it was. Do I need to attach the whole thing now or is that still suffice?

And do I need to put anything on the ring binder such as case no etc