Gladstones / Millennium claim form

Loadsofchildren123

I'm just saying link all your facts into your defence points. The WS is the evidence that backs up your defence.


To some extent, there is a muddying of waters between facts and argument, but as a Litigant in Person nobody will care - you just have to be careful it isn't too lengthy, the briefer and punchier it is the better really. I think it just makes it much clearer and more convincing to link your facts back to each distinct defence point.


Eg on PoFA:
The legal argument/defence is that you weren't driving and the only way you can be liable is as keeper under POFA.
The facts are that you were not driving and where you actually were.
It makes sense to link this fact back to your POFA defence.
The legal argument/defence is when the NtK SHOULD have been served and that it was late and you cannot therefore be liable under POFA.
The facts are when the NtK was actually served viz when the parking event took place and how many days late it was and has not therefore met the conditions of POFA.
Again, it makes sense to link the fact back to your POFA defence.

wi3347

Loadsofchildren123 wrote: »

I'm just saying link all your facts into your defence points. The WS is the evidence that backs up your defence.


To some extent, there is a muddying of waters between facts and argument, but as a Litigant in Person nobody will care - you just have to be careful it isn't too lengthy, the briefer and punchier it is the better really. I think it just makes it much clearer and more convincing to link your facts back to each distinct defence point.

Eg on PoFA:
The legal argument/defence is that you weren't driving and the only way you can be liable is as keeper under POFA.
The facts are that you were not driving and where you actually were.
It makes sense to link this fact back to your POFA defence.
The legal argument/defence is when the NtK SHOULD have been served and that it was late and you cannot therefore be liable under POFA.
The facts are when the NtK was actually served viz when the parking event took place and how many days late it was and has not therefore met the conditions of POFA.
Again, it makes sense to link the fact back to your POFA defence.

im with you on this one, but there seems to be differing opinions so i am trying to cover all bases. This is what i have so far.

I, xxxxx of xxxx WILL SAY AS FOLLOWS:

1. I am the defendant in this matter.
My defence is based on 3 main issues:
A. The claimant has no authority to operate on the land in question because it is in fact public highway.
B. I am the registered keeper of the vehicle, but was not driving it on the date of the alleged contravention.
C. In any event, no contract was offered by the claimant. Its signage at the location was inadequately displayed and its wording was prohibitory and did not offer a contract which could have bound the driver.
In this statement I shall deal with each aspect mentioned above in turn.

A. No authority to operate

2. Exhibited to this statement at xx1 is a HM Land registry office plan showing the area where the vehicle was parked on the day in question, and at xx2 is a bundle of email correspondence between me and the Local Authority's Highways Department. The location of the car is shown marked with a red "A" on the plan.
3. After receiving notification of the alleged charge, I contacted the Local Authority to enquire whether the road on which the car was parked (Salubrious Passage) was in fact public highway maintained by the city and county of Swansea. I refer to the email at page x of xx2 in which the council confirmed that “Salubrious passage” is an adopted public highway, maintained by the City and County of Swansea, making it public land.
4. The notice to keeper states the address of the alleged contravention as “Metropole Chambers, Salubrious passage”. In addition to my correspondence with the local council I also took steps to establish who owns the "Metropole Chambers", and the extent of the land ownership, where it is claimed the car was parked. Exhibit xx1 is a copy of the HM Land Registry Official Copy Register Entries and Title Plan for title number CYMxxxxx, which is Metropole Chambers. The landowner is Metropole property investments and the lender/proprietor is a company registered in Sweden, Svenska Handelsbanken. As for the extent of the land owned, the LR Title Plan clearly shows that the land comprised in the title consists of only the building and no land outside or alongside it. The extent of the land ownership is marked on the map by LR with A red outline. I have also marked on it the public highway with green outline.
5. The Claimant, who is not the landowner, has produced no documentation to show how it asserts that it has authority to operate on Salubrious passage alongside Metropole Chambers, where the car was parked. The documents produced in xx1-2 clearly demonstrate that it cannot have such authority. Absent such authority it is not entitled to offer any contract on the land, to issue charges in relation to such contract, nor to enforce such charges.

B. Defendant was not the driver
6. At the time the PCN was issued, I was at xxxxx in xxxx. I was completing a residential training course that ran Monday – Friday. Food and accommodation were provided and we were not permitted to leave during the week. The PCN was issued on the 15th of November 2016, a Tuesday night. Exhibit xx3 is my joining instructions for this course and certificate of completion, showing I was in xxxx during the time the PCN was issued.
7. There are other people who had the means to drive the vehicle at this time. My father is a named driver on the insurance policy plus others had my permission to drive it under their own insurance policies such as my girlfriend at the time. I produce Exhibit xx4, the insurance documentation for the period in question.

C. Inadequate signage
8. Having been named as defendant in this matter I visited the site where I took three photos which I exhibit as xx5. A close up of the parking sign. The view from where the vehicle was parked that demonstrates that there are only two small signs at the location which are fixed to the wall of Metropole chambers, the font of which is impossible to read from even a few feet away. The signs are not prominent or large and are mixed amongst “To let” and “Fire assembly point” signs also on the wall. As there is inadequate lighting at the location I returned after dark to demonstrate the drivers view as it would have been at the time the charge was issued. There are no entrance barriers, gates, fences or anything to determine at what point the land in question begins and no signs which indicate at which point you have entered this land, a breach of the British Parking association code of practice.
9. As the signs are prohibitory and offer no contract, this is a matter of alleged trespass. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.


statement of truth:

nosferatu1001

LOC123 is in practice, so I would follow their advice.

Loadsofchildren123

wi3347 wrote: »

4..... The landowner is Metropole property investments and the lender/proprietor is a company registered in Sweden, Svenska Handelsbanken [the lender is irrelevant, they are just the mortgage company, it's the owner that's important]. As for the extent of the land owned, the LR Title Plan clearly shows that the land comprised in the title consists of only the building and no land outside or alongside it. The extent of the land ownership is marked on the map by LR with a red outline. I have also marked on it the public highway with green outline.

C. Inadequate signage
8.... As there is inadequate lighting at the location I returned after dark to demonstrate the drivers view as it would have been at the time the charge was issued. There are no lights near to the signs illuminating them and in the dark they are impossible to notice. Furthermore, there are no entrance barriers, gates, fences or anything to determine at what point the land in question begins and no signs which indicate at which point you have entered this land, or that any parking restrictions complya breach of the British Parking association code of practice.
9. The signs are prohibitive in their wording. They tell drivers they must not park there. They do not therefore offer any form of contract which is capable of acceptance. As the signs are prohibitory and offer no contract, and if this was private land on which the Claimant had the landowner's authority to operate, then this is a matter of alleged trespass and only the landowner has the right to bring any proceedings against the driver. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.


statement of truth:

I've added some specific wording so have deleted most of the other wording. The rest looks good to me. Can you say anything more about the signs? I exhibited a sign that I got on Prankster's site that had been held to be prohibitive that was almost identical to the sign that was on display in the case I did (also Millennium). A lot of people exhibit the Beavis sign as a demonstration of a sign which is clear and which is capable of offering a contract.


You might want to add a section about the "additional charges". These will be vaguely referred to in small print in the signage and you might say this and say that any contractual term has to be clear and unequivocal in order to be capable of acceptance and of forming part of the contract and the mention of additional charges is simply too vague.


There is no point defending as keeper if they complied with the POFA timescales and other requirements. Did they? If they did, what is the benefit in defending as keeper when you are liable as such under POFA. Are you silent on the POFA issue because you don't know the dates or because they were in time (in my case the NtK had been thrown away and it wasn't until I saw their WS that I knew for sure it had been served way out of time).
Here's a link to my own POFA rebuttal https://www.dropbox.com/s/k5djmx5o1et4xc3/POFA%20REBUTTAL.docx?dl=0
and also the BPA breaches analysis https://www.dropbox.com/s/244fnwb9pzr7xoa/BREACHES%20OF%20THE%20BPA%20CODE%20OF%20PRACTICE.docx?dl=0
You might add a paragraph that in Beavis it was held that adherence to the ATA CoP was held to be crucial (think it was paras 96 and 111 of the Beavis judgment - these are quoted in my Skeleton below).


Whilst I am not advocating that you produce War and Peace, it might help you to read my Skeleton which sets out the law and the arguments in detail so that you understand all of this fully.
https://www.dropbox.com/s/qjzj1n3sguuz7yo/SKELETON%20final%20anonymised.docx?dl=0


I have to say I got a bit carried away with my documents, but they contain useful background information to help you understand more about the issues and arguments. Anyway, they worked because Millennium withdrew the claim.

wi3347

Loadsofchildren123 wrote: »

I've added some specific wording so have deleted most of the other wording. The rest looks good to me. Can you say anything more about the signs? I exhibited a sign that I got on Prankster's site that had been held to be prohibitive that was almost identical to the sign that was on display in the case I did (also Millennium). A lot of people exhibit the Beavis sign as a demonstration of a sign which is clear and which is capable of offering a contract.


You might want to add a section about the "additional charges". These will be vaguely referred to in small print in the signage and you might say this and say that any contractual term has to be clear and unequivocal in order to be capable of acceptance and of forming part of the contract and the mention of additional charges is simply too vague.


There is no point defending as keeper if they complied with the POFA timescales and other requirements. Did they? If they did, what is the benefit in defending as keeper when you are liable as such under POFA. Are you silent on the POFA issue because you don't know the dates or because they were in time (in my case the NtK had been thrown away and it wasn't until I saw their WS that I knew for sure it had been served way out of time).
Here's a link to my own POFA rebuttal https://www.dropbox.com/s/k5djmx5o1et4xc3/POFA%20REBUTTAL.docx?dl=0
and also the BPA breaches analysis https://www.dropbox.com/s/244fnwb9pzr7xoa/BREACHES%20OF%20THE%20BPA%20CODE%20OF%20PRACTICE.docx?dl=0
You might add a paragraph that in Beavis it was held that adherence to the ATA CoP was held to be crucial (think it was paras 96 and 111 of the Beavis judgment - these are quoted in my Skeleton below).


Whilst I am not advocating that you produce War and Peace, it might help you to read my Skeleton which sets out the law and the arguments in detail so that you understand all of this fully.
https://www.dropbox.com/s/qjzj1n3sguuz7yo/SKELETON%20final%20anonymised.docx?dl=0


I have to say I got a bit carried away with my documents, but they contain useful background information to help you understand more about the issues and arguments. Anyway, they worked because Millennium withdrew the claim.

I will have a good read of that later!

my stance on the keeper liability is basically that is says in there under paragraph 4, the provisions of the act only transfer liability to the keeper if certain conditions are met, one of them being that the amount claimed is no more than the amount on the ntk, so as they are claiming more than £100 they cant rely on it, i want to add a section D as follows.

D. No keeper liability
In schedule 4 to the protection of freedoms act 2012, under paragraph 4 it states:
“Right to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if
(a)The conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and

(5)The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper.”

As the sum the claimant is attempting to recover from the keeper is almost 3 times that on the notice to keeper, the claimant cannot rely on the POFA 2012 to transfer liability to the keeper in this case.

thoughts?

wi3347

PCN issued on the 15th of November, date of NTK was 15th of December so i believe they were in date, its the point mentioned above they fall foul of.

Loadsofchildren123

I'd incorporate that under section B - say that if you were not driving the only way you can be liable is as keeper, but only if POFA conditions complied with. Make the heading "D wasn't driving and cannot be liable as keeper"


It's not your strongest point, but hopefully point 1 is the killer.


Did your NtK arrive in time then?

wi3347

Loadsofchildren123 wrote: »

I'd incorporate that under section B - say that if you were not driving the only way you can be liable is as keeper, but only if POFA conditions complied with. Make the heading "D wasn't driving and cannot be liable as keeper"


It's not your strongest point, but hopefully point 1 is the killer.


Did your NtK arrive in time then?

ahh that makes sense, i will add it in there. In all honesty i cannot remember the exact day it arrived but the dates printed on it are in the time scales, 30 days apart, so just in past the 28 days but still in time.

I have pretty good proof i wasnt the driver so If it all goes wrong on the day and they rely on the pofa and win, its in black and white they cannot claim more than £100 though surely?

Loadsofchildren123

Well that's why I'd put in a section on the vague "extra charges", you have to raise it. As a matter of fact, the sign says x, but in very small and cluttered lettering. The wording is too vague to have constituted a contractual term.


Furthermore (and this is an argument accepted by DJ Taylor in Swansea), albeit a different PPC but that doesn't matter, argue that these "additional charges" are represented by the undiscounted amount of the original pcn which get added back in if payment isn't made during the first 14 days.


So charge is £100, discounted to £60 if paid quickly, then reverts to £100. The £40 that's been added back in is one and the same as the extra admin charge they claim they're entitled to recover. I think the vagueness argument is better, but this is what DJ Taylor decided in another case.


So you argue that your maximum exposure is £100, both under the POFA argument and under the vagueness argument and under the add-in argument. Add to this, if you lose, you have to pay the court fees (£50, being the issue fee and the hearing fee) and perhaps a small amount of interest (a few £££). Then they are entitled to a maximum of £50 for solicitors costs - you argue that Gladstones acts as a conveyer belt and you do not accept that they have charged their client £50 for the services provided, which were a non-compliant template LBC and a non-compliant template claim form containing incoherent particulars. Johnersh made a useful post about this recently, see if you can find it, I can't remember the thread, but it was in the last few days. I think it began with "Once upon a time.... "


Argue at the hearing that they breached the pre-action obligations so shouldnt' get any of that £50 anyway.

wi3347

ive also added in

11. The signage also states “Non-payment will result in additional charges which the driver will be liable for on an indemnity basis.” This is only mentioned in small, cluttered lettering at the bottom of the sign. The wording is too vague to have constituted a contractual term.